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Chunilal Basu and Anr. Vs. the Hon'ble Chief Justice High Court, Calcutta and Ors. (24.08.1973 - CALHC) - Court Judgment

LegalCrystal Citation
SubjectConstitution;Limitation
CourtKolkata High Court
Decided On
Case NumberC.R. No. 1473(M) of 1973
Judge
Reported inAIR1974Cal326,78CWN719
ActsLimitation Act, 1963 - Sections 2(1), 5 and 14; ;Constitution of India - Articles 132(1) and 141
AppellantChunilal Basu and Anr.
RespondentThe Hon'ble Chief Justice High Court, Calcutta and Ors.
Appellant AdvocateK.J. John, Adv.
Respondent AdvocateSoumen Bose, ;Bimal Basak and ;Suprokas Banerjee, Advs. (for No. 1), ;Bhagwati Banerjee, Adv. (for No. 2), ;Prasanta Kumar Bandopadhyay, Adv. (for No. 4) and ;Arun Dutt, Adv. (for No. 5)
DispositionPetition dismissed
Cases ReferredLondon Graving Dock Co. Ltd. v. Horton
Excerpt:
- .....the practice of deciding a case sitting singly and giving a certificate under article 132(1) for appeal to supreme court although technically correct is an improper practice. it is the right of the party to file an appeal in the high court itself against the decision of the single judge and that right should not be short-circuited by passing on the case to the supreme court for decision. the learned advocate made it clear that as the main question involved in the present appeal itself related to the validity of the letters patent he thought it advisable not to prefer an appeal in this court on the basis of the letters patent itself inasmuch as the same would prejudice the right of his client. according to him the appeal under theletters patent before this court would be hit by the.....
Judgment:

Sudhamay Basu, J.

1. This application is for condoning the delay in filing an appeal against the order of K. J. Sengupta, J. dated the 15th of May, 1972 (reported in : AIR1972Cal470 ) discharging a Rule in which the petitioners challenged the constitutionality of the Letters Patent of 1865, Calcutta High Court (Jurisdictional Limits) Act of 1919 and Section 34(2) and (3) of the Advocates Act, 1961. The applicants have made this application both under Section 5 and Section 14 of the Limitation Act. Of the numerous respondents, nine in number, only respondent No. 4, the Secretary of the Bar Library Club has filed an affidavit-in-opposition to which the petitioners in turn have filed an affidavit in reply.

2. The relevant facts as would appear from the connected papers are as follows:--The Rule was discharged by K. J. Sengupta, J. on the 151h of May. 1972. On the 25th of July, 1972 an application was filed for a certificate for leave to appeal to the Supreme Court under Article 132(1) of the Constitution of India. But the same was rejected on the 23rd of August, 1972 on the ground that in a case where appeal lies to the High Court the Court should be very slow in granting certificate for an appeal to the Supreme Court directly. Thereafter, the petitioners made an application for special leave under Article 132(2). On 16-10-1972 the matter came up for hearing before the Supreme Court in S. L. P. (Civil) No. 2881 of 1972 (SC) when it appears 'upon hearing the Counsel for the petitioners the Court-dis-missed the application as withdrawn.' A certified copy of the order has been filed ire this Court. It is, however, pleaded in paragraph 5 of the petition that the Bench of the Supreme Coon constituted by K. S. Hegde, P. Jaganmohan Reddy and H. R. Khanna, JJ. advised the Counsel on behalf of the petitioners to withdraw the application, to prefer an appeal before this Court and to have the same heard by a Special Bench to be constituted by the Chief Justice without prejudice to the rights and contention as to the points taken regarding the constitutionality of the Letters Patent. The petitioners state that they have been prosecuting with due diligence another civil proceeding in the Supreme Court relating to the same matter in issue and the same was being prosecuted with good faith and this appeal could not be filed earlier until the Supreme Court indicated 'its views' on the point on 17th January, 1973. Immediately thereafter, it is submitted in the petition, that the counsel for the petitioners 'rushed to this Court and with utmost diligence amidst uncertainty and cancellation of trains in the wake of power strike in Uttar Pradesh reached Calcutta on the 22nd January, 1973 and filed this application on the next working day'. A further application was made on behalf of the petitioners under Order 1, Rule 16 of the Code of Civil Procedure to strike out some statements made in para. 6 of the affidavit-in-opposition filed on behalf of the Bar Library Club. But Mr. John did not make any submission with regard to the same.

3. Mr. K. J. John, the learned Advocate appearing in support of the application submitted that he was entitled to the benefits of both Section 5 and Section 14 of the Limitation Act. He stated that the petitioners were entitled to the exclusion of the time during which they were proceeding bona fide in the Supreme Court. In this connection Mr. John referred to three cases decided by the Supreme Court, namely, R.D. Agarwalla v. Union of India, reported in : [1970]3SCR778 ; Union of India v. Jyoti Prakash Mitter, reported in : (1971)ILLJ256SC & Union of India v. Sudhangsu Mazumdar, commonly known as Berubari Case reported in : AIR1971SC1594 . In all these cases the Supreme Court held that the practice of deciding a case sitting singly and giving a certificate under Article 132(1) for appeal to Supreme Court although technically correct is an improper practice. It is the right of the party to file an appeal in the High Court itself against the decision of the single Judge and that right should not be short-circuited by passing on the case to the Supreme Court for decision. The learned Advocate made it clear that as the main question involved in the present appeal itself related to the validity of the Letters Patent he thought it advisable not to prefer an appeal in this Court on the basis of the Letters Patent itself inasmuch as the same would prejudice the right of his client. According to him the appeal under theLetters Patent before this Court would be hit by the doctrine of estoppel and waiver. The learned Advocate pleaded for excluding the time during which he proceeded before the Supreme Court. After the order made by the Supreme Court on the 17th of January, 1973 he proceeded with utmost diligence and there was no negligence on his part. Mr. John further submitted that in any event, on the facts and circumstances of the case, the delay in filing the petition may be condoned under Section 5 of the Limitation Act as there was 'sufficient cause' for not preferring the appeal within the requisite period.

Mr. John also pleaded that inasmuch as the Supreme Court had expressed 'the views' that his client should prefer an appeal here and have the same heard by a Special Bench there could be no prejudice to the rights of his clients. The expression of the 'views' of the Supreme Court was binding. The word 'advice' used in the petition may not have been apposite but the same should not, in any way, stand in the way of the interest of his clients.

4. On behalf of the Chief Justice who is a party to this proceeding Mr. B. Basak (Mr. S. Bose leading him) left the matter entirely in the hand of the Court. He, however, made submissions on the points of law for the assistance of the Court.

Mr. Bandopadhaya, the learned Advocate appearing on behalf of the Bar Library Club, however, opposed the application. According to him after the refusal of certificate under Article 132(1) by this Court the learned Advocate appearing for the petitioners should not have proceeded to the Supreme Court. That was a 'luxury' for which the petitioners were not entitled to any benefit. It was also contended that the petitioners took no care to explain the delay till the Supreme Court dismissed the application for leave.

5. It would appear that the petitioners have mainly relied on the provisions of Section 14 of the Limitation Act in excluding the time they spent in proceeding before the Supreme Court. In this respect, however, the petitioners seem to be in difficulty. Section 14 of the Limitation Act, it would appear, does not cover exclusion of time in case of appeals. It speaks of computing a period of limitation only for suits which by virtue of the definition under Section 2(1) of the Limitation Act does not include appeals. In this regard our attention has been drawn by Mr. Basak to a passage in the case of State of Kerala v. K. K. M. Kurup reported in : AIR1971Ker211 in which it is stated 'even a tyro will agree -- and the Government pleader readily agreed -- that Section 14 has nothing to do with the exclusion of time in filing appeals.' So the case has to be considered on the basis of Section 5 of the Limitation Act only.

6. With regard to Section 5 of the Limitation Act it is to be noted in the firstinstance that the petition makes no endeavour to explain the delay even in filing the petition under Article 132(1) before Sengupta, J. The rule was discharged on the 15th of May, 1972 but we are informed the petition for leave was moved only on the 24th of July, 1972, i.e. long long after 30 days. No explanation is forthcoming for the delay involved The Court is not apprised if the time was entirely on partly spent in obtaining the certified copy etc. No care has been taken to explain this part of the delay. In this respect Mr. John was disarmingly frank. He confessed that if the petitioners were not entitled to the benefits of Section 14 of the Limitation Act the application indeed might be found wanting from the point of view of Section 5. He pleaded that the mistakes made by him should not adversely affect his client. It may be noted that the phrase 'sufficient cause has never been defined precisely so that the judicial discretion remains somewhat undetermined. It is, however, agreed that the expression should, receive a liberal construction with a view to advance substantial justice where no negligence nor inaction nor want of bona fides is imputable to the appellant or applicant. Existence of sufficient cause is a question of fact in each case. It has, however, been held in some cases that if the appellant is responsible for delay in the filing of appeal even by one day due to negligence he is not entitled to get the benefit of this section. In this respect the petition is hardly satisfactory. It cannot be said that no negligence or inaction is imputable to the appellants.

7. Next consideration is whether the period spent in proceeding before the Supreme Court although not liable to be excluded under Section 14 can be covered by the expression 'sufficient cause'. In the case of Ramlal v. Rewa Coalfields Ltd., reported in : [1962]2SCR762 , the Supreme Court held 'that considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made under Section 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore in our opinion considerations which have been expressly made material and relevant by the provisions of Section 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under Section 5 without reference to Section 14.' In this connection we take note of the objection made on behalf of the Bar Library Club that after Sengupta, J. had pointed out that the Supreme Court has in recent years in several cases deprecated the practice of issuing certificate by a single Judge of the High Court the learned lawyer should not have taken the risk to proceed to the Supreme Court in any event without alternatively filing an appeal before this court. Mistaken advice given by a lawyer may inthe circumstances of a case give rise to sufficient cause but there is no general doctrine which saves parties from the results of wrong advice. In a Full Bench case of the Allahabad High Court (Bechi v. Ahsanullal), (1890) 12 All 461) Mahmood, J. observed long ago that 'speaking with strict accuracy there can be no such thing as a bona fide mistake of law, for good faith implies due care and caution.' The applications here suffer from several handicaps. Throughout his address Mr. John constantly reminded the Court that the appeal was concerned with removal of vestiges of foreign domination as perpetuated by the letters patent and that this case was an exceptional one. The impression conveyed to the Court was that of a crusading spirit but in spite of his pleasing manners Mr. John failed to be persuasive on the point of limitation. He was unable to account for the failure to explain the delay involved. According to him condoning delay was a discretion of the Court. But unfortunately for him, the discretion of the Court has to be exercised judicially. Requirement of justice would hardly permit Judges to be swayed by sympathy or benevolence in condoning the delay. In this respect we may refer to the case of Krishna v. Trimbak, AIR 1938 Nag 156; Even bona fides involved in this respect must imply due care and caution. We are unable to hold on the materials on record, that the same are not wanting in this case.

8. Lastly, it remains to be considered whether the petitioners are entitled to succeed on the basis of the 'advice' alleged to have been given by the Hon'ble Judges of the Supreme Court as stated in paragraph 5 of the petition. The said advice if analysed would involve four things; (1) that the petitioners were to withdraw the application from the Supreme Court, (2) prefer an appeal before this Court, (3) have the same heard by a 'Special Bench' to be constituted by the Chief Justice and (4) this will be without prejudice to the rights and contentions with regard to the points taken about constitutionality of the Letters Patent. It is well known that under Article 141 of the Constitution the law declared by the Supreme Court is binding on all courts. The principles laid down by the Supreme Court and even obiter dicta when these arc clear are binding on the Courts. This Court, however, finds itself in an embarrassing position when confronted with the kind of 'advice' alleged, to have been conveyed to the petitioners. This part of the petition which has been affirmed is also supported by a statement from the Bar. The Court is, therefore, not in a position to reject them out of hand. The other parties not being present before the Supreme Court are not in a position either to affirm or deny them. At the same time, the Court notes that in the order actually passed by the Supreme Court there is no mention of the same. The third and the fourth 'advice' are in the nature of 'directions' of a serious nature butthese do not find place in the written order. Stroud's Judicial Dictionary, Vol. 3 (3rd Edition) at page 1945 describes obiter dictum as statements by the way. Both Siroud's Judicial Dictionary and Words and Phrases by Roland Burrows, Vol. 4 page 1 quote Talbot, J. in Flower v. E. b. b. w. Vale Steel, Iron and Coal Co., (1934) 2 KP 132 (154) and state 'If a Judge thinks it desirable to give his opinion on some point which is not necessary for the decision of the case, that, (i.e. obiter dictum) of course, has not the binding weight of the decision of the case and the reasons for the decision.' The weight of the obiter dicta also varies. Lord Porter in London Graving Dock Co. Ltd. v. Horton, 1951 AC 737 at page 748 stated that 'not every passing expression of a Judge, however, eminent can be treated as an ex-cathedra statement'. Modern jurisprudence is trying to develop a difference even between obiter dicta which are 'irrelevant', to the case and 'judicial dicta' which are relevant to some collateral matter although no part of the ratio (See New Jurisprudence by P. B. Mukharji page 431). Again, in his well known work on 'Precedent in English Law' Mr. Rupert Cross (at page 85) holds after analysing various aspects of ratio decidendi and obiter dictum that 'A dictum must, therefore, be described as a rule of law stated by a Judge which was neither expressly nor irnpliedly treated by him as a necessary step in reaching his conclusion'. The learned author incidentally notes two other definitions --one by Prof. Patterson who regards obiter dictum as a 'statement of law in the opinion which could not logically be a major premises of the selected facts of the decision and the view of Dr. Goodhart that a dictum is 'a conclusion based on a fact the existence of which has not been determined by the Court'. In Halsbury's Laws of England (3rd Edition) Vol. 22 at page 797 Dicta are referred to as statements which are not necessary to the decision which go beyond the occasion and lay down a rule ......... It willbe clear, therefore, that a dictum which is to be followed by courts always refers to a statement or rule of law or a conclusion based upon facts. 'Advices' are never, as far as we are aware, included in obiter dictum which is to be binding. The alleged expressions of the Hon'ble Judges, in any event, are not used in course of any judgment or order nor reduced in the form of writing. With the utmost respect, therefore, we find, it inexpedient to give effect to the same.

9. In view of what is stated above the petition fails and the same is dismissed. The Rule is discharged. In the facts and circumstances of the case the Court, however, directs that each party will bear its own costs.

S.K. Bhattacharyya, J.

10. I agree.


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