- (1.) WE need not go into the question as to whether special appeal against the order of learned single Judge in sales tax revision is maintainable under section 18 of the Rajasthan High Court Ordinance, 1949 (for short "the Ordinance") or not as we are of the opinion that even if special appeal could lie to this Court, and we express no opinion, the present special appeal is time barred. Mr. Bhojwani, learned counsel for the appellant, sought time to file an application under section 5 of the Limitation Act to condone the delay but we are of the opinion that no such application has been filed yet and it does not appear to us a bona fide mistake of the Advocate as the provisions of law, if any care had been made to go through them, are clear and most unambiguous, and do not admit of two interpretations. Under section 18 of the Ordinance, an appeal lies to this Court from the judgment not being a judgment of the single Judge and a judgment passed under revisional jurisdiction. The Rules of the High Court of Judicature for Rajasthan, 1952 were framed and they shall be presently referred to as the Rules and under rule 134 provision has been made for special appeals and special appeal under the aforesaid Rules has to be made within a period of 30 days from the date of the judgment. Rule 134 further requires that where an appeal is presented after the period of thirty days, it shall be accompanied by an application supported by an affidavit explaining the cause of delay and it shall be rejected unless the appellant satisfies the court that he had sufficient cause for not preferring the appeal within the period of 30 days from the judgment. It further provides the manner in which the memorandum of appeal shall be drawn up and that it shall be accompanied by a certified copy of the judgment or order appealed from along with two extra typed copies of the judgment/order. It can, therefore, be said that a special appeal can be said to be filed properly only with the memorandum of appeal drawn up in accordance with rules 125, 130 and 131 of that Chapter and shall be accompanied by a certified copy of the judgment or order appealed from. The present special appeal, even if it is taken as one, was admittedly filed against the order dated 2nd February, 1987 of the learned single Judge made in revision. The matter came up before the learned Division Bench and the Division Bench in its order dated 11th May, 1988, observed that the certified copy of the order dated 2nd February, 1987, was not filed along with the special appeal and the office has treated the special appeal as having been made against the order dated 2nd February, 1987 only. The court also observed that the office should examine the matter taking the order as of 2nd February, 1987. The office examined the matter afresh and in its report dated 17th September, 1988 has reported that no certified copy of order was filed, along with memorandum of appeal. The impugned order was made on 2nd February, 1987 and the certified copy was only filed on 3rd August, 1988. Therefore, the period between 2nd February to 3rd August, 1988 is to be taken into consideration and the special appeal is barred by 520 days. The office has also examined the case with a different angle and has reported that if the period is to be calculated from the date of the order, i. e. , 2nd February, 1987 to the date of filing of special appeal, i. e. , 30th March, 1987, then it comes to 58 days and as such the special appeal is barred by 28 days time.
(2.) WE have already said earlier that it was necessary that along with memorandum of appeal, certified copy of the judgment/order, must have been filed. The word used is "shall" and as such it is mandatory and unless memorandum of appeal is accompanied by a certified copy of the judgment/order of the learned single Judge in a case in which the appeal lies, the appeal cannot be said to have been filed properly. The learned counsel for the petitioner has drawn our attention to the order sheet dated 3rd June, 1988, in D. B. Civil Special Appeal No. 86 of 1987 and on the strength of the aforesaid order sheet submits that this Court has taken note of the fact that the certified copy of the order dated 2nd February, 1987 has been filed in D. B. Civil Special Appeal No. 86 of 1987. The Court under the aforesaid order sheet has neither condoned the delay of about 520 days in filing the certified copy, even along with memorandum of appeal in that special appeal it may be noted that certified copy has not been filed in D. B. Civil Special Appeal No. 86 of 1987. WE are unable to construe the order as if the delay was condoned and the limitation be only counted from the date the certified copy of the judgment was filed in Special Appeal No. 86 of 1987. WE have already said earlier that rule 134 is so specific and if anybody had cared to go through the rule, the memorandum of special appeal would have been accompanied by a certified copy of judgment and it is not the case that in any of the special appeals filed against the order in three revisions disposed of by the order dated 2nd February, 1987, the certified copy was filed within time. WE have already said earlier that Mr. Bhojwani sought time to file an application but in the facts and circumstances of this case, even though the application having not been filed along with special appeal under section 5 of the Limitation Act could have been filed at any stage but in this case after a lapse of such a long period by which the appeal is time-barred, we are not inclined to grant time to the learned counsel for the appellants, who came to know even earlier that the court has ordered the office to make report in respect of limitation and even then he did not take care to see as to whether any application under section 5 of the Limitation Act is necessary to be made or not. Consequently, we agree with the office report, that the special appeal is time-barred and is dismissed. WE have already in a separate detailed order disposed of D. B. Civil Special Appeal No. 86 of 1987, and have held that as the memorandum of appeal was not accompanied by certified copy of the judgment of the learned single Judge, even if a special appeal may be maintainable for which we have expressed no opinion, the special appeal is time-barred and no application under section 5 of the Limitation Act has been filed. The two above numbered cases also involve a similar question, similar delay and in each of the two cases, along with memorandum of special appeals certified copy of the order of the learned single Judge was not filed and was only filed after a long delay, rather the same delay which has been noted in the earlier case. Like the other case Mr. Bhojwani requested for time to file an application under section 5 of the Limitation Act, seeking condonation of delay in submitting the certified copy of the judgment of the learned single Judge and for the reasons already stated in the Special Appeal No. 86 of 1987, we decline his request in this case also. WE are not satisfied that it was under some bona fide belief of the Advocate or can be in some bona fide belief of the Advocate that the certified copy of the judgment could not be filed along with memorandum of appeal. WE have already made a reference to rule 134 of the Rules of the High Court of Judicature for Rajasthan and the said rule is unambiguous and does not admit two interpretations and the word "shall" has been used, certified copy must have been filed along with memorandum of appeal. In a case of present nature, though as said in the earlier case even if an application under section 5 of the Limitation Act is not filed along with memorandum of appeal the same could be allowed to be filed later on but no efforts have been made for more than a year in this case and in the earlier case to move an application under section 5 of the Limitation Act and, therefore, for the reasons already given in Special Appeal No. 86 of 1987, we are of the opinion that the present special appeals are time-barred and we hereby dismiss special appeals summarily. Appeals dismissed. .;