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1952 DIGILAW 127 (RAJ)

Rajasthan State v. Nathmal

1952-05-13

BAPNA, WANCHOO

body1952
Wanchoo, C.J.—This is an application by the State of Rajasthan for leave to appeal to the Supreme Court under Arts. 132 and 133 of the Constitution of India. 2. The application has been opposed on behalf of the opposite party on two technical grounds, namely— (1) that it is barred by limitation, and (2) that it has not been properly presented. Learned counsel for the opposite party agrees that but for these two technical matters, the case is a fit one for granting leave under Arts. 132 (1) and 133 (1) (c) of the Constitution. 3. The case arose on an application under Art. 226 of the Constitution by Nathmal and Mithalal. That application was allowed on the 19th October, 1951. The present application was filed on the 30th of January, 1952. It is contended on behalf of the opposite party that the application is barred by limitation for two reasons (1) that the applicant is not entitled to any deduction of time taken in obtaining a copy of the judgment to be appealed from under sec. 12 of the Limitation Act, and (2) that, in any case, Mithalal having been brought on the record on an application, dated 5th March, 1952, the application was burred against him. 4. Arts. 132 and 133 of the Constitution provide for appeal to the Supreme Court from any judgment, decree or final order of a High Court. The relevant provisions of sec. 12 of the Limitation Act in this connection are these: — "(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of Judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded. (3) Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded." 5. The contention on behalf of the opposite party is that this case is covered by sec. 12 (2), and the time taken in obtaining a copy of the judgment cannot be excluded. We have already pointed out that the judgment was delivered on the 19th October, 1951. The contention on behalf of the opposite party is that this case is covered by sec. 12 (2), and the time taken in obtaining a copy of the judgment cannot be excluded. We have already pointed out that the judgment was delivered on the 19th October, 1951. Application for copy was made on the 15th January, 1952, and copy was delivered; on the 30th January, 1952. The application for leave to appeal was presented on the same day, namely, the 30th of January, 1952. Now if the period spent in obtaining the copy is excluded, the application would be within time on the 30th of January. The question is whether this period can be excluded under sec. 12 (2) or 12 (3) of the Limitation Act. 6. There is difference of opinion among the various High Courts as to whether the time taken in obtaining copy of the judgment can be excluded in cases of application for leave to appeal. Some High Courts, as for example Allahabad, have held that as sub-sec. (2) expressly contains the words application for leave to appeal, while sub-sec. (3) does not, the time spent in obtaining copy of the judgment cannot be allowed in cases of applications for leave Vide Gulabchand and others vs. Peary L I (A.I.R. 1935 Alld., 99). Other High Courts have held that time taken in obtaining a copy of the judgment can be allowed under sub-sec. (3) (Vide A.I.R. 1925 Madras, 1941). We do not think it necessary to decide in the present case whether time for obtaining a copy of the judgment can be excluded in a case where there is a judgment as well as a decree following it. The present is a case, in our opinion, where there is no decree following the judgment of this Court. The application of the opposite party was under Art. 226 of the Constitution of India, and was disposed of by the judgment dated the 19th October, 1951. Both Arts. 132 and 133 allowed appeals from a judgment, decree or final order of a High Court. It may be mentioned that in sec. 109 of the Code of Civil Procedure, the words used were decree or final order, and the word judgment has been added by Arts. 132 and 133 of the Constitution. Both Arts. 132 and 133 allowed appeals from a judgment, decree or final order of a High Court. It may be mentioned that in sec. 109 of the Code of Civil Procedure, the words used were decree or final order, and the word judgment has been added by Arts. 132 and 133 of the Constitution. It seems to us that the word judgment has been added to provide for cases coming to the High Court under Art. 226 of the Constitution of India. In cases under Art. 226, there is no decree. The application is disposed of by a judgment of the court, and it is that judgment, in our opinion, which is liable to appeal under Arts. 132 and 133. Sec. 12 (2) of the Limitation Act allows exclusion of time for copy of a decree, sentence or order. The word decree is well understood, while the word sentence refers to criminal proceedings. The word order used in sub-sec. (2), in our opinion, must cover judgment in cases under Article 226 of the Constitution of India, otherwise it is difficult to understand what is the order a copy of which has to be filed in cases under Art. 226. We are, therefore, of opinion that in cases covered by Art. 226, the judgment itself is the order to be appealed from, and the time taken in obtaining copy of the judgment has to be excluded. Once the time taken in obtaining the copy of the judgment is excluded, it is admitted that the application for leave to appeal was filed within lime. 7. As to the contention that, in any case, the application was barred by time as against Mithalal, it is enough to say that we accept the explanation that the name of Mithalal was left out by oversight from the application which was filed on the 30th January, 1952. We, therefore, condone the delay, under the circumstances, under sec. 5 of the Limitation Act. 8. The next point that is urged that the application was not presented properly in so far as, though it was signed by the Government Advocate, it was presented before the Registrar by his clerk and not by Government Advocate himself. We, therefore, condone the delay, under the circumstances, under sec. 5 of the Limitation Act. 8. The next point that is urged that the application was not presented properly in so far as, though it was signed by the Government Advocate, it was presented before the Registrar by his clerk and not by Government Advocate himself. Under O. 3, r. 1 C.P.C., any act in any court required or authorised by law to be made or done by a party may, except where otherwise expressly provided, be made or done by the party in person, or by his recognised agent, or by a pleader on his behalf. In this case, the act that was done was the act of presentation of the application for leave to appeal. This act should have been done by party in person, or by his recognised agent, or pleader. The Government Advocate naturally represents the State, but his clerk can neither be called the recognised agent of the State, nor a pleader acting for State. The presentation, therefore, was not according to law in this case. 9. It appears however that there has been a practice in this Court and in the High Court of the former State of Jodhpur that Government Advocates clerk presents applications on behalf of the Government Advocate. That this is so also appears from the fact that in this very case, the application for amendment of the original application praying for bringing Mithalal on the record was also presented by Moolraj, clerk of the Government Advocate, and not by the Government Advocate himself. We are of opinion that this practice, unsupported as it is by any rule, must stop in future. At the same time, it would, in our opinion, be unfair to Government that it should suffer because of a wrong prac-tice having grown up. The result of the improper presentation is that the application would not be deemed to have been presented on the 30th of January when it was actually presented. It may be taken to have been presented on the 3rd March, 1952, when the Government Advocate appeared in support of it at the preliminary hearing. Considering the peculiar circumstances of this case, we extend the time for making the presentation up to the 3rd of March, 1952,(on which date, at any rate, the application must be taken to have been properly presented,) under sec. Considering the peculiar circumstances of this case, we extend the time for making the presentation up to the 3rd of March, 1952,(on which date, at any rate, the application must be taken to have been properly presented,) under sec. 5 of the Limitation Act. 10. We, therefore, reject the technical objection raised on behalf of the opposite party, and order that a certificate be granted as prayed under Art. 132 (i) and 133 (i) (c) of the Constitution. In view of the technical defects in the case, we order parties to bear their own costs of the present application.