COMMISSIONER OF INCOME TAX, BOMBAY CITY versus R.H. PANDI MANAGING TRUSTEES OF TRUST, BOMBAY

RAY, C. J.-In these matters a question arises as to whether applications for condonation of delay in fi1lna petition ol oppeal can b heard by the Judge in Chambers. An argument is advanced before the Hon'ble Judge in Chambers that if an application for condonation of delay is refused by the Judge in Chambers it will amount to dis· missal of the appeal by the Juage in Chambers. Therefore, it is said that these applications should be heard by the Court which alone can dismiss an appeal.

p. 8

· Noticen were given to the Attorney General and th: Bar Asso· ciation because it was said. that ¢e existing practi~ of posting applications for condonation of delay in filing petition of appeal before the Judge in Ch!IDlbers should be discontinued and such applications should be listed before the Court. D

p. 8

The relevant rule is Order VI Rule 2(14) of the Supreme Court Rules. Order VI Rule . 2 states that the powers of the Court in relation to matters enumerated there m~y be exercised by a Single Judge sitting in Chambers. Oauie (14) reads "Applications for enlarge· ment or abridgement of time except where the time is fixed by tqe Court or relates to deposit of security and except applications for con- E donation of delay in filin$ special leave petitions". Under the Rules it follows that all applications for enlargement or abridgement of time except the three cases mentioned in Order VI rule 2(14) are heard by the Judge in Chambers. An important exception is application for condonation of delay .in filing special· leave petitions.

p. 8

Order X~VII Rule 3 of '1te Supreme Court RUles states that the Co1,1rt may enlarge or abrdlge any time appointed by these rules or fixed by any order enlarging time, for doing any act or taking proceedings, upon such terms (if any) as the justice of the case may require, and any enlargement may be ordered, although the applica· tion therefor is not made until after the expiration of the time appointed or allowed .. A petition of appeal is required .under Order XV of the Rules of this Court to be presented within 60 days from . the grant of certificate of fitness. The time to present the petition of appeal is fixed by the Rules of this Court. Therefore Order XLVII Rule 3 will apply with re1?ard to enlargement I.or abridgement of any time appoin~ by the Rules for doing any act.

p. 8

Order VI Rule 2( 14) speaks of applications for enlargement or abridgement of time. Here the words "enlargement or abridgement of time" take in. a~plications for ~nlargement o! time appointed by the R:ules. The iqgi1.dicant feature 1n the Rules 1s that applications for condonation of delay iii filing special leave petitions are excepted from the business of a Chamber Judge. The natural presumption is that but for the exception the Rule would have included also applications for condonation of delay in filin~ special leave petitions. Any appli· cation for condonation of delay 1n filing petition of appeal is there· fore included in applications for enlargement or abridgement of time.

pp. 8–9

TI1is practice of the Chamber Judge hearing applications for con· donation of delay in filing petitions of appeal within the time appointed by the Rules of this Coun has been followed ever since 1966. Cursus curiae est lex curiae. The practice of the Coun is the law of the Court. See Broom's Legal Maxims at p. 82. Where a practice has existed it is convenient to adhere to it because it is the practice. "The power of each Court ciVer its own process is unlimited; it is a power incid.ent to all C.ourts". See Cocker v. Tempest.('1)

p. 9

We are therefore of opinion that applications for condonation rl. delay in filing petitions of appeal are within the Chamber business under Order Vl Rule 2(14). V.P.S.

p. 9

(1) 7 M& W 502.

p. 9