Manji Dana Coram v. Commissioner of Income Tax, Nagpur (SC) BS462821

Manji Dana Coram v. Commissioner of Income Tax, Nagpur (SC) BS462821 SUPREME COURT OF INDIA

Before:- J.C. Shah (In Chambers), J.

Civil Misc. Petition No. 2405 of 1963. D/d. 26.11.1963.

Manji Dana Coram - Petitioner

Versus

Commissioner of Income Tax, Nagpur - Respondent

Supreme Court Rules, Order 13, Rule 4 and Order 17, Rule 4 - Procedure to be followed while filing special leave - Held, as per Supreme Court Rules, petition having not been accompanied by a certified copy of judgement was not filed within period of limitation - Thus, petition would be treated as properly filed only when certified copy of judgement was filed.

[Para ]

ORDER

J.C. Shah (In Chambers), J. - In my view the Deputy Registrar is right in holding that the petition is not filed within the period of limitation prescribed by rules of this Court. Under Order 13, Rule 4 every petition for special leave is required to be accompanied by a certified copy of the judgment or order appealed from. In the present case the petition for special leave was not accompanied by a certified copy of the judgment appealed from. Prima facie the filing would in such a case he defective. Mr. Dadachanji on behalf of the petitioner, however, contends that the period of limitation for lodging a petition for special leave is prescribed by Rule I of Order 13 and if a petition is lodged in Court not accompanied by the requisite documents the period of limitation would cease running. Rule I of Order 13 provides so far as it is material, that a petition for special leave shall be lodged in Court within sixty days from the date of the refusal of a certificate by the High Court or within 90 days from the date of the judgment sought to be appealed from whichever is longer. That rule has, in my judgment nothing to do with the proper lodgment of a petition for special leave to appeal. It only prescribes the period of limitation for filing a petition for special leave; whether the petition is properly filed must be determined by 13, Rule 4. It is also urged that Rule 4 Order 13 provides that with the petition shall be filed not only a certified copy of the judgment or order appealed from but also an affidavit in support thereof prescribed by Rule 4 Order 17 and that the petitioner shall lodge at least seven copies of the petition and the accompanying papers and that the Registrar's Office has consistently treated failure to file affidavit and other documents required to be filed as not affecting the proper lodgment of the petition for special leave to appeal and subsequent filing of these documents has been accepted without reference to the period of limitation. I am not concerned in this matter to deal with the question whether the practice followed by the office in this behalf is correct. Order 7, Rule 6 which deals with the procedure which the Registrar may follow for the acceptance of documents provided that the Registrar may decline to accept any document which does not conform to the Rules of the Court or is otherwise defective, or which is presented otherwise than in accordance with the Rules of the Court. If any document is declined to be accepted by the Registrar normally it would follow that the document is not presented in Court. Whether by reason of refusal to accept the document the period of limitation would be affected for filing such a document whore the Rules provide for a period-of limitation for such filing is a mutter with which Rule 6 Order 7 is not concerned. Nor has Order 3, Rule 8 sub rule VII which invests the Registrar with power to allow from time to time any period or periods not exceeding four weeks in the aggregate to comply with the requisitions or doing any other act necessary to make the plaint, appeal, the petition or other proceedings complete, anything to do with the period of lodgment of a petition for special leave to appeal under Rule I of Order 13. Order 3, Rule 8 only deals with the power of the Registrar and does not seek to dispense with the filing of documents which are required to be filed under Rule 4 Order 13. In my view the petition not having been accompanied by a certified copy of the judgment was not filed within the period of limitation and the petition should he treated as properly filed only When the certified copy of the judgment was filed.

Supreme Court of India-Press Note

An important question regarding the practice and procedure to be followed relating to the filing of the Special Leave Petition came up for consideration before Mr. Justice J. C. Shah sitting in Chambers. His Lordship after cansidering the relevant provisions, namely, Rule 4 of Order 13, Supreme Court Rules, has held that a copy of the Order or Judgment appealed from must accompany the petition for Special Leave as prescribed by Rule 4 of Order 17, Supreme Court Rules, and is a condition of the lodgment of the Petition. His Lordship has also administratively directed that wherever a Petition for Special Leave is not accompanied by an affidavit, the filing thereof in that case is defective, and for purposes of calculating the period of limitation prescribed for filing the Special Leave Petitions such a Petition shall be deemed to have been filed on the date when an affidavit in support thereof as prescribed by Rule 4 of Order 17, Supreme Court Rules, is filed.