NARAYANDAS BHAGWANDAS MADHAVDAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE office has reported the appellant's default in making the initial deposit of Rs. 400 as required by Rule 28 (3) of Chapter VI of the Appellate Side Rules, read with Rule 64 (1 ). The former of the two Rules to which I have just referred, provides that irrespective of the service of the estimate, the applicant shall deposit a lump sum of Rs. 400 within the time limited by order 45, rule 7 on account of the cost of the preparation of the paper book. As is well known, the settled view of this court is that where order 45, rule 7 applies directly, the court has no power to extend the time, except so far as such extension is authorised by the rule itself. In other words, the court can grant an extension of time up to the maximum limit provided for in order 45, rule 7, but cannot exceed that maximum. Other High Courts have taken a different view, but this court has consistently held that there is no discretion in the court to extend the time limited by order 45, rule 7. If that disability of the Code attaches to the time limited by Rule 28 (3) of Chapter VI of the Appellate Side Rules in terms of order 45, rule 7, we can have no power to grant an extension of time to the appellant in the present case. He must be deemed to be in default and incurably so and the consequences of such default must follow.

(2.) I think, however, that the provisions of Rule 28 (3), in so far as it imports the provisions of order 45, rule 7, to the matter of making the initial deposit of Rs. 400, should not be so construed as having brought along with it the powerlessness of the court to extend the time limited by the Rule. The true way of looking at Rule 28 (3) is to regard it as what it in fact isa Rule made by this court itself, and to regard the reference to order 45, rule 7, as merely intended to take or adopt the measure of time allowable to an appellant to the Supreme Court from the provisions of the Code. But the provisions of the Code, on being adopted by the court for the purposes of a Rule made by the court itself, no longer remain provisions enacted directly by the Code and applied by the Code of its own force. They, as I have already said, merely supply the measure which the court, in framing its own Rules, thought it right and proper to adopt. If then Rule 28 (3) is, in its entirety, a Rule made by the court itself and if the preference to the time limited by order 45, rule 7, is only for the purpose of adopting from that provision the measure of the time which the appellant will normally have, it seems to me that the court has power in a fit case to extend the time, although the language of the relevant part of Rule 28 (3) is expressed in a mandatory form. If order 45, rule 7, applied to criminal appeals by the force of a statute, the court could not possibly go against the statutory provision. But in the case of Rule 28 (3) of Chapter VI of the Appellate Side Rules, it is not the Code itself which enjoins the limit of time thereby prescribed, but it is the court which makes use of the provisions of the Code as supplying a convenient and ready-made measure which it adopts for its own purposes. It is but elementary that if time has been fixed for any matter by the court itself by means of Rules, the court has always power to extend that time. Such power can be made out either by reference to the inherent power of the court or by reading the provisions of Rule 28 (3) as merely directory. In my view, the true meaning of Rule 28 (3) is that while it prescribes the measure of time which shall ordinarily be allowed to an appellant to the Supreme Court, it does not impose any disability on the court in respect of granting an extension of such time by the reference it makes to order 45, rule 7. The court has, therefore, power to extend the time in fit cases. In the case before us Mr. Ghose on behalf of the appellant for the Supreme Court asks for a week's time for making the initial deposit of Rs. 400. The time prayed for is granted. In case of default put up for final orders. Das Gupta, J. I agree. 28. 6. 57. Supreme Court Appeal No. 12 of 1957.

(3.) CHAKRAVARTTI, C. J.- As to the preparation of the record of this appeal to the Supreme Court a difficulty has arisen in that the Registrar finds himself unable to comply with the provisions of rule 6 (i) of Order XV of the Supreme Court Rules, read with rule 17 of Order XXXI. Those rules provide that the Registrar shall certify one of the copies of the record prepared for the use of the Supreme Court by signing his name on and initialing every eighth page thereof and by affixing thereto the seal of the court appealed from. The Registrar in the present case finds himself unable to give that certificate so far as the exhibits are concerned, because by a letter dated the 13th of May, 1957, the Additional District Magistrate of 24-Parganas reported to this court that the major part of the records including the exhibits filed, had been by mistake consigned to the destruction block and subsequently destroyed. By reason of that very regrettable irregularity which occurred in the office of the District Magistrate for which it is said, suitable action is being token separately, the original exhibits are no longer available for comparison. The Additional District magistrate suggested that the exhibits might be reconstructed from the copies printed in the paperbook prepared for the appeal to this court but the office reports that even if it be possible which it will be, to include in the record prepared for the Supreme Court copies of the exhibits as they appear in the paperbook of the High Court appeal, it will not be possible to append the certificate of authentication, because it will not be possible to compare them with the originals. When the matter was first brought to our notice, we suggested that the advocate for the appellant to the Supreme Court and the advocate for the State of West Bengal might examine the copies of the exhibits, as they appeared in the paper-book of the High Court appeal, and they might inform us whether they were prepared to accept those copies as correct copies and proceed with the appeal to the Supreme Court on the basis of those copies, as they were. Both the learned advocates have informed us today that they have examined the copies of the exhibits, as appearing in the paperbook of the High Court appeal, and that they are prepared to accept them as correct copies and to proceed with the Supreme Court Appeal on that basis. It appears to me that in the very peculiar circumstances of this case, the only authentication of the correctness of the copies of the exhibits to be included in the record of the Supreme Court Appeal can be provided by the method we suggested, that is to say, by the acceptance of the copies as correct copies by the learned advocates representing both the appellant to the Supreme Court and the State. The Registrar cannot unfortunately give the certificate required of him, but the circumstances in which he cannot do so have been explained. Let a copy of this order be sent to the Supreme Court with a request that this court may be informed whether the method of authentication, suggested above, can be adopted in the circumstances of the case and if not, what the form of authentication would be.