BIKRAM DASS Vs. FINANCIAL COMMISSIONER REVENUE PUNJAB CHANDIGARH

JUDGEMENT

(1.) THE appellant filed Civil Writ Petition No. 1146 of 1966, in this Court against the order of the Financial Commissioner, which was dismissed by a learned Single Judge on November 27, 1970. Against that judgment the appellant filed, an appeal under Clause 10 of the Letters Patent on December 23, 1970. The Deputy Registrar raised certain objections, including that it was not accompanied by three sell of typed copies of documents as required by Rule 3 of Chapter 2-C of the High Court Rules and Orders, Vol. V, and ordered its return to the learned counsel for the appellant for removing the defects and to refile it within a week. The order for return was passed on December 23, 1970, but it has not been possible to ascertain as to on which date the learned counsel or his clerk took it back from the Court. However, after removing the defects pointed out by the Deputy Registrar, the appeal was refiled on January 30, 1971. No objection was then taken by the Deputy Registrar to its having been refiled after more than a week allowed by him : On February 24, 1971, the appeal was admitted by the Motion Bench without adverting to the question of limitation. On April 19, 1972, when the appeal came up for hearing before the Division Bench, the learned counsel for Dayal Singh, Harbhajan Singh and Harbans Singh, the contesting respondents, raised the objection that it was barred by time. Thereupon, the appellant moved an application under Section 5 of the Limitation Act for condonation of delay, if there was any, in presenting the appeal. The said application was resisted by Dayal Singh, Harbhajan Singh and Harbans Singh (hereinafter called the respondents ). It was contended by the learned counsel for the appellant that the appeal, when initially presented on December 23, 1970, was within time and even otherwise, if there was any delay in its presentation when it was refiled the Motion Bench, while admitting the appeal, would be deemed to have condoned the same. On the other hand, the learned counsel for the respondents argued that in the circumstances of the case, the appeal should be deemed to have been presented on January 30, 1971, and as it was then barred by time, it was only the Motion Bench which could, on good cause being shown, condone the delay. Reliance in that respect was placed by him on Rule 4 of Chapter 1-A (a) of the High Court Rules and Orders, Vol. V, and certain judgments of this Court as well as the High Courts of Delhi and Lahore. The Division Bench, while hearing the appeal on September 1, 1972, felt that several questions of law of great public importance and of daily occurrence were involved, which required determination by a larger Bench, particularly because there was difference of opinion amongst the learned Judges as disclosed by the judgments cited at the Bar. Consequently, the Division Bench formulated the following seven questions to be referred to a Full Bench for decision :-

(2.) IN order to appreciate the contentions advanced by the learned counsel for the parties and for recording answers to the aforesaid questions, it would be appropriate to reproduce the relevant provisions of law cited at the Bar, i. e. , the Rules and Orders of this Court. Volume V (hereinafter referred to as the Rules), relevant clauses of the Letters Patent and the relevant provisions of the Indian limitation Act. No. 9 of 1908 (hereinafter called Act No. 9 of 1908), as well as of the Limitation Act, No. 36 of 1963 (hereinafter referred to as Act No. 36 of 1963), which came into force on January 1, 1964. These provisions are as under:-Rule 4 of Chapter 1-A (a) of the Rules:

(3.) RELYING on Rameshwar Das v. Official Receiver, Delhi, AIR 1938 Lah 325; Harbans Singh v. Karam Chand, 51 Pun LR 50 - (AIR 1949 East Punj 299); Matu Ram v. Union of India, AIR 1967 Delhi 58 and ac unreported judgment of this Court, dated August 29, 1963. Des Raj v. The Administrator, Municipal Committee, Sonepat, L. P. A. No. 266 of 1960 (Punj), Shri H. L. Sarin, learned counsel for the respondents, argued that the Motion Bench was the only Bench which could condone the delay in filing the appeal, and that no other Bench, not even the one hearing the appeal, was competent to extend the time for presentation of the appeal. On the other hand. Shri J. N. Kaushal, learned counsel for the appellant, relying on an unreported judgment of this Court, dated January 11, 1968, in C. Ms. Nos. 4353 of 1966 and 415 of 1967 in L. P. A. No. 428 of 1966 (Punj), Janardhan Misra v. P. N. Thapar, contended that the Bench hearing the appeal had the jurisdiction to condone the delay, if there was any, in filing it. It will be presently seen that the judgments relied on by Shri Sarin arc not applicable to the case in hand and that the| present case is covered by the judgment recorded in Janardhan Misra's case, and the contention of Shri Kaushal is sound and must prevail. True, the consensus of the learned Judges, who decided the cases cited by Shri Sarin, was that the Motion Bench (referred to as admitting Bench in Rule 4) was alone competent, for good cause shown, to extend the period of 30 days prescribed by the said rule for presenting a Letters Patent Appeal. But all the aforesaid cases, relied on by Shri Sarin, relate to the period when the provisions of Act No. 9 of 1908 were in operation. Rule 4 was made in pursuance of the rule-making powers available to this Court under Clause 27 of the Letters Patent. But, then those powers were subject to the legislative power of the Legislature vide Clause 37 of the Letters Patent. Article 151 in the First Schedule of Act No. 9 of 1908 provided a period of 20 days for any appeal from a decree or order passed by the High Court in exercise of its original jurisdiction, while Rule 4, in contradistinction to the said Article 151, provided a different period, i. e. , 30 days from the date of the judgment appealed from, for an appeal under Clause 10 of the Letters Patent. The said Rule 4. having been made by this Court under powers available to it under Clause 27 of the Letters Patent, had the status of a special law. Therefore, the period of 30 days having been prescribed by special law was saved by Sub-section (2) of Section 29 of Act No. 9 of 1908, and the same prevailed against the period of 20 days prescribed by Article 151 in the First Schedule of Act No. 9 of 1908. To put it differently, during the period prior to January 1, 1964, when Act No. 9 of 1908 was in force, Article 151 gave way to Rule 4 and the period of limitation for appeal under Clause 10 of the Letters Patent was 30 days from the date of the judgment appealed from, as has been made clear by their Lordships of the Supreme Court in the Union of India v. Ram Kanwar, AIR 1962 SC 247. When Act No. 36 of 1963 came into force, i. e. , on January 1. 1964, its Article 117 replaced Article 151 of Act No. 9 of 1908. The said Article 117 provides 30 days fin place of 20 days prescribed by Article 151 of Act No. 9 of 1908) for an appeal from a decree or order of any High Court to the same Court, whether passed in the exercise of original jurisdiction or appellate jurisdiction. Section 5 of Act No. 9 of 1908 did not by itself apply to extension of time fixed under other enactments, but could be made applicable thereto. Its operation had not been extended to Rule 4. Therefore, Section 5 could not be invoked for extending the time fixed by that Rule. The appeal in hand having been presented on December 23, 1970 and refiled on January 30, 1971, is governed by Article 117. Since the period of limitation prescribed for the appeal by Rule 4 and Article 117 of Act No. 36 of 1963 is identical, the provisions of Section 29 (2) of Act No. 36 of 1963 are not attracted and, as such, there is no saving of Rule 4 and it must give way to Article 117, as far as the period of limitation is concerned. It follows that Article 117 of Act No. 36 of 1963, and not Rule 4, is now applicable to all appeals under the Letters Patent, and the provisions of Section 5 of the Limitation Act apply thereto so far as the question of condoning the delay in filing the appeal is concerned. Rule 4 granted the discretion to condon the delay for good cause shown, in filing appeal out of time to the Admitting Bench alone, but jurisdiction to condone such delay under Section 5 of the Limitation Act is now available to every Bench hearing the appeal, whether at the motion stage or at the stage of a subsequent or final hearing. Therefore, the Bench hearing the appeal is competent, in exercise of its discretion, to grant or refuse to grant extension of time on an application moved under Section 5 of the Limitation Act in an appeal filed after January 1, 1964. The observations made by Mehar Singh, C. J. , in Janardhan Misra's case fully cover the point in controversy. It is pertinent to note that in that case too, the appeal was under Clause 10 of the Letters Patent and had been filed after the expiry of 30 days, i. e. , the period of limitation prescribed for the same, from the date of the judgment appealed from, and the said appeal had been presented after the coming into force of Act No. 36 of 1963. So, the judgment given in Janardhan Misra's case is relevant to the point which is the subject of this question, and none of the judgments relied upon by Shri Sarin is now relevant, for the obvious reason that all those cases relate to the period when Act No. 9 of 1908 was in force and Rule 4 provided a different period of limitation for appeals under Clause 10 of the Letters Patent.