HARBANS SINGH Vs. KARAM CHAND

JUDGEMENT

(1.) This appeal must be dismissed on the short ground that it is barred by time. The order of the learned Single Judge was passed on 4 December 1947, and an appeal under Clause 10, of the Letters Patent could have been filed on 16th February 1948, when the High Court reopened on the conclusion of the winter vacation. The memorandum of appeal was actually presented in Court on 18th February i.e., two days after the period of limitation had expired. It was accompanied by an application for permission to file a Letters Patent appeal. On 1 April 1948, the appellant filed an application under Section 5, Limitation Act in which it was prayed that the two days ,_ delay that had been occasioned in the presentation of the appeal be condoned under Section 5 and that the application for leave to appeal be entertained. The learned Single Judge condoned the delay and granted the leave prayed for. The papers were placed before the admitting Bench in due course and the appeal was admitted but no order extending or declining to extend the period of limitation was passed. The parties have now appeared before us in response to the notices issued by the admitting Bench.

(2.) Mr. Tek Chand who appears for the respondents raises a preliminary objection that the appeal is barred by time. He contends that as the appeal was not presented within a period of thirty days from the date of the order of the learned Single Judge and as the admitting Bench failed to extend the period of Limitation it is not within the competence of this Bench to entertain this appeal. His contention is clearly supported by the provisions of Rule 4 of Chap 1-A, of Vol. V, of the Rules and Orders of the High Court, which is in the following terms: No memorandum of appeal preferred under Clause 10, of the Letters Patent shall be entertained if presented after the expiration of 30 days from the date of the judgment appealed from, unless the admitting Bench in its discretion, for good cause shown, grants further time for the presentation..... This rule leaves no doubt whatever that the period for the presentation of the present appeal could be extended neither by the learned Single Judge who granted the leave to file the present Letters Patent appeal, nor by the Bench which has been called upon to hear the appeal, It could be extended by the admitting Bench and the admitting Bench alone.

(3.) Mr. Dev Raj Sawhney who represents the petitioner in this case has relied on three circumstances in support of his prayer that the period of limitation should be extended in this case. He contends in the first place that as the memorandum of appeal and the application for extension of time were placed before the admitting Bench and as the said Bench passed an order admitting the appeal it must be assumed-that the Bench extended the period of limitation even though it failed to make a specific order in this behalf. This contention appears to me to be wholly devoid of force. The prayer contained in the application was that "two days delay may kindly be condoned under Section 5, Limitation Act and the application for leave to appeal be entertained." Two facts at once emerge. The first is that the application was made under Section 5, Limitation Act and not under Rule 4 of the Rules framed by the High Court. The second is that the applicant wanted the application for leave to appeal to be entertained after the expiry of the period of limitation: he was not anxious that the appeal itself should be entertained even though it was presented after the time had passed. There was no prayer that the time for presenting the appeal be extended. Again, it is clear that the application was not brought specifically to the notice of the admitting Bench and may well have escaped their notice. Assuming for the sake of argument that the application was within the knowledge of the Bench even then it seems to me that as the relief asked for was not specifically granted it must be deemed to have been impliedly refused.