State of J. and K. etc. vs Dr. T.N. Kaul etc.

Jaswant Singh, J.—These two appeals which shall be disposed of by this judgment arise in the following circumstances:

A suit for mandatory injunction directing the State to treat him in service without any break from April 1943, with a further direction to the

Government to grant him on that basis all the benefits in respect of his seniority, emoluments and pension, was brought by Dr. Triloki Nath Kaul,

Sub Assistant Surgeon, respondent in Letters Patent (Civil) Appeal No. 1 of 1972, and appellant in Civil 1st Miscellaneous Appeal No, 4 of

1972, in the Court of the Sub Judge (Chief Judicial Magistrate) Jammu. The suit was after a regular trial dismissed by the Court vide its judgment

dated July 18, 1970. The appeal preferred against that judgment and decree by the doctor proved abortive whereupon he came up in further

appeal to this Court which was heard by Bhat, J. on December 28, 1971. It was not, however, before February 10, 1972, when the High Court

was in vacation, that the learned Judge delivered the judgment allowing the appeal, and setting aside the judgments and decrees of the Courts

below, decreed the suit in favour of the doctor. An application for leave to appeal under Clause 12 of the Letters Patent against the judgment of

the Single Judge was filed by the State on April 25, 1972. The application was accompanied by an affidavit on behalf of the State averring inter

alia that the aforesaid judgment was announced by Bhat J. on February 10, 1972, in the absence of the parties when the Court was closed for

vacation and the date for announcement of judgment was not notified to the State or its counsel and that it was only on April 12, 1972, that the

State came to know of the judgment on obtaining a certified copy thereof. Bhat J. having demitted office on February 28, 1972, the matter came

up before the Hon'ble Chief Justice who was pleased to grant leave to appeal by his order dated April 26, 1972. This order appears to have been

passed without notice to the other side. On the basis of the leave granted by the Hon'ble Chief Justice, the State preferred the Letters Patent

Appeal on May 9, 1972. On the same date Dr. T. N. Kaul, also filed an appeal against the order of the Hon'ble Chief Justice dated April 26,

1972, granting leave to the State to file the Letters Patent Appeal against the aforesaid judgment of the learned Single Judge of this Court and a

notice to show cause why the appeal filed by the doctor be not admitted was issued to the State. The Letters Patent Appeal preferred by the State

as also the aforesaid appeal preferred by Dr. T. N. Kaul, were placed before a Division Bench of this Court consisting of myself and Mian Jalal-u-

Din J. In the appeal preferred by the Stale pursuant to the leave granted by the Hon'ble Chief Justice, a preliminary objection was taken by Mr.

Grover, appearing on behalf of Dr. T. N. Kaul, to the effect that under CI. 12 of the Letters Patent, it is only the Judge who decides the appeal

and passes the judgment that is competent to grant leave to file a Letters Patent Appeal and the learned Chief Justice could not, therefore, grant the

leave. He has further urged that the prayer for grant of leave could be made orally or in writing to the Judge deciding the appeal immediately after

the judgment is delivered and since in the present case no such prayer was made and the written application was made after the expiry of more

than sixty days from the date of the judgment sought to be appealed against, the order granting the leave could not be sustained and the Bench

should revoke the leave.

Mr. Vidya Sagar Malhotra, appearing on behalf of the State, on the other hand, contended, that the order granting the leave is final and

conclusive and is not open to appeal. He further urged that the Division Bench was not competent to revoke the leave. Both the learned counsel

cited some authorities in support of their respective contentions. In view of the importance of the questions involved and the fact that there was no

direct authority on this point, except the one given by me in Application No. 3 of 1971, for grant of leave to file a Letters Patent Appeal, entitled

Salah Mohd. v. Gulab, which was based more or less on the concession of the other side, as also the fact that the aforesaid questions were likely

to recur in a number or cases, it was recommended to the Hon'ble Chief Justice that a Full Bench be constituted for going into these questions.

This is how the matter is before this Bench.

Clause 12 of the Letters Patent under which the case was declared to be a fit one for appeal, by the Hon'ble Chief Justice runs thus:

And we do further ordain that an appeal shall lie to the said High Court of Judicature from the judgment (not being a judgment passed in the

exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the

superintendence of the said High Court, and not being an order made in the exercise of revisions jurisdiction, and not being a sentence or order

passed or made in the exercise of power of superintendence) of one Judge of the said High Court or one Judge of any Division Court and that

notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or

one Judge of any Division Court, consistently with the provisions of the Civil Procedure Code, made in the exercise of appellate jurisdiction in

respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where

the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of the Judges of

the said High Court or of such Division Court shall be to Us, Our heirs or successors and be heard by our Board of Judicial Advisors for report to

Us.

The crucial words in the above clause are ""the Judge who passed the judgment declares that the case is a fit one for appeal."" This phraseology as

pointed out in Dasaundha Singh v. Ganda Singh, AIR 1933 Lah 534 (1) requires the declaration that a case is a fit one for further appeal to be

made only by the Judge who passed the judgment and no other Judge.

Again in Allah Bux v. Mst. Sardaran, AIR 1935 Lah 330 (1), it was held that the aforesaid phraseology is clear and leaves no doubt that the

authority to make that declaration is only the Judge who had passed the judgment and no other judge or judges of the Court have jurisdiction to

grant the required certificate.

To the same effect is the decision of the Bombay High Court in Sheiklal Shaikh Sharif Vs. Ahmedkhan Sharifkhan, . In that case the Bench of

the Bombay High Court held that clause 15 of the Letters Patent (which corresponds to clause 12 of our Letters Patent) gave a limited right of

appeal in case of second appeals disposed of by a Single Judge and it is that Judge who can declare that the case is a fit one for appeal. It was

further held therein that where there is no declaration of the Judge who passed the judgment that the case is a fit one for appeal, the appeal cannot

lie.

The same view was expressed by a Full Bench of the Rangoon High Court in Ma Than v. Me. Ba Gyaw, AIR 1926 Rang 1 (FB). In that case

while discussing the question of grant of certificate under the corresponding Section 13 of the Letters Patent (Rangoon), declaring that a case is a

fit one for appeal, Rutledge Chief Justice, speaking for the Bench observed:--

The Section gives in this one instance a very restrictive right of appeal namely when the Judge who passed the judgment gives a certificate declaring

that the case is a fit one for appeal. If it had been the intention of His Majesty to permit any person other than the Judge who passed the judgment

to grant such certificate, it seems clear to me that he would have made provision by either omitting the words ""who passed the judgment"" or by a

special proviso that in case the judge for any reason was not available, such a certificate could be given by any other Judge. That has not been

done"" because the intention of the Letters Patent was to confine the granting of the certificate to the Judge who actually heard the appeal and

passed the judgment.

The same view was expressed by a Bench of the East Punjab High Court in Raghunath Gir Chela Moti Gir v. Behari Lal, AIR 1950 P&H 288. In

that case, the Bench while interpreting the corresponding Clause 10 of the Letters Patent old that the only person who could make the requisite

declaration required under the aforesaid clause is the judge who passed the judgment and no appeal lies on a declaration given by another judge or

Judges in his absence. Consequently the appeal filed against the judgment of Das C. J., who was appointed as Judge of the Supreme Court at

Delhi, on the basis of a certificate granted by Weston C. J. and Bhandari J. was dismissed on the ground that there was no declaration made by

Das C. J. as to the fitness of the case under Clause 10 of the Letters Patent. Following these authorities, I dismissed the application filed by Salah

Mohamad for grant of leave to file a Letters Patent Appeal against the judgment dated April 17, 1970, passed in Salah Mohamad v. Gulab

(Supra) by Anant Singh J., who ceased to be an Ad-hoc Judge of this Court by the time the application came up for disposal.

No authority to the contrary has been laid before us by the learned counsel appearing on the other side.

Though the absence of a provision in the Letters Patent to meet a situation like the present one, where the Judge, who passed the judgment is

not available to give the requisite certificate either because of his superannuation or incapacity due to leave or death or some other reason causes

great hardship, the rule is well settled that e law has to be interpreted as it is and it is not permissible to import words into the statute which are not

there. See G.P.V.A. Subrhmanyam and Others Vs. Commissioner, Corporation of Hyderabad, and (1969) 10 Guj LR 164 (FB).

As in the instant case, the declaration required by clause 12 of the Letters Patent was given' not by Bhat J. but by the Hon'ble Chief Justice,

the Letters Patent Appeal No. 1 of 1972, has to be dismissed as incompetent in view of; the concensus of judicial opinion. The fact; that the case

has already been declared to be a fit one for appeal cannot stand in the way of Mr. Inder Das's questioning the validity of the declaration. I am

fortified, in this view by a decision of the Pepsu High Court in Hari Ram v. Hazari Lal, AIR 1951 Pepsu 132, where it was held that ex parte grant

of a certificate cannot preclude the respondent from raising an objection in the Letters Patent Appeal that the application on which it was granted

was not presented within the prescribed period and, therefore, the certificate was not valid.

Regarding the interpretation to be put on the word ""immediately"" occurring in Rule III-A of Chapter V of the Rules of Court as inserted by

Command Order No. 7-H of 1947 dated Feb. 3, 1947, we are of the opinion that an application for leave to appeal under the said provision of

the Letters Patent made some time after the judgment is delivered can be entertained if sufficient cause is shown for the inability to apply for leave

at the time of the delivery of judgment. In Ramnarayan Triyoginarayan Trivedi and Others Vs. State of Madhya Pradesh and Others, a Full Bench

of the Madhya Pradesh High Court held that the intention of Clause 12 of the Letters Patent is that the application should be made without undue

delay. Their Lordships further pointed out that the word ""Immediately"" has to be reasonably construed so as not to require from the applicant

something which is impossible. The word should be so read as to advance its purpose and not to defeat justice.

In the present case, the judgment having been passed by Bhat J. during vacation without notice to the State, the latter could have applied for

leave after coming to know of the judgment and taking the necessary steps in that behalf. The application for grant of the necessary declaration

under Clause 12 of the Letters Patent could not, therefore, be thrown out on the ground that it was not made immediately after the delivery of the

judgment.

In the result Letters Patent Appeal No. 1 of 1972, is dismissed, but without any order as to costs.

In view of the dismissal of Letters Patent Appeal No. 1 of 1972 Civil First Misc. Appeal No. 4 of 1972, filed by Dr. Triloki Nath, becomes

infructuous and is consigned to the records.

Mian Jalal-ud-Din, J.

I agree.

Syed Wasi-ud-Din, J.

In this case the short point which arises for consideration is as to what interpretation should be put to the relevant words occurring in Clause 12

of the Letters Patent which has been quoted in extenso in the judgment of my learned brother Jaswant Singh J. The second appeal in question was

heard by a Single Judge of the Court viz: Bhat J. on 28-12-1971 and the judgment was delivered by him on 10th of Feb. 1972 and this was during

winter vacation. An application for leave to appeal under the Letters Patent was filed by the State on 26th April 1972. It was submitted that the

application could not be filed earlier because the State had no knowledge of the delivery of the judgment especially because it was delivered during

winter vacation. The leave for appeal was allowed by the Hon'ble Chief Justice and the relevant words occurring in Clause 12 of the Letters Patent

are ""where the Judge who passed the judgment declares that the case is a fit one for appeal."" The interpretation on the language strictly as it stands

naturally is that the declaration has, to be given by the Judge who passed the Judgment and my learned brother Jaswant Singh J. has elaborately

discussed the different rulings of the different High Courts in this respect and the consensus of opinion is that the words have to be literally

interpreted according to the language and therefore no other Judge is competent to give the declaration about the fitness of the appeal except the

judge who passed the judgment. It appears that it no doubt confers a very limited and restricted right of appeal. The intention may be that as there

has already been an appeal so further appeal should be allowed only when such a declaration is given by the Judge who passed the judgment. But

there can be cases where for no fault of the party the declaration could not be obtained from the Judge who passed the judgment, This is also clear

from the facts of the different rulings referred to by my learned brother Jaswant Singh J. in his judgment and in this present case also it so happened

that the judgment was delivered by Bhat J. on February 10, 1972 and on February 28, 1972 he demitted office because of his retirement. It was

clear therefore that in the circumstances the declaration could not be obtained from Bhat J. It also appears to me that although the intention may

have been to give a restrictive right but at the same time the underlying idea to provide for a further appeal is also to meet such cases of hardship or

cases where some real and substantial questions of law are involved and the provisions cannot be availed of because of the language of Clause 12

quoted above. In view of-the strict interpretation according to language and there being no ambiguity and also because of the consensus of opinion

of the High Courts, I agree with my learned brother Jaswant Singh J. but I wish only to make this observation that it is a fit case in which the matter

should be brought to the notice of the Government to consider the desirability of an amendment on the same lines as Order 47, Rule 5 of the Code

of Civil Procedure. It may be mentioned here that in the State of Jammu and Kashmir there still subsists the rule viz: R. 2 of O. 47 of the CPC

which requires that the review petition has to be made before the Judge against whose order the review is sought for. This rule has been repealed

in the CPC as applicable to India but Rule 5, Order 47 of the CPC is in the Jammu and Kashmir CPC as well as in the CPC of India, which

provides for a contingency where the Judge or the Judges against whose order a review application has to be made is or are precluded by absence

or other cause for a period of six months.

I also agree to the order proposed with regard to the two appeals by my learned brother Jaswant Singh J.