MALI RAM Vs. RAMGOBIND SAH

JUDGEMENT

(1.) This is an application by the appellant praying that an appeal from a judgment of a single Judge of this Court in a second appeal be heard by a Bench of this Court though that single Judge refused to certify that the case was a fit one for appeal. It appears that a second appeal was heard by a single Judge who allowed the appeal with costs. Application was there and then made for leave to appeal under the Letters Patent, but such was refused. The appellant has now applied for the appeal to be heard and has contended that this Court has jurisdiction to hear such an appeal though leave to appeal was refused by the learned single Judge. The appellate jurisdiction of the Patria High Court in civil matters is defined by Paras. 10 and 11, Letters Patent. Para. 11 provides that the High Court of Judicature at Patna shall be a Court of Appeal from the Civil Courts of the Provinces of Bihar and Orissa and from all other Courts subject to its superintendence, and shall exercise appellate jurisdiction in such cases as were, immediately before the date of the publication of these presents, subject to appeal to the High Court of Judicature at Fort-William in Bengal by virtue of any law then in force, or as may after that date be declared subject to appeal to the High Court of Judicature at Patna by any law made by competent legislative authority for India.

(2.) It is clear that Para. 11, Letters Patent, gives this Court no jurisdiction whatever to hear an appeal from a single Judge of the Court. The right conferred by Para. 11 is a right to hear appeals from the Civil Courts of the provinces and from all other Courts subject to the superintendence of the High Courts. In short, this paragraph gives the High Court a right to hear appeals from what are commonly called the subordinate or lower Courts. Para. 10, Letters Patent, however expressly provides for hearing appeals from single Judges of the High Court and that Paragraph provides that an appeal will lie from a judgment of a single Judge in a second appeal provided that such single Judge has declared that the case is a fit one for appeal. The relevant words are, and that notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108, Government of India Act, made on or after 1 February 1929, 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, where the Judge who passed the judgment declares that the case is a tit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us, Our Heirs or Successors in Our or Their Privy Council, as hereinafter provided.

(3.) The provision which I have cited leaves no doubt whatsoever that no appeal can be entertained by the High Court from a judgment of a single Judge in a second appeal unless such single Judge declares that it is a fit case for appeal. In the present case the learned single Judge refused to grant leave to appeal under Para. 10 of the Letters Patent. It has been urged that Para. 10 of the Letters Patent of this Court is in conflict with Section 9, High Courts Act, 1861. That Section is in these terms: Each of the High Courts to be established under this Act shall have and exercise all such Civil, Criminal, Admiralty, and Vice-Admiralty, Testamentary, Intestate, and Matrimonial jurisdiction original and appellate and all such powers and authority for, and in relation to, the administration of justice in the Presidency for which it is established, as Her Majesty may by such Letters Patent as aforesaid grant and direct subject however to such directions and limitations as to the exercise of Original, Civil and Criminal jurisdiction beyond the limits of the Presidency Towns as may be prescribed thereby; and save as by such Letters Patent may be otherwise directed, and subject and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor-General of India in Council, the High Court to be established in each Presidency shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under this Act at the time of the abolition of such last-mentioned Courts.