P L D 1968 Supreme Court 61 (PLP)

CORNELIUS, C. J.‑This petition appears clearly to be barred by time. It seeks leave to appeal against an order of a learned Single Judge of the High Court, which was made on the 15th December 1966. An appeal under the Letters Patent was competent within the High Court, but the petitioners instead filed a petition in the Supreme Court directly on the 20th February 1967. This petition was returned with the observation that it could not be entertained until the possibility of further appeal within the High Court had been exhausted. Subsequently, the petitioners moved an application before the learned Single Judge for a certificate for appeal in the Letters Patent. This was refused on the 6th July 1967. A copy of this order was applied for on the 11th July 1967, which was completed on the 14th July and taken delivery of on the 15th July 1967. The petition for special leave to appeal against the judgment of the 15th December 1966, which had been first filed in this Court on the 20th February 1967, was refiled in this Court on the 15th August 1967. It did not need to be redrafted or otherwise prepared afresh since leave for a Letters Patent appeal had been refused. On the 15th August 1967, allowing for the period spent in obtaining a copy, 35 days of limitation had passed from the date of the order refusing the certificate. Mr. R. M. Anwar appearing for the petitioners contended that they were entitled to 30 days limitation from the 6th July 1967. As will presently be seen that contention is untenable, but even assuming that these 30 days were available, it is clear that on the 15th August 1967, the petitioners were late by five days. To overcome this default, Mr. R. M. Anwar referred to a manuscript note on the petition in the handwriting of the Attorney to the effect that it was refiled on the 7th August 1967. That date cannot, however, be accepted because the stamp of the office on the petition clearly shows that it was received on the 15th August 1967. But it was not from the order of the 6th July 1967, that the petitioners were seeking to appeal. No appeal to this Court would appear to be competent against a discretionary order by a Single Judge of the High Court declining to certify one of his judgments as fit for appeal under the Letters Patent within the High Court. The appeal which the petitioners were seeking to bring was against the order of the High Court, dated the 15th December 1966, and time began to run against them from that date. Their petition in this Court on the 20th February 1967, was misconceived and cannot be used for the purpose of saving time. The period allowed by the rules of this Court for filing such a petition is 60 days of limitation, and that period had expired long before the order refusing the Letters Patent appeal was made. However, the period necessary for obtaining such a refusal would be allowed to the petitioners, as a matter of extension of limitation for the conduct of a necessary proceeding, but once the certificate had been refused, since the petitioners were already out of time in relation to the order against which they sought to appeal, it was their duty to lose not a single day before filing their petition in this Court. As has been seen, they came to this Court after the lapse of a month and nine days following the making of the refusal order. No explanation is given for this delay, but it is urged that the Court should allow 30 days from the date of the order refusing the certificate, and for support, reference is made to a passage in the judgment of this Court in the case of Paresh Chandra Biswas (P L D 1963 S C 598). The facts in that case are almost on a parallel with those of the present case. The appeal was against a judgment of a learned Single Judge of the High Court dated the 26th June 1961. An application had b; en made for a certificate under the Letters Patent, which was rejected on the 22nd December 1961. Leave to appeal was sought against the order of the 26th June 1961, but there was no application for condonation of delay, reliance being placed upon an alleged practice in the Dacca Registry of the Supreme Court under which time was calculated from the date of the rejection of an application for a certificate to enable an appeal under the Letters Patent. In the present case there is an applica tion for condonation of delay, but the only ground set up is the time taken in obtaining the order from the Single Judge refusing to certify the case for a Letters Patent appeal. In the precedent case, it was held that the practice alleged was unfounded, even if it did exist and in holding that the appeal was barred by limitation, it was pointed out that after the rejection of the said application, the appellant "waited for about 40 days before they filed the petition for special leave". In the present case, as has been seen, an almost equal period of about 40 days was allowed to expire after the rejection of the application for the certificate before the petition for special leave was filed. Mr. R. M. Anwar seeks however to rely upon the following passage which occurs in the judgment in the precedent case :‑ "When an application is made to the High Court for grant of a certificate for leave to this Court there has necessarily to be an extension of time because[the proper course for every party is to approach the High Court in the first instance for a certificate, but even in that case only one month more is granted from the date of the order of the High Court refusing to grant a certificate and for this extension of time there is a specific provision." Mr, R. M. Anwar agrees that the reference in this passage is to Rule 1 of Order 13 of this Court's Rules, which reads as follows :‑ "A petition for special leave shall be lodged in this Court within sixty days of the judgment or order sought to be appealed from or as the case may be within thirty days from the date of the refusal of grant of certificate under Article 58(2)(a) of the Constitution, by the High Court." It is plain that the alternative of 30 days from the refusal of grant of certificate does not apply where the refusal is of a certificate for appeal under the Letters Patent of the High Court. Article 58 (2) (a) of the Constitution provides for an appeal to lie to this Court from a judgment of a High Court, as of right where "the High Court certifies that the case involves a substantial question of law as to the interpretation of this Constitution." No such question of law arose in this case, and therefore, there was no occasion to obtain a certificate of the kind referred to in Article 58(2)(x) of the Constitution. The case lay, on limitation, under the primary provision allowing 60 days from the date of B the judgment or order sought to be appealed from, for the filing of a petition for special leave. In this case, there has been great delay for which the petitioners are plainly responsible. There was the original delay through filing the petition in this Court for appeal against the order of the learned Single Judge without attempting an appeal under the Letters Patent, and even after the refusal of that certificate, there was a delay of some 40 days before the petitioners took the simple step of representing in this Court a petition which they had first filed six months earlier under a misconception. We see no ground for extending limitation in this case, and accordingly dismiss this petition as time‑barred. S. Q Petition dismissed.