Mohar Singh vs Rehabilitation Minister and others

Chopra, J.—A petition under Article 226, Constitution of India for the issue of a writ of certiorari was dismissed by a Single Bench of this Court in limine on 30th October 1950. An application for a certificate for leave to appeal to a Division Bench was presented on 30-11-1950. The certificate prayed for was granted to the petitioner on 21-12-1950. This appeal under Clause 52 of Ordinance No. X of 2005 against the order dismissing the petition for writ, was presented on 17-1-1951. A preliminary objection has been taken by the respondent that the appeal was not presented within the prescribed period of 60 days and was, therefore, time-barred. An objection to the propriety of the certificate has also been taken on the ground that the application therefore was not presented within the prescribed period of 30 days. After hearing the counsel for the parties at length we are of the opinion that both the preliminary objections must prevail.

In order to understand the points involved in the case a reference to the relevant provisions of law has to be made. Before integration of the erstwhile Patiala State into the Union, the law in this State governing such appeals was provided in the Patiala State Judicature Farman of 1999. Clause 44 of this Farman allowed an appeal to be filed to the High Court against a judgment or order of one Judge of that Court provided that the case was certified to be a fit one for appeal by the Judge deciding it. Clause 53 of the Farman authorised the High Court to make rules regulating their own procedure and the procedure of the Civil Courts subject to its superintendence. Rules framed under this Clause by the High Court provide limitation of 30 days for an application under Clause 44 for leave to appeal, and that of 60 days for filing an appeal. The period in both these cases is to be counted from the date of the pronouncement of the judgment or order sought to be, or appealed from. These Rules Nos. 1 and 6 respectively are to be found in Volume 2 Appendix A Part (b) of the Rules and Orders of the High Court of Judicature at Patiala. On the formation of the Union, the Farman referred to above was repealed and was superseded by Ordinance No. X of 2005. Provision for an appeal to the High Court against the judgment or order of a Single Judge of that Court, was made by Clause 52 of this Ordinance. This appeal was again made subject to a certificate granted by the Judge who decided the case or in his absence by the Chief Justice. Power to make rules was given to the High Court by Clause 68 of the Ordinance. Amongst other things the High Court was given powers to regulate its practice and procedure. It is enacted by a proviso added to this clause that until fresh rules are made, those framed under the second part of the Patiala Judicature Farman 1999, shall continue in force and be deemed to have been made in this part of the Ordinance, if they were not inconsistent with the provisions of that part.

The contention of the respondents is that the rules framed under the Farman remained in force for the purpose of getting a certificate and for filing a Letters Patent Appeal under Clause 52 of Ordinance No. X of 2005, under which the certificate in the present case was granted and the appeal was filed and since the application for certificate was presented more than 30 days after the order and the appeal was also filed after more than 60 days, the appeal should be dismissed as time-barred. The objection is met by Mr. Ram Karan Das, the learned counsel for the appellant, on two fold grounds. Firstly, he urges that the rules framed under the Farman were ultra vires the Statute and secondly, that even if they were intra vires they had no application to the present case.

On the first point his contention is that Clause 53 of the Farman did not specifically empower the High Court to frame rules to provide limitation for presenting an application for a certificate or for filing a Letters Patent Appeal. Precisely what he means to say is that while Sub-clause (e) of Clause 53 empowered the High Court to make rules regulating their own procedure and the procedure of civil Court subject to its superintendence, this power did not include the power to make rules providing limitation for the purpose of getting a certificate or filing a Letters Patent Appeal. He, therefore, maintains that the rules framed by the High Court were beyond the powers given to it by this Clause, and that they were ultra vires. In support of his argument he has made reference to Clause 22 of the same Farman which empowered the President of the Judicial Committee to make rules for regulating the practice and procedure of the Judicial Committee. Stress is laid on the fact that this Clause specifically stated that this power included the power to frame rules as to the time within which petitions for special leave to appeal to the Judicial Committee were to be presented. Our attention has also been drawn to Clause 27 of Ordinance No. X of 2005, which took the place of Clause 22 of the Farman. Sub-clause (e) of Clause 27 of the Ordinance, again expressly empowered the President of the Judicial Committee to frame rules including other matters, as to the time within which appeals and petitions for special leave to appeal to the Court were to be presented. Reference has also been made to such rule-making powers given under certain other Statute and it is contended that unless such power was expressly conferred by the legislation to the High Court, the power to frame rules to regulate its procedure did not include the power to frame rules as to limitation. The learned counsel for the respondents have, on the other hand, urged that the Law of Limitation is one of procedure and that the power given by the Farman to the High Court to frame rules to regulate the procedure included the power to frame rules as to the time within which a petition for leave to appeal, or an appeal from the order of a Single Judge could be presented. I see much force in this contention. Rules of limitation are prima facie rules of procedure. It is an admitted principle of law that when an Act prescribes a period of limitation for the institution of particular proceedings, it does not create any right in favour of any person or give him a cause of action, but simply prescribes that the remedy can be exercised only within a limited period and not subsequently. It is for this reason that in respect of any particular suit or proceeding, the law of limitation applicable is the law which is in force on the day on which such suit or proceeding is instituted, notwithstanding that the cause of action may have arisen before such Act came into force. The law relating to the time within which a petition for a certificate for leave to appeal or a Letters Patent Appeal could be presented in a matter of procedure, and, in my opinion, the High Court which was empowered to make rules to regulate their own procedure had also the power to make rules providing limitation therefore. The contention of Shri Ram Karan Das that wherever the legislature so intended, they expressly provided that the powers to frame rules regulating the procedure would include powers to frame rules as to the time within which certain proceedings could be started, is based on a wrong notion of the principles of interpretation of statutes. The word "include" is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the section and when it is so used, the words or phrases must be construed as comprehending not only such things as they signify according to their natural import, but also things which the interpretation clauses declare that they shall include. The word "include" is always intended to be enumerative and not exhaustive. It has an extending force and does not limit the substantive part of the provision to the instances given. The fact that no power to frame rules on the matter in question was specifically given by Sub-clause (e) of Clause 53 of the Farman would not make any difference when it authorised the High Court to frame rules to regulate its procedure. This is because it clearly included such powers, and the fact that in certain other Statutes or in another part of the same Farman such powers were specifically mentioned to be included in the powers to frame rules regarding practice and procedure, would not be of any importance. I am, therefore, of the considered opinion that the High Court was authorised to frame rules as to the time within which an application for certificate, or an appeal under the Letters Patent, could be presented. Rules Nos. 1 and 6 providing such limitations are consequently held to be intra vires.

Mr. Ram Karan Das next contends that even if the rules be intra vires they have no application to the present case. It is urged that Rule 1, under reference provides that an application for grant of a certificate that the case is fit for appeal under Clause 44 of the Patiala Judicature Farman 1999, shall be made within 30 days from the pronouncement of the judgment or order, and Rule 6 limits that an appeal under the same clause of the Farman shall be filed within 60 days. The argument is that the application and the appeal in the present case were not presented under Cl. 44 of the Farman and since they had been presented under a different law, i.e., Cl. 52 of Ordinance No. X of 2005, the rules would have no application. It is stressed that the words used in the rules were not ambiguous and the same having been confined to petitions and appeals under a particular Farman, should not be held to be applicable to petitions and appeals under a different Statute. Certain authorities enunciating general principles of interpretation of Statutes have also been referred to by the learned counsel. It is correct that when the words of a Statute are clear, it is not within the province of a Court, simply with a view to avoid apparent anomalies, to put such an interpretation on the words as they are incapable of bearing. The primary rule of interpretation of Statutes is that the intention of the legislature is to be gathered from the language used in the Statute, because the business of the interpreter is not to improve the Statute but to expound it. There cannot be any quarrel with respect to these general principles of interpretation, but their application to the present case does not lead to an inference favourable to the appellant. As already observed, the Patiala Judicature Farman, 1999 was repealed and was succeeded by Ordinance No. X of 2005 on the formation of the Union. A provision similar to Clause 44 of the Farman was made in Clause 52 of the Ordinance with slight modifications. Clause 68 of the Ordinance gave powers to the High Court to make rules to regulate its practice and procedure. A proviso was, however, added to this Clause keeping in force the rules framed under the repealed Farman. It would be worthwhile to reproduce the words used in the proviso. They are: "Provided that the rules framed under the second part of the Patiala Judicature Farman 1999, shall until the rules are made, and so far as they are not inconsistent with the provision of this part, continue in force and be deemed to have been made under this part." Now Clauses 44 and 53 fell under the second part of the Patiala Judicature Farman and Clauses 52 and 68 of the Ordinance No. X are both included in its third part. It, therefore, necessarily follows that rules framed for the purposes of Clause 44 of the Judicature Farman, would be applicable to Clause 52 of the Ordinance. The concluding phrase "and be deemed to have been made under this part" is particularly significant, and the plain meaning of the proviso is that Clause 52 of Ordinance No. X of 2005 is to be read in place of "Clause 44 of the Patiala Judicature Farman 1999" when these words are used in Rules 1 and 6.

The counsel for the appellant has conceded that the petition for the certificate, as also the appeal were not presented within the time prescribed by these rules and if these are held to be intra vires and applicable to the present case, his appeal would not be within time. In view of the decision arrived at by me the preliminary objection must prevail. The appeal is, consequently, dismissed. Since the appeal fails on a preliminary point the parties are directed to bear their own costs.

Passey, J.

I agree.