SHUBHA SINHA Vs. VEER KUWAR SINGH UNIVERSITY

JUDGEMENT

(1.) THE office has raised objection that the appeal is barred by two days.

(2.) LEARNED counsel for the appellant has a caveat to the office objection. He has pointed out that appeal is against the order of the learned Single Judge dated 27.11.2007 and the appeal has been undisputedly presented in court on 17.12.2007 that is to say within 21 days of the order under appeal. The limitation for filing the L.P.A. is 30 days. Therefore, when the appeal was filed in the registry of this Court the appeal was within limitation. He further submits that because of some other defects, other than limitation, after presentation of the appeal the same was returned to the appellant as per practice prevalent for removing those defects and presenting it again. Thereafter, appeal was re -submitted on 7.1.2008 after removing those defects. It is by considering the date of re -submission, of memo of appeal on second submission to be date of filing appeal that the stamp reporter has computed the period lapsing between the judgment under appeal and date of filing. As on 7.1.2008 the appeal has been treated time barred by the stamp reporter. We are of the opinion that the office objection must be over -ruled. When the memo of appeal was first presented in court on 21.12.2007 the terminal point of filing appeal had arrived. It is with reference to that date of presentation of memo of appeal alone that the time taken in filing the appeal can be computed, which is the only relevant date of presentation of the appeal inasmuch as the other defects can only be brought out after accepting the presentation of appeal and examining the memo filed by the appellant. The fact that according to practice of the court memo of appeal is not kept in the office of registry requesting the counsel to remove the defects in the Court itself, but is returned to appellant for removing those defects outside court, to save further burden on office time, cannot alter the date of presentation or filing of memo of appeal in court, and allow the limitation to expire. To illustrate if the memo of appeal is filed in Court on the last date of expiry of limitation with some technical or other curable defects and instead of keeping the papers in court the same are returned to the counsel to resubmit after removing such other defects the appeal will become barred by the time and is resubmitted. But if it is kept in Court the same will be within limitation, such a result is not envisaged under law nor it can be countenanced.

(3.) IT can be viewed from yet another angle if 17.12.2007 is accepted the date of presentation of appeal to the court, then the stamp reporter would also not have jurisdiction to examine the memo and find the defects pointed to the counsel and require the same to be removed. The memo was presented on 17.12.2007 but was not kept in the court but returned to the counsel is reflected in court proceedings. Presentation of the appeal on 17.12.2007 was complete. The other part of the transaction namely returning the memo of appeal to the learned counsel for removing the other defects is based on procedure of the court in dealing with a file after presentation and would not affect the date of filing of appeal so as to alter the computation of period of limitation. The period for the purpose of limitation has to be counted from the date of judgment up to first presentation. On such consideration there is no denial that the presentation of the appeal was within the limitation.