JAGDISH CHANDRA GUPTA Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS case has been placed before this Bench in pursuance of an order of a learned Single Judge of this Court dated 8-11-1963 before whom R. F. A. No. 329 of 1963 was placed for admission along with Civil Miscellaneous No. 1726 of 1963 under S. 5 of the Indian Limitation Act read with S. 151, Civil Procedure Code. The learned Single Judge considered it proper, and in my opinion rightly, that the question of limitation be settled first and since a regular first appeal cannot be dismissed in limine by Single Bench in case the appeal is held to be barred by time, it was considered proper to place the whole matter before a Division Bench in the very first instance.

(2.) THE circumstances in which the prayer for condonation of delay has been necessitated may now be briefly stated. The regular first appeal, according to the petitioner-appellant's case, was filed in this Court on 20-7-1963. Limitation for filing the appeal, it is common ground, was to expire on 25-7-1963. The counsel for the petitioner-appellant who had recently shifted to practice in this Court, and hence was not fully conversant with the practice of the Court, and hence was not fully conversant with the practice of this Court, by inadvertence omitted to deposit a sum of Rs. 100/- on account of advance printing charges and to attach a receipt of such deposit along with the memorandum of appeal. the Deputy Registrar vide endorsement dated 30-7-1963 pointed out this omission and directed the appeal to be returned to the appellant to be refilled within a week. The memorandum of appeal was, however, received by the counsel on 5-8-1963 and the same was refiled on the following day, namely 6-8-1963 after complying with the note. It is in these circumstances that the prayer for condoning the delay has been made. Notice to the opposite party was given in accordance with the direction of the learned Single Judge, in pursuance of the order dated 8-11-1963.

(3.) THIS case was first argued before us on 28-1-1964 when our attention was drawn on behalf of the respondent to Ram Rachhpal v. Ramji Dass, F. A. No. 241 of 1962 (Punj) in which a Division Bench of this Court of which I was a member, after referring to an order by a learned Single Judge of this Court in Jagan Nath v. Nathu Ram, Civil Misc. No. 1950-C of 1960 dated 25-11-1960 (Punj) and to a decision of the Punjab Chief Court in Gonda Ram. v. Ilahi Bakhsh, First Appeal No. 726 of 1914 decided on 6-5-1914, took the view that by virtue of Rule 9 contained in Chapter 2-A of High Court Rules and Orders, Vol. V, it must be held that, in the absence of a receipt for a sum of Rs. 100/-deposited with the treasurer of the high Court to cover the costs of printing the record, no appeal of the appellant had been received in this Court. It may be stated that there was also an application under S. 5 of the Limitation Act filed in that case but it was observed in this connection that since there was no appeal received in this Court, the situation for considering the benefit of S. 5 had not yet arisen. Incidentally, it may be mentioned that later the application under S. 5 of the Limitation Act came up for hearing before a Bench consisting of Mehar Singh J. and my learned brother H. R. Khanna J. and it was ordered that the same be heard at the time of the hearing of the appeal. It is desirable at this stage to mention that in Ram Rachhpal's case. F. A. No. 241 of 1962 (Punj) the appellants had applied for permission to file the appeal as a pauper and along with that application, there was another application under S. 151, Civil Procedure Code, praying that the record of the appeal be typed and advance printing charges of Rs. 100/- be dispensed with. On 10-5-1962, a bench of this Court dismissed the application under Order 44, Rule 1, of the Code and allowed the petitioner-appellants there two months' time to make good the deficiency in court-fee. The last date by which court-fee could be paid was 9-71962, the office returned the appeal to the plaintiffs with the remark that no sufficient cause had been shown for the late payment of the Court-fee. The appeal was then refiled on 17-9-1962. On behalf of the opposite party an application was also moved under S. 151, Civil Procedure Code, that the plaintiffs' appeal be dismissed on the ground: