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1940 (5) TMI 16
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....etters Patent, read with section 202, Companies Act. In the memorandum of appeal, it was stated that excluding the time spent in obtaining certified copies of the orders appealed against, the appeal was within limitation. It appears that an application for copies of the orders was made by the appellant bank on 22nd June 1939. The copies were completed by the copyists on 18th July and were certified by the examiner on 19th July 1939. The "time requisite" for obtaining the copies was therefore 28 days. When the appeal came up for hearing before a Division Bench of this Court, a preliminary objection was raised on behalf of the Official Liquidator of the Punjab Cotton Press that the appeal was time-barred. In support of this objection, reliance was placed upon Rule 4 of Chapter 1A of Vol. 5 of the Rules and Orders and a Full Bench decision of this Court in Jog Dhian v. Hussain [1935] 16 Lah 448. Rule 4 lays down that "no memorandum of appeal preferred under Clause 10,Letters Patent, shall be entertained if presented after the expiration of 30 days from the date of the judgment appealed from, unless the admitting Bench in its discretion, for good cause shown, grants further time. Su....
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....iction where the forum of appeal (as distinct from the right of appeal) is provided by the Letters Patent; and if so, is the appellant in such cases entitled to exclude the "time requisite" for obtaining a copy of the judgment appealed against, even though under the rules and orders of the High Court no copy of the judgment is required to be filed with the memorandum of appeal? (2)Does section 12, Limitation Act, govern appeals under the Letters Patent in which not only the forum of appeal, but also the right of appeal is given by the Letters Patent; and is the appellant in such a case entitled to exclude under section 12 the "time requisite" for obtaining a copy, whether such copy is filed or not?" It may be stated at the outset that the case before us is of the type described in the first of these questions. As stated already, the orders appealed from were passed by a Single Bench of this Court in the course of the winding up of the Punjab Cotton Press Co., Ltd. From such orders an appeal is provided by section 202, Companies Act, which reads as follows: "......appeals from any order or decision made, or given, in the matter of the winding up of a company by the Court ma....
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.... "in computing the period of limitation prescribed for an appeal, an application for leave to appeal, and an application for a 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." The combined effect of these provisions therefore is that the appellant is entitled, as of right to exclude the period taken in obtaining the copies which, as stated above, is 28 days in this case. It is conceded, that if this period is deducted the appeal from each of the three orders appealed from is within time. It was however argued that as in an appeal from the order of a Single Bench to a Bench of two or more Judges of this Court, the appellant is not required to file copies of the orders appealed from, the time spent in obtaining such copies cannot be said to be "time requisite" within the meaning of section 12. This question had been the subject of controversy in the Courts in India for a long time and divergent opinions had been expressed by a different High Courts. The matter however was set at rest by the Judicial Committee of the....
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....e word "requisite," is a strong word; it may be regarded as meaning something more than the word required. It means "properly required," and it throws upon the pleader or counsel for the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default. But for that time which is taken up in drawing up the decree or by the officials of the Court in preparing and issuing the two documents, he is not responsible." After this clear pronouncement of their Lordships, it can no longer be maintained that in appeals governed by Art. 151 or other Article of Schedule 1, to which section 12, Limitation Act, applies, the appellant is not entitled to the benefit of section 12 in cases in which it is not necessary to file copies of the judgment, decree or order appealed from. To this extent therefore Dyal Singh v. Budha Singh [1921] 2 Lah 127, and the other cases of this Court in which this has been laid down must be taken to have been overruled. The judgment of their Lordships in J. N. Surly v. T.S. Chettyar Firm [1921] 2 Lah 127, was delivered in 1928. Seven years later, in 1935, the question was raised before a Full Bench of this Court in Jog D....
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....ed by the High Court in the exercise of its extraordinary original civil jurisdiction, i.e., when a suit had been removed by the Court from a subordinate Court and had been tried and determined by it under Clause 9, Letters Patent, and the right of appeal as well as the forum is provided for in Clause 10; or (b) where the judgment had been passed in the exercise of the appellate jurisdiction of the High Court on appeal from an original or an appellate decree or order of a subordinate Court. So far as cases falling within class (a) are concerned, the answer to the question is simple. Such cases are obviously governed by Art. 151, Limitation Act, which prescribes the period of time within which appeals from decisions or orders passed by any of the High Courts mentioned therein in the exercise of its original jurisdiction, must be preferred. It will be seen that this article is governed in its terms and applies equally to all appeals from decrees or orders passed by the High Court in the exercise of its original jurisdiction, whether ordinary, or extra-ordinary, or specially conferred by a statute to try and determine particular types of cases, (e.g., matrimonial, insolvency, compa....
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....closely to bye-laws. They can be altered at will. They can be canvassed. They are subordinate and domestic enactments". This dictum has also been approved and followed by the Patna High Court in Mukund Mahto v. Niranjan Chakravarty [1934] 157 IC 17; AIR 1934 Pat 353. With great deference, I am unable to accept the reasoning or conclusion of Cunliffe, J., as correct. It is no doubt true that the Lahore High Court, like the other High Courts in India, was not brought into existence directly by an Act of Parliament. It was " established and erected" by Letters Patent granted by His Majesty, King George V under the authority expressly conferred on him by the Government of India Act, 1915 (5 and 6 Geo. V, Chapter 61). section 113 of that Act laid down that: "His Majesty may, if he sees fit, by Letters Patent, establish a High Court of Judicature in any territory in British India, whether or not included within the limits of the local jurisdiction of another High Court, and confer on any High Court so established any such jurisdiction, powers and authority as are vested in, or may be conferred on, any High Court existing at the commencement of this Act, etc." Four years later, o....
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....estriction of liberty of action by persons who come under its operation, as to acts which, but for the bye-law, they would be free to do or not to do so as they pleased. Further, it involves this consequence, that, if validly made, it has the force of law within the sphere of its legitimate operation " In the well-known case in Willingale v. Norris [1909] 1 KB 57 at p 64 , Lord Alverstone, C.J., observed: "Where a statute enables an authority to make regulations, a regulation made under the Act becomes for the purpose of obedience or disobedience a provision of the Act. The regulation is only the machinery by which Parliament has determined whether certain things shall or shall not be done". In India the question arose directly in Neelratan Ganguli v. Emperor [1933] 60 Cal 571 at p 575, where Rankin, C.J., and Pearson, J., held that the Emergency Powers Ordinance, II of 1932, promulgated by the Governor-General under powers conferred on him by section 72, Government of India Act, 1915, was a 'special law' within the meaning of section 29, Limitation Act. Similarly, under the Government of India Act, 1935, the Governor-General, as well as the Governors of Provinces, have be....