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Andhra Pradesh High Court
Judges : B.K.SOMASEKHARA, P.S.MISHRA, V.RAJAGOPALA REDDY
Honble Secretary and Correspondent, Badruka College of Commerce - Appellant
Versus
State OF A.P. - Respondent
Decided On : 12-05-96
Limitation Act, 1963 - Writ Proceeding Rules of Andhra Pradesh, 1977 - Rules 20, 24 and 25 - Civil Procedure Code, 1908 - Constitution of India, 1 950 – Article 226 and 227 – Jurisdiction - Payment of costs – Condo nation of delay - Rule of human law and human justice - Amendment Act of 1976 of Code was brought into force with effect - Section 141 of Code as it existed before amendment Act of 1976 enabled any Court of Civil Jurisdiction to apply procedure provided in Code in regard to suits in all its proceedings - But Amendment Act adding Explanation to provision excluded any proceeding under Article 226 of Constitution from expression proceedings - Apparently no reference is made to earlier Full Bench ruling of our High Court - That obviously led to conflict of two Full Bench pronouncement of our High Court - In view of that and Singh V case of Supreme Court being latest Court are called upon to restate correct position of law in this regard – Held, Delay of days in filing petition to set aside such an impugned order in W. P. cannot be but inordinate amounting to negligence and should be judged with serious concern – Admittedly appellant came to know about such an order when respondent made a representation to pay all emoluments to him in pursuance of other two orders passed - In spite of it appellant did not report to Court that Advocate on record had no authority to submit that petition was not pressed nor took any steps to file a petition to set aside order either immediately or within a reasonable time - Even presuming that appellant had to correspond with Advocate on record and son of former Advocate late in regard to such a mailer to know circumstances under which such a representation was made to High Court that petition was not pressed it is difficult to believe that appellant would have required days to approach this Court for such a relief - Single Judge for adequate reasons rightly did not accept such explanations for delay amounting to laces and this Court even after re-examination of all facts and circumstances finds no reason to interfere with said order - Appeal dismissed
( 2 ) THE Amendment Act of 1976 of the Code was brought into force with effect from 1-2-1977. Section 141 of the Code as it existed before the amendment Act of 1976 enabled any Court of Civil Jurisdiction to apply the procedure provided in the Code in regard to suits in all its proceedings. But the Amendment Act adding the Explanation to the provision excluded any proceeding under Art. 226 of the Constitution from the expression proceedings . This is apparent from reading the provision as it exists since 1-2-1977 as herein. "miscellaneous Proceedings: 141. The procedure in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction. Explanation : In this section, the expression proceedings includes proceedings under O. IX, but does not include any proceeding under Art. 226 of the Constitution". (stress imported)Therefore, in unambiguous terms the provision made the procedure in the Code inapplicable to any proceeding under Art. 226 of the Constitution. In view of the conflicting opinions expressed by different courts including our own High Court in A. Adinarayana v. State of A. P. , AIR 1958 Andh Pra 16, the Parliament, by the aforesaid amending Act, introduced the Explanation and statutorily recognised the views expressed by some of the Courts, that writ proceedings under Art. 226 of the Constitution shall not be deemed to be proceedings within the meaning of S. !41 of the Code as has been noted in Puran Singh v. State of Punjab, 1996 (1) SCALE 380 : (AIR 1996 SC 1092 ). Therein it was concluded as follows (at p. 1096, para 5 of AIR):--"after the introduction of the explanation to S. 141 of the Code, it can be said that when S. 141 provides that the procedure prescribed in the Code in regard to suits shall be followed, as far as it can be made applicable "in all proceedings in any court of civil jurisdiction", it shall not include a proceeding under Art. 226 of the Constitution. . . . . "the non-applicability of the procedure provided in the Code to the proceedings under Art. 226 of the Constitution had been settled by the Supreme Court even before the amending Act of 1976 in Muljibhai Patel v. Nandlal Khodidas Board, AIR 1974 SC 2105. The pronouncement therein with the following words was affirmed in Puran Singh s case (AIR 1996 SC 1092 at p. 1096) (supra):-- ". . . . . S. 141 of the Code, to which reference has been made, makes it clear that the provisions of the Code in regard to suits shall be followed in all proceedings in any Court of Civil jurisdiction as far as it can be made applicable. The words "as far as it can be made applicable" makes it clear that, in applying the various provisions of the Code to proceedings other than those of a suit, the Court must take into account the nature of those proceedings and the relief sought for. . . . : After the introduction of the explanation to S. 141 of the Code, it can be said that when S. 141 provides that the procedure prescribed in the Code in regard to suits shall be followed, as far as it can be made applicable "in all proceedin
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