ABDUL ALIM AND ORS. Vs. SH. MOHD. SAEED AND ORS.
HIGH COURT OF PUNJAB AND HARYANA
Abdul Alim And Ors.
Sh. Mohd. Saeed And Ors.
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(1.) THE short point for decision in the present case is whether a certificate issued by this Ct. to the effect that an appeal preferred to the P.C. or the S.C. has not been effectually prosecuted by the applt. can be cancelled or withdrawn by this Ct.
(2.) ON 10 -4 -1946, the H.C. at Lahore permitted Sayed Abdul Alim petnr to prefer an appeal to the P.C. and the petnr. deposited the printing charges for the preparation of the record. On 24 -7 -1948, after this case had been transferred to this Ct. after the partition of the Punjab, Mr. Asa Ram Aggarwal, counsel for the petnr. was asked to deposit a sum of Rs. 1783 on account of additional printing charges and a copy of the letter addressed to the counsel was forwarded to the petnr. under registered cover. No reply was received from the counsel, but on the 1st September the petnr. sent a communication to this Ct. in which he requested that the deposit of Rs. 1783 be accepted in monthly instalments of Rs. 200 each. On the 18th September he was directed to move this Ct. by means of a stamped petn. but no reply having been received from him, a learned Judge of this Ct. directed on 27th October that the petnr should be called upon to show cause why the appeal preferred by him should not be dismissed for non -prosecution on the ground that he had failed to show diligence in the preparation of the record. The case came up for hearing before a D.B. of this Ct. and on 10 -10 -1948, the Ct. directed that the money should be deposited on or before 17 -12 -1948, failing which the appeal would be deemed to be dismissed for want of prosecution. The money was deposited on the 20th December, that is three days after the date on which it should have been deposited and on the 27th December the Ct. dismissed the appeal and cancelled the certificate for leave to appeal.
(3.) ON 16 -3 -1949, the petnr. presented the present appln. In which it was prayed that the order dismissing the appeal for non -prosecution be set aside, that the deposit made on the 20th December be accepted and that the delay in making the deposit be condoned.
Rule 6 of Order 12, F.C. Rules, 1942, provides that where the applt. fails to make the deposit required under Rr. 2, 3 or 4 of the said Order, the H.C. shall report the fact to the F.C. and the appeal shall not proceed without further order of the said Ct. The learned advocate for the petnr. contends that as his client failed to deposit the sum of Rs. 1783 -0 -0 as required by this Ct. it was the duty of this Ct. to refer the matter to the F.C. for orders and that this Ct. was not justified in dismissing the appeal and cancelling the certificate for leave to appeal without making this reference. I regret I am unable to concur in this contention. This rule was obviously intended to apply to an appeal of the nature mentioned in Section 205, Govt. of India Act, i.e., an appeal from a judgment, decree or final order of a H.C. in regard to a case involving a substantial question of law as to the interpretation of the Govt. of India Act, 1935, or any Order in Council made thereunder. The help of this rule cannot be invoked in respect of an appeal from a judgment, decree or final order of a H.C. in a civil case in which a direct appeal could have been brought before His Majesty in Council prior to the enactment of the F.C. (Enlargement of Jurisdiction) Act of 1947.;
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