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Sheiklal Shaikh Sharif Vs. Ahmedkhan Sharifkhan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Civil Application No. 1076 of 1929
Judge
Reported inAIR1930Bom366; (1930)32BOMLR624
AppellantSheiklal Shaikh Sharif
RespondentAhmedkhan Sharifkhan
DispositionApplication dismissed
Excerpt:
.....patent, clause 15 - certificate of appeal - second appeal.;no appeal lies under clause 15 of the letters patent, in the absence of a certificate from the judge who has disposed of a second appeal that the is a fit one for appeal.; ma than v. maungh ba gyaw (1925) i.l.r. 3 ran. 546, followed. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had..........application for a certificate that second appeal no. 708 of 1929 is a fit one for appeal under the letters patent. 2. 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.3. 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.....
Judgment:

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.

2. 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.

3. 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.

4. Mr. Walavalkar in support of the application has argued that the Honourable Mr. Justice Allison was a temporary Judge appointed under Section 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.

5. I agree.


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