State of West Bengal vs Biswanath Ghosh

B.P. Banerjee, J.—This is an application for condonation of 192 days'' delay in presenting the appeal. This is a Mandamus Appeal and that this'' appeal which was filed 192 days'' after the period of limitation expired and was presented before this Court without any certified copy of the judgment/order appealed against.

In connection with the application for condonation of delay a question had arisen whether the above appeal has been properly presented or not, inasmuch as if the appeal has not been properly presented in that event there is no valid presentation of the appeal in the eye of law and accordingly the question of condonation of delay in preferring an appeal which has not been properly presented does not and cannot arise at all. On the contrary, if the appeal was validly presented; in that even the question of condonation of delay arises.

The learned Advocate appearing for the Petitioner submitted that as because this is an appeal against an order passed by a learned single Judge under Article 226 of the Constitution of India no certified copy is required to be filed and in this connection our attention was drawn to Clause 15 of the Letters Patent read with Chap. VIII of the Appellate Side Rules of this Court.

As the question involved in the above appeal is of some importance, we requested Mr. S.C. Bose, Senior Advocate of this Court, to act as Amicus Curiae and to make his submission with regard to this aspect of the matter. We have got the benefit on the submission made by Mr. Bose in this connection. Mr. Bose has submitted that, immediately after the Constitution of India came into force, the question had come up before this Court whether a decision of learned single Judge of the High Court disposing of a writ petition finally is appeal able or not.

A Special Bench of this Court had occasion to decide this question in the case of Chairman, Budge Budge Municipality Vs. Mongru Mia and Others, in which Chakravorti C.J. speaking for himself and Das, Banerjee and Das Gupta JJ. held that

A judgment of a single Judge on an application under Article 226 of the Constitution of India, whether in a matter arising within the Original Jurisdiction or in a matter arising outside, is a judgment pursuant to Section 108 of the Government of India Act, 1915, and therefore is appeal able under Clause 15 of the Letters Patent. There is nothing in Article 226 to exclude such an appeal if the rules of the High Court and the Letters Patent provide for it.

S.R. Das Gupta J. (as His lordship then was) took a contrary view and held that no appeal lies from an order passed by a single Judge on an application under Article 226 of the Constitution of India before a Division Bench. Ultimately, this view taken by Chakravorti C.J. (as His lordship then was) in the case of Chairman, Budge Budge Municipality (Supra) was accepted by the Supreme Court in the case of Umaji Keshao Meshram and Others Vs. Radhikabai and Another, In the case of Umaji Kesliao Meshram the Supreme Court held that the appeal is maintainable against a judgment of a single Judge in respect of an order passed under Article 226 of the Constitution of India. In the Budge Budge Municipality''s case another point was decided, namely, what was the period of limitation in respect of such appeal. In that case the Special Bench of this Court took the view that the period of limitation under Article 117 of the Indian Limitation Act, 1908, was 20 days. Subsequently, Article 117 of the said Act of 1908 was amended under the Limitation Act of 1963 and that the period of limitation under the Amended Act was extended to 30 days. It also appears that in spite of the determination made by the Special Bench of this Court a contrary view was taken by a Division Bench of this Court comprised of N.C. Mukharji and B.C. Ray JJ. (as Their lordships then were) in the case of Rabindra Nath Chakraborty v. Union of India 76 C.W.N. 515 and held that the period of limitation in respect of an appeal under Clause 15 of the Letters Patent was 60 days.

Thereafter, the same question came up for consideration before another Division Bench of this Court presided over by Sankar Prasad Mitra C.J. sitting with S.K. Datta J. (as Their lordships then, were) in Patai Sheikh v. State of West Bengal and Ors. 1976 (2) C.L.J. 1 and Their lordships following the Special Bench decisions of this Court in the case of Chairman, Budge Budge Municipality (Supra) held that the period of limitation as governed by Article 117 of the Limitation Act, 1963, was thirty days. It further appears that a Division Bench of this Court presided over by P.D. Desai C.J. in F.M.A.T. No. 3695 of 1988, in the judgment dated February 14, 1989, held that the period of limitation for preferring an appeal under Clause 15 of the Letters Patent in so far as a writ application is concerned was 60 days. Subsequently, another Division Bench of this Court presided over by. M.N. Roy J. (as His lordship then was) in The Regional Passengers Association v. Haripal Jangipur Rajbalhat Bus Syndicate 1990 (1) C.L.J. 199 took the view that the period of limitation under Clause 15 of the Letters Patent, in so far as Mandamus Appeal is concerned, was 30 days following the Special Bench decision of this Court in the Budge Budge Municipality''s case (Supra). It further appears that the Division Bench presided over by P.D. Desai C.J. passed an order in F.M.A.T. 2890 of 1989 by referring the matter to a larger Bench on the point whether the period of limitation in respect of a writ appeal under Clause 15 of the Letters Patent was 30 days or 60 days. All these cases clearly establish that an appeal lies from judgment of the learned single Judge before a Division Bench of this Court under Article 226 of the Constitution of India. In this case we are not concerned with the question whether the period of limitation is 30 days or 60 days. But the said Special Bench decision of this Court is binding on this Division Bench and the delay in filing the appeal was counted after taking into consideration that the period of limitation is 30 days.

Mr. Bose also drew to our attention to the provisions of Section 100A of the Code of Civil Procedure, 1908, which incorporated by an Amendment Act of 1976 with effect from February 1, 1977, wherein it is provided that

Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other laws for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such single Judge in such appeal or from any decree passed in such appeal.

Mr. Bose submitted that in view of the amended provisions of Section 100A of the Code the right of appeal provided under Clause 15 of the Letters Patent has been abolished in respect of an appeal heard by a learned single Judge of this Court altogether and that no further appeal lies under Clause 15 of the Letters Patent.

At the point of time when the Budge Budge Municipality''s case (Supra) was decided by the Special Bench there was no such rule framed in respect of the proceedings under Article 226 of the Constitution. Subsequently, Rules have been framed by this Court relating to the applications under Article 226 of the Constitution by Notification No. 590-G, dated May 22, 1986, and that Under Rule 48 of the said Rules under Article 226 of the Constitution it is provided that:

Appeals from orders in this jurisdiction shall be made in the same manner as appeals from orders in the Original Side and appeals from orders in the Appellate Side accordingly as they arise out of ''Original Side'' and ''Appellate Side'' applications and all Rules applicable thereto in the Rules of the Original and Appellate Sides, respectively, shall apply thereto mutatis mutandis. So Rule 48 of the said Rules makes it clear that an appeal under Article 226 of the Constitution of India in so far as the Appellate Side is concerned will be governed by the provisions of the Appellate Side Rules in so far as appeals from orders in the Appellate Side, or in other words, it will be treated as an Appeal from Original Order and the provides for filing such appeal has to be followed in such appeal under Article 226 of the Constitution. This Rule 48 of the Writ Rules and Clause 15 of the Letters Patent in Chap. VIII of the Appellate Side Rules which governed an appeal under Clause 15 of the Letters Patent appears to be conflicting inasmuch as under Chap. VIII it is provided that every appeal to the High Court under Clause 15 of the Letters Patent from a judgment of a Judge sitting singly on the Appellate Side of the High Court, shall be presented to the Deputy Registrar or such other officer as the Registrar may appoint, within 60 days from the date of the judgment appealed from, unless the Court in its discretion, on good cause shown, shall grant further time.

Rule 3 of Chap. VIII of the Appellate Side Rules provides that the memorandum of appeal shall be drawn up in accordance with the provisions of Order XLI Rule 1 of the CPC and shall be subscribed by an Advocate of the Court. It need not be accompanied by a copy of the judgment appealed from. It shall be the duty of the officer to whom the memorandum is presented under Rule 2 above to endorse thereon the date of presentation and send the same to the Stamp Reporter, who shall satisfy himself that there is a declaration by the Judge who passed the judgment that the case is a fit one for appeal and that it is in order and within time.

Chapter VIII also provides that in respect of an appeal under Clause 15 of the Letters Patent, Paper Books have to be prepared by the High Court at the cost of the public exchequer and the parties need not bear the expenses for preparation of such Paper Books. Chapter VIII further provides that an appeal could not be entertained from a judgment of a learned single Judge in the Appellate Side of this Court unless the learned single Judge gives a declaration that the case was a fit one for appeal. In an appeal under Article 226 of the Constitution of India there was no scope for granting certificate and that after incorporation of Rule 48 of the Writ Rules as well as the practice that was prevailing in this Court since 1950 which was recognized in the Budge Budge Municipality''s case (Supra), it was made clear that such an appeal is not only, confined to question of law, but in such an appeal as it was an appeal from original order both the questions of law and fact could be gone into.

It is also necessary to point out that under Rule 1 of Chap. VIII of the Appellate Side Rules of this Court "the provisions of Chapters IV and V shall apply, so far as may be, to every Appeal under Clause 15 of the Letters Patent". The said Chaps. IV and V of the Appellate Side Rules provide the procedure for preferring an appeal. Rule 10(2) of Chap. V which has been incorporated by reference, in Rule 1 of Chap. VIII, provides that if the memorandum of appeal is presented for admission without copies of the judgment and decree or order appealed from, it shall forthwith be returned to the Advocate or party presenting it. If such copies are filed after the period of limitation has expired the memorandum shall be presented direct to the Division Bench. In case of an appeal from appellate decree or order, copies of the judgment and decree or order of the Court of first instance shall be filed along with the Memorandum of Appeal. If such copies are not so filed, the appeal shall not be placed on the Monthly List for hearing under Order XLI Rule 11 of the Code of Civil Procedure, until they are filed.

The question is whether the Appellant can take up the stand that an appeal can be presented at any time without being accompanied by a copy of the judgment/order appealed from. Since an appeal under Clause 15 of the Letters Patent had stood abolished by the amended provisions of Section 100A of the CPC and since this Court has framed specific rules, namely, Rule 48 of the Rules under Article 226 of the Constitution wherein it was specifically provided that such an appeal from a learned single Judge to a Division Bench under Article 226 of the Constitution of India shall be dealt with as an appeal from original order or, in other words, the provisions of the Appellate Side Rules in so far as preferring an appeal from an original order of a learned single Judge shall apply, in such cases the provisions of the CPC is crystal clear that such an appeal cannot be presented without accompanied by a certified copy of the judgment/order appealed from.

In this connection, Mr. Bose has drawn our attention to the decision of the Privy Council in the case of J.N. Surty v. T.S. Chettya 55 I.A. 161, Section 12(2) of the Indian Limitation Act, 1908, which excludes from the period of limitation appeal from a decree the time ''requisite'' for obtaining a copy of it, applies even when by a rule of the High. Court a Memorandum of Appeal need not be accompanied by a copy of the decree. The Privy Council observed the word ''requisite'' means ''properly required'' and throws upon the Appellant''s legal advisers the necessity of showing that no part of the delay beyond the prescribed period is due to their default. The reasons for which the Privy Council has taken that view is clear, namely, unless a certified copy of the judgment/order appealed from is before the Division Bench taking such appeal, the Division Bench would not be in a position to entertain such an appeal or, in other words, unless the Court is not in a position to look into the judgment/order, the Court will not be in a position to decide whether the judgment appealed against was correct or not.

If the contention that the Mandamus appeal could be presented without being accompanied by a certified copy of the order appealed against is accepted, in that event that would create a great impediment in the way of dispensing with justice by a Division Bench taking Mandamus Appeals. Of course, in a case where an appeal is presented beyond the period of limitation and if a party applies for a certified copy of the judgment/order appealed from, in that event the party is entitled to get the benefit of the period spent for obtaining such certified copy. But, it is very difficult to appreciate the stand taken by the Appellant/Petitioner in the instant case. If the stand taken by the Appellant is accepted that this is an appeal under Clause 15 of the Letters Patent and Chap. VIII will apply, that would create a deadlock in the administration of the Court inasmuch as in that event in each and every case Paper Books will have to be prepared by the Court at the expenses of the public exchequer and, secondly, it will deprive the Judges of the Division Bench from looking into the judgment passed by the learned trial Judge. This problem could not be solved by merely calling the records of the trial Judge inasmuch as there is any one original judgment which could not be looked into by two Judges sitting in Division Bench and hearing the appeal or the application. Unless the Court taking up the appeal is apprised of the reasons and the ground disclosed by the learned trial Judge by granting or refusing relief�s prayed for, it will be impossible to dispose of the appeal by the Division Bench.

In the case of Shah Babulal Khimji Vs. Jayaben D. Kania and Another, the Supreme Court while considering the scope and ambit of Clause 15 of the Letters Patent observed:

the concept of internal appeals in the High Court seems to be a legal fiction without any factual existence imported by some of the High Courts in order to get rid of some of the provisions of the CPC which is totally opposed not only to the aim and object of the Code but also to the very spirit of the Letters Patent and at paragraph 79 it was held that the concept of the Letters Patent governing only the internal appeals in the High Courts and the CPC having no application to such appeals is based on a serious misconception of the legal position.

It was also observed in that judgment that although Letters Patent is a special law certain provision of the CPC in the matter of procedure do apply to appeal against the decision of the trial Judge to a larger Bench i.e. to internal appeals.

But in view of the provision of Section 100A of the CPC the Letters Patent have become dead letters. If the right of appeal under the CPC from a single Judge to which a Division Bench has been taken away or abolished, the provision of Clause 15 of the Letters Patent does not survive. If it is not surviving, in that event there is no scope for adopting rules contained in Chap. VIII of the Appellate Side Rules in respect of appeal Which is wrongly stated to be Letters Patent.

In our view, the provisions of Chap. VIII of the Appellate Side Rules could not be made applicable in respect of appeals under Article 226 of the Constitution for obvious reasons in respect of an appeal for which specific provisions have been made by this Court by Rule 48 of the Rules under Article 226 of the Constitution of India framed by this Court. Accordingly, in our view, the provisions of the Chap. VIII of the Appellate Side Rules and the provision of Clause 15 of the Letters Patent is not applicable in respect of an appeal under Article 226 of the Constitution and when the Appellate Side Rules of this Court clearly provide that the practice and procedure for an appeal from original order has to be followed, in that event the Appellate Side Rules in an appeal from original order without being accompanied by a certified copy could not be entertained.

Accordingly, we are of the view that the appeal filed without a certified copy of the order of the learned trial Judge appealed against could not be entertained by the Court.

The legal position is clear that an appeal under Article 226 of the Constitution of India could not be entertained by this Court unless it is accompanied with a certified copy of the order appealed from. Of course, it is a consistent practice of this Court that an appeal can be preferred without certified copy in case of urgency within the period of 30 days and on condition that the Appellant must apply for a certified copy of the order in question within the period of limitation and must file the same after obtaining the said certified copy. It will create a deadlock in the administration of justice if the appeal has to be decided on the basis of the Paper Books which do not contain any copy of the order/judgment appealed from. We cannot introduce any system which would stand in the way of dispensing with the justice in fair and proper manner and in accordance with law.

Before we part with the matter and dispose of the same we place it on record the assistance rendered by Mr. S.C. Bose, a senior Counsel of this Court in deciding such a question.

On behalf of the Petitioner our attention was drawn to a recent Division Bench judgment of this Court in the case of Rabindra Nath Mukherjee v. G.S. Mukherjee 1991 (1) C.L.J. 125 wherein the Division Bench had observed that while preferring an appeal under the Contempt of Court, there was no necessity of filing a certified copy of the appeal against along with the Memorandum of Appeal relying upon the provision of Clause 15 of the Letters Patent. The learned Judges of this Division Bench was not drawn to Rule 35 of the Rules regulating the procedure in Contempt of Court''s matter framed under the Contempt of Court Act, 1971, wherein it was provided that in respect of appeals from the orders of any Judge or Bench of the Original Side the rules of the Original Side relating to appeals and in respect of appeals from the order of any Judge or Bench of the Appellate Side, the rules of the Appellate Side shall apply mutatis mutandis.

So, Rule 35 of the said Rules made it clear that the appeal under the Contempt of Court from a single Judge to a Division Bench shall be treated as an appeal from orders and the provisions of the Appellate Side Rules for preferring appeal in respect of appeals from orders would apply. The Division Bench judgment of Rabindra Nath Mukherjee is not applicable in the facts and circumstances of the case inasmuch as in this case the appeal is from a single Judge to the Division Bench under Article 226 of the Constitution whereas in the other Division Bench the question is what is the procedure for preferring appeal from a single Judge to the Division Bench under Contempt of Court Act. Further, it appears to us that Rule 35 of the Contempt of Court Rules had not been looked into whereby such an appeal is to be treated as an appeal from original order and the procedure for preferring such appeal would be applicable or, in other words, it can no longer be said that such an appeal should be governed by Clause 15 of the Letters Patent read with Chap. VIII of the Appellate Side Rules of this Court.

Supreme Court in the case of Municipal Corporation of Delhi Vs. Gurnam Kaur, held that a d decision should be treated as given per incurred when it is given in ignorance of the terms of a statute. An order delivered without argument, without reference to the relevant provisions of the Act and without any citation of authority is per incuriam. The Latin Word per incuriam means through inadvertence and per incuriam decision could not be cited as an authority and is not binding.

Accordingly, considering the provision of Clause 15 of the Letters Patent, provision of Section 100A of the CPC and the provision of Rule 48 of the Rules framed by this Court under Article 226 of the Constitution and various other authorities on these points, we hold that an appeal from the learned single Judge to a Division Bench of this Court could not be filed and entertained by this Court without accompanying with a certified copy of this order appeal against as the appeal was incompetent and was not presented with the certified copy of the order appeal against there is no scope for consideration of an application u/s 5 of the Limitation Act for condoning the delay. Accordingly, the application u/s 5 of the Limitation Act filed by the Appellant on December 16, 1991, is rejected at this stage as not maintainable.

Xerox copy of this order be given of the parties on usual undertaking.

A.M. Sinha, J.

I agree.

Application rejected as not maintainable.