STATE OF PUNJAB Vs. NIRANJAN SINGH

JUDGEMENT

(1.) THE suit of Niranjan Singh respondent for a declaration to the effect that the order of the State Government (the appellant) integrating the respondent as Head Assistant in the office of the Director of Public Instruction Punjab, with effect from November 1, 1956, was illegal and without jurisdiction and ineffective and that he continued to hold the office of Superintendent from that date (November 1, 1956), and was entitled to further promotion on that basis filed on October 18, 1962, was dismissed by the trial Court on December 31, 1963. The appeal of the plaintiff -respondent was, however, allowed by the Additional District Judge, Ambala, on February 9, 1965. The Punjab State came up in Regular Second Appeal No 666 of 1965, to this Court. By his judgment, dated November 29, 1965, Mahajan J. allowed the regular second appeal and set aside the judgment and decree of the lower appellate Court, dated February 9 1985, and remitted the case to the District Judge, Ambala, who was directed to himself hear the appeal and to decide it in the light of the observations made in the second appellate judgment. In pursuance of the said order of this Court, the learned District Judge, Ambala, reheard the parties and allowed the appeal of the plaintiff -respondent and decreed the suit as laid on January 28, 1966. This regular second appeal was filed by the State of Punjab against the judgment and decree of the Court of Shri Gurbachan Singh, District Judge, Ambala, dated January 28, 1966, without being accompanied by a certified copy of the judgment of the trial Court. May 19, 1966, was the last day of limitation for filing the second appeal after excluding the period of 21 days from February 8, 1966, to February 28, 1956, spent by the appellant in obtaining copies of the judgment and decree of the first appellate Court. Certified copy of the judgment of the trial Court was ultimately filed in this appeal on July 6, 1966. At the hearing of the appeal before Shamsher Bahadur J. On October 25, 1966, a preliminary objection was taken up by Shri Harbans Singh Doabia, the Learned Counsel for the respondent, that the appeal was barred by time as it was deemed to have been filed on July 6 1966, when the certified copy of the trial Court judgment was submitted in the registry of the Court. On behalf of the appellant it was contended that a certified copy of the judgment of the trial Court, dated December 31, 1963, having already been filed in this Court with Regular Second Appeal No. 666 of 1965, it was unnecessary to file another copy of that judgment, and in that view of the matter the filing of another copy was a mere surplusage and that the appeal could not be dismissed as barred by time. Shamsher Bahadur, J. by his order, dated November 25, 1966, directed that the papers of this case may be placed before my Lord the Chief Justice with the recommendation of the learned Judge that the entire appeal including the preliminary objection should be placed for disposal before a Division Bench of this Court as the question raised in the case was of sufficient importance. This is how the appeal has come up before us today.

(2.) ONLY two more facts have to be noticed before the question of limitation is decided. The learned Advocate -General for the State of Punjab has stated that application for a certified copy of the judgment of the trial Court was submitted on March (sic), 1966, and the copy was ready on April 21, 1966. This means that before the appeal was filed In this Court on May 19, 1966, the requisite copy of the trial Court judgment was already available to the State. It has been fairly and frankly conceded by Mr. Gopal Singh, the learned Advocate General, that section 12 of the Limitation Act does not entitle the appellant to exclude from consideration the time requisite for obtaining the copy of the trial Court judgment in computing the period of limitation for filing this second appeal. No second appeal is competent without being accompanied by a certified copy of the trial Court judgment as required by order 42 Rule 2 of the Code of Civil Procedure. It is, therefore, submitted by counsel that on the analogy of the provisions of section 12 of the Limitation Act, the time requisite for obtaining a copy of the trial Court judgment should be allowed to be added to the period of limitation under section 5 of the Limitation Act In as much as 47 days (from March 5, 1966 to April 31. 1966) were required in obtaining copy of the trial Court judgment and in a as such the 47th day from May 19, 1956 expired on July 6, 1966, the day on which the certified copy of the trial Court judgment was filed, it was contended, that the appeal should be treated as within limitation by permitting the appellant to invoke the provisions of section 5 of the Limitation Act. The argument appears to be wholly misconceived. Section 5 of the Limitation Act authorises the Court to admit any appeal after the prescribed period of limitation if the appellant "satisfies the Court that he had sufficient cause for not preferring the appeal" within the period of limitation. The appellant is, therefore required in this case to satisfy this Court that it had sufficient cause for not preferring the appeal between May 19, 1966, the last day of limitation and July 6, 1966, the date on which the appeal is deemed to have been filed in its complete form. No explanation whatever is coming forth for that delay. As already stated the copy of the judgment of the trial Court was already available to the appellant before May 19, 1966.

(3.) THE only other contention of the appellant is that it was not necessary at all to file the certified copy of the judgment of the trial Court as the same was available on the record of the previous regular second appeal. This argument, to say the least, is equally misconceived. It is conceded by the learned Advocate -General that the previous regular second appeal had been finally disposed of. The record of that appeal cannot possibly be treated as a part of the record of this appeal. In Niadar v. Bhartu, 101 I.A. 776 it was held by Jai Lal J. that a note of the appellant on a regular second appeal to the effect that copy of the trial Court judgment was already in the High Court in another appeal arising out of the same proceedings was not a sufficient compliance with the rules. In Naul v. Mula : A.I.R. 1926 Lah. 626 it was held by a Division Bench of the Lahore High Court that a copy of the judgment of the Trial Court filed in a cross appeal could not be permitted to be utilised by an appellant to satisfy the requirements of Order 42 Rule 2 of the Code of Civil Procedure. The fact that a certified copy of the Judgment of the trial Court in question is available on the record of some other case in this Court whether pending or disposed of, does not in our opinion satisfy the requirements of law.