Commissioner of Gift Tax and Another vs Bireswar Sarkar and Another

V.K. Gupta, J.—The two appellants, namely, the Commissioner of Gift-tax, and the Gift-tax Officer, have come up in appeal against a judgment delivered on April 7, 1993, in Matter No. 539 of 1988 Bireswar Sarkar Vs. Gift Tax Officer and Others, by a learned single judge of this court regarding the validity of a notice issued u/s 16 of the Gift-tax Act, 1958. It appears that the respondent, Bireswar Sarkar, feeling aggrieved by the issuance of a notice u/s 16 of the Gift-tax Act for the assessment year 1982-83 moved a writ application under article 226 of the Constitution of India in this court, vide judgment dated April 7, 1993, a learned single judge of this court by allowing the writ application of the respondent quashed and set aside the impugned notice in the writ application.

Even though the judgment under appeal was passed on April 7, 1993, the present appeal was filed on September 11, 1995. As per the noting and report submitted by the Superintendent, Appeals Section (Original Side) of this court, the appeal is barred by limitation by 856 days.

The contention of the appellant is that the appeal is not barred by limitation because till date no order has been drawn up as is required in terms of rules 1 and 2 contained in Chapter XVI of the High Court Rules dealing with original side. It is contended that unless the order has been drawn-up in terms of rules 1 and 2 (supra), appeal cannot be filed because the appeal is to be filed against the order so drawn-up and the copy of the order is required to accompany the memorandum of appeal. The point for our determination, therefore, in this appeal is as to whether an appeal against a judgment delivered by a learned single judge of this court under Clause 15 of the Letters Patent is maintainable only against the judgment itself, and not the order that may be required to be drawn-up in terms of rules 1 and 2 (supra) and thus such an appeal is maintainable without the memorandum of appeal being accompanied by a copy of such an order.

We have heard learned counsel appearing for the parties at length. Rules 1 and 2 read as under ;

" 1. Judgment how pronounced and minuted : decree or order in accordance therewith. The judgment shall be pronounced in open court, and a minute thereof made by the principal officer in attendance in court; and the decree or order shall be drawn up in accordance therewith.

Where the judgment pronounced has been reduced into writing, the decree or order shall not be filed before such judgment is filed.

Oral judgment how taken down : Revision thereof; official note. Where judgment is given by the court or a judge orally, a note thereof in writing, or in shorthand, shall be taken by the principal officer in attendance. The note so taken, shall, unless the judge shall otherwise direct, be written out fully, and submitted to the judge for revision. A note so submitted, when revised by the judge, shall be signed by him and may be filed, as the judgment of the court, but if returned by the judge unsigned, it may be filed as the official note of the judgment. After it has been so filed the parties shall be entitled to obtain office copies in the usual manner."

Clause 15 of the Letters Patent reads as under :

" 15. Appeal from the courts of original jurisdiction to the High Court in its appellate jurisdiction.--And we do further ordain, that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal from the judgment (not being judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made by a court subject to the superintendence of the said High Court, and not being sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act or in the exercise of criminal jurisdiction) of one judge of the said High Court or one judge of any Division Court, pursuant to Section 108 of the Government of India Act, 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, pursuant to Section 108 of the Government of India Act made on or after the first day of February one thousand nine hundred and twenty-nine in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a High 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 judges of the said High Court or of such Division Court shall be to us, our heirs or successors in our or their Privy Council as hereinafter provided."

From a bare perusal of Clause 15 of the Letters Patent, it is evident that the appeal that is to be preferred by a party before a Division Bench of this court in terms of the said Clause is against the judgment delivered by a learned single judge of this court. The appeal is not against an order which may be required to be drawn-up in terms of the rules which provide for the drawing up of the order in terms of the judgment pronounced by a learned single judge in a matter decided by him. The drawing up of an order in terms of the rules of procedure of the High Court, whether on the appellate side or the original side is only a formality. The appeal preferred under Clause 15 of the "Letters Patent" is not against such a formal order drawn up but is against the judgment itself of a single judge which determines and decides the questions involved in the case.

We may also look at the case from another angle. Sections 96 and 100 of the CPC read as under :

"96. Appeal from original decree.--(1) Save where otherwise-expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeals from the decisions of such court. . . .

Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. . . ."

As is seen from the aforesaid two sections of the Code of Civil Procedure, appeals arc preferred to superior courts from the decrees passed by the subordinate courts. Since under these two sections the appeals arc against the decrees, it is natural that the certified copies of the decrees sought to be appealed against are filed along with the memo of the appeals preferred by the appellants. There is thus a clear distinction between a civil regular appeal preferred u/s 96 or Section 100 of the CPC and an appeal filed under Clause 15 of the Letters Patent. Whereas in the former case, the appeals are against the decrees, in the latter, the appeals are against the judgment. It is not, therefore, proper for a party to insist on drawing up a formal order for enabling him to file an appeal because the appeal is against the judgment of the learned single judge and not against the order and it shall be a proper, appropriate and substantial compliance with rules and provisions of law if the memorandum of appeal is accompanied only by a copy of the judgment of the learned single judge sought to be appealed against, when the appeal is preferred under Clause 15 of the Letters Patent. We are, therefore, of the clear view that the present appeal being a Letters Patent appeal is patently time-barred.

Having thus found the appeal to be patently time-barred, the question that arises for our consideration is as to whether the appeal should be dismissed as time-barred or not. The facts and circumstances that we have indicated in this case clearly point out that the appellants do appear to have been suffering under a bona fide, even though erroneous, impression that the appeal was not competent and maintainable without the memorandum of appeal being accompanied by a certified copy of the order. Allowance therefore is required to be given to the appellants for entertaining such an erroneous, but bona fide impression. In this background, therefore, dismissing the appeal straightaway as time-barred perhaps may not properly serve the ends of justice. We are, therefore, of the opinion that an opportunity has to be afforded to the appellants to file an application for condonation of delay in preferring the appeal beyond the period of limitation, and depending upon the result of such an application, if filed, we can decide finally the question as to whether the delay in filing the appeal can be or cannot be or should not be condoned. Undoubtedly our decision on the application for condonation of delay, if at all filed, shall entirely depend upon the facts that are brought out in that application.

For the foregoing reasons, therefore, we adjourn the case for two weeks from today. It is open in the meantime to the appellants to file an application for condonation of delay, if so advised. If, however, no such application is filed, the appeal shall be liable to be dismissed as time-barred on being listed in the court immediately after two weeks.

V.N. Khare, C.J.

I agree.