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1989 DIGILAW 672 (RAJ)

Mahant Dhangir v. Jankidas

1989-09-14

K.S.LODHA, R.S.VERMA

body1989
K.S. LODHA, J.—Since these two applications arise out the same judgement, they are being disposed of by a common order. These are two applications under Articles 133 and 134A of the Constitution praying for a certificate that the case involves a substantial question of law of general importance and requires decision of the Honble Supreme Court arising out of the decision of this Court in D. B. Civil Special Appeal No. 20/75. 2. We have heard the learned counsel for the parties. 3 A preliminary objection has been raised by Mr. M. M. Vyas appearing for Jankidas Mohanlal, the non-petitioners in both these cases. It has been urged by the learned counsel for the petitioner that under Art. 134-A a certificate can be issued by this Court as envisaged in Art. 132(1) or 133(1) or 134(1) either of this Court deems it fit on its own motion or if an oral application is made by or on behalf of the party aggrieved immediately after the passing or making of such judgment decree, final order or sentence as referred to in the opening part of Art. 134A. This Court has not at its own motion deemed it necessary to determine the question whether a certificate of the nature referred to in clause (1) of Art. 132 or clause (1) of Art. 133 or as the case may be, sub-clause (c) of clause (1) of Arr. 134 should be granted or not, and, therefore, the only course for the petitioner to get such a certificate was to make an oral application immediately after the passing of the judgment in the said special appeal. Since that has not been done, now the petitioners cannot ask for a certificate on the basis of written applications filed after more than one-month. Since that has not been done, now the petitioners cannot ask for a certificate on the basis of written applications filed after more than one-month. 4 In reply learned counsel for the petitioners in both the cases urged that although an oral prayer could have been made for grant of the certificate immediately after the passing of the judgment, he cannot be precluded from asking for such a certificate even later on by making a written application for grant of such a certificate and such an application lies under Order 45 of the Code of Civil Procedure It was also urged that Art. 134 of the Limitation Act also envisages a written application, if the only course for asking for such a certificate by a party was to make an oral application immediately after the delivery of the judgment the provision for limitation for making an application would have been meaningless and redundant. 5 We have given our consideration to these contentions and in our opinion the preliminary objection must prevail. It is clear that this court did not deem it necessary to determine the question whether a certificate of the nature refreferred to in the Articles already mentioned above should or should not be granted and now the certificate is being prayed for by making written application after more than a month of the passing of the judgment and it is only on that basis that the certificate is prayed for. Art. 134A has been introduced by the amendment No. 44 of 1978 in the Constitution and this amendment appears to have been brought in because earlier these were no clear rules when an application for grant of certificate referred to in Art.. 132, 133 and 134 was to be made and different High Courts took different views and made different rules. Therefore, in order to remove the anomaly, Art. 134A had to be introduced by the 44th amendment and now the procedure and the question of limitation has been determined by providing that an oral application has to be made by or on behalf of the party aggrieved immediately after the passing or making of the judgment, decree final order or sentence. No other mode by a later application by the parties is provided for. No other mode by a later application by the parties is provided for. Of course, the Court has been given a discretion to consider this question if it deems necessary suo moto but if the Court does not take any step in this respect suo moto, then the only course open to the parties for making such an application is by way of making an oral application immediately after the passing or making of the judgment, decree, final order or sentence and no written application is either envisaged or entertainable. The provisions of Order 45 CPC or Art. 134 of the Limitation Act would not be of any avail to the petitioner in as much as when a constitutional provision is in conflict with any other provision of law, the constitutional provision would always prevail. Here when Art. 134A has been introduced by the 44th Amendment, the earlier provisions of Order 45 C.P.C. or Art. 134 Limitation Act would not come to the aid of the petitioners. A similar view has been taken by a Full Bench of the Karnataka High Court in Keshava S. Jankhandi v. Ramchandra S. Jankhandi(l). Calcutta High Court also appears to have taken the same view as has been digested in the A.I.R. Manual on Art. 134A at page 436, Fourth Edition, Eighth Volume in the case reported in (1980) 1 Cal. HIN. 235. 6. In this view of the matter, these written applications for grant of the certificates for leave to appeal to the Honble Supreme Court cannot be entertained and are hereby rejected.