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High Court Of Rajasthan
Judgename : C.M. Lodha,Kanta Bhatnagar
Union of India (UOI) - Appellant
Versus
Wazir Singh - Respondent
Special Appeal No. 23 of 1968
Decided On : 02/25/1980
SPECIAL APPEAL - CERTIFICATE FOR - GRANT OF - TIME LIMIT - RULE 97 OF THE RULES OF THE RAJASTHAN HIGH COURT - INTERPRETATION OF - DELAY IN MAKING APPLICATION FOR CERTIFICATE - CONDONATION OF - POWER OF THE COURT - CIRCUMSTANCES IN WHICH DELAY CAN BE CONDONED - PRESENTATION OF APPEAL - BY A COMPETENT PERSON - AUTHORITY OF THE COUNSEL TO PRESENT THE APPEAL - NECESSITY OF.
Fact of the Case:
The appellant filed a special appeal, by certificate, under Section 18 of the Rajasthan High Court Ordinance, from the judgment and decree of a learned single Judge in Section B. Civil Regular Second Appeal No. 108 of 1962. The respondent raised two preliminary objections: (1) that the certificate granted by the learned single Judge was incompetent as it was granted after the time prescribed for the same had expired; and (2) that the special appeal was not presented by a competent person.
Finding of the Court:
The court held that the application for certificate must be made orally or in writing before or at the time when the judgment is delivered and in the present case it was undoubtedly delayed. The court also held that a case for condonation of the delay has not been made out and, therefore too, the appellant is not entitled to get the delay condoned and hence the certificate must be revoked. The court further held that the presentation of the appeal was not proper and was consequently incompetent.
Issues: 1. Whether the certificate granted by the learned single Judge was incompetent as it was granted after the time prescribed for the same had expired? 2. Whether the special appeal was not presented by a competent person?
Ratio Decidendi: 1. Rule 97 of the Rules of the Rajasthan High Court provides that an application for a certificate for special appeal must be made orally or in writing before or at the time when the judgment is delivered. No such application shall be entertained later. 2. The court has discretion to condone the delay in making the application for certificate only in exceptional circumstances, such as when the party was prevented from making the application due to a bona fide mistake or due to the fault of the Court. 3. The presentation of an appeal amounts to acting on behalf of the party, which requires an authority in writing.
Final Decision: The court allowed both the preliminary objections and rejected the appeal.
2. Two preliminary objections have been raised on behalf of the plaintiff-respondent to the maintainability of the appeal, and since it is not necessary to narrate the facts giving rise to the appeal for the disposal of the preliminary objections, we proceed straight to state the preliminary objections,
3. The first preliminary objection, raised by the learned Counsel for the respondent, is that the certificate granted by the learned single Judge was incompetent inasmuch as leave has been granted after the time prescribed for the same had expired. It is submitted that the judgment under appeal was pronounced on October 5, 1967. No application, oral or written was made by the appellant to the learned single Judge for declaring the case a fit one for appeal, before or at the time when the judgment was delivered. Consequently, it is urged that any subsequent application for grant of such declaration was barred by time.
4. For a correct appraisal of this contention raised on behalf of the respondent, it would be proper to read here the relevant Rule, i.e., Rule 97 of the Rules of this Court. “97. Where a Special Appeal from the judgment of one Judge does not lie unless such Judge has declared that the case is a fit one for appeal, an application for such declaration may be made orally before or at the time when the judgment is delivered. No such application shall be entertained later. The Court shall thereupon record an order granting or refusing to grant such declaration”.
5. A bare reading of this Rule would show that it is incumbent on the part of the party, who seeks leave for appeal, to make an application for grant of leave, before or at the time the judgment is delivered even though such an application may be oral. The rule also provides that no such application shall be entertained later.
6. ShriRaj Narain Munshi, learned Counsel for the appellants, has urged that the words “no such application” occurring in the rule refer to an oral application and not to a written application. It is submitted that for certain valid reasons if it is not possible for an aggrieved party to make an oral application before or at the time when the judgment is delivered, a written application can be made later on and it would be within the discretion of the Judge to condone the delay. It is urged that there is no absolute bar against entertaining an application after the judgment is delivered but within the period of limitation prescribed for special appeal. In this connection, he has placed reliance on Badruddin Abdul Rahim vs. Sitarara Vinayak Apte, AIR 1928 Bom 371 and Ma. Than vs. Mg. Ba Gyaw, AIR 1928 Rang 1 (FB). On the other hand, it has been pressed by Mr. Bhandari learned Counsel for the respondent, that the words “no such application” refer to the words “application for such declaration” occurring in the preceding sentence, and therefore, argues Mr. Bhandari, that an application for grant of certificate at a subsequent stage after the judgment is delivered, is barred.
7. The word “such” is defined in Words and Phrases permanent Edition, (West Publishing Co. Volume 40A,) “as of the sort or decree previously indicated or contextually implied”. Generally, the word ‘such’ refers only to previously indicated, characterized or specified. “Such” is an adjective meaning the one previously indicated or refers only to something which has been said before. “Such” is defined by Webster as “having the particular quality or character specified; certain; represent
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