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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • O.N. Tikku for Petitioner. Ch. Inder Dass for Respondent.
Judges
  • Jaswant Singh
  • Mian Jalal-Ud-Din
  • Syed Wasi-Ud-Din
Acts
  • rule viz. Rule 2 of Order 47 of the Code of Civil Procedure
  • Order 47 Rule 5 of the Code of Civil Procedure.
  • Rule 5 Order 47 of the Code of Civil Procedure
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • O.N. Tikku for Petitioner. Ch. Inder Dass for Respondent.
Judges
  • Jaswant Singh
  • Mian Jalal-Ud-Din
  • Syed Wasi-Ud-Din
Acts
  • rule viz. Rule 2 of Order 47 of the Code of Civil Procedure
  • Order 47 Rule 5 of the Code of Civil Procedure.
  • Rule 5 Order 47 of the Code of Civil Procedure
See more information ...
Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

A suit for a mandatory injunction was filed by Dr. Triloki Nath Kaul (Sub-Assistant Surgeon) seeking treatment in service without any break from April 1943 and consequential benefits relating to seniority, emoluments and pension. The suit, tried before the Sub-Judge (Chief Judicial Magistrate), Jammu, was dismissed by judgment dated 18 July 1970. An appeal against that judgment proved unsuccessful and a further appeal to this Court was heard by Bhat J. on 28 December 1971.

Bhat J. delivered judgment on 10 February 1972 (during the High Court vacation), allowing the appeal and decreeing the suit in favour of the doctor. The State filed an application for leave to appeal under Clause 12 of the Letters Patent on 25 April 1972, supported by an affidavit averring that the judgment had been announced during vacation without notice and that the State only became aware of it on obtaining a certified copy on 12 April 1972. Bhat J. retired (demitted office) on 28 February 1972.

The Hon'ble Chief Justice granted leave to appeal on 26 April 1972 (apparently without notice to the other side) and on that basis the State preferred a Letters Patent Appeal on 9 May 1972. On the same date Dr. Kaul filed an appeal challenging the Chief Justice's order allowing the State to file the Letters Patent Appeal. Both matters were placed before a Division Bench (including Jaswant Singh J. and Mian Jalal-ud-Din J.). A Full Bench was recommended to consider the important and recurring question arising from these events.

Legal Issues Presented

  1. Whether, under Clause 12 of the Letters Patent, the declaration that "the case is a fit one for appeal" must be made only by the Judge who passed the judgment, or whether another Judge (including the Chief Justice) can grant that declaration when the Judge who delivered the judgment is unavailable.
  2. How the word "immediately" in the Rules (Rule III-A of Chapter V of the Rules of Court as inserted by Command Order No. 7-H of 1947) should be interpreted with respect to the time within which an application for leave to appeal under Clause 12 must be made.
  3. Whether a Letters Patent Appeal founded on a certificate granted by a Judge other than the Judge who passed the impugned judgment is competent.

Arguments of the Parties

Dr. Triloki Nath Kaul (represented by Mr. Grover)

  • Under Clause 12 of the Letters Patent only the Judge who decides the appeal and passes the judgment is competent to grant leave to file a Letters Patent Appeal; the Chief Justice could not grant the leave.
  • The prayer for grant of leave must be made to the Judge immediately after judgment is delivered (either orally or in writing), and since no such immediate prayer was made here and the written application came after more than sixty days, the order granting leave could not be sustained.
  • The Bench should revoke the leave granted to the State on these grounds.

The State (represented by Mr. Vidya Sagar Malhotra)

  • The order granting leave by the Chief Justice is final and conclusive and is not open to challenge by appeal.
  • The Division Bench does not have competency to revoke the leave once granted by the Chief Justice.
  • Authorities were cited in support of the view that the Chief Justice's grant of leave was valid.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Dasaundha Singh and anr. v. Ghanda Singh and others, AIR 1933 Lahore 534 Interprets the phrase "the Judge who passed the judgment declares that the case is a fit one for appeal" to require that declaration only from the Judge who passed the judgment. Cited to support the proposition that only the Judge who passed the judgment can grant the certificate under Clause 12; used as part of the consensus of authorities leading to dismissal of the Letters Patent appeal as incompetent when certificate was given by another Judge.
Allah Bux v. Mst. Sardaran, AIR 1935 Lahore 330 Affirms that authority to make the declaration is only the Judge who passed the judgment and no other Judge has jurisdiction to grant the certificate. Relied upon to reinforce the point that only the Judge who delivered the impugned judgment may declare a case fit for further appeal under the corresponding clause.
Sheiklal Shaikh Sharif and ors. v. Ahmedkhan Sharifkhan, AIR 1930 Bombay 366 Interprets clause corresponding to Clause 12 (clause 15 in Bombay Letters Patent) to mean the Judge who passed the judgment is the only person who can declare the case fit for appeal; absent such declaration, appeal cannot lie. Applied to show that, by analogy, Clause 12 requires the Judge who passed the judgment to make the declaration, and absence of such declaration renders the appeal incompetent.
Ma Than v. Mg. Ba Gyaw, AIR 1926 Rangoon I Holds the corresponding provision gives a restrictive right of appeal: the certificate must be given by the Judge who passed the judgment; if intention had been otherwise, wording would have been different. Quoted (Rutledge C.J.) to support literal interpretation of Clause 12 and the confined nature of the certificate-granting power.
Raghunath Gir Chela Moti Gir v. Behari Lal and ors., AIR 1950 East Punjab 288 Interprets corresponding clause to mean only the Judge who passed the judgment can make the requisite declaration; an appeal based on a declaration by other Judges in the original judge's absence is not maintainable. Used as further authority indicating the appeal is incompetent when certificate is not from the Judge who passed the judgment; followed by the court in dismissing the present LPA.
Salah Mohamad and ors. v. Gulab and ors. (Application No. 3 of 1971) Applied the same interpretation: refused grant of leave where the Judge who passed the judgment was no longer available to give the certificate. The court noted this earlier decision (by the same bench member) where an application for leave was dismissed; it reinforced the consensus and guided the outcome here.
AIR 1970 A. P. 332; 1969(10) Gujarat Law Reporter, 164 Cited for the general principle that the law must be interpreted as written and it is not permissible to import words into a statute (or Letters Patent) that are not there. Relied upon to justify literal interpretation of Clause 12 and to decline to read in a power for another Judge to grant the certificate where Letters Patent do not provide for that contingency.
Hari Rain v. Hazari Lal and ors., AIR 1951 Pepsu 132 Holds that an ex parte grant of a certificate does not preclude a respondent from raising objections that the application on which it was granted was not presented within the prescribed period. Used to support the proposition that a certificate granted without notice (ex parte) can still be challenged by the respondent on grounds of procedural invalidity; the court relied on this when allowing challenge to the Chief Justice's grant.
Ramnarayan Triyoginarayan Trivedi and ors. v. State of Madhya Pradesh and ors., AIR 1962 Madhya Pradesh 93 Holds that the word "immediately" (as to application for leave) must be reasonably construed; application should be made without undue delay but impossibility or sufficient cause may justify a later application. Applied to conclude that an application for leave made some time after judgment can be entertained if sufficient cause is shown (e.g., judgment delivered during vacation without notice), so that the State's application was not barred merely for being made later.

Court's Reasoning and Analysis

The Court began by quoting Clause 12 of the Letters Patent and identifying the crucial phrase: "the Judge who passed the judgment declares that the case is a fit one for appeal." The Court surveyed authorities from multiple High Courts and benches (Lahore, Bombay, Rangoon, East Punjab and Pepsu) which consistently interpreted corresponding provisions to mean that only the judge who delivered the impugned judgment has authority to declare a case fit for further appeal.

The Court reasoned as follows:

  1. Literal interpretation: The clause's wording expressly refers to "the Judge who passed the judgment"; the settled practice in the authorities cited supports a literal, restrictive interpretation that confines the power to the judge who actually heard and decided the appeal.
  2. Precedent consensus: Multiple precedents were cited to demonstrate a consensus across jurisdictions that no other judge may give the certificate required by the corresponding clauses.
  3. No judicial rewriting: Although the Court acknowledged the hardship that may arise where the judge is unavailable (due to superannuation, leave, death or other cause), it held that the law must be applied as written and it is not permissible to import words or powers into the Letters Patent to cover such contingencies.
  4. Qualified approach to delay ("immediately"): On the separate question concerning the timing of an application for leave, the Court accepted the reasoning of the Madhya Pradesh Full Bench (Ramnarayan Trivedi) that "immediately" must be given a reasonable construction and that an application filed after the judgment can be entertained where sufficient cause is shown for the delay (for example, ignorance of the judgment because it was delivered during vacation without notice).
  5. Application to facts: Since the requisite declaration under Clause 12 was not given by Bhat J. (the judge who delivered the judgment) but was instead issued by the Chief Justice in Bhat J.'s absence, the declaration was held to be invalid and the Letters Patent Appeal based on it was dismissed as incompetent. However, the Court accepted that the State's delay in applying for leave could be excused given the circumstances (judgment delivered during vacation without notice), so the delay itself was not fatal to the State's ability to seek a certificate from the proper judge.
  6. Remedial note: A Bench member observed that the matter of amending the Letters Patent or rules (on the model of Order 47 Rule 5 CPC) could be brought to the Government's notice to address the hardship created by the strict wording when a granting judge becomes unavailable.

Holding and Implications

Holding: The Court held that the declaration required by Clause 12 of the Letters Patent must be made by the Judge who passed the judgment; a declaration given by another Judge (including the Chief Justice) is not competent. Accordingly, the Court ordered:

Letters Patent Appeal No. 1 of 1972 is dismissed, without any order as to costs.

Implications and direct effects:

  • As a direct consequence of the dismissal of the Letters Patent Appeal No. 1 of 1972, the civil first miscellaneous appeal No. 4 of 1972 filed by Dr. Triloki Nath Kaul became infructuous and was consigned to the records.
  • The Court applied established authority and a literal construction of Clause 12; the decision follows a consensus of judicial opinion rather than announcing a novel interpretive principle.
  • A bench-member observation recorded a recommendation that the Government be asked to consider amending the relevant rules (on lines similar to Order 47 Rule 5 of the Code of Civil Procedure) to meet contingencies when the Judge who passed the judgment is unavailable to give the required declaration.

Note: The opinion dismissed the Letters Patent appeal as incompetent on the basis of the authorities and literal construction; it also accepted that delay in applying for the certificate may be excused if sufficient cause is shown, given the circumstances in this case.

Show full summary ...

    T.N.Kaul v. State Of J&K

    1. These two appeals which shall be disposed of by this judgment arise in the following circumstances: A suit for mandatory injunction directing the State to treat him in service without any break from April 1943, with a further direction to the Government to grant him on that basis all the benefits in respect of his seniority, emoluments and pension, was brought by Dr. Triloki Nath Kaul, Sub-Assistant Surgeon, respondent in Letters Patent (Civil) Appeal No. 1 of 1972, and appellant in Civil 1st Miscellaneous appeal No. 4 of 1972, in the Court of the Sub-Judge (Chief Judicial Magistrate) Jammu. The suit was after a regular trial dismissed by the Court vide its judgment dated July 18, 1970. The appeal preferred against that judgment and decree by the doctor proved abortive whereupon he came up in further appeal to this Court which was heard by Bhat J. on December 28, 1971. It was not, however, before February 10, 1972, when the High Court was in vacation, that the learned Judge delivered the judgment allowing the appeal, and setting aside the judgments and decrees of the courts below, decreed the suit in favour of the doctor. An application for leave to appeal under Clause 12 of the Letters Patent against the judgment of the Single Judge was filed by the State on April 25, 1972. The application was accompanied by an affidavit on behalf of the State averring inter alia that the aforesaid judgment was announced by Bhat J. on February 10, 1972, in the absence of the parties when the Court was closed for vacation and the date for announcement of judgment was not notified to the State or its counsel and that it was only on April 12, 1972, that the State came to know of the judgment on obtaining a certified copy thereof. Bhat J. having demitted office on February 28, 1972, the matter came up before the Hon'ble Chief Justice who was pleased to grant leave to appeal by his order dated April 26, 1972. This order appears to have been passed without notice to the other side. On the basis of the leave granted by the Hon'ble Chief Justice, the State preferred the Letters Patent Appeal on May 9, 1972. On the same date Dr. T. N. Kaul, also filed an appeal against the order of the Hon'ble Chief Justice dated April 26, 1972, granting leave to the State to file the Letters Patent Appeal against the aforesaid judgment of the learned Single Judge of this Court and a notice to show cause why the appeal filed by the doctor be not admitted was issued to the State. The Letters Patent Appeal preferred by the State as also he aforesaid appeal preferred by Dr. T. N. Kaul, were placed before a Division Bench of this Court consisting of myself and Mian Jalal-ud-Din J. In the appeal preferred by the State pursuant to the leave granted by the Hon'ble Chief Justice, a preliminary objection was taken by Mr. Grover, appearing on behalf of Dr. T. N. Kaul, to the effect that under Clause 12 of the Letters Patent, it is only the Judge who decides the appeal and passes the judgment that is competent to grant leave to file a Letters Patent Appeal and the learned Chief Justice could not, therefore, grant the leave. He has further urged that the prayer for grant of leave could be made orally or in writing to the Judge deciding the appeal immediately after the judgment is delivered and since in the present case no such prayer was made and the written application was made after the expiry of more than sixty days from the date of the judgment sought to be appealed against, the order granting the leave could not be sustained and the Bench should revoke the leave. 2. Mr. Vidya Sagar Malhotra, appearing on behalf of the State, on the other hand, contended that the order granting the leave is final and conclusive and is not open to appeal. He further urged that the Division Bench was not competent to revoke the leave. Both the learned counsel cited some authorities in support of their respective contentions. In view of the importance of the questions involved and the fact that there was no direct authority on this point, except the one given by me in Application No. 3 of 1971, for grant of leave to file a Letters Patent Appeal, entitled Salah Mohd and ors. v. Gulab and ors. which was based more or less on the concession of the other side, as also the fact that the aforesaid questions were likely to recur in a number of cases, it was recommended to the Hon'ble Chief Justice that a Full Bench be constituted for going into these questions. This is how the matter is before this bench. 3. Clause 12 of the Letters Patent under which the case was declared to be a fit one for appeal, by the Hon'ble Chief Justice runs thus: "And we do further ordain that an appeal shall lie to the said High Court of Judicature from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of power of superintendence) of one Judge of the said High Court or one Judge of any Division Court and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, consistently with the provisions of the Civil Procedure Code, made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal but that the right of appeal from other judgments of the Judges of the laid High Court or of such Division Court shall be to Us, Our Heirs or successors and be heard by our Board of Judicial Advisers for report to Us." The crucial words in the above clause are "the Judge who passed the judgment declares that the case is a fit one for appeal." This phraseology as pointed out in Dasaundha Singh and anr. v. Ghanda Singh and others, AIR 1933 Lahore 534, requires the declaration that a case is a fit one for further appeal to be made only by the Judge who passed the judgment and no other Judge. Again in Allah Bux v. Mst. Sardaran, AIR 1935 Lahore 330, it was held that the aforesaid phraseology is clear and leaves no doubt that the authority to make that declaration is only the Judge who had passed the judgment and no other judge or judges of the Court have jurisdiction to grant the required certificate. To the same effect is the decision of the Bombay High Court in Sheiklal Shaikh Sharif and ors. v. Ahmedkhan Sharifkhan, AIR 1930 Bombay 366. In that case the Bench of the Bombay High Court held that clause 15 of the Letters Patent (which corresponds to clause 12 of our Letters Patent) gave a limited right of appeal in case of second appeals disposed of by a Single Judge and it is that Judge who can declare that the case is a fit one for appeal. It was further held therein that where there is no declaration of the Judge who passed the judgment that the case is a fit one for appeal, the appeal cannot lie. The same view was expressed by a Full Bench of the Rangoon High Court in Ma Than v. Mg. Ba Gyaw, AIR 1926 Rangoon I. In that case while discussing the question of grant of certificate under the corresponding section 13 of the Letters Patent (Rangoon), declaring that a case is a fit one for appeal, Rutledge CHIEF JUSTICE, speaking for the Bench observed: - "The section gives in this one instance a very restrictive right of appeal namely when the Judge who passed the judgment gives a certificate declaring that the case is a fit one for appeal. If it had been the intention of His Majesty to permit any person other than the Judge who passed the judgment to grant such certificate, it seems clear to me that he would have made provision by either omitting the words "who passed the judgment" or by a special proviso that in case the judge for any reason was not available, such a certificate could be given by any other Judge. That has not been done because the intention of the Letters Patent was to confine the granting of the certificate to the Judge who actually heard the appeal and passed the judgment." The same view was expressed by a Bench of the East Punjab High Court in Raghunath Gir Chela Moti Gir v. Behari Lal and ors. AIR 1950 East Punjab 288. In that case, the Bench while interpreting the corresponding clause 10 of the Letters Patent held that the only person who could make the requisite declaration required under the aforesaid clause is the judge who passed the judgment and no appeal lies on a declaration given by another Judge or Judges in his absence. Consequently the appeal filed against the judgment of Das C J, who was appointed as Judge of the Supreme Court at Delhi, on the basis of a certificate granted by Weston CJ and Bhandari J. was dismissed on the ground that there was no declaration made by Das CJ as to the fitness of the case under clause 10 of the Letters Patent. Following these authorities, I dismissed the application filed by Salah Mohamad and ors. for grant of leave to file a Letters Patent appeal against the judgment dated Apr. 17, 1970, passed in Salah Mohamad and ors. v. Gulab and ors. (Supra) by Anant Singh J, who ceased to be an Adhoc Judge of this Court by the time the application came up for disposal. No authority to the contrary has been laid before us by the learned counsel appearing on the other side. Though the absence of a provision in the Letters Patent to meet a situation like the present one, where the Judge, who passed the judgment is not available to give the requisite certificate either because of his superannuation or incapacity due to leave or death or some other reason causes great hardship, the rule is well settled that the law has to be interpreted as it is and it is not permissible to import words into the statute which are not there. (See AIR 1970 A. P. 332, and 1969(10) Gujarat Law Reporter, 164). As in the instant case, the declaration required by clause 12 of the Letters Patent was given not by Bhat J. but by the Hon'ble Chief Justice, the Letters Patent appeal No. 1 of 1972, has to be dismissed as incompetent in view of the consensus of judicial opinion. The fact that the case has already been declared to be a fit one for appeal cannot stand in the way of Mr. Inder Dass questioning the validity of the declaration. I am fortified in this view by a decision of the Pepsu High Court in Hari Rain v. Hazari Lal and ors. AIR 1951 Pepsu, 132, where it was held that ex parte grant of a certificate cannot preclude the respondent from raising an objection in the Letters Patent Appeal that the application on which it was granted was not presented within the prescribed period and, therefore, the certificate was not valid. 4. Regarding the interpretation to be put on the word "immediately" occurring in Rule III-A of Chapter V of the Rules of Court as inserted by Command Order No. 7-H of 1947 dated Feb. 3, 1947, we are of the opinion that an application for leave to appeal under the said provision of the Letters Patent made some lime after the judgment is delivered can be entertained if sufficient cause is shown for the inability to apply for leave at the time of the delivery of judgment. In Ramnarayan Triyoginarayan Trivcdi and ors. v. State of Madhya Pradesh and ors. AIR 1962 Madhya Pradesh, 93, a Full Bench of the Madhya Pradesh High Court held that the intention of clause 12 of the Letters Patent is that the application should be made without undue delay. Their Lordships further pointed out that the word "Immediately" has to be reasonably construed so not to require from the applicant something which is impossible. The word should be so read as to advance its purpose and not to defeat justice. In the present case, the judgment having been passed by Bhat J. during vacation without notice to the State, the latter could have applied for leave after coming to know of the judgment and taking the necessary steps in that behalf. The application for grant of the necessary declaration under Clause 12 of the Letters Patent could not, therefore, be thrown out on the ground that it was not made immediately after the delivery of the judgment. 5. In the result Letters Patent appeal No. 1 of 1972, is dismissed, but without any order as to costs. In view of the dismissal of Letters Patent appeal No. 1 of 1972 civil first misc. appeal No. 4 of 1972, filed by Dr. Triloki Nath, becomes infructuous and is consigned to the records. I agree, Sd/- Mian Jalal-ud-Din, J. Syed Wasi-ud-Din, J.— 6. In this case the short point which arised for consideration is as to what interpretation should be put to the relevant words occurring in Clause 12 of the Letters Patent which has been quoted in extenso in the judgment of my learned brother Jaswant Singh J. The second appeal in question was heard by a Single Judge of the Court viz. Bhat J. on 28-12-1971 and the judgment was delivered by him on 10th of Feb. 1972 and this was during winter vacation. An application for leave to appeal under the Letters Patent was filed by the State on 26th April 1972. It was submitted that the application could not be filed earlier because the State had no knowledge of the delivery of the judgment especially because it was delivered during winter vacation. The leave for appeal was allowed by the Hon'ble Chief Justice and the relevant words occurring in clause 12 of the Letters Patent are "where the Judge who passed the judgment declares that the case is a fit one for appeal." The interpretation on the language strictly as it stands naturally is that the declaration has to be given by the Judge who passed the judgment and my learned brother Jaswant Singh J. has elaborately discussed the different rulings of the different High Courts in this respect and the consensus of opinion is that the words have to be literally interpreted according to the language and, therefore, no other Judge is competent to give the declaration about the fitness of the appeal except the judge who passed the judgment. It appears that it no doubt confers a very limited and restricted right of appeal. The intention may be that as there has already been an appeal so further appeal should be allowed only when such a declaration is given by the Judge who passed the judgment. But there can be cases where for no fault of the party the declaration could not be obtained from the Judge who passed the judgment. This is also clear from the facts of the different rulings referred to by my learned brother Jaswant Singh J. in his judgment and in this present case also it so happened that the judgment was delivered by Bhat J. on February 10, 1972 and on February 28, 1972 he demitted office because of his retirement. It was clear, therefore, that in the circumstances the declaration could not be obtained from Bhat J. It also appears to me that although the intention may have been to give a restrictive right but at the same time the underlying idea to provide for a further appeal is also to meet such cases of hardship or cases where some real and substantial questions of law are involved and the provisions cannot be availed of because of the language of clause 12 quoted above. In view of the strict interpretation according to language and there being no ambiguity and also because of the consensus of opinion of the High Courts, I agree with my learned brother Jaswant Singh J. but I wish only to make this observation that it is a fit case in which the matter should be brought to the notice of the Government to consider the desirability of an amendment on the same lines as Order 47 Rule 5 of the Code of Civil Procedure. It may be mentioned here that in the State of Jammu and Kashmir there still subsists the rule viz. Rule 2 of Order 47 of the Code of Civil Procedure which requires that the review petition has to be made before the Judge against whose order the review is sought for. This rule has been repealed in the Code of Civil Procedure as applicable to India but Rule 5 Order 47 of the Code of Civil Procedure is in the Jammu and Kashmir Civil Procedure Code as well as in the Civil Procedure Code of India, which provides for a contingency where the Judge or the Judges against whose order a review application has to be made is or are precluded by absence or other cause for a period of six months. 7. I also agree to the order proposed with regard to the two appeals by my learned brother Jaswant Singh J. _____________

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    T.N.Kaul v. State Of J&K
    (Jul 16, 1973)