Case: State of Assam &amp; Another Etc Vs. Basanta Kumar Das Etc

simple ground. If this contention is to be upheld it will apply to the other two cases also. On behalf of the State of Assam it was contended that this point was not raised till the appeals were taken up for argument, that they were taken by surprise and they would be prepared to file a petition for special leave if that was considered necessary, if the appeals were adjourned by a week. In the very case relied upon by Mr. Daphtary the appellant filed a special leave application and after hearing the parties the Court came to the conclusion that the leave asked for should be granted. We may now consider some of the earlier decisions of this Court on this point. In Union of India v. Kishori Lal Gupta, (1960) 1 SCR 493 = (AIR 1959 SC 1362 ) special leave to appeal from the judgment of a single Judge of the High Court had been obtained without first appealing to the appellate bench of the High Court. This Court held that the leave could have been revoked if the objection was taken at the earliest opportunity, and an objection to the leave so granted and an application for revocation of leave made after inordinate delay at a later stage would prejudice the appellant, for if the objection had been taken at the earliest point of time the appellant would have the opportunity to prefer a Letters Patent Appeal and the appellant cannot be made to suffer for the default of the respondent. 17. In Durga Prasad v. Banaras Bank Ltd., (1964) 1 SCR 475 = (AIR 1963 SC 1322 ) the High Court had certified the case under Art. 133 (1) (a) of the Constitution for appeal to this Court. It was urged during the hearing of the appeal on behalf of the other side that the appeal was not competent on the ground that the High Court had no jurisdiction to grant the certificate under Art. 133 (1) (a) of the Constitution without certifying that the appeal involved some substantial question of law. This Court held that the appeal could not be entertained as it was a case of a judgment of the High Court which affirmed the judgment of the single Judge and the High Court had not certified that the decision involved any substantial question of law. The counsel for the appellant, however, requested that in any event special leave to appeal under Art. 136 of the Constitution be granted. But having regard to all the circumstances this Court decided that it was not a fit case for granting leave to appeal. 18. In Civil Appeal No. 578 of 1963, decided on 23rd July, 1965 this Court, though it held that the certificate granted by the High Court was incompetent, heard the Counsel for the appellant, who made an oral request for grant of special leave undertaking to file a petition supported by an affidavit and by an application for condonation of delay immediately. This Court thought that it was a fit and proper case and that special leave should be granted because important questions of law had to be decided. It directed the appellant to file the necessary special leave petition within a week. 19. In the latest decision of this Court in Bijili Cotton Mills v. Industrial Tribunal II, AIR 1972 SC 1903 to which one of us was a party, it was held that this Court under Article 136 is fully competent to entertain even an oral prayer for grant of special leave and condonation of delay and if the cause of justice so demands, to grant the same and to consider the special leave to appeal on merits. On consideration of all the circumstances of that case it was held that it was fit for granting special leave to appeal and for condoning the delay. The decision in C. A. No. 578 of 1963 (SC) was cited with approval. These cases established that the powers of this Court to grant special leave under Article 136 are very wide and that it would be prepared to exercise it at any stage in a proper case. Furthermore, it would not allow an objection to the nature of the certificate to be taken if it is done at a late stage making it impossible for the appellant to resort to the proper remedy as he could have done if the objection had been taken at an early stage. 20. This Court does not simply dismiss an appeal on the ground that the leave obtained was not a proper one and leave the matter to rest there. It is always prepared to consider the request for grant of special leave at any stage if the circumstances of the case require. An objection to the certificate should be taken at the earliest possible moment and the respondents failure to do so would not be allowed to prejudice the appellant and he would not be made to suffer for the failure of the respondents. In this case also if the objection had been taken at the earliest point of time the appellant could have applied for special leave and in the circumstances of this case we would have been prepared to grant special leave. When the High Court decided these cases the judgment of this Court in (1971) 1 SCR 503 = (AIR 1970 SC 1314 ) had not been delivered. Therefore, a substantial question of law arose for decision in these cases. If the respondents had raised to point at the earliest possible time we would have been prepared to consider an oral request for special leave and for condonation of delay and to direct the appellants to file petitions for this purpose. But as it has been done only at the last moment after the appeals were taken up for hearing we are of opinion that the appellants should not be made to suffer by the respondents negligence. We, therefore, hold against this objection.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]20. This Court does not simply dismiss an appeal on the ground that the leave obtained was not a proper one and leave the matter to rest there. It is always prepared to consider the request for grant of special leave at any stage if the circumstances of the case require. An objection to the certificate should be taken at the earliest possible moment and the respondents failure to do so would not be allowed to prejudice the appellant and he would not be made to suffer for the failure of the respondents. In this case also if the objection had been taken at the earliest point of time the appellant could have applied for special leave and in the circumstances of this case we would have been prepared to grant special leave. When the High Court decided these cases the judgment of this Court in (1971) 1 SCR 503  = (AIR 1970 SC 1314 ) had not been delivered. Therefore, a substantial question of law arose for decision in these cases. If the respondents had raised to point at the earliest possible time we would have been prepared to consider an oral request for special leave and for condonation of delay and to direct the appellants to file petitions for this purpose. But as it has been done only at the last moment after the appeals were taken up for hearing we are of opinion that the appellants should not be made to suffer by the respondents negligence. We, therefore, hold against this objection.