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1976 Supreme(Cal) 203
High Court Of Calcutta
Sankar Prasad Mitra, Salil Kumar Datta
PATAI SHEIKH - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. 2024 (W) Of 1973
Decided On : 06/08/1976
Ajit Sarkar, PRADIPTA ROY, SANKARDAS BANERJI
The period of limitation for an appeal from a judgment of a single judge under Article 226 of the Constitution is 30 days.
Headnote:
LIMITATION ACT - ARTICLE 117 - APPEAL FROM JUDGMENT OF SINGLE JUDGE UNDER ARTICLE 226 OF THE CONSTITUTION - PERIOD OF LIMITATION - 30 DAYS - RULE 2 OF CHAPTER VIII OF THE APPELLATE SIDE RULES - NOT APPLICABLE - RULE 43 OF THE RULES OF THE CALCUTTA HIGH COURT RELATING TO APPLICATIONS UNDER ARTICLE 226 OF THE CONSTITUTION - DOES NOT DEAL WITH THE PERIOD OF LIMITATION FOR APPEALS.
Fact of the Case:
The appellants filed an appeal from a judgment of a single judge under Article 226 of the Constitution 59 days after the date of the judgment. The appellants contended that the appeal was not barred by limitation as they had lost 19 days between the date of the judgment and the date they applied for a certified copy of the judgment, and 42 days between the date they received the certified copy and the date they filed the appeal. The appellants relied on Rule 2 of Chapter VIII of the Appellate Side Rules and Rule 43 of the Rules of the Calcutta High Court relating to Applications under Article 226 of the Constitution.
Finding of the Court:
The court held that the appeal was barred by limitation. The court held that Rule 2 of Chapter VIII of the Appellate Side Rules applies to second appeals only and not to an appeal from a judgment of a single judge within the meaning of the first part of Clause 15 of the Letters Patent. The court also held that Rule 43 of the Rules of the Calcutta High Court relating to Applications under Article 226 of the Constitution merely refers to the manner in which an appeal has to be preferred and has nothing to do with the period for limitation of appeals.
Issues: Whether the appeal was barred by limitation.
Ratio Decidendi: The court held that the appeal was barred by limitation because it was filed more than 30 days after the date of the judgment. The court held that Rule 2 of Chapter VIII of the Appellate Side Rules does not apply to appeals from judgments of single judges under Article 226 of the Constitution. The court also held that Rule 43 of the Rules of the Calcutta High Court relating to Applications under Article 226 of the Constitution does not deal with the period of limitation for appeals.
Final Decision: The court dismissed the appeal as barred by limitation.
( 1 ) ON an application under Article 226 of the Constitution Mr. Justice Anil Kumar Sen delivered judgment on the 1st March, 1973. The appellants before Us applied for a certified copy of the judgment on 20th March, 1973. Due to the delay in applying for certified, copy they lost 19 days.
( 2 ) THE certified copy was ready for delivery on the 27th April, 1973, at 4. 80 p. m. The appellants took delivery of the certified copy on April 30, 1973. The appeal was filed on June 11, 1973. The Stamp Reporter did not accept the Memorandum of Appeal on the ground that it was presented 33 days after the expiry of the period of limitation. The appellants thereafter presented an application under Section 5 of the Limitation Act on the 13th June, 1973, whereupon Civil Rule No. 2024 (M) of 1973 was issued. The Rule has now come up for hearing.
( 3 ) MR. Sankardas Banerjee appearing for the appellants contends that the appellants lost 19 days between the 1st March, 1973 and the 20th March, 1973: They lost 42 days between the 30th April, 1973 and the llth June, 1973. The total is 61 days. But out of these 61 days, 2 days, namely, Saturday the 9th June, 1973 and Sunday the 10th June, 1973, would have to be excluded. The appeal therefore has been filed within 59 days.
( 4 ) MR. Banerjee's contention is that the appeal is not barred by limitation at all. He relied on Chapter VIII, Rule 2 of the Appellate Side Rules. This Rule reads:"every Appeal to the High Court under Section 15 of the Letters Patent from a judgment of a Division Bench, or a Judge sitting singly, on the Appellate Side of the High Court, shall be presented to the Deputy Registrar, or such other officer as the Registrar may appoint, within 60 days from the date of the judgment appealed from, unless the Court in its discretion, on good cause shown, shall grant further time. "
( 5 ) MR. Banerjee has relied on a recent Division Bench judgment of Mr. Justice N. C. Mukherji sitting with Mr. Justice B. C. Roy in F. M. A. T. No. 666 of 1975 (Rabindra Nath Chakrabarty v. Union of India ). The judgment was delivered on the 28th May, 1976. The Division Bench, it appears, has held that an appeal under Clause 15 of the Letters Patent from the judgment of a single Judge exercising writ jurisdiction under Article 226 of the Constitution on the Appellate Side is governed by Rule 2 of Chapter VIII of the Appellate Side Rules.
( 6 ) IT appears that the Division Bench's attention was not drawn to the judgment of the Special Bench consisting of Chakravartti, C. J. , Das, J. , Banerjee. J. K. C. Das Gupta, J. , and S. R. Das Gupta, J. , in the case of Chairman, Budge Budge Municipality v Mangru Mia, (SB ). The Special Bench has held that the issue of writs contemplated by Article 226 is exercise of original jurisdiction. It is not original in the limited and technical sense of ordinary original civil jurisdiction of the Letters Patent which carries certain territorial limits but it is original as distinguished from appellate. The jurisdiction cannot be revisional because it is not connected with revising any order of a Court subordinate to the High Court as contemplated by Section 115 of the Code of Civil Procedure, nor does it appertain to the general power of superintendence conferred by Section 107 of the Government of India Act 1915, now Article 227 of the Constitution. The Special Bench is of the view that the period of limitation of an appeal from a judgment of a single Judge given in the exercise of jurisdiction under Article 226 is governed by Article 151 of the Limitation Act 1908 (corresponding to Article 117 of the Limitation Act, 1963) and is 20 days (now 30 days) from the date of order.
( 7 ) WE have no doubt that if this judgment of the Special Bench had been shown to the Division Bench, its decision would have been otherwise.
( 8 ) IT may be relevant to examine the provisions of Clause 15 of the Letters Patent in this connection. An analysis of these
