Sheiklal Shaikh Sharif vs Ahmedkhan Sharifkhan

Broomfield, J.

1.This is an application for a certificate that Second Appeal No. 708 of 1929 is a fit one for appeal under the Letters Patent.

Second Appeal No. 708 of 1929 was summarily dismissed by the Honourable Mr. Justice Allison on October 4, 1929. No certificate was asked for at the time and when the application for a certificate ultimately came to be put up for orders Mr. Justice Allison had ceased to be a Judge.

Section 15 of the Letters Patent gives a limited right of appeal in the case of second appeals disposed of by a single Judge " whore the Judge who passed the judgment declares that the case is a fit one for appeal," In the present case for the reasons stated there is no declaration of the Judge who passed the judgment that the case was a fit one for appeal. There is a decision of a Full Bench of the High Court of Rangoon, Ma Than v. Maung Ba Gyaw ILR (1925) Ran. 546, to the effect that in such circumstances no appeal lies. Under the orders of the Honourable the Chief Justice this application has already been laid before the two Administrative Judges of this Court and they have submitted their opinions to the effect effect the decision in Ma Than v. Maung Ba Gyaw is correct. The (matter has now, under the orders of the Honourable the Chief Justice, been placed before this Bench pro forma for disposal.

Mr. Walavalkar in support of the application has argued that the Honourable Mr. Justice Allison was a temporary Judge appointed u/s 105, Clause (2), of the Government of India Act, that the Letters Patent applies primarily to permanent Judges appointed under the Letters Patent, and that a reasonable construction of Clause 15 of the Letters Patent would be consistent with the view that where a judgment has been passed by a temporary or officiating Judge the declaration required under the Clause may be given by the permanent Judge in whose vacancy he was Acting. This is an ingenious argument but we cannot agree that there is any substance in it. There is no process of reasoning or construction by which in the present case the Judge who passed the judgment can be taken to mean any person other than Mr. Justice Allison himself. As the certificate of Mr. Justice Allison is not forthcoming, and as under the circumstances there is no prospect of it being obtained, we can only decide that the appeal does not lie. The application must, therefore, be dismissed.

Mirza, J.

I agree.