The Principal, Kendriya Vidyalaya, Madras and Another vs V. Rajagopalan

Ratnam, J.—This is an application under S. 5 of the Limitation Act 1963 to condone a delay of 390 days in filing a writ appeal against the

order in W. P. No. 4080 of 1977. The petitioners herein were respondents 1 and 2 in the writ petition and Padmanabhan J. allowed the writ

petition on 15-7-1980. The petitioners herein as well as the third respondent in the writ petition filed on 1-10-1980 an application in W.M.P. 7874

of 1980 seeking a review of the order passed in W.P. 4080 of 1977. The review application so filed by the petitioners and another was dismissed

on 7-8-1981 Thereafter, the petitioners alone preferred an appeal against the order in W.P. 4080 of 1977 on 11-9-1981, admittedly after 390

days after the expiry of the time allowed for preferring such an appeal.

In paragraph 5 of the affidavit filed in support of this petition, it has been stated that the petitioners were

advised to file a review petition in W.M.P. No. 7874 of 1980 and that petition was dismissed on 7-8-1981, and thereafter, the petitioners were

advised to get a copy of the order in W.M.P. 7874 of 1980 which was obtained on 7-8-1981 and the appeal had been filed subsequently after

securing legal advice and, therefore, the delay that had been occasioned is bona fide and should be condoned. In opposing this application, the

respondent has disputed the stand taken by the petitioners and has stated that the petitioners have not explained every day''s delay and that in the

absence of such explanation, no ground has been made out for condoning the inordinate delay of over one year. It was also the further plea of the

respondent that the filing of a review petition in is no bar to the filing of a writ appeal in time and that, in any event, the petitioners cannot take

advantage of the pendency of the review proceedings as sufficient cause for purposes of S. 5 of the Limitation Act, In the reply affidavit filed by the

petitioners'' it is stated in paragraph 2 that the result of the writ petition disposed of on 5-7-1980, was communicated to the first petitioner, and on

30-7-1980 a copy of the order in the writ petition was also received by the second petitioner and thereafter, the order was sent along with the

case file to the Vigilance Commissioner on 4-8-1980 by the petitioners and the first petitioner also reminded the Vigilance Commissioner, New

Delhi by telegrams dated 16-8-1980. In paragraph 3 of the reply affidavit it is stated that the Vigilance Commissioner, New Delhi had instructed

the filing of an appeal by his letter dated 22-8-1980, but later, on the advice of the counsel, a review petition in W.M.P. 7874 of 1980 was filed

on 27-9-1980. In paragraph 4 of the reply affidavit the petitioners further stated that on the dismissal of the review W. M. P. No. 7874 of 1980,

on 7-91981, the first petitioner was informed of the same and the first petitioner, in turn, informed the Vigilance Commissioner, New Delhi, that the

copy of the review order was received by the first petitioner on 19-8-1981, and a copy of the same was also sent to the Vigilance commissioner,

New Delhi. Thereafter, the petitioners claimed that the grounds were prepared and sent to the Law Ministry, Madras, for approval on 29-8-1981,

and that the appeal was later filed on 10-9-1981.

A reference to the original records discloses that the statement made in the reply affidavit that the review petition was filed on 27-9-1980 arid

that the writ appeal was filed on 10-9-1981 is erroneous, but that the review petition in W.M.P. 7874 of 1980 and the writ appeal had been

actually filed on 1-10-1980 and 11-9-1981 respectively.

The learned counsel for the petitioners submitted that the petitioners were bona fide prosecuting the review application in W.M.P. 7874 of 1980

which terminated only on 7-8-1981 and that, therefore, the petitioners are entitled to put forth the pendency of the review proceedings as sufficient

cause for the delay in the filing of the writ appeal. Reliance was also placed by the learned counsel for the petitioners on the decisions reported in

K.R. Beri and Co. and Others Vs. Employees State Insurance Corporation, and State of Rajasthan v. Rikhabehand, AIR 1966 Raj 213. On the

other hand, the learned counsel for the respondent stated that a divergence of opinion among courts whether the prosecution of review

proceedings would be sufficient cause at all for purposes of S. 5 of the Limitation Act exists, but even so, the prosecution of the review application

in this case cannot be termed to be bona fide at all as it was out of time and as ultimately the review application stood dismissed. In any event, the

prosecution of a review proceeding would not constitute sufficient cause for condonation of the delay in the filing of the writ appeal according to

the learned counsel. It was also contended relying on Brij Indar Singh v. Kanshiram, ILR Cal 94: AIR 1917 PC 156, that if an application for

review of a judgment had been filed within the period for preferring an appeal, in that case, it may be that the time occupied by the court in

disposing of such an application will not be taken into account among the days reckoned for purposes of preferring an appeal. In the instant case,

according to the learned counsel for respondent, the review application had been filed only on 1-10-1980 out of time, by which time, the remedy

of appeal had also become barred and, therefore, the petitioners cannot take advantage of the pendency of the review application. In this

connection, the learned counsel for the respondent also invited our attention to M.T. Cherian Vs. The Pankal Vittal Naik and Co. (P) Ltd.,

Mattancherry and Another, .

Before proceeding to deal with these contentions, we may make it clear that we are not deciding in these proceedings the larger question

whether the prosecution of a review application would be sufficient cause for not filing an appeal in time for purposes of S. 5 o the Limitation Act

1963 or not. The question in the present case is, whether even if the prosecution of a review petition i sufficient cause for purposes of S. 5 of the

Limitation Act, the delay has been satisfactorily established as having been occasioned only on account of that There is no dispute that S. 5 of the

Limitation Act 1963, would be applicable to a case like this. The period of limitation for filing a writ appeal under Article 117 of the Limitation Act

is 30 days and the period prescribed for seeking a review of a judgment under Art. 124 of the Limitation Act is also 30 days. The filing of the

review application in the instant case, as noticed earlier, was on 1-10-1980 and that application had been taken on file as having been filed in time

and disposed of on 7-8-1981. We cannot, therefore, proceed on the basis that the review application filed was barred and, therefore, its

prosecution was not bona fide.

In Brij Indar Singh v. Kanshi Ram ILR Cal 84: AIR 1917 PC 156, the suit was dismissed as having abated and a review application against that

order was allowed which was later set aside by the High Court on the ground that the proper remedy would be an appeal and not a review

application. Thereafter an appeal was filed by the plaintiff which was resisted on the ground of limitation. and this was upheld by the High Court on

the ground that there cannot be any exclusion of time spent in the prosecution of the review application in reckoning the period of limitation.

Reversing this - conclusion of the High Court, the Privy Council referred to, with approval, the following statement as laying down a general rule

applicable (at page 105) :-

If a party presents an application for review of a judgment within the ordinary period limited for appealing, the time occupied by the court in

disposing of such application will not be reckoned among the days limited for appealing, but will be added thereto, and a memorandum of appeal

represented within such extended period will be received as presented within time"".

The aforesaid principle was followed by the Privy Council in AIR 1937 276 (Privy Council) , though in that case, bv mistake an appeal was

filed before a wrong court and the question that arose was whether the time spent in prosecuting such an appeal can be excluded in reckoning the

Period of limitation for the appeal filed before- the proper court. In M.T. Cherian Vs. The Pankal Vittal Naik and Co. (P) Ltd., Mattancherry and

Another, , the general principle laid down by the Privy Council has been reiterated and the following statement of the law in Mating Dau Na v. Ma

Kaya, 64 Ind Cas 516 (Rang) has been referred to (at P. 119):-

The true guide is whether the appellant has acted with reasonable diligence in the prosecution of his appeal, he ought to be deemed to have so

acted, where after deducting the time spent in prosecuting with due diligence a proper application for review of judgment the period between the

date -of the decree appealed from and the date of presenting the appeal does not exceed the period prescribed for preferring an appeal.

The facts of the Present case when considered in the light of the aforesaid principles would clearly establish that there was an application for review

at the instance of the petitioners within the time provided for it and also within time, for Preferring an appeal, as the period is only 30 days in both

cases. Therefore, according to the general rule enunciated by the Privy Council this may be a case to which the time occupied by the court in

disposing of the review application can be added thereto so that if an appeal is presented within the extended time, it can be treated as having been

presented within the time. That would mean that the appeal in the present case should have been preferred at least on or before 7-8-1981, when

the review petition was disposed of. But that was not done and the appeal had been filed only on 11-9-1981. Applying the principle laid down by

the Rangoon High Court in Mating Dau Na v. Ma Kaya, 64 Ind Cas 516, the period between the date of the disposal of the writ petition, viz 15-

7-1980 and the date of presentation of the writ appeal viz. 11-9-1981, even, after excluding the time spent in the prosecution of the review

application and time taken for obtaining copy, would exceed the period prescribed for preferring an appeal. Therefore, looked at from any point of

view, in the instant case, the petitioners cannot, even on the assumption that the bona fide prosecution of review proceedings would constitute

sufficient cause for purposes of S. 5 of the Limitation Act, take advantage of the same and claim the benefits of S. 5 of the Limitation Act.

We may also add that even on the footing that the petitioners had been bona fide prosecuting the review proceedings there is no reason why the

petitioners had not thought fit to Prefer the appeal immediately after the disposal of W.M.P. 7874 of 1980, on 7-8-1981, but had waited till 11-9-

1931, though even according to their own affidavits, the Vigilance Commissioner, New Delhi, had instructed the preferring of an appeal even as far

back as 22-8-1980, and the petitioners had secured the copy of the order in W.M.P. 7874 of 1980 even on 7-8-1981 (as Per paragraph 5 of the

affidavit). The delay that had occurred between 7-8-1981 and 11-9-1981 is an avoidable delay and has not satisfactorily been explained at all,

For preferring an appeal, it was not necessary for the petitioners to obtain a copy of the order dismissing the review application. The petitioners

had already secured a copy of the order appealed against on 18-7-1980 and a copy of the order dismissing the application for review in W.M.P.

7874 of 1980 even on 7-8-1981. If that be so, then the petitioners cannot claim that the time stated to have been spent in securing the copies and

in despatching them to New Delhi for preparation of the grounds and despatch of the draft from there for approval and the filing of the appeal on

11-9-1981, was owing to reasons beyond their control and would constitute sufficient cause for purposes of S. 5 of the Limitation Act, Under

these circumstances. We have no hesitation in holding that the delay, on the facts and in the circumstances of the present case has not been

satisfactorily explained at all. Consequently this application is dismissed. There will be however no order as to costs.

Applicationdismissed.