STATE OF J&K Vs. T N KAUL

JUDGEMENT

(1.) THESE two appeals which shall be disposed of by this judgment arise in the following circumstances: A suit for mandatory injunction directing the State to treat him in service without any break from April 1943, with a further direction to the Government to grant him on that basis all the benefits in respect of his seniority, emoluments and pension, was brought by Dr. Triloki Nath Kaul, Sub -Assist ant Surgeon, respondent in Letters Patent (Civil) Appeal No. 1 of 1972, and appellant in Civil 1st Miscellaneous appeal No. 4 of 1972, in the Court of the Sub -Judge (Chief Judicial Magistrate) Jammu. The suit was after a regular trial dismissed by the Court vide its judgment dated July 18, 1970. The appeal preferred against that judgment and decree by the doctor proved abortive whereupon he came up in further appeal to this Court which was heard by Bhat J. on December 28, 1971. It was not, however, before February 10, 1972, when the High Court was in vacation, that the learned Judge delivered the judgment allowing the appeal, and setting aside the judgments and decrees of the courts below, decreed the suit in favour of the doctor. An application for leave to appeal under Clause 12 of the Letters Patent against the judgment of the Single Judge was filed by the State on April 25, 1972. The application was accompanied by an affidavit on behalf of the State averring inter alia that the aforesaid judgment was announced by Bhat J. on February 10, 1972, in the absence of the parties when the Court was closed for vacation and the date for announcement of judgment was not notified to the, State or its counsel and that it was only on April 12, 1972, that the State came to know of the judgment on obtaining a certified copy thereof. Bhat J. having demitted office on February 28, 1972, the matter came up before the Honble Chief Justice who was pleased to grant leave to appeal by his order dated April 26, 1972. This order appears to have been passed without notice to the other side. On the basis of the leave granted by the Honble Chief Justice, the State preferred the Letters Patent Appeal on May 9, 1972. On the same date Dr. T. N. Kaul, also filed an appeal against the order of the Honble Chief Justice dated April 26, 1972, granting leave o the State to file the Letters Patent Appeal against the aforesaid judgment of the learned Single Judge of this Court and a notice to show cause why the appeal filed by the doctor be not admitted was issued to the State. The Letters Patent Appeal preferred by the State as also he aforesaid appeal preferred by Dr. T. N. Kaul, were placed before a Division Bench of this Court consisting of myself and Mian Jalal -ud -Din J. In the appeal preferred by the State pursuant to the leave granted by the Honble Chief Justice, a preliminary objection was taken by Mr. Grovor, appearing on behalf of Dr. T. N. Kaul, to the effect that under Clause 12 of the Letters Patent, it is only the Judge who decides the appeal and passes the judgment that is competent to grant leave to file a Letters Patent Appeal and the learned Chief Justice could not, therefore, grant the leave. He has further urged that the prayer for grant of leave could be made orally or in writing to the Judge deciding the appeal immediately after the judgment is delivered and since in the present case no such prayer was made and the written application was made after the expiry of more than sixty days from the date of the judgment sought to be appealed against, the order granting the leave could not be sustained and the Bench should revoke the leave.

(2.) MR . Vidya Sagar Malhotra, appearing on behalf of the State, on the other hand, contended that the order granting the leave is final and conclusive and is not open to appeal. He further urged that the Division Bench was not competent to revoke the leave. Both the learned counsel cited some authorities in support of their respective contentions. In view of the importance of the questions involved and the fact that there was no direct authority on this point, except the one given by me in Application No. 3 of 1971, for grant of leave to file a Letters Patent Appeal, entitled Salah Mohd and ors. Vs. Gulab and ors. which was based more or less on the concession of the other side, as also the fact that the aforesaid questions were likely to recur in a number of cases, it was recommended to the Honble Chief Justice that a Full Bench be constituted for going into these questions. This is how the matter is before this bench.

(3.) CLAUSE 12 of the Letters Patent under which the case was declared to be a fit one for appeal, by the Honble Chief Justice runs thus: "And we do further ordain that an appeal shall lie to the said High Court of Judicature from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of power of superintendence) of one Judge of the said High Court or one Judge of any Division Court and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, consistently with the provisions of the Civil Procedure Code, made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal but that the right of appeal from other judgments of the Judges of the laid High Court or of such Division Court shall be to Us, Our Heirs or successors and be heard by our Board of Judicial Advisers for report to Us." The crucial words in the above clause are "the Judge who passed the judgment declares that the case is a fit one for appeal." This phraseology as pointed out in Dasaundha Singh and anr. Vs. Ghanda Singh and others, A. I. R. 1933 Lahore, 534, requires the declaration that a case is a fit one for further appeal to be made only by the Judge who passed the judgment and no other Judge. Again In Allah Bux Versus Mst. Sardaran, A. I. R. 1935 Lahore 330, it was held that the aforesaid phraseology is clear and leaves no doubt that the authority to make that declaration, is only the Judge who had passed the judgment and no other judge or judges of the Court have jurisdiction to grant the required certificate. To the same effect is the decision of the Bombay High Court in Sheiklal Shaikh Sharif and ors. V. Ahmedkhan Sharifkhsn, A. I. R. 1930 Bombay 366. In that case the Bench of the Bombay High Court held that clause 15 of the Letters Patent (which corresponds to clause 12 of our Letters Patent) gave a limited right of appeal in case of second appeals disposed of by a Single Judge and it is that Judge who can declare that the case is a fit one for appeal. It was further held therein that where there is no declaration of the Judge who passed the judgment that the case is a fit one for appeal, the appeal cannot lie. The same view was expressed by a Full Bench of the Rangoon High Court in Ma Than v. Mg. Ba Gyaw, A. I. R. 1926 Rangoon I. In that case while discussing the question of grant of certificate under the corresponding section 13 of the Letters Patent (Rangoon), declaring that a case is a fit one or appeal, Rutledge CHIEF JUSTICE, speaking for the Bench observed: - "The section gives in this one instance a very restrictive right of appeal namely when the Judge who passed the judgment gives a certificate declaring that the case is a fit one for appeal. If it had been the intention of His Majesty to permit any person other than the Judge who passed the judgment to grant such certificate, it seems clear to me that he would have made provision by either omitting the words "who passed the judgment" or by a special proviso that in case the judge for any reason was not available, such a certificate could be given by any other Judge. That has not been done because the intention of the Letters Patent was to confine the granting of the certificate to the Judge who actually heard the appeal and passed the judgment." The same view was expressed by a Bench of the East Punjab High Court in Raghunath Gir Chela Moti Gir versus Behari Lal and ors. A. I. R. 1950 East Punjab 288. In that case, the Bench while interpreting the corresponding clause 10 of the Letters Patent held that the only person who could make the requisite declaration required under the aforesaid clause is the judge who passed the judgment and no appeal lies on a declaration given by another Judge or Judges in his absence. Consequently the appeal filed against the judgment of Das C J, who was appointed as Judge of the Supreme Court at Delhi, on the basis of a certificate granted by Weston CJ and Bhandari J. was dismissed on the ground that there was no declaration made by Das CJ as to the fitness of the case under clause 10 of the Letters Patent. Following these authorities, I dismissed the application filed by Salah Mohamad and ors. for grant of leave to file a Letters Patent appeal against the judgment dated April 17, 1970, passed in Salah Mohamad and ors. Versus Gulab and ors. (Supra) by Anant Singh J, who ceased to be an Ad -hoc Judge of this Court by the time the application came up for disposal. No authority to the contrary has been laid before us by the learned counsel appearing on the other side. Though the absence of a provision in the Letters Patent to meet a situation like the present one, where the Judge, who passed the judgment is not available to give the requisite certificate either because of his superannuation or incapacity due to leave or death or some other reason causes great hardship, the rule is well settled that the law has to be interpreted as it is and it is not permissible to import words into the statute which are not there. (See A. 1. R. 1970 A. P. 332, and 1969(10) Gujarat Law Reporter, 164). As in the instant case, the declaration required by clause 12 of the Letters Patent was given not by Bhat J. but by the Honble Chief Justice, the Letters Patent appeal No. 1 of 1972, has to be dismissed as incompetent in view of the consensus of judicial opinion. The fact that the case has already been declared to be a fit one for appeal cannot stand in the way of Mr. Inder Dass questioning the validity of the declaration. I am fortified in this view by a decision of the Pepsu High Court in Hari Ram Versus Hazari Lal and ors. A. I. R. 1951 Pepsu, 132, where it was held that ex parte grant of a certificate cannot preclude the respondent from raising an objection in the Letters Patent Appeal that the application on which it was granted was not presented within the prescribed period and, therefore, the certificate was not valid.