# [1965] 2 S.C.R. 265

- **Citation:** [1965] 2 S.C.R. 265
- **Court:** Supreme Court of India
- **Decided:** 1964-11-26
- **Case number:** Civil Appeal No. SS of 1964
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1965-2-s-c-r-265-3403
- **Pages:** 4

## Headnote

A
MANAGEMENT OF 1HE HINDUSmAN COMMERCIAL
BANK LTD., KANPUR,
l'.
BHAGWAN DASS
B
November 26, 1964
[P. B. GAJENDRAGADKAR, C.J., M. HIDAYATULLAH,
]. C. SHAH, S. M. Snau, AND R. S. BACHAWAT, JI.]
Supreme Court Rules, Order 13 r. 2-p•titibn for 1pecial leave 10
oppeal-whether can be entertained without appel/11111
fir~! applying for
certificate to High Court-and without applying for exemption under Order
C
45 r. I-whether Order 13 r. 2 mandatory.
In a petition under Article 227 fi:ed by the respondent, the High Court
quashed an order of the Labour Court. The appellant then filed before
the High Court a petition praying for the issue of a certificate under Art.
132( I) and Art. 133 of the Constitution for leave to appeal to the Supreme
Court. The petition was returned to the appellant with the intimation that
it should be presented at Chandigarh and not at Delhi.
The appellant
D
thereafter did not proceed with that petition but applied for and was
granted ex-part• special leave to appeal under Article 136.
It was contended on behalf of the respondent that the •pecial leave
granted to the appellant was liable to be revoked and it was obtained without complying with the provision of Order 13 r. 2 of the Supreme Court
Rules, whereby when 'l'l appeal lies to the Supreme Court on a certificate
issued by a High Court or other tribunal, no application to the Supreme
Court for special leave can be entertained un1... the High Court or the
E
tribunal concerned has first been moved and it has refused to grant the
certificate; and furthermore special leave had been obtained without applying
for exemption from moving the High Court for a certificate.
HELD :
In view of the provisions of
Order 13 r. 2 which is a
mandatory rule, no application for special leave to appeal in this case
could be entertained unless the High Court had first been moved and
refused to grant the certificate. Under Order 45 r. 1 of the Supreme Court
F
Rules, this Court could, for sufficient reasons shown, excuse the applicant from compliance with the requirements of Order 13 r. 2;
but no
such application for exemption had been made. The special leave to appeal
obtained in contravention of Order 13 r, 2 was therefore liable to be
revoked. [267 G, H; 268 A]
Union of India v. Kishore Lal Gupta [1960] 1, S.C.R. 493, SOO, distinguished.
G
C1v1L APPELLATE JURJSD1cnoN: Civil Appeal No. SS of 1964
and C.M.P. No. 2174 of 1964.
Appeal by special leave from the judgment and order, dated
February 23, 1962, of the Punjab High Court in Civil Miscellaneous No. 1322 of 1961.
H
T. R. Bhasin, for the appellant.
M. K. Ramamurthi, D. P. Singh, R. K. Garg and S. C. Agarwala, for the respondent.
288
SUPllBMB COURT llBPOllTS
[1965) 2 S.C.ll.

## Text

A
MANAGEMENT OF 1HE HINDUSmAN COMMERCIAL
BANK LTD., KANPUR,
l'.
BHAGWAN DASS
B
November 26, 1964
[P. B. GAJENDRAGADKAR, C.J., M. HIDAYATULLAH,
]. C. SHAH, S. M. Snau, AND R. S. BACHAWAT, JI.]
Supreme Court Rules, Order 13 r. 2-p•titibn for 1pecial leave 10
oppeal-whether can be entertained without appel/11111
fir~! applying for
certificate to High Court-and without applying for exemption under Order
C
45 r. I-whether Order 13 r. 2 mandatory.
In a petition under Article 227 fi:ed by the respondent, the High Court
quashed an order of the Labour Court. The appellant then filed before
the High Court a petition praying for the issue of a certificate under Art.
132( I) and Art. 133 of the Constitution for leave to appeal to the Supreme
Court. The petition was returned to the appellant with the intimation that
it should be presented at Chandigarh and not at Delhi.
The appellant
D
thereafter did not proceed with that petition but applied for and was
granted ex-part• special leave to appeal under Article 136.
It was contended on behalf of the respondent that the •pecial leave
granted to the appellant was liable to be revoked and it was obtained without complying with the provision of Order 13 r. 2 of the Supreme Court
Rules, whereby when 'l'l appeal lies to the Supreme Court on a certificate
issued by a High Court or other tribunal, no application to the Supreme
Court for special leave can be entertained un1... the High Court or the
E
tribunal concerned has first been moved and it has refused to grant the
certificate; and furthermore special leave had been obtained without applying
for exemption from moving the High Court for a certificate.
HELD :
In view of the provisions of
Order 13 r. 2 which is a
mandatory rule, no application for special leave to appeal in this case
could be entertained unless the High Court had first been moved and
refused to grant the certificate. Under Order 45 r. 1 of the Supreme Court
F
Rules, this Court could, for sufficient reasons shown, excuse the applicant from compliance with the requirements of Order 13 r. 2;
but no
such application for exemption had been made. The special leave to appeal
obtained in contravention of Order 13 r, 2 was therefore liable to be
revoked. [267 G, H; 268 A]
Union of India v. Kishore Lal Gupta [1960] 1, S.C.R. 493, SOO, distinguished.
G
C1v1L APPELLATE JURJSD1cnoN: Civil Appeal No. SS of 1964
and C.M.P. No. 2174 of 1964.
Appeal by special leave from the judgment and order, dated
February 23, 1962, of the Punjab High Court in Civil Miscellaneous No. 1322 of 1961.
H
T. R. Bhasin, for the appellant.
M. K. Ramamurthi, D. P. Singh, R. K. Garg and S. C. Agarwala, for the respondent.
288
SUPllBMB COURT llBPOllTS
[1965) 2 S.C.ll.
The Judgment of the Court was delivered by
A
Bachawat, J.
The short point arising for our decision in this
case is whether the special leave to appeal granted to the appellant
on August 21. 1962 should be revoked on account of non-compli·
ance with the provisions of 0.13, r. 2 of the Supreme Court Rules,
1950.
-
B
The respondent was a cashier in the employ of the Amritsar
Branch of the appellant Bank. He was suspended on May 5, .1952
and finally dismissed from the service of the appellant on January
24, 1959. In the meantime, he was prosecuted for offences under
ss. 408 and 420 of the Indian Penal Code. He was acquitted by
the Trial Maiistrate on March 21, 1955, and a revision petition C
against the order of acquittal was dismissed by the Additional
Sessions Judge on June 23, 1955. On January 9, 1961, he filed
a petition under s. 33(C) (2) of the Industrial Disputes Act, 1947
before the Presiding officer of the Central Government Labour
Court, Delhi, claiming from the appellant payment of a sum of D
Rs. 16,000 in terms of paragraph 521(2)(c) of the Bank Award,
including full salary and allowance from the date of suspension to
the date of termination of his service. By an order dated March
28, 1961, the Labour Court allowed the claim to the extent of
Rs. 375 only, and dismissed the rest of the claim. On May 29,
1961, the respondent filed a petition in the Punjab High Court I!
under Art. 227 of the Constitution against the order of the Labour
Court. By an order dated February 23, 1962 a learned single
Judge of the Punjab High Court quashed the order of the Labour
Court, and directed it to decide the matter afresh in accordance
with law. the High Court held that by giying an erroneous decision
with regard to the effect and scope of paragraph 521 of the Bank J!
Award and the decision of the Trial Magistrate acquitting the
respondent, the Labour Court failed to exercise jurisdiction and to
give effeet to the provisions of paragraph 521 of the Award and
in the circumstances, on a true interpretation of Art. 227 of the
Constitution the High Court had power to quash the ijllpugned
order. On April 30, 1962, the appellant filed before the Circuit G
Bench of the Punjab High _Court at Delhi, a petition praying for
issue of a certificate under Arts. 132(1) and 133 of the Constitution certifying that the case involved substantial questions of law
as to the interpretation of Art. 227 of the Constitution and was
otherwise a fit one for aweal to this Court. The petition was returned for correction of defects, and was represented on May 5, 1962. H
On June 1, 1962, the petition was again returned to the appellant
with an intimation that the same should be presented at Chandigarh.
HINDUSTAN BANK V. BHAGWAN DASS (Bachawat, /.)
2417
A Thereafter, the appellant did not proceed with the petition, and
did not move the High Court for the issue of a certificate under
Arts. 132( l) and 133. On July 7, 1962, the appellant presented
in this Court a petition for special leave to appeal. In this peti·
lion, the appellant raised various questions of law as to tho
proper interpretation of Art. 227 of the Constitution, and also
B set out the facts relating to the presentation of the petition under
Arts. 132(1) and 133. On August 21, 1962, the appellant was
granted ex parte special leave to appeal under Art. 136 of tho'
Constitution. In his statement of case, the respondent contended, inter alia, that the special leave granted to the appellant was
liable to be revoked .. inasmuch as the leave was obtained without
C
filing an application for exemption from moving the High Court
for a certificate of fitness under Art. 132 of the Constitution
On July 18, 1964, the respondent also filed an application
praying for revocation of the special leave. The contention of
the respondent is that the special leave should be revoked, inasD much as the same was obtained without complying with the proVisions of 0. 13, r. 2 of the Supreme Court Rules, which reads thus:
E
"Where an appeal lies to the Supreme Court on a
certificate issued by the High Court or other tribunal no
application to the Supreme Court for special leave shall
be entertained unless the High Court or the tribunal concerned has first been moved and it has refused to grant
the certificate."
Now. no appeal lay to this Court under Art. 133 of the Constitution from the judgment of the learned single Judge of the
r
Punjab High Court. But as the appeal involves a substantial
question of law as to the interpretation of Art. 227 of the Constitution. it would have lain on a certificate issued by the High Court
under Art. 132 of the Constitution. The appellant did not move
the High Court for the issue of the certificate, though it had
earlier presented a petition praying for the grant of the certificate
G on this footing. In view of O. 13, r. 2, no application to this Court
for special leave to appeal in this case could be entertained, unless
the High Court had been first moved and had refused to grant the
certificate. Under 0. 45, r. 1 of the Supreme Court Rules. this
Court could, for sufficient reasons shown, excuse the appellant
from compliance with the requirements of 0. 13, r. 2. Up till
B
now. the appellant has not applied to this Court for exemption
from compliance with 0. 13, r. 2. In the absence of any order of
exemption, 0. 13, r. 2 applies with full force, and peremptorily
268
SUPREME COURT REPORTS
[I 96Sj 2 S.C.R.
enjoiru. that no application to this Court for special leave to appeal
A
shall be entertained.
"The rule is mandatory. The special leave
to appeal being obtained in contravention of the rule is liable to
be revoked
Relying on the case of Union of India v. Kishorilal Gupta & .
Bros ( 1), Mr. Bhasin contends that the leave should not be revoked B
at this late stage. Jn that case, the special leave to appeal from a
judgment of a single Judge of the High Court .had been obtained
without first appealing to an appellate Bench of the High Court.
Though the leave could have been revoked, if the objection were
taken at the earliest opportunity, an application for revocation of
the leave made after inordinate delay was dismissed on the ground
C
that the revocation at the late stage would prejudice the appellant;
for if the objection had been taken at the earl:%t point of time,
the appellant would have had the opportunity 115' prefer a Letters
Patent Appeal and the appellant could not be made to suffer for
the. default of the respondents. In that case, the special leave had
not been obtained in contravention of any mandatory rule. ~foreD
over, the delay in filing the application for revocation had prejudiced the appellant.
In the instant case, the special leave to
appeal was obtained in contravention of the mandatory proVisions
of 0.13, r. 2. Moreover, it is.not shown that the appellant suffered any prejudice .for any default of the respondent or any delay
in raising the objection.
·
E
We direct that the special leave to appeal granted to tho appellant be revoked. The order of stay, if any, granted by this Court
stands vacated.
The parties will pay and bear their own costs
vf the appeal.
Special leave revok!'d.
(I) (196'.)] I S.C.R. 493.
/