IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE16H DAY OF SEPTEMBER2016R PRESENT THE HON’BLE MR. JUSTICE H.BILLAPPA AND THE HON’BLE MR. JUSTICE P.S.DINESH KUMAR MISCELLANEOUS PETITION No.100001 OF2016BETWEEN RYATAR SAHAKARI SAKKARRE KARKHANE NIYAMIT, RANNA NAGAR, TIMMAPUR – 587 122, MUDHOL TALUK, BAGALKOT DIST, REPRESENTED BY MANAGING DIRECTOR, SRI. ASHOK V MORAB ... PETITIONER (BY SRI MANOJ D. PUKALE, ADV.,) AND1 PRINCIPAL COMMISSIONER OF INCOME TAX, OPP. CIVIL HOSPITAL, DR. AMBEDKAR ROAD, BELGAUM-590 001.
2. ASST. COMMISSIONER OF INCOME TAX C-1, ADDRESS: DEVOOR BUILDING, BEHIND GODAVARI HOTEL, ATHANI ROAD, BIJAPUR-586 101.
5. 2 JOINT COMMISSIONER OF INCOME TAX C-1, ADDRESS: DEVOOR BUILDING, BEHIND GODAVARI HOTEL, ATHANI ROAD, BIJAPUR-586 101. INCOME TAX OFFICER W-1, AAYAKAR BHAVAN, SECTOR NO.24, NAVANAGAR, BAGALKOT-587 103. INCOME TAX OFFICER, TDS WARD, FEROZKHIMJIB HAI COM-COMPLEX-1, OPP. CIVIL HOSPITAL DR.AMBEDKAR ROAD, BELGAUM- 590 001 … RESPONDENTS THIS MISC. PETITION FILED UNDER ORDER
45RULE2READ WITH SECTION151CPC., PRAYING TO GRANT THE FITNESS CERTIFICATE FOR APPEALING TO THE HON’BLE SUPREME COURT UNDER ARTICLE133IN THE CASE OF ITAs NO.100111 TO10012/2015 (T-IT) C/W10001 TO10001/2016 ‘A’ PARTICULARLY IN RESPECT OF THE SUBSTANTIAL QUESTION/S OF LAW OF GENERAL IMPORTANCE AS SET OUT IN PARA NO.15 IN THIS PETITION OR SUCH OTHER QUESTION/S TO BE DECIDED BY THE HON’BLE SUPREME COURT. IN ANNEXURE (T-IT) THIS MISC. PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER
, THIS DAY, P.S.DINESH KUMAR. J., PRONOUNCED THE FOLLOWING:- ORDER
This petition is filed under Order 45 Rule 2 read with Section 151 CPC with a prayer to grant a ‘Fitness 3 Certificate’ for filing an appeal before the Hon’ble Supreme Court under Article 133 of the Constitution of India against common order dated 26.2.2016 in ITAs.No.100111 to 100120/2015 c/w. 100012 to 100017/2016 (T-IT) passed by this Court.
2. Heard Sri Manoj D. Pukale, learned Counsel for the petitioner.
3. This Court disposed of the aforementioned Income Tax Appeals by the said common order dated 26.2.2016. Feeling aggrieved, petitioner herein filed Review Petitions No.100036, 100044 - 58/2016 and the same were rejected by Order dated 13.7.2016. Thereafter, the instant Miscellaneous Petition has been filed for grant of ‘Fitness Certificate’ to enable the petitioner to present an appeal before the Hon’ble Supreme Court under Article 133 of the Constitution of India. 4 4. Registry of this Court has raised an objection with regard to maintainability of this petition as no oral leave was sought in compliance with Rule 3 contained in Chapter XIX of High Court Rules, 1959 (‘High Court Rules’ for short). That is how, this petition is listed before us.
5. Learned Counsel for the petitioner submitted that whilst the common judgment was being pronounced in Income Tax Appeals, he was convinced that the matter required a review and accordingly filed the Review Petitions. After dismissal of Review Petitions, the petitioner decided to challenge the orders passed in Income Tax Appeals before the Hon’ble Supreme Court. Accordingly, he has sought for a ‘Fitness Certificate’.
6. So far as the maintainability of this petition raised by the Registry, Sri Manoj D. Pukale submitted that, he did not seek an oral leave immediately on pronouncement of Judgment in the ITAs as he was clear 5 in his mind to file Review Petitions. It is only after rejection of Review Petitions that he has presented the instant petition under Order 45 Rule 2 CPC. He argued that the language employed in Order 45 Rule 2 CPC is unambiguous and it provides for applying for a Certificate to this Court by presenting this petition.
7. Grant of certificate by an High Court for filing an appeal before the Hon’ble Supreme Court is provided under Article 134A of the Constitution of India and the same reads as follows:- “134A. Certificate for appeal to the Supreme Court:- Every High Court, passing or making a judgment, decree, final order, or sentence, referred to in clause (1) of article 132 or clause(1) of article 133, or clause (1) of article 134- (a) may, if it deems fit so to do, on its own motion; and (b) shall, 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, 6 determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in clause (1) of article 132, or clause (1) of article 133 or, as the case may be, sub-clause (c) of clause (1) of article 134, may be given in respect of that case.” 8. Chapter XIX of the High Court Rules also deals with appeals to Hon’ble Supreme Court and Rules 1 to 3 read as follows:- “1. Civil appeals on the certificate of the High Court, Rules contained in this Chapter shall be read as supplemental to Order XLV of the Code of Civil Procedure, 1908, and to the Supreme Court Rules and shall not be read in derogation of either of them.
2. xxxxxxxx. (omitted) 3. A party desiring to appeal to the Supreme Court under Article 132 or Article 133 of the Constitution may apply orally for grant of certificate immediately after the pronouncement of the judgment by the Court and the Court may grant or refuse the same.” 9. A careful perusal of Rule 1 makes it clear that High Court Rules are supplemental to Order 45 of Code of Civil Procedure and to Supreme Court Rules 7 and further that they shall not be read in derogation of either of them. Rule 3 provides that a party desirous of filing an appeal to the Supreme Court may apply orally for grant of Certificate immediately after pronouncement of the Judgment. Therefore Order 45 Rule 2 CPC cannot be read in isolation.
10. Further, this issue is no more res integra. Issuance of a certificate by this Court to present an appeal before the Hon’ble Supreme Court was considered by a Full Bench of this Court in the case of Keshava S. Jamkhandi and others v. Ramchandra S. Jamkhandi and others reported in ILR19802) KAR1357 The following question was referred for consideration of Full Bench: “Whether a party who has failed to make an oral application immediately after the passing or making of a judgment, decree, final order or sentence, could file a written application for a certificate for 8 appeal to the Supreme Court, at any time after the passing or making of a judgment, decree etc.?.” The Full Bench has answered the question as follows:- “A p ar ty, who h as f ailed to make an oral ap p lic a tio n immed ia te ly af ter the p ass ing or mak ing of a judgment, decree, final order or sentence, cannot file a written application for a certificate for appeal to the Supreme Court, at a subsequent stage.” 11. Respectfully following the opinion of the Full Bench of this Court, we hold that the instant petition is not maintainable and the same is accordingly dismissed. cp* Sd/- JUDGE Sd/- JUDGE