Malimath, J.:— The Division Bench consisting of Justice Jagannatha Shetty and Justice Patil has referred the following question for the opinion of the Full Bench:
“Whether a party who has failed to make an oral application immediately after the passing or making of a Judgment, decree, final order or sentence, could file a written application for a certificate for appeal to the Supreme Court, at any time after the passing or making of judgment, decree etc.?”
It is stated in the order of reference that the judgements in all these cases out of which these S.C.L.A.Ps have arisen, were pronounced after the Constitution (Forty-Fourth Amendment) Act, 1978 incorporating Article 134 came into force on 1st August 1979. Rule 3 of chapter XIX of the Karnataka High Court Rules was suitably amended so as to bring it in consonance with Article 134(A) of the Constitution. Rule 3 as amended provides that a party desiring to appeal to the Supreme Court under Articles 132 and 133 of the Constitution may apply orally for grant of certificate immediately after the pronouncement of the judgment by the Court and the Court may grant or refuse the same. The Division Bench consisting of the Chief Justice and Justice Bopanna, which had occasion to consider the scope of this Rule, has observed as follows:
“Amend Rule 3 of Chapter XIX of the Karnataka High Court Rules, merely enables a party to make “an oral application immediately after a judgment or order is pronounced, for grant of a certificate of fitness to appeal to the Supreme Court”. That Rule does not preclude a party from subsequently making a written application for grant of a certificate of fitness to appeal to the Supreme Court.”
When an objection was raised in these cases before the Bench consisting of Justice Jagannatha Shetty and Justice Patil, their Lordships felt that the Question as to whether a party who has failed to make an oral application immediately after the passing or making of a judgment, decree, final order or sentence can file a written application for a certificate for appeal to the Supreme Court at any time after the passing or making of a Judgment, decree or order has to be answered in the background of the Constitutional amendment, antecedent practice and the scope of Article, 134(A). As the question raised is of considerable importance to litigant public, their Lordships have referred the above question.
2. Before the coming into force of the Constitutional (Forty-fourth Amendment) Act, 1978, the procedure for grant of certificates by the High Court under Articles 132, 133 and 134 of the Constitution was regulated by the Rules framed by the respective High Courts. Rules of some of the High Courts provided for filing of written applications for grant of such certificates; whereas the Rules framed by the other High Courts provided that certificates can also be sought by making oral applications immediately after the pronouncement of the judgment, decree or order by the High Court. By the Constitution (Forty-Fourth Amendment) Act, a specific Article, namely, Article 134A has been added prescribing the procedure for grant of certificates for appeal to the Supreme Court under Articles 132, 133 and 134 of the Constitution. The said three Articles have also been amended to the effect that appeals shall lie to the Supreme Court if the High Court grants an appropriate certificate under Article 134A of the Constitution. For the sake of convenience, Article 134A may be extracted which reads as follows:
“134 A Certificate for appeal to the Supreme Court.—Every High Court, passing or making a judgment, decree, final order, or sentence, referred to in clause (1) of Article 132 or clause (1) of Article 133, or clause (1) of Article 134.—
(a) may, if it deems fit so to do, on its own motion; and
(b) shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in clause (1) of Article 132, or clause (1) of Article 133 or, as the case may be sub-clause (c) of clause (1).
(1) of Article 134, may be given in respect of that case.”
It is clear from Article 134A that it prescribes two modes for granting certificates for appeal to the Supreme Court under Articles 132, 133 or 134, viz., by the exercise of the suo motu power of the High Court or on an oral application made by or on behalf of the aggrieved party. So far as an oral application by the aggrieved party is concerned, the same is required to be made immediately after the passing or making of judgment, decree, final order or sentence. Article 134A does not expressly contemplate a written application being made for grant of a certificate. It is in exercise of the suo motu power of the High Court or on an oral application made by the aggrieved party that Article 134A makes it imperative that the High Court shall determine the question regarding grant of certificate referred to in Articles 132, 133 or 134 of the Constitution as soon as may be, after the passing or making of judgment, decree final order or sentence.
3. It was contended by the learned counsel for the petitioners that as making a written application for grant of certificate for appeal to the Supreme Court is not expressly barred by Article 134A merely because the said provision contemplates grant of a certificates in exercise of the suo motu power of the High Court or on an oral application being made by the aggrieved party for that purpose, the aggrieved party cannot be denied the right or privelage of making an appropriate written application for grant of a certificate. As Article 132 of the Limitation Act, 1963 prescribing a period of limitation of 60 days for making an application for grant of a certificate under Article 132, 133 or 134 has not been deleted, it was contended that an aggrieved party is entitled to present a written application for grant of an appropriate certificate.
4. It is necessary to note that the procedure in the matter of granting certificates under Articles 132, 133 or 134 which was previously left to be regulated by the respective High Courts is now regulated by a specific prevision in the Constitution. It is now well settled by the decision of the Supreme Court in Smt. Indira Nehru Gandhi v. Shri Raj Narain(1) that if the Constitution directs that a certain thing shall be done in a specified manner or by certain person their performance in any other manner than that specified or by any other person than the one named is impliedly barred. Therefore, it follows that as Article 134A provides for an oral application being made to the Court for grant of a certificate, making of a written application is impliedly barred.
5. Article 134A was introduced in the Constitution with the object of avoiding delay. If the oral application for grant of a certificate is made immediately on the pronouncement of the judgment, all the facts of the case will be fresh in the minds of the judges deciding the case and they can decide the application without any waste of time. Length of the arguments will be reduced considerably. It is stated in paragraph 13 of the objects and reasons of the Constitution (Forty-fifth Amendment) Bill, 1978 that it is proposed to amend Articles 132, 133 and 134 and insert a new Article 134A to provide that the High Court should consider the question of granting of certificate immediately on the delivery of the Judgement, Decree, Final Order or Sentence concerned (emphasis supplied by us) on the basis of an oral application by a party or, if the High Court deems it fit so to be, on its own motion. We may also call in aid the speech made by Shri Shanti Bhushan, Minister of Law, the mover of the Bill, as it helps us considerably in the interpretation of Article 134A, such use having been held to be permissible by the Supreme Court in The Sole Trustee, Lok Shikshana Trust v. Cit, Mysore in his speech(3) as a mover of the Bill has stated as follows:
“Shri Shanti Bhushan: That is exactly what I am trying to give. The right of any citizen to go to the Supreme Court in any case in which he was entitled to go to the Supreme Court is not being taken away. He would have the same right to go to the Supreme Court.
So far as Clause (2) of Article 132 was concerned, it was wholly redundant when article 136 was there. Article 136 gives the power to the Supreme Court to grant special leave against the judgment, decree or order of any court in any case on any ground. That is left to the Supreme Court. Therefore, so long as Article 136 is there, it is always open to the Supreme Court to grant special leave to appeal against any order, whether it is civil, criminal any judgment, any decree of any court, including a High Court. Therefore, that right is there. Article 132(2) was wholly superfluous. Therefore, that Superfluous provision which was unnecessary has been deleted. It does not curtail any right of any person.
The whole purpose of this amendment is this. So far, the procedure was that after the High Court had decided a case, within a couple of months or so, whatever was the period of limitation prescribed, it was open to a party to make a written application before that High Court to certify the case as a fit one for appeal to the Supreme Court. Notice had to be issued of that application to the other party. Then the other party will come and another hearing would be fixed, and after a few adjournments, the matter used to be heard and then either the certificate would be granted or refused. If the certificate was granted, the appeal was filed. If it was refused, before the period of limitation, application under Article 136 for special leave could be filed. In order to curtail this unnecessary delay between one stage and another, we are making a provision like the one under the Government of India Act, 1935, in the matter of certifying cases as being fit for appeal to the Federal Court. As soon as the judgment is rendered by the High Court, because at that time both the parts know what the questions are the Court also knows that the questions are as also its own decision, the importance of this question, without insisting on formality of a written application, at that very time it should be open to a party to ask for a certificate of fitness for appeal to the Supreme Court, and the High Court should take a decision quickly either to grant or refuse the certificate, so that the person can go under Article 136 for special leave to appeal. This is only good for the litigants except those whose interest may be in delaying cases. Otherwise, it does not curtail any right. It only means that the cases will reach the Supreme Court both promptly and quickly. That is all.”
It is, therefore, clear that Article 134A has been introduced in order to curtail unnecessary delay. If on the construction of Article 134A two interpretations are possible, we must prefer that interpretation which advances the object of the statute. If it is held that making of a written application at any time after the judgment or order is pronounced is permissible, it will certainly defeat the very object of introduction of Article 134A.
6. It is no doubt true that the Limitation Act, 1963 contains Art. 132 prescribing sixty days. As the period of limitation for making application for a certificate of fitness to appeal to Supreme Court under Articles 132, 133 and 134 of the Constitution. That Article has neither being deleted nor amended. It was, therefore, maintained that a written application for grant of certificate is not excluded. It is true that the existence of Article 132 prescribing the period of limitation for making a written application brings about some incongruity. If there is a conflict between the enactment made by the Parliament and the Constitutional provision, it is the Constitutional provision that has to prevail. Sri U.L Narayana Rao, Senior Central Government Standing Counsel appearing for the Union of India submitted that he has been instructed to submit to the Court that steps are being taken to delete Article 132 of the Limitation Act as Article 134 of the Constitution does not contemplate written applications. Now an aggrieved party can approach the Supreme Court for grant of special leave to appeal without in the first instance approaching the High Court for certificate. As the aggrieved party who did not make an oral application immediately, can move the Supreme Court for special leave, his rights will not be jeopardised.
7. As Article 134A does not expressly provide for making a written application and as it expressly provides for making an oral application by the aggrieved party immediately after the passing or making of a judgment, decree, final order or sentence we have no hesitation in taking the view that the aggrieved party, who has failed to make an oral application immediately after passing or making of a judgment, decree, final order or sentence, cannot file a written application for a certificate for appeal to the Supreme Court at any time after the passing or making of a judgment, decree, order or sentence.
8. As considerable arguments were advanced by all the learned counsel on the question as to when an oral application can be made and on the question as to when the Court should determine the question whether the certificate should be granted or not, we propose to deal with the said contentions.
9. So far as applications by aggrieved parties are concerned, we have held that only oral applications are permitted and that no written applications are contemplated. The oral application is required to be made by the aggrieved party immediately after the passing or making of the judgment, decree, final order or sentence. The question for consideration is as to what is meant by the word ‘immediately’ in the context. We must bear-in-mind that the object of Article 134A is to avoid unnecessary delay. It is precisely for this reason that the word ‘immediately’ has been used to convey a sense of urgency.
10. In Barker v. Lewis & Peat(4), Kennedy, L.J, has stated that the word ‘immediately’ means as immediately as the circumstances permit. It is further observed that the said word means whenever an opportunity first occurred of making the application. In the matter of Government and Nanu Kothare(5), Justice Chandavarkar has observed that where a statute or a written contract provides that a certain thing, shall be done immediately we must, in construing that word, having regard to the object of the statute or contract as the case may, to the position of the parties, and the purpose for which the legislature or the parties intend that it shall be done immediately.
The Supreme Court had occasion to ascertain the meaning to be assigned to the word ‘forthwith’ in Keshav Nilkanth Joglekar v. The Commissioner of Police, Greater Bombay(6). The said decision is helpful for understanding the meaning of the word “immediately’ inasmuch as their Lordships have come to the conclusion that the words ‘forthwith’ and ‘immediately’ have the same meaning. It will be useful to extract the relevant observations in paragraph 7 of the judgment which are as follows:
“7. The meaning of the word ‘immediately’ came up for consideration in THOMPSON v. GIBSON (1841) 8M & W 282 : 151 ER 1045 at P. 1047 (c) Holding that it was not to be construed literally, Lord Abinger C.B Observed:
“If they” (Acts of Parliament) could be construed literally, consistently with common sense and justice, undoubtedly they ought; and if I could see, upon this Act of Parliament, that it was the intention of the legislature that not a single moment's interval should take place before the granting of certificate, I should think myself bound to defer to that declared intention. But it is admitted that this cannot be its interpretation; we are therefore to see how, consistently with common sense and the principles of justice, the words ‘immediately afterwards’ are to be construed.
If they do not mean that it is to be done the very instant afterwards do they mean within ten minutes, or a quarter of an hour, afterwards? I think we should interpret them to mean, within such reasonable time as will exclude the danger of intervening facts operating upon the mind of the judge, so as to disturb the impression made upon it by the evidence in the cause.”
In agreeing with this opinion, Alderson, B, expressly approved of the decision of Lord Hardwicke in REX v. FRANCIS (A). This construction of the word ‘immediately’ was adopted in PAGE v. PEARCE (1841) 8 M. & W. 677 at P. 678 : 151 E.R 1211 at P. 1212 (D), Lord Abinger C.B observing:
“It has already been decided and necessarily so, that the words ‘immediately afterwards’ in the statute, cannot be construed literally; and if you abandon the literal construction of the words, what can you substitute but within a reasonable time.”
In The Queen v. The Justice of Berkshire (1879) 4 Q.B.D 469 at P. 471(e), where the point was as to the meaning of “forthwith” in S. 52 of 35 and 36 Vict, Chapter 94, Cockburn C.J observed:
“The question is substantially one of fact. It is impossible to lay down any hard and fast rules as to what is the meaning of the word ‘immediately’ in all cases. The words ‘forthwith’ and ‘immediately’ have the same meaning. They are stronger than the expression ‘within a reasonable time’, and imply prompt, vigorous action without any delay, and whether there has been such action is a question of fact, having regard to the circumstances of the particular case.”
The same construction has been put on the word “forthwith” occurring in contracts. In HUDSON v. HILL (1874) 43 LJCP 273 at P. 280(F) which was a case of charter party, it was observed at page 280:
“Forthwith” means without unreasonable delay. The difference between undertaking to do something ‘forthwith’ and within a specified time is familiar to everyone conversant with law. To do a thing ‘forthwith’ is to do it as soon as is reasonably convenient”.
In R.G v. PRIEC (1853-1854) 8 Moo P.C 203 : 14 ER 78(G), it was held by the Privy Council that the word “forthwith” in a bail bond meant within a reasonable time from the service of notice. On these authorities, it may be taken, an act which is to be done forthwith must be held have been so done, when it is done with all reasonable dispatch and without avoidable delay”.
It is in the light of the principles laid down in these decisions that the Court has to decide having regard to the facts of the particular case as to whether the oral application for grant of certificate can be regarded as having been made immediately after the passing or making of a judgment, decree, final order or sentence. It is impossible to catalogue all possible situations when an oral application can be regarded as having been made immediately. But, it can safely be stated that if the oral application for grant of a certificate is made then and there after the passing or making of a judgment, decree, final order or sentence, such an application has to be regarded as having been made immediately. If the oral application is not made then and there, then the Court has to examine the circumstances of each case having regard to the principles stated earlier as to whether the application can be regarded as having been made immediately.
11. We shall not consider the point of time when the determination about the grant of certificate should be made. Article 134A provides that such determination should be made as soon as may be after the passing or making of a judgment, decree, final order or sentence, whether it is on its own motion or on an oral application made by the aggrieved party. By directing that the determination should be made as soon as may be, a sence of urgency has been introduced. It is true that the point of time is not so imperative as is conveyed by the word ‘immediately’. At the same time it also does not mean that the determination can be done at any convenient time. The Supreme Court which had occasion to consider the expression ‘as soon as may be’ in Abdul Jabar Butt v. The State of Jammu and Kashmir(7), has observed quoting with approval the meaning given to the said expression in Stroud's Judicial Dictionary, 3rd Edn. Vol. 1, page 200 as follows:
“…….. ‘as soon as may be’—may well be said to mean to do so within a reasonable time with an understanding to do it within the shortest possible time. What, however, is to be regarded as a reasonable in many cases to be regarded as a reasonable time or the shortest possible time?……..it may not be possible in many cases to affirmatively say or to precisely quantify the period of time by reference to hours, days or months; nevertheless it is possible having regard to the circumstances of the case, to say whether the thing done was or was not done ‘as soon as may be’, i.e, within the time which was reasonably ‘convenient requisite’.”
It, therefore, follows that the determination has to be done within the shortest possible time after passing or making a judgment, decree, final order or sentence. As the determination of the question regarding grant of certificate has to be made with a sense of urgency, every effort has to be made to conclude the determination within the shortest possible time. The best way to do it is by concluding the determination immediately after the oral application is made by the aggrieved party. Similarly, as regards exercise of suo motu power, if the aggrieved party does not make an application immediately after the judgment is delivered, it is better, if the Court applies its mind then and there to the question as to whether certificate should or should not be granted in exercise of its suo motu power and to make an appropriate order either granting or not granting a certificate within the shortest possible time. If, however, the Court takes up the question of determination at a subsequent stage, it may lead to unnecessary and avoidable arguments to the effect that the determination not having been done as soon as may be after the passing or making a judgment, decree, final order or sentence, the Court cannot exercise the suo motu power at that stage.
12. We thank the Advocate General and Sri U.L Narayana Rao, Senior Standing Council for Central Government, for assisting us as amicus curiae.
13. For the reasons stated above, we answer the question referred to us as follows:
“A party, who has failed to make an oral application immediately after the passing or making of a judgment, decree, final order or sentence, cannot file a written application for a certificate for appeal to the Supreme Court at a subsequent stage.”