Restoration of application by High Court.

The petitioner, whose application under Article 226 of the Constitution (W.P. No. 1181 of 1956) was dismissed, applied for a certified copy of the judgment to prefer an appeal under Clause 15 of the Letters Patent. The judgment in that case was delivered on nth March, 1958, and the petitioner’s application for a copy C.D.No. 1813 of 1958, was preferred on 14th March, 1958. The requisite stamp papers were called for by the office on 30th June, 1958 by a notice affixed to the notice-board of the office. That notice directed that the copy stamps called for should be furnished within three days. The petitioner did not furnish those copy stamps and so C. D. No. 1813 of 1958 was struck off on 4th July, 1958. The present application, C.M.P. No. 4187 of 1958, was presented as a verified petition. The relief asked for was to restore C.D. No. 1813 of 1958, to file and to direct that a certified copy of the judgment in W.P. No. 1181 of 1956, be furnished to the petitioner.

I ordered notice of this application to the Additional Government Pleader, who represented the respondents in W.P. No. 1181 of 1956.

There are no specific rules on the Appellate Side of this Court to regulate the grant of copies. I am at this stage concerned only with the grant of copies of a judgment for purposes of appeal. There is nothing analogous for instance to rule 129 of the Civil Rules of Practice, Volume I which applies to the Subordinate Courts. Rule 129 of the Civil Rules of Practice provides that, if the stamp papers called for by a notice affixed to the notice-board of the Court are not furnished within three days, the application for copies shall be struck off. There is no specific provision in the Civil Rules of Practice for the Court to restore to the file an application for copies that had been dismissed for default of compliance with a notice which called for the deposit of the required stamp papers. Order 11 of the Original Side Rules regulates the grant of copies on the Original Side of this Court. Rule 5 of Order 11, Original Side Rules provides that whenever fees have to be paid for preparing copies, notice shall be given to the applicants by affixture to the notice-board. The rule allows five clear days (as against the three days in rule 129 of Civil Rules of Practice) within which the “ fees” for example copy stamp papers, should be deposited. Rule 5 further directs:

“If the required fees are not deposited by 4 p.m. on the last of the five clear days, the application shall be struck off ; unless it is restored on application made to the Master for that purpose a fresh application under these rules must be made for copies.”

Though, as I pointed out earlier, rule 129 of the Civil Rules of Practice does not expressly provide for restoration to file of applications dismissed for default, it should be taken as well-settled now that the Courts, to which rule 129 applies, have jurisdiction to order such a restoration. That was settled as early as 1895 by a Division Bench of this Court (Best and Subramania Ayyar, JJ), in Ramanuja Ayyangar v. Narayana Ayyangar1. That principle was applied by Patanjali Sastri, J., in Berumull Sowcar v. Velu Gramany2. Patanjali Sastri, J., referred to Ramanuja Ayyangar v. Narayana Ayyangar1, and observed:

“......this Court held that the later application must be considered to be a continuation of the previous application for the purpose of computing the time prescribed for filing an appeal. No doubt the judgment does not state under what provision the Court has power to treat the petition for restoration of an application for copies dismissed for default as continuation of the previous application, but the decision clearly concludes the point in favour of the appellant.”

It is apparently the inherent jurisdiction of the Court saved by section 151, Civil Procedure Code that could be invoked in such cases.

The principle laid down in Ramanuja Ayyangar v. Narayana Ayyangar1, and followed in Berumull Sowcar v. Velu Gramany2, was