Mohammed, M. vs B. Vasumal

This CP is filed by the appellant for permission to appeal as an indigent per- son. There is a delay of 89 days for preferring this petition. A notice was ordered on the application filed by the petitioner for condonation of delay in filing the Civil petition. As per the office-note, the respondent has refused to receive the notice therefore the Addl. Registrar, by the order dated 26th Nov. 1980 has held the service as sufficient. Thereafter, the application same up for orders on 3-12-1980 and an order, was dictated on that day condoning, the delay in filing the Civil petition. But, before signing the order, it was felt that the matter was required to be heard by a Division Bench. Accordingly, the case was ordered to be posted for being spokes to. Hence, the case came up before the Court on 8-12-1980 on which date it came to be adjourned on the request of the Counsel to 12-12-1980. Accordingly, of 12-12-1980, the learned counsel was heard on the question as to whether the matter was required to be heard by a Division Bench.

For the reasons to be stated hereafter, I am of the view that the matter is required to be heard by a Division Bench; therefore, I recall the order passed on 3-12-1980. The appeal in question is a RFA preferred against the judgment and decree dated 13-2-1980 passed by the learned I Addl. Civil Judge, Mysore. The trial Court has decreed the suit for a sum of Rs. 39,140 together with costs and current interest at 12% per annum from the rate of the suit till the date of the decree and 6% per annum from the date of the decree on Rs. 26,500/- till the dale of payment. The period of limitation for Sling a RFA before the High Court and ft Civil Petition for permission to pursue the appeal before the High Court as an indigent person is 90 days and 60 days respectively from the data of the decree appealed from, as per the provisions contained 2ft Arts. 116 and 130 respectively of the Limitation Act, 1963.

5, At already pointed out, there is a delay of 89 days for preferring the present Civil Petition. Thus, it is clear that there is also a delay in filing the RFA itself as the appeal is filed along with the Civil Petition on 26-7-1989. Under was of the Karnataka High Court Act, 1961 (hereinafter referred toas the Act), Theappeals are to be heard by a Bench constituting of act less that two Judges of the High Court. S. 9 of the Act provides for other powers of single Judge. Among other things the section provides that the powers of the High court in relation to admission of an appeal in forma pauperise, and any matter of an interlocutory character in appeals and other proceedings and admission of an appeal presented after the expiry of the period allowed by the law of limitation shall be energised by a single Judge. S. 10 of the Act deals with the "other powers of a Bench of two Judges" and among other things it provides that all other matters not expressly provided for in the Act or any other law for the time being in force, shall be exercised by a Bench of two Judges.

R. 1 (h) of Chapter. II of the High Court of Karnataka Rules, 1959 (hereinafter referred to as "the Rules") defines appropriate Bench in relation to any matter as the Bench which is competent under the Rules to dispose of the said matter finally. R. 7 of Chapter VI of the Rules provides that appeals presented after the expiry of the period prescribed for them by law shall be accompanied by as application supported by an affidavit explaining the delay and setting forth the grounds on which the appellant seeks to have the delay condoned and the appeal entertained by the Court or to establish that the appeal has been presented with time. R. 8 thereof provides that when as appeal is presented with such an application as is mentioned in R. 7, the said application together with all the papers of the appeal shall be posted before the appropriate Bench. Unless the Bench is of the opinion that the appeal has been pretested is time, no order other than as order dismissing the application or summarily dismissing the appeal shall be passed without issuing notice to the respondents and hearing them if they appear in response to the notice. R. 7 of Chapter VII of the Rules which deals with petitions, provides that where any petition for which the law applicable to it prescribes a period within which it shall be presented or made is presented after the expiry of the said period, the provisions of Rr. 7 and 8 of Chapter VI shall apply mutatis mutandis. Rr. 4 and 5 of Chapter X of the Rules which deal with interlocutory matters, provide that interlocutory applications shall be posted before the appropriate Bench.

In the instant case, as the delay in filing the Civil Petition for permission to pursue the appeal as an indigent person being 89 day there is a delay of 59 days in filing the RFA itself. Therefore, the condonation of delay in filing the Civil Petition would also result in the condonation of delay in filing the RFA itself. From the relevant provisions of the Act and the Rules, adverted to above, it is apparent that the application for condonation of delay in preferring the RFA will have to be posted before a Division Bench, Therefore in the case of an RFA which is required to be heardby a Division Bench, if a Civil Petition is filed. Under Or. 44 of the CPC, along with the appeal, for permission to pursue the appeal as an indigent person, beyond the period of 90 days which is the period of limitation prescribed for preferring the RFA to the High Court there has got to be two applications one for condonation of delay in filing the Civil Petition and another for condonation of delay in filing the RFA and those applications will have to be heard by a Division Bench inasmuch as the condonation of delay in filing the Civil Petition in such a case would result in the condonation of delay in filing the RFA itself. Similarly, in such a case, if a single Judge finds it to be not a case for condonation of delay in filing the Civil Petition, it would create an anomalous situation inasmuch as, if the delay in filing the Civil Petition filed beyond the period of 90 days cannot be condoned, it will either be correct nor proper to hold that the delay in filing the RFA can be conduced. Further, the petition filed under Or. 44 of CPC. cannot be considered to be a matter of an interlocutory nature so as to fall under S. 9 of the Act, The powers exercisable by a single Judge in relation to admission of an appeal in forma pauperis and admission of an appeal presented after the expiry of the period allowed by the law pertain to appeals which are required to be heard and decided by a single Judge and not to RFA which was to be heard by a Bench of two Judge.

For the reason stated above, I direct the Office to take appropriate order from the Hon'ble the Chief Justice for posting the matter before an appropriate Bench,