RAJPUTANA TRADING CO LTD Vs. MALAY TRADING AGENCY

JUDGEMENT

(1.) This is an application for a certificate under Article 133 (1) (b) of the Constitution for leave to appeal to the Supreme Court. The application out of which this present application for leave to appeal has been made was an application under Section 5 of the Limitation Act. 1963. for condonation of delay in filing the Memorandum of Appeal. The respondent in this application made an application for condonation of delay which was disposed of by a judgment and order dated May 23, 1972. condoning the delay in presenting the Memorandum of Appeal and extending the time to file the same. Being aggrieved by this judgment and order, the petitioner now seeks a certificate for leave to appeal to the Supreme Court. The Appeal Court in making the order of May 23, 1972 came to the conclusions that the respondent in his application for condonation of delay had made out sufficient grounds for condoning the delay in presenting the Memorandum of Appeal

(2.) There are two points involved In this application, namely, whether the order is a final order and whether the valuation test required by Article 133 (1) (b) of the Constitution is satisfied. Mr. Dipankar Ghose, Counsel for the petitioner, contended that the application for condonation of delay was an original and an independent proceeding, and it could not be correlated to the disputes between the parties in the appeal which is still pending He argued that at the time when that application was moved, there was no proceeding pending in this Court, and the respondent's application must, therefore, be treated to be an independent and original proceeding. The contention as raised by the parties in that application, he further argued, was finally decided by the Court, in condoning the delay in filing the Memorandum of Appeal, and therefore, the order made by this Court must necessarily be treated to be a final order. He also argued that a vital question had been decided by the Court in disposing of the respondent's application, namely, the Question of limitation and it was not open to the parties in the appeal new pending, to reagitate that question in this Court. He concluded by arguing that all the requirements of a final order as contemplated by Article 133 (1) (b) of the Constitution were satisfied and, therefore, it must be held that the order was a final order.

(3.) In support of this aspect of the case Mr. Ghose relied on several decisions of the Supreme Court to which I will proceed to refer. The first case relied upon by him was the decision of the Supreme Court reported in Ramesh v. Gendalal Motilal Patni, In that case an application was made before the High Court under Article 226 of the Constitution for issue of writs of certiorari and prohibition against reopening of a case, in which the Claims Officer under the local statute had discharged a debt due to the respondent. It was held firstly that a proceeding under Article 226 for a writ of certiorari for bringing up of a proceeding for consideration was a civil proceeding, if the original proceeding concerned civil rights. It was also held that under Article 226 the High Court wag moved to intervene to bring up before itself the records of a case decided or pending before a Tribunal within the High Court's jurisdiction and that a petition to the High Court invoking this jurisdiction was a proceeding independent of the original controversy. It was further held that a decision in the exercise of this jurisdiction whether interfering with the proceeding before a Tribunal or declining to do so. was a final decision in so far as the High Court was concerned because it finally terminated the special proceedings before the High Court, who similarly dismissed the petition and thereby upheld the jurisdiction of the Claims Officer. Relving on this decision Mr. Ghose contended that the application under Section 5 of the Limitation Act was also an independent proceeding and it finally determined the disputes between the parties in that proceeding.