BALMUKUND Vs. DY. DIRECTOR OF CONSOLIDATION AND OTHERS

JUDGEMENT

(1.) The application for certificate to appeal to the Supreme Court was made beyond time. On 3 -11 -1970, the applicant moved an application for condonation of the delay. The issued notices were not served on respondents Nos. 5 and 6. The applicant on 3 -5 -1971 filed an application praying that service of notice on respondents Nos. 5 and 6 be made on the address given therein. The joint Registrar, on 23 -7 -1971 ordered that notices may be issued as prayed. This order meant that notices of the application for condonation of delay may be issued on the address given in this application. The applicant, however, did not furnish to the office the requisite process fee as well as copies of the application of which the notices were to be issued with the result that the office has listed the application for condonation of delay for dismissal u/Ch. XII, R. 4 of the Rules of the Court. U/Ch. XII, R. 4, the counsel for the appellant is not only to file the requisite process fee of summons etc. but also a signed application. The learned counsel for the appellant urges that R. 4 is not applicable to the present case and, therefore, he need not file a signed application. It was urged that Rr. 3 and 4 of Ch. XII refer back to R. 1 of Ch. XII. R. 1 of Ch. XII deals with notices of an appeal, revision or reference. It does not apply to an application u/S. 5 of the Limitation Act praying for condonation of delay.

(2.) Ch. XII, R. 3, however, states that notwithstanding anything contained in the foregoing Rules, no notice shall be issued in a "Case" in which process fee or cost of issuing notice is leviable, unless the requisite process fee or cost has been paid and notices in duplicate in the prescribed form, duly filled in, have been supplied for service within seven days from the date on which the order for the issue of notice is made, or unless such fee or cost has been paid and such notices have been supplied under the next following rule and the court has condoned the delay. R. 3 applies "notwithstanding anything contained in the foregoing rules", which obviously refers to Rr. 1 and 2 of Ch. XII. R. 1 may not refer to applications; yet Ch. XII Rule (?) (sic) would be inapplicable for that reason. R. 3 applies to all "cases" where notice has been directed to issue and not merely to an appeal, revision or reference mentioned in rule 1. R. 3 hence was applicable to the instant application u/S. 5 of the Limitation Act. In that event R. 4 of Ch. XII was clearly attracted. Under it if the requisite fee is not paid within the time prescribed in R. 3, the "case" is to be listed for dismissal unless on the case being called an application signed by the party or his counsel together with the requisite process fee is presented to the court. Thus when the case is called out, it is incumbent upon the appellant to present the requisite application along with the process fee etc. In this case, the requisite application has not been filed. At this stage, the learned counsel presented an application contemplated by Ch. XII, R. 4 and stated that his intention was to invite a decision on the applicability of Ch. XII, R. 4, and not to altogether refuse to file the requisite application. The learned counsel has also paid the requisite process fee. The same is accepted. The delay is condoned. The learned counsel states that the notices issued to the respondents 5 and 6 earlier were returned unserved and the copies which have come back may be used again. The office may utilise those copies if available. On being informed otherwise, the learned counsel for the appellant will supply the requisite copies within three days of the receipt of the information.