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Judgment
The short point for decision in the present case is whether a certificate issued by this Court to the effect that an appeal preferred to the P.C. or the S.C. has not been effectually prosecuted by the Appellant can be cancelled or withdrawn by this Court.
On 10-4-1946, the H.C. at Lahore permitted Sayed Abdul Alim Petitioner to prefer an appeal to the P.C. and the Petitioner deposited the printing charges for the preparation of the record. On 24-7-1948, after this case had been transferred to this Court after the partition of the Punjab, Mr. Asa Ram Aggarwal, counsel for the Petitioner 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 Petitioner under registered cover. No reply was received from the counsel, but on the 1st September the Petitioner sent a communication to this Court in which ho requested that the deposit of Rs. 1783 be accepted in monthly installments of Rs. 200 each. On the 18th September he was directed to move this Court by means of a stamped Petitioner but no reply having been received from him, a learned Judge of this Court directed on 27th October that the Petitioner 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 Court and on 10-10-1948, the Court 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 Court dismissed the appeal and cancelled the certificate for leave to appeal.
On 16-3-1949, the Petitioner presented the presented Appellant 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 Appellant fails to make the deposit required under Rules 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 Court. The learned advocate for the Petitioner contends that as his client failed to deposit the sum of Rs. 1783.00 as required by this Court it was the duty of this Court to refer the matter to the F.C. for orders and that this Court 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 there under. The help of this rule cannot be invoke 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.
Again it is contended that even if it was within the power of this Court to direct that the appeal should be dismissed for want of non-prosecution it is open to this Court, in exercise of the powers conferred by Order 47 Or Section 151, CPC to review its own order. This contention too appears to me to be wholly devoid of force. Rule 12 of the Rules framed by His Majesty in Council concerning P.C. appeals declares that where an Appellant whose appeal has been admitted, fails to show due diligence in taking all necessary steps in connection with the preparation of the record, the Court may call upon the Appellant to show cause why a certificate should not be issued that the appeal has not been effectually prosecuted by the Appellant, and if the Court sees fit to issue such a certificate, the appeal shall be deemed as from the date of such certificate to stand dismissed for non-prosecution without express Order of His Majesty in Council. In the year 1948, the Central Legislature enacted a measure entitled "The "F.C. (Enlargement of Jurisdiction) Act, 1947," Section 3 of which declares that as from the appointed say, (that is from 1-2-1948) an appeal shall lie to the F.C. from any judgment to which this Act applies, i.e., any judgment, decree or final order of a H.C. in a civil case from which a direct appeal could have been brought to His Majesty in Council either with or without special leave of the P.C. In other words, this Act enlarged the jurisdiction of the F.C. by directing that the said Court shall be competent to hear not only appeals of the nature mentioned in Section 205, Govt. of India Act, 1935, but also appeals from judgments, decrees or final orders in civil cases from which direct appeals could have been taken to His Majesty in Council. Section 4 of the enactment provides that all orders made and certificates granted by a H.C. in connection with an appeal to His Majesty in Council shall, unless the records pertaining to such appeal had before the appointed day been transmitted by the H.C. concerned to His Majesty in Council, be deemed to be orders made, and certificates granted, in connection with the appeal to the P.C. and shall have effect accordingly. Section 6 enacts that the provisions of CPC and of any other law in force immediately before 1-2-1948 shall have effect in relation to an appeal to the P.C. as if in the said provisions, for all references to His Majesty in Council there had been substituted references to the F.C. Section 112 of the said Code, as amended by the Adaptations of Laws Orders, 1960, declares in an unambiguous language that nothing contained in the Code shall be deemed to interfere with any rules made by the S.C. for the presentation of appeals to that Court or their conduct before that Court. Article 135 of the Constitution provides that the jurisdiction and powers which were being exercised by the F.C. immediately before the commencement of the constitution shall be exercised by the S.C. In view of these provisions, it seems to me that as the power of review conferred by the CPC cannot be allowed to interfere with the rules made by the S.C. and as this Court has issued a certificate under the said rules that the appeal has not been effectually prosecuted it is not within the competence of this Court to review that order.
There is another aspect of the matter which needs to be considered. Section 4, CPC declares that in the absence of any specific provision to the contrary, nothing in the Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. As the rules made by His Majesty in Council for appeals to the P.C. must be deemed to be a special law in regard to the procedure which should be applied in the presentation and prosecution of appeals to the P.C. it seems to me the provisions of CPC cannot apply to that special law. Indeed the language of Section 112, CPC makes it quite clear that as mentioned above nothing contained in the Code shall be deemed to interfere with any rules made by the Judicial Committee of the P.C. for the presentation of appeals to His Majesty in Council, or their conduct before the said Judicial Committee. If this section is read in conjunction with Section 6 of Act I [1] of 1948, it is obvious that the help of this Code cannot be invoked for interfering with the rules made by the F.C. either under Order 47, Rule 1, or Section 151, Code of Civil Procedure. I entertain no doubt whatever that it is not within the power of this Court to review its own order or to direct that the certificate that the appeal has not been effectually prosecuted shall be cancelled or withdrawn.
Even on merits, it seems to me that no case has been made out for the cancellation of the certificate. As stated above, the Petitioner was permitted to prefer the appeal to the P.C. as long ago as 10-4-1946. It is true that he deposited the amounts which were required of him in the H.C. at Lahore, but when the appeal was transferred to the East Punjab and he was required to deposit an additional sum of Rs. 1783 on account of additional printing fee he failed to comply with the orders. On 1-9-1948, he requested that this amount should be accepted in monthly instalments of Rs. 200 each. He was directed to move this Court by a stamped Appellant but he did not care to send a reply to this communication. The case was taken up by this Court on 10-12-1948, and the Petitioner was specially informed that the money should be deposited in Court on or before the 17th December at latest failing which the appeal would be deemed to be dismissed for default of prosecution. The money was not deposited by the due date and the only order that could be passed by this Court consistently with the order of 10-12-1948, was that the appeal should be dismissed. In this Appellant dated 16-3-1949, the Petitioner states as follows:
(5) That for the said purpose 10-12-1948 was fixed in the H.C. of Judicature for East Punjab at Simla and the Petitioner was granted a week that the money be deposited upto 17-12-1948.
(6) That the agent of the Petitioner in Delhi received information of this order on 16-12-1948.
(7) That the said agent informed the Petitioner of the said order and under instructions from the Petitioner the money was duly sent by telegraphic money order to the Registrar of the East Punjab H.C. at Simla, which was received there on 20-12-1948, 19-12-1948 being Sunday.
The Appellant does not mention the circumstances which prevented the counsel for the Petitioner who was present in Court on the 10th December from communicating the order of this Court to the agent of the Petitioner till the 16th December; nor does it explain the circumstances which prevented the agent from sending a telegraphic money-order to this Court on the 16th. The Petitioner has carefully refrained from stating the date on which the money-order was actually despatched. Had it been despatched on the l6th December, it would have reached this Court on the following day and the order of the Court would have been complied with. Unfortunately, it does not appear to have been sent on the 15th December for it did not reach the Court till the 20th. Had the Petitioner or his counsel satisfied this Court that the money was in fact deposited with the Post Office in Delhi on the 16th December and that the said money could not be disbursed to the addressee till the 20th December there might have been some justification for condoning the delay. As it happens, it seems to me that there is no force whatsoever in any of the grounds mentioned in the Petitioner of 16-3-1949. Considerable latitude has already been allowed to the Petitioner to deposit the additional expenses but he has failed without reasonable cause to comply with the order of this Court. The Petitioner must be dismissed with costs.