1. The common point involved in these two appeals A is whether they can be admitted, or not. No. 70 of 1929 arises from Appeal No. 384 of 1924 from an appellate decree and was decided by Madgavkar J. on the merits, who dismissed it. No. 85 of 1929 is similarly from Appeal No. 29 of 1928 from an appellate decree, and was also decided on the merits by the same Judge, who allowed it. The learned Judge has, in each of those cases, refused to give leave for an appeal under the Letters Patent.
2. Two points have been taken by Mr. Thakor for the appellants, one being that leave was not necessary in these cases; and the second, that an appeal lies from the learned Judge's order refusing leave to appeal under the Letters Patent.
3. There are three reported cases on the point. The first is a decision of this Court reported in Badruddin v. Sitaram : AIR1928Bom371 , and made on April 2, 1928. This case was decided by Fawcett and Mirza JJ. after the first amendment of Clause 15 of the Letters Patent on December 9, 1927, coming into effect on February 2, 1928. The view taken1 by these learned Judges was that the amendment had retrospective effect. Two other High Courts, however, took a different view.
4. The High Court at Madras in Vasudeva Samiar, In re I.L.R. (1928) 52 Mad. 361, decided on October 18,1928, held that the amended clause had no retrospective effect, and could therefore not affect the rights of parties to suits which had been filed before the amended clause came into operation, and the Calcutta High Court took a similar view in Sadar Ali v. Dalimuddln I.L.R. (1928) 56 Cal. 512. S.B, decided on July 17, 1928. There is a fourth ruling by the learned Chief Justice of Bombay, sitting alone, Mathurbhai v. Nadiad Municipality : (1929)31BOMLR473 of January 29, 1929, in which His Lordship held that on and after February 1, 1929, leave will be necessary as regards all decisions in second appeals by a single High Court Judge. These rulings were, however, on Clause 15 of the Letters Patent as it stood before the final amendment, which was made in 1928 and came into force on February 1, 1929 ; and there is none since.
5. The judgments now challenged were recorded in the case of Letters Patent Appeal No. 70 of 1929 on June 25, 1929, and in that of the Letters Patent Appeal No. 85 of 1929, on August 15, 1929.
6. Looking at Clause 15 of the Letters Patent as it stands since the last amendment came into effect, I find that it provides that there shall be an appeal from the judgment of one Judge of the High Court or one Judge of any division Court, pursuant to Section 108 of the Government of India Act, and a further right of appeal from other judgments as provided at the end of the clause. But the right of appeal from one Judge is limited by a saving clause, contained in the brackets beginning after the word 'judgment' as used for the first time, and ending with the words 'criminal jurisdiction,' certain kinds of judgments being excepted. Among the kinds of judgment excepted are judgments passed 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 High Court. The second qualification comes after the word 'notwithstanding' and refers to what has so far been provided, and the relevant provision is that an appeal shall lie from the 'judgment' of one Judge of the said High Court made on or after February 1, 1929, in the exercise of certain appellate jurisdiction, ' where the Judge who passed the judgment declares that the case is a fit one for appeal.'
7. The enacted date, February 1, 1929, clearly refers to the date of the judgment of the one Judge sought to be appealed against, and these two judgments, since they bear a later date than the enacted one, are evidently not subject to appeal in the absence of the required declaration.
8. The second point raised is whether an appeal lies or not against a refusal by the Judge pronouncing judgment to make the required declaration. It is clear that the intention of the amendments was to make such judgments final, where the condition for a further appeal does not exist, and that to allow an appeal from a refusal to make the declaration would defeat its object, for the ground of such an appeal against a refusal could only be something to be found in the judgment appealed against. But I think the clause itself contains the prohibition. Matters mentioned within the brackets already referred to are excepted from the positive provisions of the clause, and if a refusal to make the required declaration amounts to a judgment or order, it is a judgment or order made 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 High Court. I am not overlooking the fact that it is the refusal to make the declaration after the single Judge's judgment has been recorded which is sought to be appealed against, but the declaration required is that the ' case is a fit one for appeal' I which is in effect a part of the judgment on the merits of the case passed in second appeal.
9. I think these two appeals must be dismissed with costs.
10. I concur, and only desire to add one further point, which, though it was not mentioned in the arguments before us, seems to me to have some importance, in connection with the contention that an appeal lies from the refusal of leave to appeal, The second part of Clause 15 of the Letters Patent provides that an appeal lies from a judgment of a single Judge in second appeal made after February 1, 1929, only where the Judge who passed the judgment declares that the case is a fit one for appeal. The refusal of leave to appeal is obviously tantamount to a declaration that the case is not a fit one for appeal. If, on appeal, leave is granted, that is tantamount to a declaration by the Judges hearing the appeal that the case is a fit one for appeal. But by no process of reasoning can it be argued that a declaration to that effect by another tribunal is equivalent to a declaration by the Judge who passed the judgment, which under the Letters Patent is a condition precedent to the admissibility of the appeal.