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Karsondas Dharamsey v. Gangabai
Factual and Procedural Background
This is an application for leave to appeal to the Privy Council from an order of the High Court refusing to admit an appeal after the period of limitation prescribed by the Limitation Act. The High Court refused admission because the appellant failed to satisfy the Court that he had sufficient cause for not presenting the appeal within the period of limitation. The decree from which an appeal was desired was passed by a single Judge. The application for leave was made to a Bench of two Judges of the High Court (the tribunal to which the appeal from the decree of the single Judge would lie).
Legal Issues Presented
- Whether this Court has power to grant leave to appeal to the Privy Council from the High Court's order refusing to admit an appeal beyond the period of limitation.
- Whether the order of refusal is a "decree" within the meaning of Section 594 of the Civil Procedure Code and therefore a final decree under Clause (a) or Clause (b) of Section 595 of the Civil Procedure Code.
- Whether the order of refusal is a decree "passed on appeal" by a High Court.
- Whether the order of refusal is a final decree passed by a High Court in the exercise of Original Civil Jurisdiction.
Arguments of the Parties
Applicant's Arguments
- Mr. Setalvad, for the applicant, argued that the order of refusal, having regard to the definition of "decree" in Section 594 of the Civil Procedure Code, is a final decree within either Clause (a) or Clause (b) of Section 595 of the Civil Procedure Code.
- He did not rely on Clause (c) of Section 595.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sunder Koer v. Chandishwar Prosad Singh (1903) I.L.R. 30 Cal. 679 | The meaning of the expression "passed on appeal" as settled by a line of authorities. | The Court followed that interpretation and concluded that the present order could not be said to be a decree passed on appeal by a High Court. |
| Ram Narain v. Parmeswar Narain Mehta (1902) L.R. 30 I.A. 20 | Consideration whether the power of admitting an appeal beyond time might have been exercised. | The Court noted the Privy Council in that case considered such power, but distinguished it because the report does not show leave obtained under chapter 45 and because there had been a dismissal of the appeal (which would be a final decree passed on appeal). |
| Ram Narain v. Parmeswar Narayan (1902) I.L.R. 30 Cal. 309 | Reference in connection with the same matter as the L.R. report above. | The Court observed the Law Reports and this report do not show that leave under chapter 45 was obtained prior to the Privy Council appeal in that case. |
Court's Reasoning and Analysis
The Court first posed whether it had power to grant the leave sought. It considered the applicant's reliance on Section 594 (definition of "decree") and Clause (a) or (b) of Section 595 of the Civil Procedure Code, noting Clause (c) was not relied upon. The Court examined whether the order of refusal was a decree "passed on appeal" and applied the settled meaning of that expression as set out in Sunder Koer v. Chandishwar Prosad Singh and related authorities; on that basis it held the order could not be characterized as a decree passed on appeal by a High Court.
The Court then considered whether the order was a final decree passed by a High Court in the exercise of Original Civil Jurisdiction. It referred to the meaning of "Original Civil Jurisdiction" as made clear by Clause 12 of the Letters Patent read with Clause 15, and observed the application had been made to a Bench of two Judges (the tribunal to which an appeal from the single Judge would lie), not to a Judge exercising Ordinary Original Civil Jurisdiction. Therefore the order of refusal was not a decree passed by a High Court in the exercise of Original Civil Jurisdiction.
The Court addressed Ram Narain but distinguished it: the Privy Council there considered whether the power to admit an appeal beyond time might have been exercised, but the present case differs because the reports do not show leave under chapter 45 was obtained and because in Ram Narain there had been a dismissal of the appeal (a final decree passed on appeal).
From these points the Court concluded it had no jurisdiction to grant the leave sought under Clause (a) or Clause (b) of Section 595, which were the only provisions relied upon by the applicant.
Holding and Implications
DISMISSED — The application for leave to appeal to the Privy Council is dismissed with costs.
The direct effect is that the applicant's request for leave under Clause (a) or Clause (b) of Section 595 of the Civil Procedure Code is refused for want of jurisdiction to grant such leave in the circumstances; the opinion does not identify any broader precedent or wider legal consequence beyond the disposition of this application.
1. This is an application for leave to appeal to the Privy Council from an order of the High Court refusing to admit an appeal after the period of limitation prescribed therefor by the Limitation Act.
2. The ground for this refusal was that the appellant had failed to satisfy the Court that he had sufficient cause for not presenting the appeal within the period of limitation. The decree from which it was then desired to appeal was one passed by a single Judge in the exercise of the High Court's original civil jurisdiction.
3. The question now arises whether we have power to grant the leave sought.
4. Mr. Setalvad, for the applicant, argues that the order of refusal, having regard to the definition of "decree" in Section 594 of the Civil Procedure Code, is a final decree within either Clause (a) or Clause (b) of Section 595 of the Civil Procedure Code.
5. He does not rely on Clause (c).
6. But can it be said that that this is a final decree passed on appeal by a High Court ?
7. The meaning of the expression "passed on appeal" has been settled by a line of authorities, which it is right that we should follow (see Sunder Koer v. Chandishwar Prosad Singh (1903) I.L.R. 30 Cal. 679 and the cases there cited). And applying that interpretation to the circumstances of this case, it cannot (in my opinion) be said that there is here a decree passed on appeal by a High Court.
8. Then can it be said that this is a final decree passed by a High Court in the exercise of Original Civil Jurisdiction ?
9. The meaning of the words Original Civil Jurisdiction is made clear by Clause 12 of the Letters Patent read with Clause 15. The application was made not to a Judge exercising Ordinary Original Civil Jurisdiction, but to the High Court, represented by a Bench of two Judges, as the tribunal to which the appeal from the decree of the single Judge would lie.
10. Therefore the order of refusal was not a decree passed by a High Court in the exercise of Original Civil Jurisdiction.
11. It is true that in Ram Narain v. Parmeswar Narain Mehta (1902) L.R. 30 I.A. 20 the Privy Council did consider whether the power of admitting an appeal beyond time might have been exercised.
12. But that in no way concludes the present case, for it does not appear from the report either in the Law Reports or in Ram Narain v. Parmeswar Narayan (1902) I.L.R. 30 Cal. 309 that the appeal to the Privy Council was preceded by leave obtained from the High Court under chapter 45 of the Civil Procedure Code.
13. But that is not all, for from the Judgment delivered by Sir Arthur "Wilson it would seem that in that case there had been a dismissal of the appeal and that clearly would be a final decree passed on appeal.
14. Therefore it appears to me we have no jurisdiction to give the leave sought either under clause (a) or clause (b) of section 595 and it is on those clauses alone that the applicant has relied.
15. The application will be dismissed with costs.
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