LAKSHMI NARAIN Vs. MIRZA MOHAMMAD AKBAR

JUDGEMENT

(1.) This is a Letters Patent Appeal brought by one Lakshmi Narain against what is styled the order of a learned single Judge. The order in question is one refusing to set aside the abatement of a second appeal. The learned single Judge has not declared that the case is a fit one for Letters Patent appeal under Clause 10 of the Letters Patent of this High Court. The question therefore arises whether such declaration of a learned Judge is or is not necessary. For the appellant learned Counsel contended two points : (1) that the permission was not necessary and (2) that it had already been held by the learned Application Judge that no permission was necessary. Now in the case of a. Letters Patent Appeal, it is for the Letters Patent Bench to decide whether notice should issue or not and this appeal is before us for this purpose. When the application was filed the office noted: "Leave to appeal in Letters Patent has neither been granted nor refused." On this the learned Application Judge made an order: This Letters Patent Appeal is directed against an order passed by a learned Judge of this Court-refusing to set aside the abatement of appeal. Under these circumstances no permission of the learned Judge to file the Letters Patent appeal was necessary Office to proceed. The question whether the order can be made the subject of a Letters Patent Appeal is for the Letters Patent Appeal. Bench to decide.

(2.) We understand that this order was not a judicial order deciding the point because, as already observed, the learned Application Judge had no such jurisdiction, nor in our opinion did he purport to exercise such jurisdiction because his order does not in any way decide judicially that the appeal, lies. It merely directs the office to proceed and the office proceeded by preparing an order, which was signed by the Registrar, to lay before the Letters Patent Appeal Bench. The point is for this Bench to decide.

(3.) Now as regards the merits of this question as to whether the permission of the learned single Judge who passed the order was necessary or not, learned Counsel has argued that although the matter was a. second appeal and came before the learned Judge in second appellate jurisdiction, the order of the learned Judge was not passed in second appellate jurisdiction, because it-was not an order deciding the second appeal on the merits. Learned Counsel suggested that it might be considered an order passed in original jurisdiction. Now the Letters Patent in Clause 9 refer to the original, jurisdiction and state that in such original- jurisdiction this Court may withdraw any suit from a subordinate Court and try it. Then follows Clause 10 which is now in question. Later we find Clause 13, referring again to original civil jurisdiction, and Clause 14 dealing with appellate jurisdiction. Clause 15 deals with criminal jurisdiction and Clause 25 with testamentary and intestate jurisdiction and Clause 26 with matrimonial jurisdiction. Now the word "jurisdiction" in the 1 Letters Patent appears to cover the exercise of all the powers of the Court in a particular jurisdiction in which the case comes before it. The Letters Patent do not contemplate that a case which comes before the Court in one kind of jurisdiction can be Supplemented by the exercise by the Court of any other kind of jurisdiction. It is difficult to see how such a theory can be uphold and learned Counsel admits that he I has no ruling in support of the theory. It appears to us that when a second appeal comes before a Judge of this Court, if it is within his jurisdiction, the jurisdiction which he exorcises is a jurisdiction of second appeal. That jurisdiction covers all the orders which he may make in the course of the second appeal from its commencement to its termination. An application was; made to set aside the abatement and ho refused to grant that application and hold that the appeal had abated. Learned Counsel referred to Sadiq Ali V/s. Anwar Ali (1923) 10 A.I.R. All. 44 in which it will held in the year 1922 that an appeal would lie under Clause 10 of the Letters Patent from the order of a single Judge rejecting an application, to set aside the abatement of an appeal and, it was held there that the word "judgment" in Clause 10 would cover such an order. That may be so, but since that ruling in 1922 the Letters Patent wore amended in 1929 and the Letters Patent now require that a judgment. in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court. must have the declaration by the Judge that the case is a fit one for appeal.