Find a Lawyer

Civil Appeal No. 38‑D of 1962, decided on 26th June 1963.

(On appeal from the judgment and decree of the High Court of East Pakistan, Dacca, dated the 26th June 1961, in Appeal from Appellate Decree No. 966 of 1958 and order dated 22‑12‑1961.)

Application for special leave filed against judgment of Single Judge High Court‑Cannot be deemed to have been filed against order High Court refusing certificate of fitness of case for Letters Patent Appeal‑Supreme Court Rules, 1956, O. XIII, r. 1 Letters Patent (Dacca), cl, 15-Plea of alleged general practice" that limitation__ is to, be calculate from date‑of refusal f certificate under cl. 15, Letters Paten: rejected as unfounded Application for‑condonation, of delay essential.

(Joining of a respondent after expiry of period of appeal)‑Rule 22 not applicable to appeals before Supreme Court‑Jurisdiction of Supreme Court to implead parties not limited by any technical rule such as r. 22.

T. Ali Senior Advocate Supreme Court (Md. Mozammel Huq Advocate Supreme Court with him) instructed by S. M. Abbas Attorney for Appellants.

Hamidul Huq Chawdhury Senior Advocate Supreme Court (D. C. Bhattacharya Advocate Supreme Court with him) instructed by Abdur Rab (II) Attorney for Respondents Nos. 1 to 4.

Respondents Nos. 5 to 16 : Ex parte.

Dates of hearing : 27th and 29th May 1963.

.‑This appeal by special leave arises out of a suit for recovery of khas possession. The material facts are these. Dr. Rajani Kanta Choudhury predecessor‑in‑interest of the plaintiffs‑respondents granted on the 14th April 1935, a lease of the property in dispute to Paresh Chandra Biswas, defendant No. 1, as representing "Swaraswati Bhandar", a firm, for a period of five years. After the expiry of the lease in 1940 defendant No. 1 continued in possession of the lease as a tenant and paid rent up to April 1946. The plaintiffs served on defendant No. 1 in his capacity as a partner of the firm a notice under section 106 of the Transfer of Property Act determining the tenancy with effect from the end of Ashar 1355 B. S. The firm had in fact been dissolved, according to the case of the plaintiffs, on the 16th January 1944, but the plaintiffs were unaware of the fact of its dissolution. In spite of the notice the premises were not vacated and the present suit was filed on the 13th August 1948, for recovery of possession and for arrears of rent. Defendant No. 1 in his written statement contended that the firm "Swaraswati Bhandar" was still in existence, that the firm had been holding over, and that the possession of the firm as tenant having lasted for more than twelve years, the firm was not liable to ejectment at all in view of the provisions of the East Bengal Non‑Agricultural Tenancy Act.

Defendant No. 1 alone contested the suit in the first instance and the suit was decreed. On appeal it was remanded by the Subordinate Judge for a fresh trial after impleading the other partners of the firm. The Munsif who tried the suit after remand dismissed it with respect to the prayer for possession but decreed it in respect of the arrears of rent. On appeal the Subordinate Judge affirmed the judgment of the Munsif though he did not agree with all the findings. On second appeal the High Court set aside the judgments of the Courts below and decreed the suit in toto. This appeal by special leave has been filed by the defendants.

There are two preliminary objections by the plaintiffs respondents. The first objection is that the appeal is time brrred. The second objection is that one of the four decree holders has not been impleaded at all and the appeal is incompetent.

In order that the points involved in determining the question of limitation may be appreciated, it is necessary to state some facts. Judgment was delivered in second appeal by a Single Judge of the High Court on the 26th June 1961. On the 25^th August 1961, the defendants put in an application under clause 15 of Letters Patent for a certificate from the Single Judge that the case was a fit one for Letters Patent Appeal. This application was rejected on the 22nd December 1961. Petition for leave to Appeal was filed in this Court on the 3rd February 1962. It was no t accompanied by any application for condonation of delay. A certified copy of the judgment of the Single Judge in second appeal had been applied for on the 11th July 1961, and received on the 18th August 1961.

Before proceeding to discuss the first preliminary objection it will be proper also to state so far as the second objection is concerned that on the 24th of May 1963, the appellants submitted an application for addition as respondent of the name of Subodh Chandra Chawdhury, the missing decree‑holder.

Judgment in second appeal had been delivered by the learned Single Judge of the High Court on the 26th June 1961, as already stated. Limitation for filing a petition for leave is, under rule 1, Order XIII, of the Supreme Court Rules, 611 days from the date of the judgment. Of course, the parties are entitled to a deduction of the days spent in obtaining a certified copy of the judgment under appeal. In this case the appellants are entitled, on this account, to a deduction of thirty‑eight days. The petition for leave should, therefore, have been filed by the 2nd of October 1961. It was actually filed on the 3rd of February 1962, and was, therefore, prima facie time‑barred. No application for condonation of delay had been filed. This appeal came up for hearing in the first instance on the 27th May 1963, and we pointed out on that day to learned counsel for the appellants that the appeal being directed against the order of the 26th June 1961 would be clearly out of time unless the delay could on some sufficient ground be condoned. Learned counsel for the appellants contended that the appeal was directed not against the order of 26th June 1961, but against the order of the 22nd December 1961, by which order the application of the appellants for a certificate for Letters Patent Appeal was dismissed by the learned Single Judge. We drew the attention of learned counsel to the heading of the petition for leave wherein it was stated that the appeal was directed against the order of 26th June 1961. Learned counsel for the appellants then made a request that he may be allowed to put in an application for condonation of delay. We directed him to do so and an application for condonation of delay was actually filed on the next day i.e., the 28th May 1963. The ground for condonation of delay relied upon in this application will appear from para. 7 of the application which is reproduced below:

"7. That the petitioners submit that it is the general practice to calculate the limitation for filing petition for special leave from the date of the rejection of the application under clause 15 of the Letters Patent and accordingly the office note was also prepared on the said line."

The case came up ultimately for hearing on the 29th May 1963. Learned counsel for the appellants repeated his earlier contention that the appeal was directed against the order of the 22nd December 1961. He at the same time contended that there was a practice in the Dacca Registry of this Court in accordance with which in a case where certificate for Letters Patent Appeal had been refused by a Single Judge limitation for filing an appeal against the appellate order of the Single Judge was reckoned from the date on which the application for such certificate was rejected.

In the application for condonation of delay the appellants had also stated that they had throughout been diligent in the prosecution of all the proceedings which arose out of the present case and, therefore, any delay in filing the petition for leave should be attributed to a bona fide belief as to the alleged practice. 1n order to explain why the appellants filed an 7 application for a certificate under Letters Patent only on the sixtieth day, i.e., the 25th August 1961 (the limitation for a Letters j Patent Appeal being only sixty days from the order under appeal), the appellants stated that Mr. Justice Siddiky, the learned Single Judge who decided the appeal, was not sitting singly at that time and as time for Letters Patent Appeal was expiring they submitted an application for a certificate along with a memo randum of appeal and made a special request that the case be placed before the Chief Justice so that arrangements may be made for Mr. Justice Siddiky sitting singly.

In reply to the application for condonation of delay the respondents stated that there is no practice at all in the Dacca Registry as has been alleged by the appellants and that the statement that Mr. Justice Siddiky was not sitting singly at the relevant time was incorrect for he had in fact been sitting singly continuously from 26th June 1961, to 14th July 1961, and then continuously 20‑7‑1961, 26‑7‑1961, 27‑7‑1961, 2‑8‑1961, 17‑8‑1961, 18‑8‑1961 and 25‑8‑1961.

The questions that arise with respect to limitation are‑

(i) whether this appeal can be regarded as being directed against the order of the 22nd December 1961 ;

(ii) whether a practice exists in the Dacca Registry of this Court by which time for filing an appeal against the judgment of a Single Judge of the High Court is calculated from the date on which the learned Single Judge rejects an application for a certificate for appeal under the Letters Patent ,

(iii) whether, assuming that the practice existed, that would be a good ground for condonation of delay; and

(iv) what is the bearing on the question of limitation of the ,f failure to implead the fourth decree‑holder.

On the first point nothing has been said by learned counsel for the appellants beyond the simple assertion that this appeal can be treated as one against the order rejecting the application for a certificate. The heading of the petition for special leave to appeal is "petition for special leave to appeal against the judgment and decree passed on the 26th of June 1961, by the High Court of East Pakistan in Second Appeal No. 966 of 1958." The grounds stated in the petition relate all to the judgment of the 26th June 1961. The prayer is "to grant the petitioners special leave to appeal from the judgment and decree dated the 26th June 1961." Court‑fee has, according to the memo of valuation which is in the hand of the appellants' attorney, been paid on the decree in second appeal. There can thus be little doubt that the petition for leave was directed against the order of the 26th June 1961. We have n o intention, however, of placing the case on a technical ground. If it was possible to give relief to the appellants by converting this appeal into an appeal against the order dated the 22nd December 1961, we would have been inclined to do so. The correct position, however, is that a party cannot by filing an appeal against the order refusing to grant a certificate for a Letters Patent Appeal open the case on the merits. No appeal can lie against an order refusing to grant a certificate on the ground that the discretion was not properly exercised. If such an appeal was allowed the very purpose of the provision as to appeal being incompetent without a certificate would be defeated. To a Division Bench of the High Court no appeal lies against an order refusing a certificate for such an order is not a judgment within the meaning of the Letters Patent. So far as an appeal to this Court is concerned, on what ground would such an appeal lie Obviously the only ground which could be urged would be that there did exist some substantial question of law which should have been decided by the Letters Patent Bench. 1f the order refusing to grant a certificate could be set aside on such a ground the result would be that in every case of refusal of certificate this Court would have to go into the question whether some substantial question of law was involved and if it came to the conclusion that a substantial question of law existed it would direct the Single Judge to grant a certificate for a Letters Patent Appeal. Such could not possibly be the intention. At the same time it may be clarified that in an appeal against an order refusing to grant a certificate the only relief that could be granted would be a direction that the certificate be granted. No question would arise of a re-opening of the case itself in this Court. The reopening would take place before the Letters Patent Bench if we allowed the appeal and directed the Single Judge to give a certificate.

The intention of a provision like the one under consideration is not that there should be an appeal against the order passed under it. The matter is left entirely to the discretion of the Single Judge. An appeal lies under clause 15 of the Letters Patent if the Single Judge himself declares the case to be fit one for appeal and not if an appellate Court so declares.

It is also to be remembered that we granted leave to appeal only against the order of the 26th June 1961. No leave was granted against the order refusing a certificate and had an appeal been competent against that order there is no ground for assuming that leave would have been granted.

Learned counsel for the appellants is unable to cite a single case in which an appeal may have been filed in this Court against an order of a Single Judge of the High Court refusing to grant a certificate nor is he able to cite any authority in support of the proposition that such an appeal is competent.

We hold, therefore, that the present appeal is not one and cannot be one against the order of 22nd December 1961, but is only an appeal against the judgment of 26th June 1961. With respect to the alleged practice in the Dacca Registry there is only an allegation made in the application for condonation of delay which allegation is not even supported by a proper affidavit. The affidavit in support of the application of condonation is of the attorney and whereas the attorney certifies all other paragraphs of the appli cation from his own knowledge with respect to paras. 5 and 7 in which the practice is alleged he has stated: "they are true to my information derived from my learned Advocate which I verily true." the attorney for the appellants is unaware of this practice and there is nothing else in support of it. There is no statement by any member of the Bar that such a practice exists. We have questioned the Assistant Registrar working in the Dacca Registry of this Court and he denies any knowledge of the alleged practice. According to him the office calculates the period of limitation not from the date when the application for a certificate for Letters Patent Appeal was rejected but from the date on which the judgment under appeal was delivered. Learned counsel for the appellants relies on the fact that at the time when this petition for leave was filed a clerk of the Dacca Registry when filling in the particulars of this petition for leave gave the date of the judgment of the Court appealed from as the 22nd December 1961. Such an entry cannot in any way advance the case of the appellants. The entry may be due to a slip or it may not be honest. In the petition for special leave, in the heading, it had been clearly stated that the appeal was against the order of the 22nd June 1‑961. It is a matter of some surprise, therefore that in the particulars recorded by the clerk of the Dacca Registry 22nd December 1961, should appear as the date of judgment under appeal.

Any practice in the Dacca Registry could have come only from the main office of this Court at Lahore. Admittedly in that Office there is no such practice. We are at the same time unable to appreciate how such a practice could have ever deceived any lawyer. The petition for special leave has to be filed within sixty days of the order appealed against. What sanction could therefore be behind a practice which calculates sixty days from the date of the order rejecting an application for a certificate When an application is made to the High Court for grant of a certificate for leave to this Court there has necessarily to be an extension of time because the proper course for every party is to approach the High Court in the first instance for a certificate, but even in that case only one month more is granted from the date of the order of the High Court refusing to grant a certificate and for this extension of time there is a specific provision. How could any counsel assume, in the absence of any specific provision that time could be calculated from the date of the refusal of the Single Judge to grant a certificate

We are also not prepared to accept that the appellants hive been diligent in the prosecution of the case. The facts as we find them are more consistent with the appellants having merely been using the process of the Court for stay of execution proceedings. Without any good excuse the application for a certificate under the Letters Patent was filed on the sixtieth day. There is a very careless statement in the application for condonation of delay that the learned Single Judge had not been sitting singly at all. The respondents have had to file a list of the dates on which the learned Single Judge was sitting singly. After the application was rejected still the appellants waited for about forty days before they filed the petition for special leave. It is admitted that on account of the application for a certificate under the Letters Patent and the petition for special leave execution proceedings were stayed and they remain stayed up till now.

With respect to the addition of the fourth respondent too the appellants have not been showing diligence. No good reasons appear in the first place as to why the fourth respondent was not joined but even when the omission was brought to the notice of the appellants they did not readily file any application for having the missing respondent impleaded. On the 13th May 1963, the concise statement of the respondents in which an objection had been taken as to the missing respondent, was filed. On the 16th May 1963, a copy of this concise statement was taken by the appellants. It has been stated before us by learned counsel for the appellants that the concise statement was read three or four days after it was received from Court. Yet the application for impleading the missing respondent was filed only on the 24th May 1963. There was an objection in the concise statement as to the appeal being time‑barred but in spite of that no application for condonation of delay had been filed at all when the case came up for hearing on the 27th May. It is only when we pointed out to learned counsel for the appellants that without an application for condonation of delay he may not be able to get over the objection as to limitation that he filed an application on the 28th May. If learned counsel for the appellants was under the impression that there was some practice by which limitation was reckoned in the Dacca Registry from the date of refusal of the Single Judge to grant a certificate at least when objection was taken by the respondents he should have enquired whether any such practice really existed and should have taken steps for filing an application for condonation of delay.

It has been urged before us on behalf of the respondents that Order XLI, rule 22, does not permit the joining of a respondent after the expiry of the period of appeal. Such a respondent, it is urged, is not a party interested in the result of the appeal within the meaning of that rule and a Privy Council judgment has been cited in support of this contention. It is sufficient to say that Order XLI, rule 22, is not applicable to an appeal before this Court and the jurisdiction of this Court to C implead parties in appeal is not limited by any technical rule that may be embodied in Order XLI, rule 22, though the general principle that the right of a person against whom an appeal has become time‑barred should not ordinarily be interfered with would require consideration. If we were satisfied of the diligence of the appellants we may have permitted the joining of the missing respondent. However, this appeal is itself time‑barred and really the question as to whether a respondent should be joined does not arise.

It should be stated here that at the time when leave was granted it was not brought to the notice of this Court that the appeal had been filed out of time, the reason being that the clerk of the Dacca Registry who filled in the particulars relating: to the petition for leave showed the 22nd December 1961, as the date of the judgment in appeal.

This appeal is dismissed with costs.

A.H Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.