1. In this Letters Patent appeal with leave from a decision of Bhutt, J. (as he then was) in Second Appeal No. 764 of 1953, a preliminary objection has been raised by the learned Advocate General appearing for the opponent-State as to the competency of this appeal. Relying on the decision of a Full Bench of this Court in Letters Patent Appeal No. 106 of 1958, (State of Madhya Pradesh v. Patel Gayaprasad), the urged that the appeal was Incompetent under Clause 10 of the Letters Patent as the application for leave was not made immediately after the judgment was pronounced on 31st January 1957 as required by the rules made by this Court under Clause 27 of the Letters Patent; that the application for leave was filed on 6th February 1957; and that in these circumstances the learned Single Judge was not justified in granting leave to appeal.
2. The reply of Mr. Dabir, learned counsel for the appellants, was that the judgment in Second Appeal No. 764 of 1953 was pronounced on a date of which no intimation had been given to the appellants' counsel; that the draft judgment was also not laid on the table as required by Rule 10 Chapter 4 of the High Court Rules; that the application for leave was filed immediately after the appellants came to know of the delivery of judgment; and that it was not open to a Bench hearing a Letters Patent appeal filed with leave to question the legality or propriety of the grant of leave by the Single Judge. In regard to the Full Bench decision relied on by the learned Advocate General, it was urged by Shri Dabir, learned counsel for the appellants, that the view expressed in that case on the question of competency of a Letters Patent appeal filed with leave required reconsideration.
3. The preliminary objection taken by the learned Advocate General raises two questions, namely, (i) the interpretation of the word 'immediately' occurring in Rule 10 (Chapter 4) of the High Court Rules; and (ii) whether the discretionary power of the Single Judge to grant leave to appeal under Clause 10 of the Letters Patent is subject to review by the Bench hearing the appeal. There are numerous decisions of this Court in which the meaning of the expression 'immediately after the judgment is delivered' has been considered. It is unnecessary in this order of reference to go into a detailed discussion of the cases on the subject.
A full examination of it is to be found in the judgment of Rao, J. in Sakharam v. Laxman, Misc. Civil Case No. 60 of 1955, D/- 7-4-1955 (Nag), which was relied, on by the Full Bench in Letters Patent Appeal No. 106 of 1958. In that case, the learned Judge observed that the word 'immediately' implies that there is a more stringent requisition than what is ordinarily implied in the word 'reasonable' and that it must receive a reasonable interpretation, so far that it cannot be considered as imposing an obligation to do what is impossible. In Sakha-ram's Case (Misc. Civil Case No. 60 of 1955, D/-7-4-1955 (Nag)--(supra), the judgment was posted for delivery on 21st February 1955 and the counsel seeking leave to appeal was aware of the date. The application for leave was filed on 24th February 1955, and did not disclose the grounds on which the leave was sought. It was in these circumstances that Rao, J. refused leave to appeal. As we read the decision of Rao, J., it appears to us that the learned Judge laid down that 'immediately' implied that the act should be done with all convenient speed having due regard to the nature and circumstances of the case.
The decision of Rao, J. is not an authority for the proposition that a Bench hearing a Letters Patent appeal filed With leave is entitled to review the decision of the Single Judge granting leave to appeal. We would have decided the preliminary objection on this reading of the decision of Rao, J. But two of the learned Judges hearing Letters Patent Anneal No. 108 of 1958, relying on the decision in Sakharam's Case, Misc. Civil Case No. 60 of 1955, D/- 7-4-1955 (Nag) (supra), have made some observations which go to suggest that an application for leave to appeal must be made without any lapse of time whatsoever immediately after the judgment is delivered; that the sufficiency or insufficiency of the cause which prevented counsel from making an application for leave to ap-peal could not be considered; and that the Bench hearing a Letters Patent appeal could examine the question whether the application for leave filed before the Single Judge was in conformity with Rule 10, Chapter 4, High Court Rules, and whether there were valid grounds for the grant of leave by the Single Judge. In Letters Patent Appeal No. 106 of 1958, the judgment appealed1 against was delivered on 25th March 1958 and the application for leave to appeal was made on 28th March 1958. The learned Single Judge granted leave. Naik J., who was a member of the Full Bench, observed:
'There is no provision for the grant of leave under the circumstances of the case nor for the reasons stated by the learned Single Judge.'
He held that the appeal was incompetent under Clause 10 of the Letters Patent as the application for leave was not made immediately after the judgment was pronounced. Bhutt C. J. also took the same view. Pandey J., who was the third! member of the Full Bench, did not express any opinion on the question.
4. It seems to us that it is difficult to reconcile the view taken by the learned Judges in Letters Patent Appeal No. 106 of 1958 with the view expressed by Rao J. in Sakharam's Case, Misc. Civil Case No. 60 of 1955 D/-7-4-1955 (Nag) (supra) on which they relied. Rao J. made it very clear that the word 'immediately' must receive a reasonable construction and that it cannot be considered as imposing an obligation to do what is impossible. This observation makes it very clear that according to the learned Judge in giving the word 'immediately' a construction, some regard must be had to the nature and circumstances of the case and the word cannot be taken as excluding altogether the Possibility of any time intervening after the delivery of judgment In other words, the import of the word 'immediately' would vary with any particular case and will imply a longer or a shorter period according to the circumstances of each case. The sufficiency or insufficiency of the cause which prevented counsel from making an application without any lapse of time after delivery of judgment or even the existence or non-existence of the cause has to be considered in each case.
5. Without expressing any concluded opinion, we are at present inclined to think that once leave to appeal is granted by a Single Judge under Clause 10 of the Letters Patent, it is not permissible for the Bench hearing that appeal to hold it incompetent on the ground that the application for leave was not in conformity with the aforesaid rule or that there were no valid grounds fod the grant of leave. It is plain from the language of Clause 10 of Letters Patent that leave to appeal has to be granted by the Judge who passed the judgment sought to be appealed against and that he is the sole and final judge of the question whether leave to appeal should or should not be granted. The grant of leave to appeal in certain cases is a condition Precedent to the exercise of jurisdiction in the Letters Patent appeal.
The object of imposing the fetter of leave on appeals is clearly to prevent frivolous and needless appeals. No hard and fast rule can be laid down as to when a Judge should grant or retuse leave to appeal. But the responsibility of granting leave is of the Judge passing the judgment, who is required to consider the question of grant or refusal of leave to appeal paying due regard to the precise phrase in Clause 10 of the Letters Patent that the Judge must certify a case as a fit one for appeal. It is well-settled that an order refusing leave to appeal under Clause 10 of the Letters Patent is not appealable: see Kumarappa Chettiar v. Official Receiver, West Tanjore, ILR 1950; Mad 747: (AIR 1950 Mad 216); Babu Harshet v. Shrikrishna AIR. 1930 Bom 224; In re M. Govinda Rao, ILR 59 Mad 293: (AIR 1936 Mad 134) and A. Ramanayya v. T. Kotayya, AIR 1930 Mad 75. If an order refusing leave to appeal is not appealable, then it necessarily follows that the grant of leave to appeal is not subject to review by the Bench hearing the appeal.
In this connection, it would be useful to refer to the observations of Lord Esher, M. R., and Lopes, L. J. in In re Housing of the Working Classes Act, 1890; Ex parte Siteyenson, 1892-1 QBD 609 in connection with certain provisions empowering a legal authority to grant or refuse leave to appeal. Lord Esher, M. R., observed at page 611 as follows:
'I am, on principle and on consideration or the authorities that have been cited, prepared to lay down the proposition that, wherever power is given to a legal authority to grant or refuse leave to appeal, the decision of that authority is from the very nature of the thing, final and conclusive and without appeal, unless an appeal from it is expressly given ...The very nature of the thing really concludes the question; for, if, where a legal authority has power to decide whether leave to appeal shall be given or refused, there can be an appeal from that decision, the result is an absurdity and the provision is made of no effect.
If the contention for the claimant be correct it would follow that the case might be taken from one Court to another till it reached the House of Lords on the question whether there should be leave to appeal. That cannot be so. For these reasons, I think the appeal must be dismissed.'
Lopes, L. J. expressed himself tints at page 612:
'Where an appeal is given that is made sub-ject to the leave of the Court or a Judge or any other legal authority, I think that the granting or refusal of leave by such Court, or judge, or other legal authority, is final and unappealable. The object of making appeals subject to leave is to prevent unnecessary and frivolous appeals. If an appeal were allowed from the granting or refusal of leave to appeal, the result would be that, instead of checking appeals, they might be multiplied to a most mischievous extent; for an appeal from the granting or refusal of leave might be carried from the Divisional Court to this Court, and from this Court to the House of Lords. For these reasons I think that the preliminary objection must prevail.'
6. These observations make it very clear that the decision of a Single Judge under Clause 10 of the Letters Patent about the grant or refusal of leave to appeal is final and conclusive and is not open to appeal or review, if, in a case where the Judge has granted leave to appeal, the Bench hearing the appeal were to hold that the appeal is incompetent as no leave should have been granted, it would mean that the Bench has, contrary to the clear language of Clause 10, assumed to 'itself the duty of deciding whether leave to appeal should or should not be given. No doubt, if the Bench is of the opinion that the decision of the Single Judge is right and that it did not raise any question on which leave to appeal should have been granted, the proper course is to dismiss the appeal. But the Bench cannot hold the appeal to be incompetent on the ground that the application for leave to appeal was not in accordance with Rule 10, Chapter 4, High Court Rules, or that there were no valid grounds for granting leave to appeal.
7. We are aware of the fact that the Supreme Court has in many cases questioned the exercise of the discretion of the High Court in certifying cases as fit for appeal under Article 134 of the Constitution of India, and has declined to accept the appeals as properly certified: see Nar Singh v. State of Uttar Pradesh AIR 1954 SC 457; Baladin v. State of Uttar Pradesh, (S) AIR 1956 SC 181; Sunder Singh v. Stare of U.P., (S) AIR 1956 SC 411; Haripada Dey v. State of West Bengal, (S) AIR 1956 SC 757; Pershadi v. State of Uttar Pradesh, (S) AIR 1957 SC 211, Khushal Rao v. State of Bombay, AIR 1958 SC 22 and Sidheshwar v. State of West Bengal, AIR 1958 SC 143. But it must be remembered that the Supreme Court has done this because of its general powers of judicial superintendence of all Courts in India and as the ultimate interpreter and guardian of the Constitution. This position was made very clear in para 6 of the judgment in AIR 1954 SC 457. The relation between the Bench hearing a Letters Patent appeal and the Single Bench granting leave to appeal bears no resemblance to the illation between the Supreme Court and the High Courts.
It must be noted that in AIR 1954 SC 457 (supra) it was contended, on the authority of Sublianand Chowdhary v. Apurba Krishna Mitra, AIR 1940 FC T, that the appellant having obtained the certificate the Supreme Court had become an ordinary Court of appeal and was bound to hear the case as an appellate Court both on facts and on law. The Supreme Court negatived this contention by pointing out that the judgment ot the Federal Court, which dealt with Section 205 of the Government of India Act, 1935, covering a different subject and using a different language, was not applicable. The scope of the powers of the Federal Court in the matter of interference with the discretion of the High Court in granting or refusing to grant a certificate under Section 205 of the Government of India Act, 1935, has been explained by the Federal Court in Pashupati Bharti v. Secretary of State, AIR 1938 FC 1.
8. The questions raised are of considerable importance and should, in our opinion, be referred to a Full Bench. We would accordingly refer the following questions:
1. Whether, on a proper interpretation of the word 'immediately' in Rule 10 Chapter 4 of the High Court Rules, an application for leave to appeal made sometime after the judgment is delivered can be entertained when sufficient cause is shown for inability to apply for leave at the time of the delivery of the judgment itself?
2. Whether the Bench constituted for the hearing of a Letters Patent appeal with leave has the power to hold the appeal to be incompetent on the ground that it was not properly certified inasmuch as the application for leave filed before the Single Judge was not in conformity with Rule 10 Chapter 4 of the High Court Rules, and/or there were no valid grounds for the grant of leave by the Single Judge?
(The reference came on for hearing before the Full Bench consisting of Dixit C. J., Shrivastava J., Pandey J., Golvalker J. and Bhargava J.)
9. The following two questions have been referred for the opinion of the Full Bench by a Division Bench of this Court in Letters Patent Appeal No. 95 of 1957:
'1. Whether, on a proper interpretation of the word 'immediately' in Rule 10 Chapter 4 of the High Court Rules, an application for leave to appeal made sometime after the judgment is delivered can be entertained when sufficient cause is shown for inability to apply for leave at the time of the delivery of the judgment itseli?
2. Whether the Bench constituted for the hearing of a Letters Patent appeal with leave has the power to hold the appeal to be incompetent on the ground that it was not properly certified inasmuch as the application for leave filed before the Single Judge was not in conformity with Rule 10 Chapter 4 of the High Court Rules, and/or there were no valid grounds for the grant of leave by the Single Judge?'
10. The Letters Patent appeal arose from the decision of Bhutt J. (as he then was) in Second Appeal No. 764 of 1953. The judgment in that case was pronounced on 31-1-1957 and an application for leave to appeal was filed on 6-2-1957. The appeal was filed after the necessary declaration by the learned Single Judge under Clause 10 of the Lctters Patent was given.
11. It was contended on behalf of the respondent that the application for leave to appeal should have been filed immediately after the judgment was pronounced and as this was not done, the learned Single Judge had no jurisdiction to grant the necessary declaration. It was urged that the Division Bench could reject the appeal on that ground.
12. The material part of Clause 10 of the Letters Patent is as follows:
'......an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section one hundred and eight of the Government of India Act, made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; ......'
Under Clause 27 of the Letters Patent power has been given to the High Court 'to make rules and orders for regulating the practice of the Court'. Acting on thig power, the High Court has framed Rule 10 contained in 'Chapter IV of the Rules of the Madhya Pradesh High Court which is as follows:
'An application for leave to appeal under Clause 10 of the Letters Patent against an appellate judgment of a single Judge of the High Court shall be made in writing or orally to the judge deciding the appeal immediately after the judgment is delivered. No other application for such leave to appeal shall be entertained.'
We may also refer to Rule 2 of Chapter IX, which is as follows:
'When a type-script of a judgment or order has been prepared and is ready for signature, the judgment or order will be laid on the table of the Court Reader and will he available for inspection by parties and Counsel appearing in the case. The judgment will be signed at the close of the sitting of the Court on the day following that on which the judgment or order is placed on the Reader's table.....'
13. Shri R.S. Dabir for the appellant contended that he was not aware of the draft judgmene being placed on the table as required by Rule 2 of Chapter IX, nor did he know the date of the delivery of the judgment. His application for leave to appeal was, therefore, delayed and was filed on 6-2-1957 as soon as he came to know about the delivery of the judgment. In other words, his contention is that the delay in filing the application was for sufficient cause and under such circumstances the learned Single Judge had jurisdiction to make the necessary declaration. According to him, the word 'immediately' occurring in Rule 10 of Chapter IV should bo interpreted to mean 'as soon as practicable under th.e circumstances of each case'. On the other hand, Shri H.L. Khaskalam, Government Advocate, contends that the word 'immediately' should be construed to mean 'as soon as the judgment is pronounced' and there is no scope for the contention that delay which is due to sufficient cause can be excused. According to him, the declaration granted under Rule 10 'of Chapter IV on an application which has been delayed is contrary to that rule and the order is, therefore, without jurisdiction.
14. The learned Government Advocate relied upon certain observations of Bhutt C. J; and Naik J. in Rao Shankar Pratapsingh v. State of M. P., 1959 MPLJ 1100: (AIR 1960- Madh-pra 86) (FB) on the construction of Rule 10 of Chapter IV. In paragraph 19, Bhutt C. J. observed as follows:
'Rule 10 of the Rules made by the High Court in exercise of the powers conferred by Clause 27 of the Letters Patent requires that the application for leave to appeal must be made immediately after the judgment is delivered and no other application for such leave to appeal shall be entertained. The application in question could not, therefore, be entertained and grant of leave to appeal was accordingly incompetent. This has been the consistent view of this Court: see Misc. Civil Case No. 60 of 1955. D/- 7-4-1955; 1952 Nag LJ 42 decided by late Rao J. on 7-4-1955 in which all the precedents are referred to. The same view follows from Manikalal v. Bhikamchand, ILR (1940) Nag 84 : (AIR 1940 Nag 47).'
Naik J. observed in Paragraph 58:
'It has been repeatedly held by this Court that 'immediately' implies prompt vigorous action without any delay and a very heavy onus iies on a party applying for leave on a day subsequent to the delivery of the judgment to establish compliance with the rule. Reviewing the case-law on the subject, Rao J. in Misc. Civil' Case No. 60 of 1955 D/- 7-4-1955: 1952 Nag LJ 42 stated:
The learned counsel for the applicants contends that there has been no such tlelay as wouldresult in the rejection of the application. The word'immediately' implies that there is a more stringent requisition than what is ordinarily impliedin the word 'reasonable'. True, it must receive areasonable interpretation, so far that it cannot beconsidered as imposing an obligation to do what isimpossible: Per Cockburn C. J. in Alexiadi v.Robinson, (1861) 2 F and P 679 at PP. 683, 684.'Immediately' has the same meaning as 'forthwith'.Both are stronger than the expression 'within a reasonable time', and imply prompt vigorous action, without any delay: R. v. Justices of Berkshire, (1878) 4QBD 469 at p. 471. In the latter case, a recognizance entered into four days after notice of appealwas held to be not in compliance with the regulation requiring the recognizance to be enteredinto immediately after notice of appeal.
The judgment was posted for delivery on 21-2-1955. The learned counsel who argued the appeal was aware of the fact. The applicant also came to know of the judgment late on that very day. There is no explanation why leave could not have been asked for on the 22nd or the 23rd. The present application does not disclose the grounds on which leave is sdught. So in that form leave might as well have been asked before the 24th''.
It appears from these extracts that while Bhutt C. J. thought that the appeal was incompetent, as the application for leave was not immediately made after the pronouncement of the judgment, Naik J. thought that the leave could not be granted unless the party filing the belated application discharged the heavy onus lying upon him to explain the delay.
15. In ILR (1940) Nag 34 : (AIR 1940 Nag 47), which is referred to in the observations of Rhutt C. J., the interpretation to be put on the word 'immediately' in Rule 10, Chapter IV, was not at all considered. In that case, the question was whether a Single Judge had power to review his order rejecting an application for leave to file a Letters Patent appeal and it was held that after he had once rejected the application, he became functus officio and could not revise or review his order. In 1956 Nag LJ 42, Rao J., no doubt considered the implications of the word 'immediately' occurring in Rule 10 of Chapter IV and rejected the application for leave which was filed three days late. However, it is clear from the observations made in paragraph 12 that the application was rejected, as there was no explanation why leave could not have been asked for on the 22nd or the 23rd. These observations imply that if the necessary explanation had been given by the applicant in that case, the learned Judge would have been inclined to consider it and, if satisfied that the cause was sufficient, he would have entertained the application in spite of the delay. In my opinion, this decision only lays down that the application for leave must be made with all practicable despatch and a heavy onus lies on the party who delays his application to explain the delay. It does not lay down that a Single Judge has no jurisdiction under any circumstances to entertain an application which has not been filed immediately.
16. The intention of Rule 10 of Chapter IV obviously is that there should be no undue delay in making the necessary application. The word 'immediately' has to be reasonably construed so as not to require from the applicant something. which is impossible. It is rightly pointed out by Shri Dabir that the applicant may not be able to apply immediately after the delivery of the judgment for a variety of reasons, e.g., his counsel may be ill or may have gone out on the date of the judgment, or the name of the counsel may not appear in the cause list so that he may not have notice about the date of the delivery of the judgment, and so on. It is true, as Rao J. has observed in Sakharam's case, 1956 Nag LJ 42 (supra), that a counsel can soon after the arguments make up his mind as to whether it would be necessary for him to ask for leave after the delivery of judgment; but it is conceivable that he may not be ablc to make such a prayer for reasons beyond his control. In such cases, it appears to me that it should be open to the Single Judge concerned to consider the circumstances which led to the delay and, if he is satisfied that the delay was for sufficient cause, he may condone it.
17. The word 'immediately' in Rule 10 of Chapter IV should be so read as to advance its purpose, and not to defeat justice. I would, therefore, answer the first question in the affirmative.
18. Turning now to the second question, I have no doubt that the Division Bench has no power to revise the order of a Single Judge granting the necessary declaration under Clause 10 of the Letters Patent. From the language of that clause, it is clear to me that the matter of granting declaration is in the absolute discretion of the Single Judge, unfettered by any limitations. The Division Bench hearing the Letters Patent appeal derives its jurisdiction on the subject-matter of the appeal by the declaration made by the Single Judge and it would be anomalous to hold that by virtue or such jurisdiction conferred on it. it can question the validity of the order of the Single Judge.
19. Clause 10 of the Letters Patent confers jurisdiction on the Single Judge to make the declaration in a fit case. The rules framed under the power of the High Court to regulate its proceedings cannot over-ride the jurisdiction which has been given to the Single Judge under that clause. If any action of the Single Judge is contrary to the rules, it would, at best, be an irregularity which does not affect his power to make the necessary declaration. This can be illustrated by referring Jo Rule 2 of Chapter IX. In a case where the Judgment is not placed on the table in accordance with the rule, it cannot be contended subsequently thac the judgment itself is ineffective. The obvious reason is that the power to deliver the judgment is not affected by the rules regulating the procedure. In the same manner, I should think that the grant ot the necessary declaration by a Single Judge cannot be rendered invalid, if he has acted on a delayed application.
20. It will further be noticed that the power of declaring a case fit one for appeal under Clause 10 of the Letters Patent is not restricted to eases only where an application has been filed by the party concerned. A Judge can act suo motu in granting leave under that clause. Rule 10 of Chapter IV has application only in cases where a party wants to insist upon his right to obtain a declaration; but that rule has no application where the Judge acts suo motu. There is no reason why the action of a Single Judge in granting leave on a delayed application cannot be considered to be his action on his own motion. For analogy, we may refer to Section 435 of the Code of Criminal procedure which confers power on the High Court to revise the decisions of the subordinate Courts under certain circumstances on its own motion. In most cases, the proceedings for the exercise of this power are started at the instance of parties and yet the ultimate action of the Court is on its own motion.
21. A Division Bench hearing a Letters Patent appeal does not stand in the same relation to a Single Judge as an ordinary appellate Court stands in relation to a subordinate Court. In fact, the hearing of an appeal by a Division Bench under the special provisions in the Letters Patent is merely a re-hearing by the same Court and the judgment of the Division Bench is nothing but a substitution of the judgment of the Single Judge both being decisions of the same Court. In this view, the Division Bench has no power to review or revise or question the validity of the grant of the necessary declaration by the Single Judge. In this connection, I may refer to the observations of Lord Esher, M.R., and Lopes, LJ, in 1892-1 QBD 609 which have been quoted in the order of reference. In a case decided by the Division Bench of the Patna High Court. Asarfi Mander v. Karu Mander, AIR 1934 Pat 466 Courtney-Terrell, C. J. stated as follows:
'I venture to suggest that learned Judges, in exercising the responsibility given to them by the Letters Patent to hear appeals singly, might remember that it is only when a case presents some difficulty and in which the Judge really feels that the matter before him requires further consideration by a larger Court that 'leave' should be granted.. If a Judge decides the case with confidence that should be an Indication that it is not a fit case for appeal, and if he accepts the responsibility which is cast upon him by the Letters Patent his decision will be final.'
I have no doubt that a Single Judge is, therefore, the final authority in judging whether the case should be declared as fit for appeal and the Division Bench cannot question the merits of the decision.
22. Shri Khaskalam referred to several cases in which the Supreme Court cancelled certificates of fitness granted by the High Courts under Article 133 or Article 134 of the Constitution and argued that on the same analogy the Division Bench hearing the Letters Patent appeal can cancel the certificate granted by the Single Judge. I may only state that the Supreme Court has general powers of judicial superintendence over all the Courts in India. In AIR 1954 SC 457 the Supreme Court explained its power to determine whether the certificate was rightly granted as follows:
'This Court has general powers of judicial superintendence over all Courts in India and is the ultimate interpreter and guardian of the Constitution. It has a duty to see that its provisions are faithfully observed and, where necessary, to expound them. Article 134(1)(c) uses the same language as Article 133(1)(c). A certificate is required under Article 133(1) in each of the four cases set out there but the mere grant of the certificate would not preclude this Court from determining whether it was rightly granted and whether the conditions pre-requisite to the grant are satisfied. In the case of Clause (c) both of Article 133(1) and Article 134(1), the only condition is the discretion of the High Court but the discretion is a judicial one and must be judicially exercised along the well-established lines which govern these matters (see Banarsi Pershad v. Kashi Krishna, 28 Ind App 11 at p. 13 (PC) also the certificate must show on the face of it that the discretion conferred was invoked and exercised :--Radhakrishan Ayyar v. Swaminatha Ayyar, AIR 1921 PC 25 at p. 26 and Radha Krishna Das v. Rai Krishn Chand, 28 Ind App 182 at p. 183 (PC).'
No such power is possessed by a Division Bench hearing an appeal under the Letters Patent against the decision of a Single Judge.
23. Accordingly, I would answer the two questions, referred to us, as follows :
Question No. 1: Yes. The application can be entertained when sufficient cause is shown for inability to apply for leave at the time of the delivery of the judgment itself.
Question No. 2: No. The Division Bench has no such power.
24. I have bad the advantage of reading the opinion of my learned brother Shrivastava J. I agree that the first question should be answered in the affirmative and the second one in the negative. If I do not state my reasons for agreement, it is because I do not wish to repeat all that has been stated by me in the Order cf reference.
25. I agree that the two questions referred to the Full Bench should be answered as indicated by my learned brother, Shrivastava J.
26. I agree.
27. I agree.
(After delivery of the opinion by the Full Bench, the appeal was heard by a Division Bend consisting of Dixit, C, J. and Golvalkar, J. the judgment wherein was deliverer by--)
28. This is a Letters Patent appeal by the plaintiffs against the judgment and decree of the learned Single Judge of this Court in Second Appeal No. 764 of 1953 whereby the decree granted to the plaintiffs by the two lower Courts was reversed and their suit was dismissed.
29. The relevant facts giving rise to this appeal are these. By a public auction held on 23rd November 1944 leasehold rights in certain Nazul plots in the town of Khandwa were sold and one Trivedi, predecessor of the plaintiff-appellants Nos. 1 to 5 was declared to be the purchaser in consideration of his bid of premium of Rs. 35,000/-. The annual ground rent payable by the said purchaser for the said Plots was accordingly determined at Rs. 2187-5-0. After due acceptance of the said bid a lease deed dated the 28th January 1946 was duly executed by the Deputy Commissioner, Khandwa, representing the State Government as the lessor and by Trivedi as the lessee. But before the document could be got registered an application was made on behalf of the plaintiffs to the Nazul Officer on 21st April 1946 that the lease deed may be drawn in favour of all of them as they had entered into a partnership and they would be holding that plot as such partners for purposes of erecting a cinema theatre hall thereon to be run in partnership. The matter was, therefore, referred to the Commissioner and on his acceptance of this alteration another lease deed in favour of all the plaintiffs was drawn up on 5th September 1946. This deed too could not be executed by all the plaintiff-lessees till 20th October 1.947 on which date it was registered. Thereafter the lessees paid ground rent for the years 1948-49 and 1949-50. But the Deputy Commissioner, Khandwa, by his order dated 20th March 1950 served on the plaintiffs a notice of demand for rent of the years 1946-47 and 1947-48. The plaintiffs disputed their liability to pay the rent as demanded on the ground that there was no lease of the plots in their favour during those two years. However, they paid the amount under protest on 10th May 1950 and filed the suit for refund of the same against the State of Madhya Pradesh.
30. The defendant-State disputed the claim of the plaintiffs! and contended that the Initial lease dated the 28th January 1946 although granted to Trivedi was in fact for the benefit of all the plaintiffs, and as they were placed in possession of the plots in February 1946 they were liable to pay the rent as was paid by them. In the alternative it was urged that even if the plaintiffs were held to be not liable for the rent, they were liable to pay for the use and occupation of those plots at the same rate as rent and the State was, therefore, entitled to retain that amount in liquidation of that liability.
31. The first Court held that the initial lease, being unregistered, was not a valid lease and hence there could be no liability on the plaintiffs to pay any rent for the two years in suit. As to the claim of the defendant-State to retain the money recovered from the plaintiffs towards compensation for the use and occupation of the plots, it was held by the Court that since the plots were leased out for the specific purpose of constructing a cinema theatre thereon, the compensation amount could not be equal to the annual rent inasmuch as the plaintiits had not obtained a license to exhibit cinema films till 15th November 1946. Besides the plea raised by the defendant being one of set-off, and as on 10th May 1950 when the recovery was made by the defendant the claim for the use and occupation had become time-barred, there could be no legal recovery for the years 1946-47 and 1947-48 and as such set-off could not be claimed, It was further held tnat since the defendant had not paid any court-fees for the set-off the claim could not be legally entertained. On these findings, the plaintiff's claim was decreed by the first Court,
32. In first appeal, the learned District Judge, Nimar, held that the lease deed dated the 28th January 1946 did not require registration; that the parties originally did not intend to re-card the document as a completed or operative lease, and that, therefore, it did not create any valid liability against the plaintiffs for the payment of rent in respect of the land for the years 1946-47 and 1947-48. He further held that as the State had not paid any court-fees on their alternative claim to retain the rent paifl by the plaintiffs as damages for use and occupation of the land, the claim coiild not be considered, and that in fact as the recovery of the rent from the appellants for the years 1946-47 and 1947-48 was illegal the State could not be allowed to appropriate the same either as rent or as damages for the use and occupation of the land.
33. In second appeal, the learned Single Judge held that the right., of the parties would be governed by the second lease dated 20th October 1947 and, therefore, no rent as such was payable for the years 1946-47 and 1947-48. He however, took the view that since the plaintiffs were placed in possession of the plots towards the end of February 1946 and had started construction of the cinema-house thereon, which was near completion towards the end of March 1946, the plaintiffs were liable to pay for use and occupation of the plots. He further held that as the plaintiffs themselves had claimed the lease in their favour along with Trivedi and as they themselves had delayed the execution of the second deed till 20th October 1947, they could not be allowed to repudiate their liability to pay for use and occupation. Accordingly he held that the defendant-State was entitled to retain the money towards the satisfaction of that claim against the plaintiffs and hence there could be no liability to refund that amount. He, therefore, allowed the appeal and dismissed the suit. Hence this appeal by special leave.
34. Before us, the judgment of the learned Single Judge was attacked mainly on two grounds : first that both the parties to the lease having expressly intended the same to be operative after the execution of a formal deed of lease, there could be no relationship of lessor and lessee between them till then and as such there could be no question of compensation being payable by the plaintiffs for the use and occupation of the Nazul plots even on equitable considerations; and, second]yi that in any case the plaintiffs as partners of a particular firm being altogether a different entity, quite distinct from Trivedi representing T. N. Jagannath and Sons, the original grantee, could not be held liable either for arrears of rent or for compensation for use and occupation of the plots for the period prior to 20th October 1947 on which date the lease was executed by them accepting the terms and conditions of the grant thereunder.
35. There is no substance in these contentions and this appeal must he dismissed.
36. In our judgment, the conclusion of the learned Single Judge dismissing the appellants' suit is right. But we regret we are unable to acquiesce in the reasoning upon which that conclusion is based. The learned Single Judge has proceeded upon the view that in this case a lease of the Nazitl plots could be made only by a registered instrument and as there was no such document creating tenancy for the material period, the appellants were liable for damages for use and occupation in respect of their possession of the land during that period. This mistaken view overlooked the fact that the lease being of Government lands was exempted from the provisions of Section 107 of the Transfer of Properly Act and a document creating such a lease did not require registration as provided by Section 90 of the Registration Act, and that there was demise of the lands when subsequent to the acceptance of the appellants' bid at the auction held on 23rd November 1941 they took possession of ths land in February, 1946.
37. It is common ground that the leasehold rights in the Nazul plots were granted to the plaintiff-appellants in pursuance of the auction held on 23rd November 1944. The appellants admitted in paragraph 1 of the plaint that they were lessees of the plots in suit under the auction held on 23rd November 1944, in the proceedings which were numbered as Revenue Case No. 24 S. H. ,7/2 of 1944-45. The petition (Ex. D/11), which the plaintiffs made to the Nazul Officer, Khandwa, for the execution of the lease in their names, was on the acceptance of the position that the bid which was offered at the auction held on 23rd November 1944 was on their behalf and that they were the real lessees by virtue of the auction. On 26th April 1946 a statement (Ex. D/13), was made by the plaintiffs' counsel before the Deputy Commissioner, Khandwa, that the bid which was offered at the auction held On 23rd November 1944 was on behalf of the plaintiffs and that they were in possession of the property and consequently a lease deed be executed in their favour.
Under the departmental instructions contained in the Revenue Manual, Volume II, Section IV, Serial No. I, the proposal to dispose of leasehold rights in the plots had to be reported to the Settlement Commissioner for sanction. This sanction as has been rightly held by the learned Single Judge, was given by the Commissioner on 30th November 1944 and not on 10th July 1949 on which date the Commissioner made only an order agreeing to the execution of the lease deed in favour of all the plaintiffs on their application (Ex. D/11). There is thus no doubt that the bid which was accepted at the auction held on 23rd November 1944 was in fact of the plaintiff-appellants and that they were in possession of the lands since February 1946 consequent to the acceptance of their bid.
38. The acceptance of the appellants' bid and their taking possession of the land in February 1946 resulted in the demise of the lands in their favour from the date of their possession. It is well settled that an agreement to lease finally ascertaining the terms of the lease and giving the lessee the right of exclusive possession either immediately or at a future date effects an actual demise and operates as a lease, though a formal lease is to be granted afterwards. An agreement is so construed especially if possession is taken under it. In this connection it is sufficient to refer to the decision in Ramjoo v. Haridas, ILR 52 Cal 635: AIR 1925 Cal 1087. In that case all the decisions bearing upon the question of demise of property were very fully considered and the principle that emerges from the discussion in the judgment is that the question in each case would be whether it was the intention of thc parties that the demise should operate from the date of the possession or of the agreement or from the execution of a future lease. If the lessee takes an immediate interest in the land on the conclusion of the agreement concerning a lease and takes possession thereunder, then there would be a lease notwithstanding the Pact that the parties intended to execute a formal lease subsequently.
It would be pertinent to refer to the observations of Lord Ellenhorough C. J. in Doc v. Groves (1812) 15 East 244 where by an instrument, dated 7th March 1798, A agreed to let to B certain premises from 5th April 1798. It was held that this amounted to a present demise. Lord Ellcnborough said-
'If by the terms of this agreement it had been provided that there should be no entry until a lease was executed, I should have had considerable doubts. But as the case stands, it does appear to me that the instrument must be considered as a present lease from the 5th April 1798. From that period it has the operation of a demise, not depending upon the contingency of the party's granting a future lease, which was a stipulation for the better security of the lessee. It falls, therefore, within thc case of Poole v. Bentley, (1810) 12 East 168; and in Barry v. 'Nugent (1782) 3 Dougl. K.B. 179, thc Court thought, notwithstanding it was agreed that leases with the usual clauses were to be drawn, that such a stipulation did not affect the words of present demise. Here the lessee might never have the benefit of an executed lease; in the interim, therefore, this was an agreement to operate as a present demise, commencing imrnediately from the 5th of April; though a more formal lease was afterwards to be granted.''
39. Now, here all the details of the terms on which thc appellants would hold the Nazul plots had already been settled upon and were not the subject-mutter of any negotiation between them and the Government after the acceptance of the bid at the auction held on 23rd November 1944. This is obvious from the fact that the plots were Nazul plots. The terms and conditions on which Nazul plots can be held by anybody are already settled by the Government once for all. The maximum period of a lease of Nazul plots for building purposes is always thirty years. It is renewable thereafter on the original terms save for the term as regards rent which may be revised. Such a lease is always made to end on a fixed date. The rent is always fixed at the standard rate of one anna per rupee of the premium paid for acquiring the leasehold rights in the plots. In the present case, the rent worked out to be 35000 aimas, that is, Rs. 2187-5-0.
No doubt, the departmental instructions contained in the Revenue Manual referred to earlier say that delivery of possession of the plots should ordinarily be given to the lessee after the lease is duly executed and the lease should run from the date of its execution by the lessee, and that the ground-rent is payable for the financial year commencing on 1st April following the date of execution of the lease. As is clear from the use of the word 'ordinarily,' the instructions do not prohibit delivery of possession of the plots even before the execution of the lease. It is open to the authorities to give in special circumstances, delivery of possession of the plots even before the deed of lease is executed. Such a delivery of possession is neither illegal nor ineffective. The direction contained in the Revenue Manual that the lease should run from the date of its execution by the lessee and the ground-rent would be payable from the financial year commencing On the 1st April following the date of execution can apply only in those cases where the possession of the plot is given to the lessee only after the lease is duly executed. It has no applicability in a case where after the acceptance of the auction bid and before the execution of any lease deed possession of the plots is delivered to the lessee. The instructions contained in the Revenue Manual with regard to the disposal of Nazul plots are after all only executive instructions. On the compliance or non-compliance of these instructions does not depend the question of the validity or the commencement of the lease.
The direction that delivery of possession should ordinarily be given to the lessee after the lease is executed is for the safety of the lessor. But where delivery of possession is given to the lessee without waiting till the execution of a lease deed, the operation of the demise does not depend upon the 'contingency of the party's granting a future lease.' The stipulation then becomes only one 'for the better security of the lessee.' In such a case the demise becomes operative from the date of possession. That the demise should be operative from the date of the appellants' possession of the land was intended by the parties is manifest from the facts that the appellants adopted and accepted the bid of Trivedi at the auction held on 23rd November 1944 as their own, admitted the possession of the land and prayed that a lease deed be executed in their names. The appellants' tenancy having thus begun from the date of their possession of the land, the fact that the first deed f leas(r) was executed by Trivedi and not by the appellants or that it was unregistered or that it was cancelled is inconsequential so far as the appellants' liability for the payment of rent in respect of the plots since the date of their possession is concerned. Equally immaterial is the fact that a formal document of lease was executed and registered by the appellants only on 20th October 1947.
The formal document may govern the rights and liabilities of the parties after the date of its execution. But from the fact of the execution of the document it does not follow that there was no demise of the land in favour of the appellants during the period from the date of their taking possession of the land till the execution of the document. In our opinion, the appellants* liability to pay rent for the two years in question does not rest either on the first deed of lease or on the second one, but flows from the fact that the demise became operative on tbe appellants taking possession of the land admittedly in February 1946 after adopting the bid made by Trivedi at the auction held on 23rd November 1944 as their own and asking for the execution of a leasc deed in their favour.
40. In this view of the matter, it is not necessary to consider whether the alternative plea set up by the defendant-State of being entitled to retain the amount paid by the appellants towards damages for use and Occupation of the land by the appellants was a plea of appropriation or a counter-claim, or any question relating to that plea.
41. For the foregoing reasons, we agreewith the conclusion of the learned Single Judgedismissing the appellants' suit with costs throughout. The result is that this appeal is dismissedwith costs of the respondent-State.