Raghunath Gir Chela Moti Gir vs Behari Lal and others

Kapur, J.—On 23rd November 1949, Das, C. J., decided S. A. O. No. 53 of 1948 and allowed the appeal, and on 22nd December 1949, the respondent in that appeal applied for leave to appeal under para. 10 of the Letters Patent. Das C. J., was not in Simla at the time and on 19th January 1950 he was appointed a Judge of the Supreme Court at Delhi. The petition for leave was heard by a Division Bench consisting of Weston C. J. and Bhandari J., and on 27th March 1950 they granted leave and said "Certificate granted."

This Letters Patent appeal was then placed before us for admission, and the point we have to decide is whether appeal lies on a certificate given in the circumstances above mentioned. The words used in para. 10 which deals with this matter are:

Where the Judge who passed the judgment declares that the case is a fit one for appeal.

In the present case, Das, C. J., is no longer a Judge of this Court, and therefore, there is no declaration made by the Judge who passed the judgment that "the case is a fit one for an appeal". The words of Para. 10, Letters Patent, are quite clear and unambiguous and, in my opinion, the only person who can make the requisite declaration required under clause 10, is the Judge who passed the judgment and no other Judge. In Allah Bux v. Mst. Sardaran, 16 Lah. 602 at p. 603: (A. I. R. 1935 Lah. 330), it was observed in a case of similar kind by Tek Chand J:

It is obvious, therefore, that we, or any other Judge or Judges of this Court, have no jurisdiction to grant the required certificate.

The same view was held in a Full Bench of the Rangoon High Court in Ma Than v. Maung Ba Gyaw, 3 Rang. 546; (A. I. R. 1926 Rang. 1 (FB). There it was clause 13 which was interpreted, and it was held:

The section gives in this one instance a very restrictive right of appeal, namely, where the Judge, who passed the judgement, gives a certificate declaring that the case is a fit one for appeal.....because the intention of the Letters Patent was to confine the granting of a certificate to the Judge who actually heard the appeal and passed the judgment.

Under cl. 15, Letters Patent of the Bombay High Court, it was held that the declaration required for the fitness of the case for appeal has to be granted by the Judge who passed the judgment and where a judgment is passed by a temporary or officiating Judge, the declaration cannot be given by the permanent Judge in whose vacancy he was acting.

In another Lahore case, Dasaundha Singh v Ganda Singh, A. I. R. 1933 Lah. 534: (143 I. C. 141) a similar view was taken.

In my opinion, therefore, as there is no declaration made by Das C. J., as to the fitness of this case under para. 10, Letters Patent, the appeal is not competent and must, there, fore be dismissed,

Harnam Singh, J.

I agree.