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Chunilal Kothari and ors. Vs. Sm. Gopi Devi Mimani and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberAppln. for a certificate to appeal to the Supreme Court in A.F.O.D. No. 163 of 1962
Judge
Reported inAIR1965Cal630
ActsLimitation Act, 1963 - Section 12, 12(2) and 12(3) - Schedule - Articlse 132, 134 and 179; ;Constitution of India - Articles 133 and 133(1); ;Limitation Act, 1908
AppellantChunilal Kothari and ors.
RespondentSm. Gopi Devi Mimani and ors.
DispositionApplication allowed
Cases ReferredIn Baladin v. State of Uttar Pradesh
Excerpt:
- sinha, j.1. this is an application for leave to appeal to the supreme court under article 133(1)(a) of the constitution. the facts are shortly as follows: testamentary suit no. 4 of 1954 was filed by sm. gopi devi memani, praying for letters of administration to the estate of meghraj kothari, deceased, and that a right be reserved for her mother mussamat gohar bai to apply to grant in her favour in the event of her gaming sanity, and for other reliefs. the application was opposed and on the 14th of may, 1962 mallick, j. passed a decree granting letters of administration to the estate of meghraj kothari to one gangadas binani. the petitioners chunilal kothari, hiralal kothari, kanhaiyalal kothari and sm. mathura bai appealed against the said order, the appeal being numbered as appeal no......
Judgment:

Sinha, J.

1. This is an application for leave to appeal to the Supreme Court under Article 133(1)(a) of the Constitution. The facts are shortly as follows: Testamentary suit No. 4 of 1954 was filed by Sm. Gopi Devi Memani, praying for Letters of Administration to the Estate of Meghraj Kothari, deceased, and that a right be reserved for her mother Mussamat Gohar Bai to apply to grant in her favour in the event of her gaming sanity, and for other reliefs. The application was opposed and on the 14th of May, 1962 Mallick, J. passed a decree granting Letters of Administration to the Estate of Meghraj Kothari to one Gangadas Binani. The petitioners Chunilal Kothari, Hiralal Kothari, Kanhaiyalal Kothari and Sm. Mathura Bai appealed against the said order, the appeal being numbered as appeal No. 163 of 1962. On the 24th of February, 1964 the appeal came up for hearing before Bachawat, J. and my learned brother A.K. Mukherjea, J. The appeal was allowed in part and the learned Judges directed that the grant issued to Gangadas Binani be recalled and in lieu thereof Letters of Administration to the Estate of Meghraj Kothari, deceased, be granted to Gopi Devi Memani subject to her furnishing security to the extent of Rs. 2,75,500 etc. Save as aforesaid, the order appealed from was affirmed. The appellate decree was filed on the 14th April, 1964. The notice of motion for a certificate for appeal to the Supreme Court was taken out on 13th of May 1964. It has now come up for hearing. Mr. Roy appearing on behalf of the respondent admits that this is a judgment of variance and therefore, it would be sufficient to show that the amount or value of the subject-matter to the dispute in the court of first instance and in appeal is not less than 20,000 rupees. If is notdisputed that the value exceeds that amount.The only point that he has taken is that thisapplication for a certificate is barred by limitation. He has made his argument thus: Underthe Indian Limitation Act, 1908 the relevantarticle was Article 179 which ran as follows:

'179. By a person desiring to appeal under the same Code to His Majesty in Council, for leave to appeal.

Ninety daysThe date of the decree appealed from.'

The Code referred to is the Civil Procedure Code.

2. In computing the time, Section 12 of the said Act permitted a certain time to be excluded. The relevant provisions are Sub-sections (2) and (3) which ran as follows:

'(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal, and an application for review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded.

(3) Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded.'

The Limitation Act 1908 was amended and the new Act No. 36 of 1963 came into operation from the 1st of January, 1964. The relevant article in the new Act is Article 132 which runs as follows:

'182 To the High Court for acertificate of fitness to appeal to the Supreme Court under clause (1) ofArticle 132. Article 133 or sub-clause (c) of clause (1) of Article 134ofthe Constitution or under any other law for the time being in force.

Sixty daysThe date of the decree, order or sentence.'

(3) But although there has been a substantial alteration in the language of the article abovementioned, the wordings of Section 12 virtually remain the same. Sub-sections (2) and (3) of present Section 12 run as follows:

'(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.

3. Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded.'

Mr. Roy argues that in the Limitation Act of 1908, both article 179 and Section 12 talked about 'leave to appeal', but under the amended Act of 1963 the relevant article, namely, 182 speaks about certificates, that is to say an application for a certificate to apply to the Supreme Court under Clause (1) of Article 132, Article 133 or Sub-clause (c) of Clause (1) of Article 134, of the Constitution, or under any other law for the time being in force. Words which would enable any period to be excluded under Section 12 of the Limitation Act however remain the same as before. In other words, under the present Section 12, the exclusion of time relates to an application for leave to appeal and not to an application for a certificate. If Section 12 does not apply, then from the dates set out above it cannot be disputed that a period of more than sixty days has elapsed between the passing of the decree and the taking out of a notice of motion praying for a certificate. That is why Mr. Roy argues that the application is barred by limitation. He has referred to a decision of the Supreme Court, Sidheswar Ganguly v. State of West Bengal : 1958CriLJ273 . The facts in that case were as follows: An order was made by the learned Second Additional Sessions Judge of Alipore on January 22, 1955 accepting the unanimous verdict of guilty returned by the jury, holding the appellant guilty under Section 376 of the Indian Penal Code and sentencing the accused to rigorous imprisonment for five years. Against this order an appeal was taken to the High Court. The Division Bench which heard the matter dismissed the appeal summarily. An application was then made before a Bench consisting of Chakravartti, C. J. and Lahiri, J. for a certificate under Article 134(1)(c) of the Constitution for appeal to the Supreme Court. The learned Judges called for the records from the court of first instance and having heard the matter in extenso delivered a full judgment giving the facts and the history of the case and discussed the evidence adduced on behalf of the prosecution at length. The learned Chief Justice held that there were arguable points and the accused had not had the satisfaction of feeling that he has been fully heard by the court of appeal. Therefore, leave was reluctantly given because justice appeared not to have been done and the evidence ought to have received a fuller consideration by the appellate court, although the result might be to confirm the conviction. Sinha, J. (as he then was) stated as follows:

'We have set out the findings of the learned Chief Justice while granting 'leave to appeal' to this Court in his own words, to appreciate the reasons for granting 'leave to appeal'. It appears that the learned Chief Justice and his other judge, contrary to the legal position that one Bench of the High Court has no jurisdiction to sit in judgment on the decision of another Division Bench, have, in fact, done so. But in the instant case, the learned Chief Justice has gone further and observed that the summary dismissal of the appeal by the criminal Bench, has not given satisfaction to the appellant that he had been fully heard, and that it did not appear to him that justice had been done. Such observations are not conducive to the maintenance of healthy atmosphere for the administration of justice in the highest Court in the State. Furthermore, the observation almost amounts to a condemnation of the practice of summary dismissal of appeals, especially against orders passed in a case tried by a jury where the appellant has to make out clear grounds of law. Such practice prevails, so far as we know, in almost all the High Courts in India, and has the sanction of the statute law as contained in the Code of Criminal Procedure.

This Court has repeatedly called the attention of the High Courts to the legal position that under Article 134(1)(c) of the Constitution, it is not a case of 'granting leave' but of 'certifying' that the case is a fit one for appeal to this Court. 'Certifying' is a strong word and therefore, it has been repeatedly pointed out that a High Court is in error in granting a certificate on a mere question of fact, and that the High Court is not justified in passing on an appeal for determination by this Court when there are no complexities of law involved in the case, requiring an authoritative interpretation by this Court.'

4. From this, Mr. Roy argues that it has been authoritatively declared that 'leave to appeal' is quite different from granting a certificate. The exemption under Section 12 in the present Limitation Act relates to an application for leave to appeal but not to an application for the grant of a certificate. Therefore, the appellant cannot avail himself of that exemption and the application is barred by limitation.

5. The learned Standing Counsel has first of all referred to a Division Bench judgment of this High Court, Azamabad Tea Co. Private Ltd. v. Suraj Ratan : AIR1958Cal296 . In that case, the petitioners asked for a certificate under Article 134(1) of the Constitution for the purpose of a proposed appeal to the Supreme Court. The application was clearly barred by limitation under Article 179 of the Limitation Act. A curious argument was however advanced. It was argued that Article 179 prescribed the period of limitation for an application for leave to appeal to the Supreme Court and the period prescribed is ninety days from the date of the decree appealed from. The first column of the article however, describes the appeal contemplated by it as an appeal 'by a person desiring to appeal under the Code of Civil Procedure, 1908, to the Supreme Court'. It was contended that the article, by reason of its own language, can apply only to appeals preferred under the Code of Civil Procedure, but the appeal was preferred to the Supreme Court was not an appeal under the Code of Civil Procedure, but an appeal under Article 133 of the Constitution, for which no period of limitation has been prescribed. Chakaravartti, C. J. stated as follows:

'To my mind, the true position is that while the right of appeal is given by the Constitution and given by way of defining the jurisdiction of the Supreme Court, the procedure for preferring and prosecuting such appeals is laid down in the Civil Procedure Code. In so far as the Code also contains provisions relating to the right of appeal and in so far as Sections 109 and 110 lay down in what cases an appeal shall lie, there may be as I have pointed out elsewhere a duplication. That, however does not involve the consequence that appeals contemplated by Article 188 of the Constitution are not governed by the Code. In my view, an appeal to the Supreme Court from a judgment, decree or order passed in a Civil proceeding is an appeal under the Civil Procedure Code as well....... a person desiring to appeal to the Supreme Court under the Constitution in a civil matter, must, if his desire is not to remain a mere wish, simultaneously desire to make his appeal under the Code. The two desires are inseparable; and quite logically, the Limitation Act, which is not concerned with the abstract right of appeal but only with actual proceedings for enforcing such right, takes note of only the second desire and speaks of that desire alone.'

The learned Chief Justice held that Article 179 of the Limitation Act applied to the facts of the case. The learned Standing Counsel points out that appeals are preferred under the Code of Civil Procedure as indeed they must be. He invited us to consider the position prior, to the 1st day of January 1964 when the Limitation Act of 1963 came into force. Firstly, we find that Section 109 of the C. P. Code provides as to when appeals lie to the Supreme Court. It speaks about a certificate, but does not speak about any leave to appeal. Section 110 deals with the value of the subject-matter. There again, there is no reference to any leave to appeal. Order 45 of the Code deals with appeals to the Supreme Court. Rule 1 defines a 'decree'. Rule 2 provides as to the court before which an application is to be made and Rule 3 lays down that every petition shall state the grounds of appeal and pray for a certificate, either that, as regards amount or value or nature, the case fulfills the requirements of Section 110, or that it is otherwise a fit one for appeal to the Supreme Court. Nowhere in Order 45 is there any mention of leave to appeal, as distinguished from a certificate. Coming now to the Constitution, we find that under Article 132(1), an appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court whether in a civil, criminal or other proceeding, if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution. Article 133(1) provides for an appeal to the Supreme Court conditional upon a certificate being given by the High Court Clauses (a) and (b) deal with a certificate of valuation and Clause (c) with a certificate of fitness. It is further stated that where there is a judgment of affirmance then under Clauses (a) and (b) there must be a further certificate that the appeal involves some substantial question of law. Article 134 deals with the appellate jurisdiction of the Supreme Court in criminal proceedings from a High Court. Article 134(1) has three clauses. Under Clause (a) and (b) no certificate is necessary, but under Clause (c) a certificate of fitness is necessary. Article 136 deals with special leave to appeal by the Supreme Court.

6. These are all the relevant provisions to be considered for our purposes, but none of them contain any reference to an application for leave to appeal to be made to the High Court, while there is provision for making an application for special leave to the Supreme Court. Yet, prior to the coming into force of the Limitation Act, 1963, the word 'leave to appeal' was used both in Article 179 and in Section 12, as also in other parts of the Limitation Act. This was because an application for a certificate that the case is fit for appeal to the Privy Council or as now to the Supreme Court, in ordinary legal language, is spoken of as an application for leave to appeal. We find from the Select Committee's report in respect of the Indian Limitation Bill (1908) as follows;

'Article 163: We understand that an application for a certificate that a case is a fit one for appeal to His Majesty in Council is in ordinary legal language spoken of as an application for leave to appeal. We have used the expression 'leave to appeal' in this article and elsewhere which includes this meaning.'

7. This appears evident from the expression used by the Judicial Committee, the Federal Court and the Supreme Court. In Radha Krishn Das v. Rai Krishn Chand, 28 Ind App 182 (PC) the Judicial Committee was considering an appeal which was preferred without any certificate under Section 596 of the Civil Procedure Code of 1882 read with Section 600 which correspond with Section 110 and Order 45 Rule 3;, of the Code of 1908. Under the relevant provisions of the Civil Procedure Code, 1882, it was necessary to have a certificate of valuation in certain cases and it was this matter that was being discussed by the Judicial Committee. Lord Davey said as follows:

'In this case their Lordships think that they cannot but give effect to the preliminary objection which has been made. The objection is that there is no proper certificate accompanying the leave to appeal, or forming a proper foundation for the leave to appeal.'

In another place the learned Judge said as follows:

'Their Lordships think that the certificate and not the order for the certificate, is the document which they arc bound to consider and act upon; and unless the certificate upon which the leave to appeal is based is' in such a form us to justify that leave they ought to hold that leave has not properly been given.'

In that case, the petitioner made an application praying that the court may be pleased to grant a certificate under Section 596 of the Code of Civil Procedure, and the court made an order--'Let a certificate issue, that the case is a fit one for appeal to Her Majesty in Council'. The trouble was that the certificate did not mention the valuation and was, therefore, found not to be in order. It will be noted that neither in the application nor in the order was there any mention of 'leave to appeal'. Yet, the Judicial Committee repeatedly used the expression 'leave to appeal' in their judgment. In Moolji Jaitha and Co. v. Khandesh Spinning and Weaving Mill Co. Ltd. AIR 1950 FC 83 at p. 95 the Federal Court used the words 'leave to appeal' although it was in reality speaking about a certificate under Section 109(e) of the Civil Procedure Code, 1908. Fazl Ali, J. said as follows:

'That, when a certificate is intended to be given by the High Court under Section 109(c) of the Code, there must he some indication in the certificate or the order granting leave to appeal of the nature of the question involved in the appeal and it must show that the judicial mind of the court has been applied to determine that though the case does not fulfil the requirements of Section 110 it is still a fit case for exercising the discretion conferred on the High Court by Section 109(c).'

8. Section 109(c) of the C. P. Code speaks about a certificate and not leave to appeal. In Baladin v. State of Uttar Pradesh, (S) AIR 1958 SC 181 the Supreme Court was considering a matter under Article 134(1)(c) of the Constitution. Sinha, J. (as he then was) said as follows:

Article 134(1)(a) and (b) lay down two conditions which conferred a right of appeal to the Supreme Court. That in itself indicates that normally there is no right of appeal in any other type of case. The only exception is where a right is conferred (an appeal shall lie) if the High Court 'certifies that the case is a fit one for appeal. .......... .It is not enough to say 'leave to appeal is given' and no more because an appeal is not allowed in the ordinary way when conditions (a) and (b) are not satisfied. Accordingly merely to say that leave is given and no more tantamounts to saying that the High Court will usurp the function of the Constitution maker and allow the whole case to be opened up despite the fact that the Constitution has specifically limited the normal right of appeal to Sub-articles (a) and (b) and has left (c) to meet any extraordinary cases.'

This decision throws light on the decision of Sinha. J. (as he then was) in : 1958CriLJ273 (supra). There also, the learned Judge was dealing with a matter under Article 134(1)(c) of the Constitution; and pointed out that it was not a case 'of granting leave' but of 'certifying' that the case was a fit one for appeal to the Supreme Court. Under Article 134(1)(a) and (b) of the Constitution no certificate is necessary and there is no question of leave being granted, but under Article 134(1)(c) of the Constitution a certificate is necessary that the case was a fit one for appeal to the Supreme Court. In Sidheswar Canguly's case (supra) a Division Bench of this High Court had summarily dismissed the appeal. Another division bench called for all the records from the lower Court and dealt with the matter as if it was sitting on appeal against the order of the Division Bench. The supreme Court pointed out that one Division Bench could not sit in appeal against the decision of another, and that the granting of a certificate is in reality not granting 'leave to appeals' in the larger sense. At that point of time, both Article 179 of the Limitation Act 1908, and Section 12 contained the words 'leave to appeal'. This expression really meant an application for a certificate and the learned Judge could never have meant that under the Limitation Act, 1908, the expression 'leave to appeal' did not include an application for a certificate. That would have rendered Article 179 nugatory. Coming now to the Limitation Act of 1908, the question is as to why the use of the words leave to appear finds no place in Article 132, although the expression was used under Article 158 and Article 179 of the Limitation Act, 1908. Nothing appears from the statement of objects and reasons. It will appear, however, that Article 132 of the Limitation Act 1963 is wider than the old Article 179 which was only confined to appeals made under the Civil Procedure Code to His Majesty in Council. The present Article 132 relates to both civil and criminal appeals; Articles 132 and 133 mentioned therein relate to civil appeals and Article 134 relates to criminal appeals. It appears to me that the reason why the word 'certificate' has been used in Article 132 of the Limitation Act rather than the words 'leave to appeal' is that it collects at one place, instances both in civil and criminal appeals, where a certificate of the High Court is necessary for an appeal to the Supreme Court, and lays down the period of limitation. There was no intention of distinguishing between the word 'certificate' and the expression 'leave to appeal' which might have been used in other parts of the Act. It would certainly have been much better if the expression 'leave to appeal' had been entirely dropped, even from Section 12. Perhaps this is the inevitable result of hasty legislation. If we construe Article 132 so very strictly, it would give rise to other difficulties. In Article 132, the expression used is--'certificate of fitness' in connection with appeals to the Supreme Court under Clause (1) of Article 132, Article 133 or Sub-clause (c) of Clause (1) of Article 131 of the Constitution. Article 132(1) does not speak of a certificate of fitness, but a certificate that the case involves a substantial question of law as to the interpretation of the Constitution Article 133(1)(a) and (b) relate to a certificate of valuation and not fitness. Only Article 133(1)(c) speaks about a certificate of fitness. Article 134(1)(c) also speaks about a certificate of fitness. Thus, it was inappropriate to speak about a 'certificate of fitness' in respect of all these provisions. This shows that the wordings of Article 132 of the Limitation Act are not to be construed very strictly. The expression 'certificate of fitness' used in Article 132 includes all the other kind of certificates mentioned in Articles 132 and 133 of the Constitution.

9. In my opinion, therefore, the words 'leave to appeal' as used in Sub-sections (2) and (3) of Section 12 of the Limitation Act 1963 relate to, and do not exclude, applications for a certificate as contemplated under Article 132 of the Limitation Act, 1963. The expression 'leave to appeal' in Section 12 is to be construed in the larger sense in which it was used in the Limitation Act of 1908 as mentioned above. 1 may here refer to the rules of this Court in the Original Side. Chapter XXXIIIA of the rules deals with civil appeals to the Supreme Court. Rule 4, as it previously existed, spoke about 'every application for leave to appeal to the Supreme Court....' This rule and several other rules in Chapter XXXIIIA have now been amended. In Rule 4. as in several other rules the words 'leave to appeal' have been omitted and the words 'application for a certificate' have been substituted. The form of application, however, is set out in Appendix L Form 3. The form of the petition has been set out and it shows that the prayer should be for the grant of a certificate. Yet, the marginal note still says 'petition for leave to appeal to Supreme Court'. This again shows that the expression 'leave to appeal' is not to be strictly construed, but is in reality for the grant of a certificate.

10. For the reasons aforesaid, we hold that Section 12(2) and (3) of the Limitation Act 1963 applies to this case and the petitioners are entitled to exclusion of the time mentioned therein. It is not disputed that the appellants took timely steps for drawing up of the decree. The decree itself was filed on the 14th April, 1964 so that the petitioners could not possibly obtain a certified copy of the decree before that date. The dates are given in paragraph 7 of the affidavit of Chunilal Kothari and others affirmed on 7th January, 1965. It appears that the petitioners received a certified copy of the judgment on 18th March, 1964 and certified copy of the decree on the 24th April, 1964. Therefore, the application is well within time and is not barred under Article 132 of the Limitation Act, 1963. That being so, this application is allowed and a certificate is granted in terms of prayer (a) and an order made in terms of prayer (c). The costs of this application will be costs in the Supreme Court appeal.

Arun K. Mukherjea, J.

11. I agree.


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