9911796707
TMI Blog1980 (2) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... have been raised on behalf of the plainliff-respondent to the maintainability of the appeal, and since it is not necessary to narrate the facts giving rise to the appeal for the disposal of the preliminary objections, we proceed straight to state the preliminary objections, 3. The first preliminary objection, raised by the learned counsel for the respondent, is that the certificate granted by the learned single Judge was incompetent inasmuch as leave has been granted after the time prescribed for the same had expired. It is submitted that the judgment under appeal was pronounced on October 5, 1967. No application, oral or written was made by the appellant to the learned single Judge for declaring the case a fit one for appeal, before or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discretion of the Judge to condone the delay. It is urged that there is no absolute bar against entertaining an application after the judgment is delivered but within the period of limitation prescribed for special appeal. In this connection, he has placed reliance on Badruddin Abdul Rahim v. Sitarara Vinayak Apte, AIR 1928 Bom 371 and Ma. Than v. Mg. Ba Gyaw, AIR 1928 Rang 1 (FB). On the other hand, it has been pressed by Mr. Bhandari learned counsel for the respondent, that the words no such application refer to the words application for such declaration occurring in the preceding sentence, and therefore, argues Mr. Bhandari, that an application for grant of certificate at a subsequent stage after the judgment is delivered, is barred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point at issue. However, learned counsel for the respondent has brought to our notice a Bench decision of the Madhya Pradesh High Court in Ramnarayan v. State of Madhya Pradesh AIR 1962 Madh Pra 93 (FB) which, according to the learned counsel, can, be pressed into service in support of the contention raised on behalf of the appellants. In that case, the wordings of the relevant rule were these:-- An application for leave to appeal under Clause 10 of the Letters Patent against an appellate judgment of a single Judge of the High Court shall be made in writing or orally to the Judge deciding the appeal immediately after the judgment is delivered. No other application for leave to appeal shall be entertained. The decision of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave to appeal is granted. However, in order to find out whether a case for condonation of delay is made out, we have gone through the application submitted by the appellant before the learned single Judge. After narrating the facts of the case it has been stated in para 7 of the application that when the judgment of the case was pronounced on October 5, 1967, after hearing the reply of the appellant, the counsel for the respondent was not present and it was, in these circumstances, that necessary request for granting leave for declaring this case to be fit one for appeal, could not be asked for. 10. The arguments before the learned single Judge were completed on October 3, 1967 and the case was ordered to be listed on October 5, 1967, fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been made out and, therefore too, the appellant is not entitled to get the delay condoned and hence the certificate must be revoked. The decision on this point is, by itself, sufficient for rejecting this special appeal, but since learned counsel for the parties have addressed us on the other preliminary objection, we consider it propel to state the same and dispose it of. 12. The other objection raised by Mr. Bhandari is that this special appeal was not presented by a competent person. It is submitted that Mr. Raj Narain Munshi was appointed by the appellants to act and plead in the second appeal on their behalf and was thus authorised to present the special appeal but the special appeal was presented by Mr. M.L. Shrimal, who had no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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