Full Judgment Text
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PETITIONER:
THE STATE OF WEST BENGAL & ORS.
Vs.
RESPONDENT:
SRI KARTICK CHANDRA DAS & ORS.
DATE OF JUDGMENT: 06/05/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
JT 1996 (6) 627 1996 SCALE (5)140
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
We have heard learned counsel on both sides.
The learned single Judge of the High Court of Calcutta
exercising the power under Article 226 of the Constitution
in Civil Order No.241(W) of 1992 directed the appellant to
grant registration in terms of the West Bengal Cinemas
Development Scheme, 1976 and to grant subsidy to the
respondents as per the said scheme. The appellant had
carried the matter in appeal against the said order in FMAT
No.3244/92 with an application for stay of the operation of
the order. We are informed that the appeal is pending.
Pending appeal the respondent had taken out contempt
proceedings against the appellant for non-enforcement of the
direction issued by the-learned single Judge. Against the
contempt notice, the appellants have filed a Letters Patent
Appeal to the Division bench. The Division Bench in the
impugned order dated November 4, 1994 passed the order as
under:
"Having heard the learned counsel
for the parties we are of the
opinion that the delay in filing
this appeal being not condonable as
section 5 of the Limitation Act
does not apply the appeal is
dismissed. The application under
the Limitation Act is also
dismissed."
Thus this appeal by special leave.
It is not in dispute that under Section 19 of the
Contempt of Courts Act, an appeal would lie to the Division
Bench and limitation of 30 days from the date of the order
has been prescribed subject to the exclusion of the time
taken for obtaining the certified copy thereof. We have seen
that the appellate side rules of the Calcutta High Court
applicable to the area other than the city of Calcutta had
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not expressly excluded the application of the limitation
under the Limitation Act.
Learned counsel for the respondent sought to contend
that by operation of Rule 3 of Chapter 8 of the appellate
side rules under the letters patent the memorandum of appeal
drawn up under Order 41 Rule 1 CPC requires to be complied
with as envisaged thereunder since it had not been provided
with any limitation. The Division bench was, therefore,
right in holding that the Limitation Act was not extended
for an appeal filed under clause 15 of the letters patent
against the order passed by the learned single Judge under
the provisions of the Contempt of Courts Act. It is seen
that under the Contempt of Court Act; the High Court has
framed the rules. Rule 35 envisages that;
"In respect of appeals from the
orders of any Judge or Bench of the
Original Side the rules of the
Original Side relating to appeals
and in respect of appeals from the
order of any Judge or Bench of the
Appellate Side, the rules of the
Appellate Side shall apply mutatis
mutandis."
Therefore, for the appeals filed under clause 15 of the
Letters Patent against the order of the learned single Judge
for the contempt proceedings by necessary consequences, the
procedure prescribed on the appellate side would also be
applicable and followed.
Section 29 of the Limitation envisages ’Savings’. Sub-
section (2) thereof reads thus:
(2) where any special or local law
prescribes for any suit, appeal or
application a period of limitation
different from the period
prescribed by the Schedule, the
provisions of Section 3 shall apply
as if such period were the period
prescribed by the Schedule and for
the purpose of determining any
period of limitation prescribed for
any suit appeal or application by
any Special or local law, the
provisions contained in Sections 4
to 24 (inclusive)shall apply only
insofar as, and to the extent to
which, they are not expressly
excluded by such special or local
law "
In consequence, by operation of Section 29(2) read
with Section 3 of the Limitation Act, limitation stands
prescribed as a special law under Section 19 of the Contempt
of Courts Act and limitation in filing Letters Patent Appeal
stands attracted In consequence, Sections 4 to 24 of the
Limitation Act stands attracted to Letters Patent Appeal
insofar as and to the extent to which they are not expressly
excluded either by special or local law Since the rules made
on the appellate side, either for entertaining the appeals
under clause 15 of the Letters Patent or appeals arising
under the contempt of courts, had not expressly excluded,
Section 4 of the Limitation Act becomes applicable we hold
that Section 5 of the Limitation Act does apply to appeals
filed against the order to the learned single Judge for the
enforcement by way of a contempt. The High Court, therefore,
was not right in holding that Section 5 of the Limitation
Act does not apply. The delay stands condoned. Since the
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High Court had not dealt with the matter on merits, we
decline to express any opinion on merits. The case stands
remitted to the division bench for decision on merits.
The appeal is accordingly allowed. No costs.