1. This is a special appeal, by certificate, under Section 18 of the Rajasthan High Court Ordinance, from the judgment and decree dated October 5, 1967, by a learned single Judge in Section B. Civil Regular Second Appeal No. 108 of 1962; (Reported in AIR 1968 Raj 224) whereby the learned Judge allowed the appeal filed by plaintiff Wazir Singh and decreed the plaintiff's suit for Rs. 2.164/-, with interest pendentelite and future interest at the rate of 6 per cent per annum.
2. Two preliminary objections have been raised on behalf of the plainliff-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. Shri Raj 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 v. Sitarara Vinayak Apte, AIR 1928 Bom 371 and Ma. Than v. 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; representing the object as already particularized in terms which are not mentioned.' In the present case, the application previously indicated is 'application for such declaration' and it is further provided that such an application may be made orally before or at the time when the judgment is delivered. Thus, there is nothing in the rule which provides for making such an application at a later stage. It appears to us that contextually the words 'no such application' refer to 'application for such declaration' and not to 'may be made orally'. The Rule enjoins upon a party, which wants a certificate to make an application for such declaration before or at the time when the judgment is delivered. We are, therefore of the opinion 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 authorities relied upon by the learned counsel for the appellants, have no bearing on the point at issue. However, learned counsel for the respondent has brought to our notice a Bench decision of the Madhya Pradesh High Court in Ramnarayan v. State of Madhya Pradesh AIR 1962 Madh Pra 93 (FB) which, according to the learned counsel, can, be pressed into service in support of the contention raised on behalf of the appellants. In that case, the wordings of the relevant rule were these:--
'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 leave to appeal shall be entertained.'
The decision of the case turned upon the interpretation of the word 'immediately' and in the facts and circumstances of the case, learned Judges came to the conclusion that it was open to the learned Judge granting leave to hold that, in the facts and circumstances of the case, there was no undue delay on the part of the party in making the application, which can be said to have been made immediately.
8. However, another branch of the argument of Mr. Raj Narain Munshi is that there is nothing in the Rule which prevented the learned single Judge from condoning the delay caused in making the application. It is true that sometimes a situation may arise when it may not be possible for the party to apply for certificate at the time the judgment is delivered. On certain occasions there may be a bona fide mistake on the part of the litigant and there may be also occasions when due to fault of the court the litigant may not be able to ask for leave at the time of pronouncing judgment. For example, the case may be listed for judgment without notice to the party at a time when the party or his counsel may not be available. In such a case, we are of opinion that the court has discretion to condone the delay even though the Rule provides that no such application shall be entertained later. Let us, therefore, see whether a case for condonation of delay is made out in the present case.
9. The order granting leave is silent. We have already reproduced it above and it is only one line order saying that leave to appeal is granted. However, in order to find out whether a case for condonation of delay is made out, we have gone through the application submitted by the appellant before the learned single Judge. After narrating the facts of the case it has been stated in para 7 of the application that when the judgment of the case was pronounced on October 5, 1967, after hearing the reply of the appellant, the counsel for the respondent was not present and it was, in these circumstances, that necessary request for granting leave for declaring this case to be fit one for appeal, could not be asked for.
10. The arguments before the learned single Judge were completed on October 3, 1967 and the case was ordered to be listed on October 5, 1967, for pronouncing the judgment. However, it appears from the order-sheet dated October 5, 1967, that nobody appeared on behalf of the respondent and the judgment was delivered. It is not respondent's case that he was unaware of the judgment being pronounced on Oct. 5, 1967. On Oct. 19, 1967, the respondent made an application for grant of certificate. It was stated in the application that the counsel for the respondent was not present when the judgment was pronounced. Why he could not be present, the application is conspicuously silent on the point. The application for grant of certificate was made after 14 days of the pronouncement of judgment, i. e., on October 19, 1967. No reasons whatsoever have been given as to why the application was not made at the time when the judgment was delivered as envisaged by the rule, except that the counsel for the respondent was not present. This, in our opinion, was hardly a ground for condonation of delay. Mr. Raj Narain urged that since the learned single Judge has granted the certificate, it must be presumed that he had, in his discretion, condoned the delay. It may be pointed out that the order of the learned Judge granting leave is a brief one and reads thus;
'Heard learned counsel. Leave to appeal is prayed for and is granted'.
11. In these circumstances, it would be open to this Court to see whether a case for condonation of delay had been made out. We are, however, of the opinion 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 decision on this point is, by itself, sufficient for rejecting this special appeal, but since learned counsel for the parties have addressed us on the other preliminary objection, we consider it propel to state the same and dispose it of.
12. The other objection raised by Mr. Bhandari is that this special appeal was not presented by a competent person. It is submitted that Mr. Raj Narain Munshi was appointed by the appellants to act and plead in the second appeal on their behalf and was thus authorised to present the special appeal but the special appeal was presented by Mr. M.L. Shrimal, who had no authority from the appellants to act on their behalf.
13. So far as this factual position is concerned, it appears to us unassailable and Mr. Raj Narain Munshi was unable to controvert it. It is well established that presentation of an appeal amounts to acting on behalf of the party, which requires an authority in writing. It is not the case of the appellants that Mr. Shrimal had any authority whatever from the appellants to present this appeal. The record is silent and no explanation has been submitted before us even at this stage as to in what circumstances and with whose authority the appeal came to be presented by Mr. Shrimal. In these circumstances, we have no alternative but to hold that the presentation of the appeal was not proper and was consequently incompetent. This preliminary objection also prevails.
14. The result is that we allow both the preliminary objections and reject the appeal. No order as to costs.