POST MASTER GENERAL Vs. FATEH DIN

JUDGEMENT

(1.) SHRI Fateh Din filed a Writ petition against the Director Posts and Telegraphs J&K Circle, Srinagar for issuing an appropriate writ quashing the respondents order contained in his letter No. STD/2 -26 dated January 18, 1974 addressed to the petitioner. The petition was heard by a learned single judge of this court Mr. Justice Jaswant Singh, (as his Lordship then was) His Lordship held that the petitioners date of birth was December 24, 1916 and therefore under rules the petitioner was to be retained in service till he attained the age of 60 years subject, of course to the right of the appropriate authority to retire him by giving him three months notice as contemplated under clause (j) of F.R.56. The writ petition was Consequently allowed and the impugned order was set aside. This judgment was delivered on October 30,1974. Aggrieved by this judgment and order of the learned Single Judge, the appellant has come up in appeal before this court. The memo of appeal was presented on December 31,1974.

(2.) LEARNED counsel appearing for the respondent has taken a preliminary objection that the appeal is barred by limitation. His contention is that the appeal should have been filed within sixty days from the date of order but the same was filed after 62 days. Realising this mistake the appellant filed an application under section 5 of the Limitation Act for condonation of delay. In the said application the appellant averred that he bonafied believed that the time prescribed for appeals under the L. P. Rules is 60 days excluding the time taken for obtaining a certified copy of the order appealed against. Under the then Rules which apply to the present appeal the memo of appeal was not required to be accompanied by a copy of the judgment or order. This Rule is therefore capable of interpretation that the time taken to obtain a certified copy of the order appealed against may not be excluded in computing the period of limitation in the appeal. The appellant has further averred that if this view is laid down that time spent in obtaining a certified copy of the order impugned cannot be excluded in computing the period of limitation then the delay of two days which has occurred may be condoned on the grounds :

(3.) WE have heard the learned counsel for the parties on the point of limitation. The present Letters Patent Appeal is covered by Rule issued under the Command order of his Highness No. 7 H of 1947 according to which the memo of appeal is not required to be accompanied by copy of the Judgment. It has been left at the option of the appellant to file or not to file copy of judgment alongwith the memo of appeal. However under the High Court Rules of 1975 it is a mandatory requirement. Rule 48 provides that the memo of appeal under clause 12 of the Letters patent shall amongst other things be accompanied by a certified copy of the judgment appealed from. But these Rules are not applicable to the present case inasmuch as the appeal was filed before these Rules came into force. The present appeal is undoubtedly covered by the old rule that was in force before the rules of 1975 came into operation. It having been noticed that the old Rules do not prescribed the filing of the judgment alongwith the memo of appeal, time spent by the appellant in obtaining the copy of the judgment cannot therefore be excluded. It is only in those cases where the filing of the copy of the judgment alongwith the memo of appeal is a legal requirement, and cannot be dispensed with, that the time spent by the litigant in obtaining the copy of the judgment can be excluded. The appellant has himself admitted this legal position in Para 3 of his application Wherein he has admitted that the Rule then in force "is capable of interpretation that the time taken to obtain a certified copy of the order appealed against may not be excluded in computing the period of limitation in appeals". For the foregoing reasons the time spent by the appellant in obtaining the copy of judgment cannot be excluded.