Hari Ram vs Hazari Lal and Others

Chopra, J.—A petn. for revn. against an interlocutory order of Sub-Judge Ist Class, Narnaul, dated 6-7-2005, was dismissed by this Ct. in limine on 17-2-50. On 7-4-1950 an appln. for a certificate to file an appeal to the S.C. was presented before Hon''ble the Chief Justice who had decided the revn. This appln. was, however, rejected on 21-4-50. On the same day an appln. was presented for the grant of a certificate for a Letters Patent appeal. This was accepted & the certificate prayed for was granted on the same day. The present appeal was then presented on 16-5-50.

A preliminary objection was taken by the resp. that the petn. for leave to appeal was presented beyond the proscribed period of 30 days, & therefore, the certificate granted cannot be consd. to be in accordance with law. Another objection taken was that the appeal itself was not presented within the prescribed period of 60 days, which was to be countod from the date of the order appealed against.

We have heard the resp. & the learned Counsel for the applt. at great length as regards the preliminary objections & are of the opinion that both the objections must prevail. The rules framed under the Patiala Judicature Farman, 1899, provided that an appln. for grant of a certificate that the case is fit one for appeal to a D.B. shall be made within 30 days from the pronouncement of the judgment or order. These rules were embodied in Notfn. No. 195 of 11-1-46 & are still in force as provided by Section 68 of Ordinance X [10] of 2005, by which the Farman was substituted on the formation of the Union. As stated already the appln. in question was presented on 21-4-1950 while the order which was to be appealed from was passed on 17-2-1950. Mr. Handa has frankly conceded that the appln. which was presented more than two months after the order, was hopelessly beyond time; but he contends that when once a certificate is granted no objection regarding its validity can subsequently be taken. He has, however, not been able to cite any law or authority in support of his contention. Reliance is placed on Shakti Velu v. State 1951 M.W.N. 65. This was a criminal case in which a single Judge of the H.C. on its original side tried an accused person & acquitted him of the charge. On a certificate granted to the State by the Judge the appeal was heard by a D.B which set aside the order & convicted & sentenced the accused to transportation for life. In a petn. on bohalf of the accused for a certificate under Article 134 of the Constitution for appeal to the S.C. an objection was raised that it was not a fit case in which the certificate should have been granted & that the order granting the certificate was not properly worded. The objection was, however, overd. with the observation that it was not open for the Bench at that stage to go behind the order & say that it was invalid. The facts of the present case being quite different, I do not think the observations made on the facts of that case are of much help to the applt. On the other hand a decision of their Lordships of the P.C. in Shah Zahid Hussain v. Mohamad Ismail 124 I.C. 910 (P.C.) appears to be in point & may be refd. to with advantage. In this case leave for special appeal against a judgment of the Allahabad H.C. was granted by the Board on the assumption that the judgment affected properties the value of which was more than Rs. 10,000, but at the hearing of the appeal it was found that this was, in fact, wrong. The objection that the certificate under the circumstances was not valid was accepted by their Lordships & the appeal was held to be incompetent. In Mukh Lal v. Kishuni Singh 130 I.C. 612 (P.C.), their Lordships following their previous view observed that special leave to appeal granted on an ex parte appln. does not preclude the Board, when true facts are brought before it, from going into the question whether the appeal was competent or not.

Now, in the present case, no notice of the appln. was given to the resp. & consequently, there was no occasion for him to raise the objection in those proceedings. The point does not appear to have been brought to the notice of the learned Judge when he gave the certificate. An ex parte grant of the certificate cannot, in my opinion, preclude the resp. from raising the objection in this appeal that the appln. on which it was granted, was not presented within the prescribed period & therefore, the certificate was not valid. That makes the present appeal incompetent. It is then urged by Mr. Handa that his client had only prayed for his previous appln. for a certifioate to appeal to the S.C. to be treated as an appln. for leave to appeal to a D.B. of this Ct. & that it was on this appln. that the certificate was granted. But I fail to understand how that can possibly help him. The first appln. also, it may be remembered, was presented after more than 30 days of the order, & hence after the limitation had already expired.

Now as regards the second objection, the present appeal was filed on 16-5-1950, i.e. more than 60 days after the order appealed against. According to the rules already refd. to, a Letters Patent appeal must be filed within 60 days from the date of the judgment or order under appeal. The only period that can be excluded is the one spent in obtaining the copies of the judgment or the order & of the certificate. But that does not bring the appeal within time. There is no substance in the contention of the learned Counsel for the applt. that the period may be extended u/s 5 of the Limitation Act. In the first instance, I do not think Section 5 would have any application to this case, because it does not apply to cases which are governed by a special or local law. The limitation in the present case is provided by the rules framed under a local law & Section 5 is made inapplicable to such cases by Section 29, Limitation Act. Even if I were to hold otherwise, I do not think any case for an extension of the requisite period hag been made out by the applt. The more fact that he wrongly applied, in the first instance, for a certificate for appeal to the S.C. would not be an adequate ground to condone the delay & thereby deprive the resp. of the valuable right accrued to him by lapse of time. He has not explained why the applt. kept on waiting for about a month after he had got the certificate. To get benefit of Section 5 it is necessary for the applt. to explain the delay for every day that elapsed beyond the period allowed, No such thing was done in this pase by the applt. & there is not even an appln. or an affidavit for that purpose.

This appeal is consequently dismissed as time-barred & also because the certificate for appeal had not been applied for within the proscribed period. As the appeal has been dismissed on the preliminary objections the parties are left to bear their own costs.

Pronounced.

Gurnam Singh, J.

I agree.