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Shanmugham Transports (P.) Ltd., Tircuchrapalli Vs. V. Kunju Chettiar and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 218 of 1967
Judge
Reported inAIR1971Mad37
ActsMotor Vehicles Act - Sections 64, 64(1) and 68(2); Motor Vehicles Rules - Rules 147 and 148A; Code of Civil Procedure (CPC), 1908 - Order 41, Rules 1, 3; General Clauses Act - Sections 14(1)
AppellantShanmugham Transports (P.) Ltd., Tircuchrapalli
RespondentV. Kunju Chettiar and anr.
Cases ReferredIn Balakrishna Industrial Works v. Venkatachari
Excerpt:
.....with certified copy also - tribunal disregarded appellant request for grant of time - copy filed by appellant while said request was under consideration valid - held, appeal was filed within time prescribed. - - but as the tribunal does not seem to have noticed the defect till the matter was actually thicken up for argument, the matter has, to proceed on the basis that the failure to return, either refusing to grant time or granting further time, is due to the fault of the tribunal. it is well established that one of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the suitors. jawaharlal, [1961]2scr918 .as the tribunal when the question of delay was taken up before it held that the appeal was in time on the..........of the order and the two decisions above cannot help the petitioner. as the tribunal has got the power return to the appeal in order to enable the appellate authority to comply with the requirements of the rules and as the failure of the second respondent to file the copy of the order in time was due to the failure of the tribunal to make the return, its order holding that the appeal was in time should be held to contain no error apparent on the face of the record.6. the prescription regarding the production of the certified copy of the order appealed against is under rule 148-a. that as well as rule 147 provided the power to the tribunal to return the appeal for representation in the prescribed manner. the prescribed manner of presentation or representation is with the copy of the.....
Judgment:
ORDER

1. The Regional Transport Authority, Tiruchi, proposed to open a new route between Musiri and Eragudi and invited applications for the grant of a permit to run a bus on that route. There were 24 applications and the authority granted the permit to the petitioner. There of the disappointed applicants including the first respondent appealed to the State Transport Appellate Tribunal, which allowed the appeal of the first respondent and set aside the permit granted to the petitioner. The petitioner thereupon filed a write petition No. 787 of 1961 and another appellant before the Tribunal filed W. P. 197 of 1962. Both these petitions were allowed and the writ appeals were also dismissed. The Tribunal later re-heard the appeals and on 30-11-1966 again set aside the grant of the permit granted to the petitioner and awarded it to the first respondent. This writ petition is filed to quash the order of the Tribunal.

2. The only point argued before this court was that the appeal filed by the first respondent before the Tribunal was not in times

3. The original order of the Regional Transport Authority was dated 30-12-1961. That order was received by the first respondent either on 20-1-1961 or on 6-2-1961. The exact date on which it was received by the first respondent does not make any difference to the decision as the appeal was filed on 13-2-1961. It was filed without the certified copy of the Regional Transport Authority's order as required under the rules. On 22-2-1961, the Tribunal returned the appeal for representation on or before 6-3-1961. On that date the first respondent represented it with a request for grant of time for two more weeks for compliance. Somehow the office of the State Transport Appellate Tribunal seems to have overlooked the request and did not return it.

On 30-3-1961, the original order of the Regional Transport Authority was filed. When the question was taken up before the State Transport Appellate Tribunal, the question of limitation was specifically raised. It should also be mentioned that in the earlier writ proceedings before this court the question of limitation was specifically left open. Before the Tribunal, the same arguments that were advanced before this court, seem to have been urged, but the Tribunal held that the appeal was in time. Therefrom, the matter may be discussed here on its merits and it is not necessary to go into the reasons given by the Tribunal itself for holding that the appeal was in time.

4. Under Section 64 of the Motor Vehicles Act, any person aggrieved may, within the prescribed time and in the prescribed manner, appeal to the prescribed authority. Under Section 68(2), clause (j) rules may be made with respect to the authorities to whom, the time within and the manner in which appeals may be made. Rule 147 of the Motor Vehicles Rules provides for the period within which an appeal should be field. That rule runs as follows--

'An appeal under sub-section (1) of Section 64 of the Act shall lie to the State Transport Appellate Tribunal within thirty days of the date of receipt of the order appealed against.'

Under Rule 148-A, an appeal shall be accompanied by the original or a certified copy of the order which is the subject-matter of the appeal. Under the second proviso to Rule 147, the Tribunal, if the appeal is presented within 30 days of the date of the receipt by the person aggrieved of the order appealed against may return it for representation in the prescribed manner and if such an appeal is represented in the manner prescribed and within the date, if any, specified by the Tribunal it shall be deemed to have been presented within the prescribed time for purpose of that rule. The appeal in this case has been filed within 30 days of the date of receipt of the order by the first respondent It has been returned by the Tribunal and it has been represent within the date specified buy the Tribunal but without complying with the return made by the Tribunal. If on the appeal being represented on 6-3-1961, the Tribunal had refused to grant further time for compliance different considerations might arise. But as the Tribunal does not seem to have noticed the defect till the matter was actually thicken up for argument, the matter has, to proceed on the basis that the failure to return, either refusing to grant time or granting further time, is due to the fault of the Tribunal.

It is well established that one of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the suitors. See the decision Jagat Dhish v. Jawaharlal, : [1961]2SCR918 . As the Tribunal when the question of delay was taken up before it held that the appeal was in time on the ground that it was occasioned by its own failure to make a return on the appeal being represented on 6-3-1961, it should be held that it was satisfied that if its notice had been drawn to the matter on 6-3-1961, it would have been prepared to grant further time for production of the certified copy of the order appealed against. The question, therefore, reduces itself to this; whether the Tribunal had the power to make a return.

There is no dispute that the Tribunal has got such power at least in the first instance as is only too clear from the second proviso to the rule. But it is urged that such power can be exercised only once. I can see no warrant for this contention., Order 41, Rule 3, C.P.C. which deals with appeals before the Civil Courts also provides that when the memorandum of appeal is not drawn up in the manner prescribed it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the court or be amended then and there. It does not provide for the appeal memorandum being returned more than once. But it is well known that it is the common practice for a number of returns to be made and such practice has never been questioned. This matter apparently is governed by Section 14 of the General Clauses Act, sub-section (1) of the which provides as follows--

'Where by any Central Act or regulation made after the commencement of this Act, any power is conferred, then, unless a different intention appears, that power may be excised from time to time as occasion arises.'

It was argued that while the Civil Court can exercise the powers under Order 41, Rule 3 of the Civil Procedure Code, any number of times as the power contained in Order 41, Rule 3 is a power conferred by a Central Act, that is not the case with regard to the power conferred by Rule 147 of the Motor Vehicles Rules. I do not think there is any substance in this contention The Supreme Court in State of U. P. v. Baburam, : 1961CriLJ773 , after quoting the statement of law in 'Maxwell on Interpretation of Statutes' 10th Edn. pages 50-51, has held that the rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act and are to be judicially noticed for all purposes of construction or obligation. I am of opinion therefore, that it should be held that the Tribunal in this case has the power if it so chose to make a return in case of appeals filed before it as often as it thinks necessary.

5. The further question still remains whether the presentation of the appeal originally made by the first respondent on 13-2-1961 without the certified copy of the Regional Transport Authority's order is a proper presentation. The argument on behalf of the petitioner is that it was not a proper presentation and therefore it is no presentation at all. This is on the ground that the appeal memorandum was no accompanied by a certified copy of the Regional Transport Authority's order. Support for this argument is sought from the decisions rendered under Order 41. C.P.C. Under Order 41, Rule 1 every memorandum of appeal shall be accompanied by a certified copy of the degree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded. In Balakrishna Industrial Works v. Venkatachari, : AIR1954Mad883 a Bench of this court held that this provisions imperative and the presentation of a Memorandum of civil miscellaneous appeal without a copy of the decretal order appealed against is not a valid presentation and that rule does an not empower an Appellate Court to dispense with the production of a copy of the decree with the Memorandum of appeal.

The Bench has held that the appellate court had no power to dispense with the production of the certified copy of the decree, but that it could dispense with the production of the copy of the judgment. But in that case itself the production of the certified copy of the decree even the time when the appeal was heard and the judgment reserved was deemed to be proper presentation by holding that the delay filling it was not due to the appellant's negligence. In : [1961]2SCR918 , the Supreme Court pointed out that Rule 1 of Order 41 C.P.C empowers the appellate court to dispense with the filing of the judgment but there is no jurisdiction for the appellate court to dispense with the filling of the decree and there is no doubt that the requirement that the decree should be filed along with the memo of appeal is mandatory and in the absence of the decree the filing of the appeal would be incomplete, defective and incompetent. There their Lordships, of course, were not dealing with the question of excusing the delay even in a case where the decree is filed subsequently as was the case in : AIR1954Mad883 already referred to. The power of the court to excuse the delay in producing the copy of the decree appealed against was not considered by their Lordships of the Supreme Court and there is no doubt that the court has such a power.

It should, therefore, be held that in this case the Tribunal had the power to grant time for the production of the certified copy of the order. This is not a case where the Tribunal dispensed with the production of the order and the two decisions above cannot help the petitioner. As the Tribunal has got the power return to the appeal in order to enable the appellate authority to comply with the requirements of the rules and as the failure of the second respondent to file the copy of the order in time was due to the failure of the Tribunal to make the return, its order holding that the appeal was in time should be held to contain no error apparent on the face of the record.

6. The prescription regarding the production of the certified copy of the order appealed against is under Rule 148-A. That as well as Rule 147 provided the power to the Tribunal to return the appeal for representation in the prescribed manner. The prescribed manner of presentation or representation is with the copy of the order. Therefore, that power would include the power to return the memorandum of appeal for representation with the certified copy also. Therefrom, in the first instance when the Tribunal returned the appeal for production of the certified copy, it was excising a power which it had. As I have pointed out it had power to return it as often it considers necessary and, produced not merely within the period fixed in the first return, but if further returns are made in order to enable the appeal to be represented the certified copy can be produced within such time as is granted on the further occasions also. As the Tribunal in this case did not make a return after the first respondent had represented the appeal on 6-3-1961 and the copy of the order was actually filed on 30-3-1961, that copy should be deemed to have been filed even while the question of granting further time under the consideration the Tribunal and the final decision of the Tribunal holding that the appeal was in time should be held to amount to a direction either to grant further time or to excuse the deal y in producing the copy of the order.

7. The writ petition is dismissed with costs of respondent-1; Advocate's fee Rs. 100.

8. Petition dismissed.


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