KESHAVA S JAMKHANDI Vs. RAMACHANDRA S JAMKHANDI

JUDGEMENT

(1.) The Division Bench consisting of Justice Jagannatha Shetty and Justice Patil has referred the following question for the opinion of the Full Bench: "Whether a party who has failed to make an oral application immediately after the passing or making of a judgment, decree, final order or sentence, could file a written application for a certificate for appeal tc the Supreme Court, at any time alter the passing or making of judgment, decree etc.?" It is stated in the order of reference that the judgments in all these cases cut of which these S.C.L.APs. have arisen were pronounced after the Constitution (Forty Fourth Amendment) Act, 1978 incorporating Art. 134A came into force on 1-8-1979, Rule 3 of Chapter XIX of the Karnataka High Court Rules was suitably amended so as to bring it in consonance with Art. 134A of the Constitution. Rule 3 as amended provides that a party desiring to appeal to the Supreme Court under Arts 132 and 133 of the Constitution may apply orally for grant of certificate immediately after the pronouncement of the judgment by the Court and the Court may grant or refuse the same. The Division Bench consisting of the Chief Justice and Justice Bopanna, which had occasion to consider the scope of this Rule, has observed as follows: "Amended Rule 3 of Chapter XIX of the Karnataka High Court Rules, merely enables a party to make an oral application immediately after a judgment or order is pronounced, for grant of a certificate of fitness to appeal to the Supreme Court. That Rule does not preclude a party from subsequently making a written application for grant of a certificate of fitness to appeal to the Supreme Court." When an objection was raised in these cases before the Bench consisting of Justice Jagannatha Shetty and Justice Patil, their Lordships felt that the question as to whether a party who has failed to make an oral application immediately after the passing or making of a judgment, decree, final order or sentence can file a written application for a certificate for appeal to the Supreme Court at any time after the passing or making of a judgment, decree or order has to be answered in the background of the Constitutional amendment, antecedent practice and the scope of Art. 134A. As the question raised is of considerable importance to litigant public, their Lordships have referred the above question.

(2.) Before the coming into force of the Constitutional (Forty-fourth Amendment) Act, 1978, the procedure for grant of certificates by the High Court under Arts 132, 133 and 134 of the Constitution was regulated by the Rules framed by the respective High Courts. Rules of some of the High Courts provided for filing of written applications for grant of such certificate; whereas the Rules framed by the other High Courts provided that certificates can also be sought by making oral applications immediately after the pronouncement of the judgment decree or order by the High Court. By the Constitution (Forty-Fourth Amendment) Act, a specific article, namely, Art. 134A has been added prescribing the procedure for grant of certificates for appeal to the Supreme Court under Art. 132, 133 and 134 of the Constitution. The said three articles have also been amended to the effect that appeals shall lie to the Supreme Court if the High Court grants an appropriate certificate under Art. 134A of the Constitution. For the sake of convenience, Art. 134A may be extracted, which reads as follows: "134A Certificate for appeal to the Supreme Court.-Every High Court, passing or making a judgment, decree, final order, or sentence, referred to in clause (1) of Article 132 or clause (1) of Article 133, or clause (1) of Article 134 - (a) may, if it deems fit so to do, on its own motion; and (b) shall, if an oral Application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgment decree, final order or sentence, determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in clause (1) of Article 132 or Clause (1) of Art. 133 or, as the case may be sub-clause (c) of clause (1) of Art. 134, may be given in respect of that case." It is clear from Art. 134A that it prescribes two modes for granting certificates for appeal to the Supreme Court under Arts 132, 133 or 134, viz., by the exercise of the suo motu power of the High Court or on an oral application made by or on behalf of the aggrieved party. So far as an oral application by the aggrieved party is concerned, the same is required to be made immediately after the passing or making of a judgment, decree, final order or sentence. Art. 134A does not expressly contemplate a written application being made for grant of a certificate. It is in exercise of the suo motu power of the High Court or an oral application made by the aggrieved party that Art 134A makes it imperative that the High Court shall determine the question regarding grant of certificate referred to in Art. 132, 133 or 134 of the Constitution as soon as may be, after the passing of making of a judgment decree, final order or sentence.

(3.) It was contended by the learned counsel for the petitioners that as making a written application for grant of certificate for appeal to the Supreme Court is not expressly barred by Art 134A, merely because the said provision contemplates grant of a certificate in exercise of the suo motu power of the High Court or on an oral application being made by the aggrieved party for that purpose, the aggrieved party cannot be denied the right or privilege of making an appropriate written application for grant of a certificae. As Art 132 of the Limitation Act, 1963 prescribing a period of limitation of 60 days for making an application for grant of a certificate under Arts 132, 133 or 134 has not been deleted, it was contended that an aggrieved party is entitled to present a written application for grant of an appropriate certificate.