Faiz Murtaza Ali Vs. Syed Askari Hadi Augustine Imam and anr. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. 1. counsel for the appellant was heard but the counsel for the respondent has not appeared in spite of service of notice by way of dusti summons for which proof has already been filed by the appellant.2. this appeal has been filed by the appellant against the order dated 21-11-2008 passed by the learned single judge in i.a. no. 2114/08 which was filed in the testamentary case no. 1/2003 by the applicant/appellant-faiz murtaza ali for his impleadment in the testamentary case which was rejected as having no merit and hence frivolous.3. it appears that the appellant had also filed an application to appear as a caveator in testamentary case no. 1/03 but the said application was rejected by the learned single judge holding therein that the caveator had no caveatable interest in the property which order was confirmed by the division bench in l.p.a. thereafter, a petition for review was filed by the applicant challenging the order of the learned single judge passed in the testamentary case as also the order of the division bench passed in the l.p.a.4. the review petition bearing civil review no. 46/2008 filed against the aforesaid orders was allowed by order dated 6-2-2009 assigning reasons therein that the petitioner/appellant herein had already a caveatable interest in the property for which a will was claimed to have been executed by the testator and hence was granted liberty to contest the testamentary case. the petitioner/appellant herein, in the same testamentary case no. 1/03, had also filed an application bearing i.a. no. 2114/08 which was rejected by order dated 21-11-2008 against which this appeal has been preferred.5. since we have already held in the review petition assigning reasons therein that the petitioner/appellant herein had at least a caveatable interest in the property in regard to which a will is claimed to have been executed so as to contest the testamentary case, we deem it just and appropriate to allow this appeal adopting the same reasons for which the review petition had been allowed holding therein that the petitioner/appellant herein had a caveatable interest in the property. for the sake of brevity we need not reiterate the reasons in this appeal and hence relying upon the reasonings assigned in our order passed in the review petition bearing civil review no. 46/08, we deem it just and appropriate to set aside the order dated 21-11-2008 passed in i.a. no. 2114/08 and grant liberty to the appellant to file a fresh application for his impleadment in the testamentary case no. 1/03 which shall be allowed.6. this appeal accordingly is allowed and disposed of but without any order as to costs.