PANDIT ISH NARAIN UPADHIA Vs. RAMESHAR LOHAR

JUDGEMENT

(1.) The plaintiff appellant is the zemindar of village Sari. The defendants- respondents are two blacksmiths living in the same village. The plaintiff sued to eject the defendants from a saiban, a dalan and a shed on the allegation that these were recent constructions upon his land. The defendants are tenants and residents in the village in which they have a house. They carry on business as blacksmiths there. The Munsif found that one of these structures was an old one and dismissed the suit in respect of it. He decreed the blacksmith's ejectment from the two others. The blacksmiths appealed to the learned Subordinate Judge. The zemindar did not appeal in respect of the dismissal of the portion of his suit. The learned Subordinate Judge decided as follows He found that the two structures from which the Munsif had ordered the defendants ejectment were at least eight years old. He continued, " I am satisfied that these constructions were in the place of the old ones and so the plaintiff did not protest when the new ones were built in place of the old ones and now owing to a criminal case he has lodged the suit." What he meant by the latter part of his finding was that the blacksmiths had got themselves disliked by the zemindar by giving evidence in a criminal case contrary to his views. The learned Subordinate Judge then dismissed the whole of the suit. The zemindar has appealed in respect of the two buildings from which the Munsif ordered the blacksmiths to be ejected. He takes the position that there was no evidence on the record to support the finding that these two structures were made in the place of old ones. This ground of appeal is not open to him under the High Court rules--see Rule 3, Chapter III, as no certificate is filed.

(2.) "If the ground of appeal is that there is in fact on the record no evidence or admission to support the decree, the ground shall so state, and shall further state specifically the material finding in support of which there is no evidence or admission on the record. No appeal from an appellate decree presented by an Advocate, Attorney or Vakil shall be admitted on any such ground as is in this rule referred to, unless such Advocate, Attorney or Vakil certifies under his hand the memorandum of appeal that he has examined the record and that, in his opinion, such ground is well founded in fact.

(3.) Now it is urged to me that as the appeal was admitted for hearing by a learned Judge of this Court it is not open to me to apply that rule and that, in any circumstances, I could permit the certificate to be filed now. I read the rule as imperative. Unless the certificate is present the matter cannot be argued in spite of the fact that the appeal has been admitted to a hearing. It does not follow that the appeal was admitted on this ground, for there are other grounds which have been argued. In respect of the second point that I might allow the certificate to be filed now I note that this appeal was filed on the 10 of July 1922. The certificate should have been filed within, at the most, a few months. I hold a strong view that it is no use making rules unless one keeps them and that if a rule of this Court is disobeyed and the Court allows it, as I am asked to do, to be complied with some 18 months afterwards, the rule is not likely to be very effective, for it will always be possible to break the rule at first, and to comply with it two or three years afterwards.