State of J. and K. vs G.S. Baroca

I.K. Kotwal, J.—This Letters Patent Appeal is directed against the judgment of a learned Single Judge of this Court accepting the

Respondent's writ petition. A preliminary objection has been taken by the Respondent that the appeal is barred by time.

The petition was accepted by the learned Single Judge on April 30, 1976, and the present appeal assailing the judgment of the learned Single

Judge was filed on July 16, 1976, i.e. within 77 days from the date of the judgment. The Respondent has raised the plea of limitation placing

reliance upon Rule 45 of the Jammu and Kashmir High Court Rules, 1975. Rule 45 reads thus:

45 An appeal under Clause 12 of the letters Patent shall be preferred within Sixty days from the date of the judgment appealed from, provided that

the court may in its discretion, on good cause shown, extend such period.

If the period of limitation for the present appeal is governed by Rule 45 then there can be no manner of doubt that the appeal would be barred by

limitation even after excluding the time spent by the Appellant in obtaining the copy of the judgment appealed against. Mr. A.D. singh, the learned

Additional Advocate General has, on the other hand, contended that the appeal shall be governed not by Rule 45 of the High Court Rules, 1975,

but (sic)Art. 156-A of the Limitation Act which provides a period of 90 days for appeals from a decree or order of the high Court of Judicature in

the exercise (sic) its original jurisdiction; the period to be reckoned from the date of the decree the order appealed from. Article 156-A the

Limitation Act reads thus:

Description of Period of Time from

appeal Limitation which period

begins to run

158A. From a decree or Ninety The date of

order of the High days decree or order

Court of Judicature appealed from,

in the exercise of

its original jurisdiction.

The High Court Rules of 1975, have been made applicable from 1st Jan. 1976 and the appeal has been filed on July 16, 1976, i.e. long after these

rules came into force. These rules have been framed by the High Court of Jammu and Kashmir with the previous approval of the Governor of

Jammu and Kashmir in exercise of the powers vested in it u/s 102 of the Constitution of Jammu and Kashmir read with Section 67 of the Jammu

and Kashmir Constitution Act, 1996, Section 122 of the Code of Civil Procedure, 1977, Section 80 of the Jammu and Kashmir Civil Courts Act,

1977 and Clause 26 of the Letters Patent (Jammu and Kashmir) and all other powers enabling the High Court to frame rules. As the appeal has

been filed under Clause 12 of the Letters Patent, we shall be mainly concerned with the powers of the High Court to frame rules under Clause 26

of the Letters Patent. Clause 26 of the Letters Patent reads thus:

And we do further ordain that the High Court may consistently with the law for the time being in force make rules in respect of the matters

specified in Section 67 of the Jammu and Kashmir Constitution Act, 1996, subject to the conditions specified in Sub-section (2) of the aforesaid

section.

A bare reading of Clause 26 would show that the High Court is empowered to make rules in respect of matters specified in Section 67 of the

Jammu and Kashmir Constitution Act, 1996, provided the rules are consistent with the law for the time being in force and provided further that the

conditions specified in Sub-section (2) of Section 67 of the Jammu and Kashmir Constitution Act 1996, are not violated. This inevitably brings us

to the consideration of Section 67 of the Jammu and Kashmir Constitution Act, 1996, which shorn of unessentials is reproduced as under:

(1) The High Court may, consistently with the laws for the time being in force, make rules:

(a) to regulate the practice of the Court;

(b) to (f) xx xx xx xx xx

(2) Such rules shall be made with the approval of a majority of the Judges of the Court and the sanction of the Council.

A conjoint reading of Clause 26 of the Letters Patent and Section 67 Clause (a) of the Jammu and Kashmir Constitution Act of 1996 shows that

the High Court has power to regulate the practice of the High Court which power must include the power to make rules providing period of

limitation for appeals to be filed under Clause 12 of the Letters Patent. This power of course, is to be exercised subject to the conditions that the

majority of the Judges of the High Court approve of the rules and the rules are framed after obtaining the sanction of the Council, which after the

coming into force of the Constitution of Jammu and Kashmir, means the Governor of Jammu and Kashmir.

Precisely speaking the argument of Mr. A.D. Singh is that as Rule 45 of the High Court Rules, 1975, which have been framed by the High

Court in exercise of the powers vested in it under Clause 26 of the Letters Patent is inconsistent with Article 156-A of the Limitation Act inasmuch

as it provides a different period of limitation from the one provided under Article 156-A, the rule is ultra vires of the powers of the High Court.

According to the learned Counsel, any rule which the High Court frames under Clause 26 of the Letters Patent must not run counter to any other

provision contained in any other law for the time being in force, as would be borne out, according to the learned Counsel, from the expression,

consistently with the law for the time being in force"", employed in Clause 26 of the Letters Patent. In order to appreciate the contention raised by

the learned Additional Advocate General, it is necessary to notice. Section 29 of the Limitation Act. The relevant portion of which may be

reproduced as below:

(1) xx xx xx

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore

by the Schedule 1, the provisions of Section 3 shall apply, as if such period were prescribed therefore in that Schedule,

XX XX XX XX XX

Section 3 of the Limitation Act provides that every suit instituted, appeal preferred, and application made, after the period of limitation prescribed

therefore by the first schedule shall be dismissed, although limitation has not been set up as a defence, subject to the provisions contained in

Sections. 4 to 25 both inclusive.

Two questions which precisely fall for determination are these:

(1) If Rule 45 is to be treated as a special law within the meaning of Section 29 of the Limitation Act will it be still inconsistent with Article 156-A

of the Limitation Act; and,

(2) Is Rule 45 of the High Court Rules, a special law within the meaning of Section 29 of the Limitation Act?

5-A. There can be no manner of doubt that if Rule 45 is a special law within the meaning of Section 29 of the Limitation Act then there would be

no inconsistency left between it and Article 156-A of the Limitation Act providing 90 days period of limitation for appeals under Clause 12 of the

Letters Patent against the judgment or decree of a Single Judge of the High Court passed in its original side. The reason for this is quite simple. The

limitation provided for any lis in the first Schedule of the Limitation Act has on terms of Section 29 of the Limitation Act itself to give way to a

different period of limitation provided for the same lis in any other special law within the meaning of Section 29 of the Limitation Act There would

be, therefore, no occasion for two different periods of limitation being applied to the same proceeding and consequently no occasion to be

confronted with a contradictory position so far as the period of limitation is concerned. By a legal fiction created u/s 29 of the Limitation Act the

period of limitation provided under the special law shall be deemed to be the period provided under the first Schedule for the purpose of reckoning

limitation u/s 3 of the Act. If the period of limitation provided under any special law would be the period provided under the Schedule itself we

wonder how the plea of inconsistency would be available to the party pleading the same. Considerable support is available for this view from the

observations of their Lordships of the Supreme Court in Union of India v. Ram Kanwar AlR 1962 SC 247. It was an appeal from the judgment of

the Punjab High Court reported in AIR 1958 Punj. 365. The facts of the Punjab case were that a Single Judge of the High Court had accepted the

Respondents' petition under Article 226 of the Constitution of India on October 19, 1954. An appeal against the said judgment was preferred on

Nov. 26, 1954, i.e. within 38 days from the date of the judgment. Excluding the time spent in obtaining the copy of the impugned judgment the

appeal had been filed within 21 day from the date of the judgment. Article 151 of the Limitation Act (Central) provided a maximum period of 20

days for filing an appeal under the Letters Patent against such a judgment whereas Rule 4 of the Punjab High Court Rules provided a period of 30

days for such appeals. The Division Bench of the Punjab High Court being of the view that Clause 27 of the Punjab letters Patent which gave

powers to the High Court to frame rules for regulating the practice of the court being subject to the legislative powers of the Governor General in

Legislative Council and also of the Governor General in Council u/s 71 of the Government of India Act, 1915, Rule 15 had to give way to Article

151 of the Limitation Act and the appeal was barred having been filed after 20 days from the date of the judgment as provided under the said

Article, The Supreme Court did not agree with the view taken by the High Court and seld that Section 29 of the Limitation Act being also a part of

the same Legislative enactment namely the Limitation Act the special law had to take precedence over the general law and the limitation would be

governed by Rule 4 of the Punjab high Court Rules and not by Article 151 of the Limitation Act. The following observations made by the Supreme

Court may be quoted with advantage (at Pp. 250, 51):

In this view the argument that Clause 37 the Letters Patent makes the rule sade by the High Court subject to the Lis Station Act and, therefore that

Article 151 shall prevail over Rule 4 has no force periefly stated, the legal position is this: under Clause 27 of the Letters Patent, the high Court has

power to make a rule rescribing the period of limitation for a letters Patent appeal against an order a single Judge made in exercise of the original

jurisdiction of the High Court, and by reason of Clause 37 thereof, the said sale is subject to the provisions of the limitation Act; but the Limitation

Act self saves the operation of the said rule with the result that Rule 4 applies to such appeal, whereas Article 151 of the Limitation Act will govern

appeals not covered by Rule 4 or appeals from orders made by other High Courts in exercise of their original jurisdiction, if no rule similar to Rule

4 is made by the said High Court or High Courts.

We are, therefore, clearly of the view that there is no inconsistency between Rule 45 of the High Court Rules and Article 156-A of the Limitation

Act and the limitation for this appeal would be 60 days as provided under the rule and not 90 days as provided under the Article. We are further

of the view that Rule 45 is intra vires of the power of the High Court to frame rules under Clause 26 of the Letters Patent, there being also no

Article in the first Schedule of the Limitation Act providing any period of limitation for an appeal under Clause 12 of the Letters Patent against the

judgment of a Single Judge of the High Court passed by him in exercise of his Appellate Jurisdiction.

At this stage Mr. A.D. Singh argued that Rule 45 of the High Court Rules was not a special law within the meaning of Section 29 of the

Limitation Act. This argument of the learned Counsel in our opinion is equally devoid of any force. Prior to the coming into force of the Constitution

of Jammu and Kashmir, His Highness The Maharaj Bahadur was the Fountainhead of all legislative, executive and judicial powers. The High Court

of Jammu and Kashmir was established under Order No. 1 of 1985 Samvat, by the Jammu and Kashmir Constitution Act, 1996, XIV of 1996.

The said order was repealed as a whole u/s 76 of the Act but the High Court of Jammu and Kashmir continued to exist u/s 48 of the same Act.

The Letters Patent were granted by His Highness on Aug. 28, 1943, seemingly u/s 5 of the said Act which before it was later on repealed and

substituted ran thus:

Notwithstanding anything contained in this or any other Act, all powers, legislative, executive and judicial, in relation to the State and its

government are hereby declared to be and to have always been inherent in and possessed and retained by His Highness and nothing contained in

this or any other Act shall affect or be deemed to nave affected the right and prerogative of His Highness to make laws, and issue proclamations,

orders and ordinance by virtue of his inherent authority.

The conclusion is, therefore, inescapable that Rule 45 of the High Court Rules has been framed by the High Court in exercise of the powers

conferred upon it by Clause 26 of the Letters Patent which is a legislative enactment having a statutory force. Rule 45, in turn, would also be a

statutory rule having the same binding force as an enactment of the legislature itself. Whereas Section 102 of the Constitution of Jammu and

Kashmir saves the jurisdiction of and the law administered in the High Court and the respective powers of the Judges thereof in relation to the

administration of justice in the court, including any power to make rules of the court and to regulate the sitting of the court and of members thereof,

sitting alone or in Division courts, as in force before the commencement of the Constitution of Jammu and Kashmir, Section 157 of the said

Constitution saves all the laws in force in the State immediately before the commencement of this Constitution which would continue to remain in

force until altered or repealed or amended by competent authority. This section further saves all notifications, proclamations, orders, rules,

regulations and other laws in force immediately before the coming into operation of the Constitution. These two sections namely Sections 102 and

157 of the Constitution are in our opiinion wide enough to include the Letters Patent in their ambit and if this be so we have no doubt in our mind

that Rule 45 of the High Court Rules is a special law for all intents and purposes within the meaning of Section 29 of the Limitation Act, A similar

view was taken by the Supreme Court in The Union of India (UOI) Vs. Ram Kanwar and Others, wherein their Lordships observed as under

In the premises the only question to be decided is whether Rule 4 is special law within the meaning of Section 29(2) of the Limitation Act. Rule 4 Is

made by the High Court in exercise of the legislative power conferred upon the said High Court under Clause 27 of the Letters Patent. As the said

Rule is a law made in respect of special cases covered by it, it would certainly be a special law within the meaning of Section 29(2) of the

Limitation Act.

Mr. A.D. Singh then sought an opportunity to file an application u/s 5 of the Limitation Act seeking condonation of the delay on grounds to be

taken therein, as according to the learned Counsel the State as well as the counsel himself were under the impression that the period of limitation

provided for the appeal was 90 days and not 60 days. We have no hesitation in observing that the plea sought to be raised by the learned Counsel

is only an afterthought. To begin with there was a noting made by the office on the very same day the appeal was filed, that the same was barred

by time, Again an application was moved by the Respondent on Aug. 24, 1976, that the appeal was barred by time as having been filed beyond

the period of 60 days, Incidentally a copy of the application was also supplied by the Respondent to Mr. A.D. Singh, The Appellant Sn spite of

the fact that its attention was specifically drawn to the fact that the appeal was barred by time did not move in the matter and never attempted to

file any application seeking condonation of delay u/s 5 of the Limitation Act. It is under these circumstances impossible to hold that ever since the

date of the filing of the appeal the Appellant as well as its counsel were under the impression that the period provided for the appeal was 90 days.

It is only en attempt to postpone the even day. If the Appellant or its counsel could not imagine of any ground to be urged u/s 5 of the Limitation

Act till today, we fail to understand how any such ground could occur to them today when the whole case on limitation has been argued

threadbare. The prayer made by Mr. A.D. Singh in our opinion is not justified and therefore does not merit any consideration. The same is hereby

rejected.

For the foregoing reasons the preliminary objection prevails. The appeal is held to be timebarred and is accordingly dismissed but in the

circumstances of the case without any order as to costs.

A.S. Anand J.

I agree with the elaborate and well reasoned judgment proposed by my brother Kotwal, J, and have nothing more to add.