1. 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 11-3-1958, and the petitioner's application for a copy, C. D. 1813 of 1.958, was preferred on 14-3-1958. The requisite stamp papers were called for by the office on 30-6-1958 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. P. 1813 of 1958 was struck off on 4-7-1958. 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. 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.
2. I ordered notice of this application to the Additional Government Pleader, who represented the respondent in W. P. No. 1181 of 1956.
3. 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, Vol. 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 called for the deposit of the required stamp papers.
Order XI of the Original Side Rules regulates the grant of copies on this Original Side of this Court:-Rule 5 of Order XI, 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 the 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.) inRamanuja Aiyangar v. Narayana Aiyangar, ILR 18 Mad 374. That principle was applied by Patanjali Sastri J. in Berumull Sowcar v. Velu Gramani, 1942-1 Mad LJ 372 : (AIR 1942 Mad 369). Patanjali Sastri J. referred to ILR 18 Mad 374 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, C. P. C. that could be invoked in such cases.
4. The principle laid down in ILR 18 Mad 374 and followed in 1942-1 Mad LJ 372: (AIR 1942 Mad 369), was extended by Somayya J. in Meera Saheb v. Mohamed Kyathi Sahob, 1943-2 Mad LJ 517: (AIR 1944 Mad 90). The learned Judge pointed out that the absence of an express provision in the Civil Rules of Practice for the grant of copies on a second application did not bar the jurisdiction of the Court to entertain a second application for copies. No question arose there of having to treat a second application as a continuation of the first, on the footing that the first application that the party had made was revived.
5. In Manikyam v. Narasimham, 1955 Andh WR 953: (AIR 1956 Andhra 108), Satyanarayana Raju J. held that in case the dismissal of an application for copies was traced to a mistake committed by the office, the Court had inherent jurisdiction to rectify the mistake a member of its staff had committed and to restore to file the original application for copies.
6. As I said, it should be taken as well settled now that the subordinate Courts which are governed by Rule 129 among others of the Civil Rules of Practice can, in the exercise of the inherent jurisdiction vested in them, restore to file applications for copies which had been dismissed for default, for example, for failure to comply with the requirements to furnish the stamp papers within the time allowed. The absence of any specific ride, which provides for the dismissal of an application for copies for default of compliance with the directions issued by the High Court to furnish stamp papers called for, cannot, in my opinion, affect the principle to apply in deciding whether the High Court on its appellate side has jurisdiction to restore to file an application that was dismissed. The inherent jurisdiction of the High Court is saved among others by Article 225 of the Constitution.
7. One of the factors that may have to be taken into account in deciding whether the jurisdiction should be exercised in any given case to restore to file an application for copies dismissed for default is how it will affect the limitation for purposes of appeal In the present case if C. D. 1813 of 1958 is not restored to file, the petitioner will have to apply afresh for the grant of a copy of the judgment for purposes of appeal. In that case the period to be excluded under Section 12 of the Limitation Act would obviously be different from where the period is computed on the basis of the first application, C. D. 1813 of 1958.
The delay in filing the appeal would then have to be dealt with under Section 5 of the Limitation Act. In such cases, I am of opinion that the jurisdiction to restore to file an application for copies dismissed for default should be exercised only after notice to the respondents in the contemplated appeal. The question of condoning the laches of the applicant will, in such cases, have to be dealt with on the application of principles analogous to those on which an application under Section 5 of the Limitation Act will be dealt with.
8. I have held that this Court in the exercise of its inherent jurisdiction can direct restoration of C.D. 1813 of 1958 which had been filed on behalf of the petitioner. Notice to the respondents in W.P. No. 1181 of 1956 who will be respondents in the contemplated appeal has been served on the Additional Government Pleader, and he has been heard. At this stage I should like to record my indebtedness to the learned Additional Government Pleader who placed before me all the relevant authorities and rules. Tha only question that remains is whether this is a fit case where relief should be granted to the petitioner.
9. As I said, it was a verified petition signed by the counsel for the petitioner that was filed in this case. It explained that the counsel's clerk suddenly fell ill and there was therefore no opportunity for the counsel to know that the application had been notified on the notice board of this Court on 30-6-1958. The learned counsel explained that it was only on 23-7-1958 that he came to know that C. D. 1813, of 1958 had been dismissed on 4-7-1958. The truth of these pleas was never challenged, and I accept the explanation.
10. In the circumstances, the relief to be granted is that C. D. 1813 of 1958 be ordered to be restored to file, and further that the delay from 6-7-1958 upto the date on which the copy stamp papers are furnished by the petitioner be condoned. The petitioner should comply with the requisition of the office to be notified afresh to deposit the copy stamp papers.
11. This petition is allowed. No order as to costs.