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1955 DIGILAW 40 (GAU)

Paokhohen v. Konsam Amujao Singh

1955-07-15

BRIJ NARAIN

body1955
ORDER This is an application for special leave to appeal to the Honble Supreme Court under Art. 133 of the Constitution of India against the order passed by this Court in Miscellaneous (Writ) Application No. 33 of 1953 on 31-1-1955 by which the writ petition was allowed against the present petitioners as well as against the Deputy Commissioner, Manipur and the State of Manipur through its Chief Secretary. It has been alleged that the aforesaid decision involves substantial questions of law touching the interpretation of the Constitution itself and the Notification issued by the Manipur State Government dated 15-5-1951 was legally valid. 2. Two preliminary points have been raised on behalf of the respondent (i) that the present petition is not in proper form and (ii) it is time-barred. So far as the first contention is concerned, it has been urged that the present petition is only under Art. 133 of the Constitution which runs as follows : "133. (1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies - (a) that the amount or value of the subject-matter of the dispute in the Court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or (b) that the judgment, decree or final order-involves directly or indirectly some claim or question respecting property of the like amount or value; or (c) that the case is a fit one for appeal to the Supreme Court; and where the judgment, decree or final order appealed from affirms the decision of the Court immediately below in any case other than a case referred to in sub-cl. (c), if the High Court further certifies that the appeal involves some substantial question of law.........." 3. The contention of the respondent is that this Article applies to civil cases in which the value of the subject-matter is not less than Rs. 20,000/- etc. But in the present case the subject-matter was not valued at this amount. 4. (c), if the High Court further certifies that the appeal involves some substantial question of law.........." 3. The contention of the respondent is that this Article applies to civil cases in which the value of the subject-matter is not less than Rs. 20,000/- etc. But in the present case the subject-matter was not valued at this amount. 4. Under Art. 132 an appeal lies to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Constitution. In para I of the present petition it has been clearly mentioned that the decision of the Writ Petition No. 33 of 1953 of this Court involves substantial question of law touching the interpretation of the Constitution itself and so it becomes clear that the present petition should, have been, not for obtaining special leave which could be granted only by the Honble Supreme Court under O. XIII of Part II of the Supreme Court Rules; but it should have been an application for obtaining necessary certificate under Art. 132(1) and 133(1) of the Constitution of India. 5. Order XIII of the Supreme Court Rules provides for appeals by special leave. Rule 1 of this Order runs as follows : "1. A petition for special leave to appeal shall be lodged in the Court within three months (90 days) from the date of the refusal of leave to appeal by the High Court, or within three months from the date of the judgment or order sought to be appealed from : Provided that the Court may for sufficient cause shown extend the time". 6. Order XII of the Supreme Court Rules provided for appeals on certificate by High Court and R. 1 of this Order is as under :- "1. Subject to any special directions which the Court may give in any particular case, the provisions of O. 45 of the Code, so far as may be applicable, and of any rules made for the purpose by the High Court concerned, shall apply in relation to appeals preferred under Arts. 132(1), 133(1) and 135 of the Constitution". 7. Subject to any special directions which the Court may give in any particular case, the provisions of O. 45 of the Code, so far as may be applicable, and of any rules made for the purpose by the High Court concerned, shall apply in relation to appeals preferred under Arts. 132(1), 133(1) and 135 of the Constitution". 7. Order 45, R. 2, C.P.C. provides that whoever desires to appeal to the Supreme Court shall apply by petition to the Court whose decree is complained of. 8. Rule 3 provides that every petitioner shall state the grounds of appeal and for a certificate either that, as regards amount or value and nature, the case fulfils the requirements of S. 110, or that it is otherwise a fit one for appeal to the Supreme Court. 9. It becomes clear from the above provisions that the present petitioners should have filed a petition for obtaining Appellant necessary certificate, and not for obtaining a special leave which could be granted only by the Honble Supreme Court. 10. No reference has been made to O. 45, C.P.C., in the petition and this also appears to be necessary. Again the grounds of appeal have also been not mentioned in the present petition as appears to be necessary under R. 3 of O. 45, C.P.C. No affidavit has been filed to the effect that what is stated in the petition is true to petitioners knowledge, information and belief. Such an affidavit should have been filed duly sworn in before proper authority. The present petition has been verified, but under O. 6, R. 15, C.P.C., pleadings i.e. plaints or written statements are to be verified at the foot, but no petition like the present, in a writ petition and in proceeding subsequent thereto. I think affidavit should be filed as has been laid down by the Calcutta High Court, Original Side rules and in form No. 4 App. L. vide Ghoshs Principles and Forms of Pleadings, 1952 Edition, page 509. 11. In Writ Petition No. 33 of 1953, the Deputy Commissioner of Manipur and the State of Manipur were the contesting opposite parties, but they have not been made parties to the present petition. L. vide Ghoshs Principles and Forms of Pleadings, 1952 Edition, page 509. 11. In Writ Petition No. 33 of 1953, the Deputy Commissioner of Manipur and the State of Manipur were the contesting opposite parties, but they have not been made parties to the present petition. The present petitioners did not file any affidavit during the course of hearing of that writ petition in order to rebut the allegations made in the writ petition and the form of the present application will be deemed to be defective on this ground also. 12. I, therefore, hold that the form of the present petition is defective and the first contention of the respondent has considerable force. 13. Coming now to the other preliminary point of limitation, I think, it is fatal to the present petition. The writ Petition No. 33 of 1953 was decided by this Court by means of the judgment dated 31-1-1955. The application for copy of the judgment was given on 25-2-1955 and the copy was actually delivered on 26-2-1955 which means that the present petitioner should have filed the present petition for obtaining the necessary certificate within 90 days (allowed under Art. 179, Limitation Act) plus 2 days under S. 12(2) of the same Act. The present application should thus have been filed on or before 3-5-1955, but it was actually filed after 15 days in this Court i.e. on 18-5-1955, and so it is clearly time-barred vide State of Rajasthan v. Nathmal, AIR 1952 Raj 180 (A) in which it has been laid down that a writ petition under Art. 226 of the Constitution is a case where there is no decree following the judgment of the Court and the judgment itself is the order to be appealed from and so the time taken in obtaining copy of the judgment is to be excluded. 14. The learned counsel for the petitioners has relied on Kesor Sugar Works, Bombay v. R.C. Sarma, AIR 1951 All 122 (FB)(B), and it has, been contended that the time required for obtaining decree appealed from should be excluded. But this case was not regarding any writ petition and, the question of appeal was there, from a decree in an original civil suit. But this case was not regarding any writ petition and, the question of appeal was there, from a decree in an original civil suit. I have already pointed out above that in a writ petition no formal decree is prepared and only a memorandum of costs is prepared if necessary, and so this ruling has no application to the present case. 15. I, therefore, hold that the present petition is time-barred and so both the preliminary points prevail. The present petition is, therefore, rejected. The respondent will get his costs from the petitioners. Petition rejected.