RAM CHARAN GOLDAR Vs. HAMID ALI

JUDGEMENT

(1.) In this case, the plaintiffs who are the applicants before us brought their suit on 25th November 1919. A second appeal was preferred to this Court in 1922 and, by the decree in that appeal, the case was remanded to the lower appellate Court which came to its decision on 3 December 1924 From that decision, a second appeal was filed again to this Court on 6th March 1925. This was heard on 9 February 1928 by my learned brethren Cuming and Mukerji, J., who differed in opinion. Cuming, J., took the view that the appeal should be dismissed; Mukerji, J., took the view that the appeal should be allowed. Very unfortunately, instead of acting under the proviso to Section 98, Civil P.C., whereby the matter on which they differed could have been referred to one or more Judges of the Court, the procedure followed by that Bench was that the decree of the lower Court was declared to be confirmed under the opening words of Sub-section (2), Section 98.

(2.) After the second appeal had been brought to this Court in 1925, but before the hearing, the amending Letters Patent, which came into force on 14 January 1928, were passed. In these circumstances, the plaintiffs who had failed in their appeal presented to this Court a Letters Patent Appeal from the decision of the Division Bench and that appeal has been ordered to be accepted and registered, subject to any objection that may be taken by the respondents at the hearing of the appeal as regards its competency. In addition to presenting the Letters Patent appeal, however, the plaintiffs presented another appeal. It appears that, on 24 February 1928, they applied to Cuming, J., purporting to act under the amended Letters Patent for a certificate that the case was a fit one to be taken on appeal and the learned Judge refused that certificate on the same day. Thereupon, the plaintiffs presented an appeal from that order of refusal and, on that appeal being presented, a rule (546-S of 1928) was issued calling upon the respondents to show cause why that appeal should not be admitted. That is the only rule before us as regards this case.

(3.) Now, when the matter is examined, it is found to stand in this way : By the Letters Patent as they stood before the recent amendment, a provision was made by Clause 15 for an appeal, first of all, from the judgment in certain cases of one Judge of the said High Court or of one Judge of any Division Court pursuant to Section 13, High Courts Act: and, in the second place, from the judgment in certain cases of two or more Judges of the said High Court or of such Division Court whenever such Judges are equally divided in opinion and do not amount in number to a majority of the whole of the Judges of the said High Court at the time being.