SHAMBHU SURYA NAIK Vs. JOAQUIM SANTANA NORONHA

JUDGEMENT

(1.) This application was initially filed as a Special Civil Application. The respondent raised an objection to its maintainability on the ground that all remedies have not been exhausted. He states that a Revision Application lies against the orders which were sought to be quashed in the Writ Petition and that therefore the petition should not be entertained. He also contends that other remedies were available to the petitioner which the petitioner had not tried to exhaust. To obviate the objections raised by the respondent to the Writ Petition, the petitioner prayed that the Special Civil Application be converted into a Civil Revision Application. The respondent then reserved his right to challenge the maintainability of the Civil Revision Application and to raise various preliminary objections on it. Accordingly, the Special Civil Application was converted into a Civil Revision Application subject to the various objections that might be raised against him by the respondent. Among the objections raised by Shri D Mello, learned advocate for the respondent, the first one is that a Civil Revision Application must, as required by Rule 15 of the Goa, Daman and Diu Judicial Commissioner s Court (Presentation of Appeals and Applications) Rules, 1969, be accompanied by a certified copy of the judgement and order complained of. It is pointed out by Shri D Mello, learned advocate for the respondent that the Revision Petitioner had complied with the provisions of Rule 15 of the said Rules. I entirely agree with him. The rule is mandatory and a certified copy of the judgement and order had to be placed on record.

(2.) It is contended by Shri Kolwalkar, learned advocate for the petitioner that the file of the lower Court is already before me and that therefore, there would be substantial compliance with Rule 15, or at any rate there would be no prejudice caused to anyone. Shri Kolwalkar argues that in the circumstances of this case, the application should not be dismissed on account of a minor technicality. I accept the argument of Shri Kolwalkar. There is on record a copy of the judgement and order of the Collector as well as a copy of the judgement and order of the Mamlatdar, both of which have been challenged for want of jurisdiction. The originals of these two orders are also before me in the records and proceedings of these two Courts which were called by this Court. The requirement that a certified copy of the judgement and order is to accompany the Revision Application is made by a rule of this Court and not by an Act. Rules are made to help the Courts to come to a correct finding. They should not be allowed to hamper dispensation of justice. In the circumstances of this particular case, I cannot allow the strict compliance of Rule 15 to prevent me from giving redress to the wrong done to the petitioner.

(3.) The next preliminary objection is that on the day on which the Special Civil Application was converted into a Revision Application, the filing of the Revision Application would not be possible because it would be barred by the statute of limitation, more than 90 days having passed over the passing of the order which is impugned by the Revision Application. According to Shri D Mello this proceeding is deemed to have been filed on the day on which it was treated as an appeal over three months after the passing of the order which is impugned in this Civil Revision Application. In Anandrao Baliram V/s. Parvatibai, 1941 AIR(Nag) 308 the proceeding was originally filed as an appeal. It was within time as an Appeal. Grille, J. decided that the matter should be dealt with as a Revision and it appears that accordingly the proceeding was treated as a Revision Application. It also appears from the decision that an objection was raised, like the one raised in the present case on the ground that the Revision Application was barred by limitation. The report of the judgement of the Nagpur High Court in Anandrao Baliram s case delivered by Vivian Bose J., does not state that his Lordship specifically held that the period of limitation should be counted not till the date on which the Appeal was filed but till the date on which the Appeal was treated as a Revision Application. The learned Judge then proceeded to decide whether the delay should be condoned. He held that the reasons assigned for the delay being the doubt which the conflicting decisions have raised as to whether an appeal or a Revision Application lay, the reason should be accepted as sufficient cause for the condonation of the delay. Apart from the fact that no clear finding is given regarding the counting of the period of limitation, the ratio decidendi for holding that the period of limitation should be counted upto the date on which the original proceedings was treated as a Revision Application and not upto the date on which the initial proceeding was filed as an Appeal, is not given in the judgement as reported in AIR 1941 Nag 308. Indeed it is not clear from AIR 1941 Nag 308 what was the fact that necessitated condonation of delay. In any event, I would with great respect to the learned Judge differ from his opinion if at all it could be said that he has in that decision in clear terms laid down that the period of limitation should be counted upto the date on which the Appeal was treated as a Revision Application and not upto the date on which the Appeal was filed. It seems to me that the case is one of a mere treatment to be given to a memo of Appeal and not a case of conversion in substance of one proceeding into another. What is relevant for our purpose is to find out whether the memo which was originally filed as one of Appeal contains the material which a Revision Application must contain. If a certain proceeding holds good as a Revision proceeding but was filed as an Appeal, the treating of the appeal as a Revision Application would only affect the form and not the substance. The period of limitation is qua a certain proceeding. The title of the proceeding is of no relevance if it could be shown that in substance the proceeding could be considered as a proceeding different from the designation it bears. If an Appeal is treated as a Revision Application, the treatment relates back to the date on which the appeal is filed. This principle would not, however, apply to cases in which one proceeding is substantially converted into another by amendment or otherwise. In such cases the question will not be merely of a change of form but of substance; there would be a conversion made and not merely a treatment given. A proceeding which is converted into another must be deemed to be a new proceeding filed on the day on which the conversion takes place. I therefore hold, that for the purpose of limitation this proceeding in revision shall be deemed to have been filed on the date on which the proceeding was filed as a Miscellaneous Civil Appeal and not on the date on which the Miscellaneous Civil Appeal was treated as a Civil Revision Application.