DURGA Vs. LAKHPAT RAI

JUDGEMENT

(1.) This appeal has been laid before us evidently for a formal order that it be dismissed. Its value is Rs. 1,600; it was filed one day after the expiry of the limitation prescribed by law. An application under Section 5, Lim. Act, was made by the appellants praying that one day's delay be condoned in view of the circumstances alleged in an affidavit filed in support of the application. The office listed the application before a single Judge of this Court who dismissed it, after a notice was issued to the respondents and after both the parties were heard. The application under Section 5, having been dismissed, there is no gainsaying the fact that the appeal, which was admittedly filed after the prescribed period of limitation is barred, but such order can be passed only by a Bench of two Judges, as the appeal itself is not cognizable by a single Judge. The position is somewhat anomalous. The application under Section 5, on which the result of the appeal hinges, can be disposed of by a single Judge, but the appeal itself, which must follow the result of the application, is to be disposed of by a Bench; in disposing of it the Bench has no option but to pass the order of dismissal in view of the result of the application under Section 5.

(2.) The learned advocate for the appellants contended before us that an application under Section 5 made in an appeal which is not cognizable by a single Judge can be disposed of effectively only by a Bench of two Judges, and that the order of the learned single Judge of this Court who dismissed it is ultra vires. We have examined this contention with reference to the rules of this Court under which jurisdiction of a single Judge is to be determined. Ch. 1, Rule 1(4), is the rule under which the office are in the habit of listing applications under Section 5, in certain appeals before a single Judge. That rule, so far as it is material to the present case, is that an application or reference made under an act of the Governor-General-in-Council other than the Civil P. C. which is not otherwise expressly provided for, and if the value of such application does not exceed Rs. 2,000 is cognizable by a single Judge. Ordinarily applications under Section 5 are not specifically valued. There is no rule of law which requires an application under Section 5 to assign a valuation to the subject-matter of such application. We do not consider it necessary to express an opinion on the hypothetical question, which is not without interest, as to whether a single Judge has jurisdiction to dispose of an application under Section 5, valued at a sum exceeding Rs. 2,000 but made in appeal of which the value is less than Rs. 1,000; nor do we express any opinion on the question as to whether a single Judge has jurisdiction to entertain an application under Section 5, Lim. Act, made in an appeal valued at say Rs. 5,000 where the application itself is not valued at all. The rule, as it stands, makes it arguable that the application not having been valued at a sum exceeding Rs. 2,000 a single Judge has jurisdiction. The rule is unhappily worded, but as it stands, we have no alternative but to hold that even though the appeal under which an application under Section 5, Lim. Act, is made cannot be heard by a single Judge being valued at more than Rs. 1,000, but less than Rs. 2,000, he can hear an application under Section 5, made in that appeal if the applicant has not valued it at a sum exceeding Rs. 2,000. In the present case the value of the appeal is Rs. 1,600. As already stated, the application under Section 5 was not separately valued. Its value has been taken to be the value of the appeal and no objection has been taken to that assumption. In any case, the value is less than Rs. 2,000. In this view the learned single Judge who dismissed the application under Section 5, had jurisdiction to dispose of it. His order is, therefore, not ultra vires.

(3.) We are of opinion that Ch. 1, Rule 1(4), requires at least by implication, that an application thereby contemplated should be specifically valued and such valuation should appear on the face of it. Where any application is found to be hot valued the counsel should be called upon to state the valuation, which will determine the jurisdiction of the Bench under that rule. It is easily conceivable that the value of an application under Section 5, Lim. Act, may be more than that of the appeal in which it is made, for example, where the suit which has given rise to the appeal is a test action, the result of which will determine the fate of other- similar cases. The office are not justified in assuming that the value of an application under Section 5, Lim. Act, which is not specifically valued, cannot exceed the value of the appeal. The present appeal, which was admittedly presented after the expiry of the period of limitation, is barred and is dismissed.