ORDER
Syed Bashir-ud-Din, J.
1. Applicant Yaqoob Khan, through this motion is praying for certificate that the judgment dated 30-1-1988 of Hon’ble Single Bench in Civil Appeal No. 9/75, is fit for appeal before a Division Bench of this Court, insofar as in absence of such leave, applicant is precluded to file 2nd Appeal in this case in terms of Clause 12 of the Letters Patent of this High Court. Alongside, an application for condonation of delay in filing the said application under Clause 12 of the Letters Patent Rules, read with High Court Rules, has been moved. A supplementary affidavit thereto is also available on record as part of grounds set out for condonation and prayer for issuance of the certificate in question. Objections have been filed by the otherside.
2. The counsel for the parties are submitting in unison that both matters are intermingled and form two facets of the same question. Accordingly, matter was heard in entirety.
3. It would be profitably to set out necessary facts and circumstances, required for our present purposes hereinbelow as :–
The appellants purchased suit land measuring 1 kanal and 9 marlas in village Natipora Chanapora, Srinagar (more specifically referred in plaint and registered sale deed on 5-7-1961) from one Ghulam Khan. Respondents Yaqoob Khan filed the suit for prior purchase in respect of the land to claim the right of prior purchase on the ground of being tenant of the suit land and also being son of vendor’s brother. The respondents preferential right of purchase on the basis of consenguinity or agnatic succession is recognised by Section 14(b) firstly and fourthly of the right of Prior Purchase Act of the State. On trial the suit was decreed after holding the plaintiff Yaqoob Khan as tenant and agnate of the Vendors. The vendee-defendants challenged the judgment and decree of the trial Court before the District Judge, Srinagar. The Appellate Court of Additional District Judge, Srinagar assigned with the case, upheld the decree of the trial Court on the ground of agnate succession of plaintiff being son of the Vendors brother. The ground of tenancy to claim prior purchase was given up before the said appellate Court. The
defendant-respondent filed second appeal before the High Court. This Court found agnatic rule of succession and consanguinity as contained in Section 14(b) firstly and fourthly of the J. and K. Prior Purchase Act, as ultra vires the Constitution and therefore, dismissed the plaintiffs suit after allowing the second appeal.
Plaintiff/appellant filed civil review (1/ 88) under Rule 51 of J. and K. High Court Rules of 1975. This review petition was dismissed on 4-4-1988. He thereafter filed this application under Clause 12 of the Letters Patent in terms of Chapter IX of the High Court Rules for certificate to enable the respondent-plaintiff to file L.P.A. against the said judgment dated 30-1 -1988, of this Court.
It may be noted that the suit for prior purchase was originally instituted before the trial Court on 30-8-1961, in respect of sale deed executed on 6-6-1961 and registered on 5-7-1961. The trial Court of City Munsiff decreed the suit on the grounds of tenancy and agnate succession on 22-10-1968. In first appeal, case was remanded to trial Court on 7-11-1970. However, in revision 110/1970, the High Court while confirming the order in appeal of Addl. District Judge dated 7-11-70, modified it to the extent that the Addl. District Judge, Srinagar was directed to determine itself if the plaintiff was entitled to any relief. When the Addl. District Judge, the appellate Court, took up the matter, the Agrarian Reforms Act had come Into force. The Vendee took up the stand that the plaintiffs suit being essentially a suit for possession, therefore, Civil Court lacked the jurisdiction. However, the appellate Court found that as tenancy was not made out (as even conceded before that Court by otherside), therefore, the question of applicability of the Agrarian Reforms Act did not arise. The Addl. District Judge, Srinagar decreed the suit on the sole ground of agnatic succession of plaintiff to Vendor by its judgment dated 8-3-1975. It may also be noted that the question of tenancy was also taken up in the abovereferred civil review which review petition as already stated has been dismissed.
4. Mr. M. A. Qayoom, appearing on behalf of the respondents contends, that having regard to the provisions of Clause 12 of the Letters Patent, the certificate or declaration that the case is fit for appeal can be issued by the Judge, who passed the judgment and
not by any other Judge of the High Court. He further contends that in view of the bar enacted by Section 100-A, C.P.C., no further appeal against an appellate decree or judgment passed in second appeal against the appellate decree of the 1st appellate Court, can lie and therefore, a declaration or certificate for filing such appeal which is taken away by provisions of Section 100-A, C.P.C. cannot be granted. Thirdly, the counsel also submits that in terms of Rule 49 of the High Court Rules, prayer for a certificate in Clause 12 of the Letters Patent has to be made orally before the Judge who decided the second appeal immediately after the judgment is delivered. In case it is not done, a subsequent application for the purpose can be entertained only when “special reasons” supported by an affidavit to the satisfaction of the Judge that the circumstances did exist which rendered the immediate application for certificate impossible, are made out. This is not the case here. Petitioners have neither made out a case of ‘special reasons’ nor have they shown that the case is fit for certificate under Clause 12 of the Letters Patent.
5. The counsel for the petitioner submits that in terms of the application and supplementary affidavit, all the facts and circumstances have been placed on record to show the ‘special reasons’ why the petitioner could not immediately pray for certificate orally or make an application for the purpose under Clause 12 of the Letters Patent soon after the judgment was given. The counsel further submits, that it is the High Court which has to issue the certificate and not the particular Judge. The Hon’ble Judge (His Lordship Dr. A.S. Anand) who gave the judgment, was transferred as Chief Justice to Madras High Court, thereafter His Lordship came to be elevated to Supreme Court, as Judge and at present is Chief Justice of India. Due to transfer and elevation of His Lordship, it was not possible for the Hon’ble Judge to give certificate and the case can be reassigned to any Judge of the High Court, who on examination of the matter in his discretion can give a certificate. The counsel further contends that Section 100-A, C.P.C. which deprives a litigant of further appeal from an appellate decree/judgment passed in second appeal. Is not applicable to this case, as the original proceedings in the suit commenced in 1961, much earlier to the provisions of Section 100-A became enforceable.
Besides the remedy as provided by the Letters Patent is saved under Section 102 of the J. and K. Constitution. The Letters Patent can only be amended by the Legislature in the manner and mode provided lor the amendment of constitutional provisions and not by an ordinary legislation. C.P.C. falling within Municipal Laws as a legislation, cannot override the provisions of Clause 12 of the Letters Patent.
6. Section 12 of the Letters Patent, under which the case is prayed to be declared to be fit for Appeal reads as under :–
“12. And we do further ordain that an appeal shall lie to the said High Court of Judicature from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of power of superintendence) of one Judge of the said High Court or one Judge of any Division Court and that notwithstanding any thing 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, consistently with the provisions of the Civil Procedure Code, 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 said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal but that the right of appeal from other judgments of the Judges of the said High Court or of such Division Court shall be to us. Our Heirs or successors and be heard by our Board of Judicial Advisors for report to Us.”
The all important phraseology in this clause is “the Judge who passed the judgment declares that the case is a fit one for appeal”. The plain and simple words used obviously require the declaration that the case is fit one for further appeal, to be made only by the Hon’ble Judge who passed judgment and by no other Judge. It leaves no doubt that the Hon’ble Judge who passed the judgment is the sole authority to make the said declaration and the other Judge or
Judges of the High Court have no powers or jurisdiction to grant the said certificate. This is the view even expressed by Lahore High Court in Dasaundha Singh’s case, AIR 1933 Lah 534 (1) and Allah Bux’s case, AIR 1935 Lah 330 (1) (DDK The observation of Tek Chand, J. In Allah Bux’s case (supra) maybe noted with benefit as :–
“The phraseology is clear and unambiguous, and leaves no doubt that the authority to make the declaration is conferred only on the Judge who had passed the judgment and on none other. It is obvious, therefore, that we, or any other Judge or Judges of this Court have no jurisdiction to grant the required certifieate. In this connection reference may be made to AIR 1926 Rangoon 1 (1); AIR 1930 Bom 366 (2) and AIR 1933 Lah 534 (3), where the same view has been taken. The petitions therefore must be dismissed.”
The decision of the Bombay High Court in Sheikh Lal Sheikh Sharifs case, AIR 1930 Bom 366 is to the same effect. A Full Bench of the Rangoon High Court in M. A. Than case, AIR 1926 Rangoon 1 (KB) held that Section 13 of the Rangoon Letters Patent which corresponded to Clause 12 of the Letters Patent of Jammu and Kashmir, gives a restrictive right of appeal insofar as the Judge who passed the judgment is required to give a certificate declaring that the case is fit for appeal. If it was the intention to permit any other Judge of the High Court to grant such certificate, then a provision would have been made thereto and the words “who passed the judgment would not find place in the sect ion. “The intention of the legislation of Letters Patent is to confine grant of the certificate to the Judge who actually heard the appeal and passed the judgment. Same is the view expressed by a Bench of the East Punjab High Court in AIR 1950 East Punjab 288, AIR 1970 Andh Pra 332 (FB) and (1969) 1 Guj LR 164.
To crown it all, a Full Bench of this High Court in Slate of J. and K. v. Dr. T. N. Koul. LPA 1/72 and Civil 1st Misc. Appeal 4 of 72, 1973 J & K LR 541 : (AIR 1974 J & K 63). While dealing with the preposition and import and scope of Clause 12 of our Letters Patent held that the declaration that the case is fit one for appeal can be given only by the Judge who had passed the judgment in second appeal and no other Judge(s) of the Court has/have jurisdiction to grant the
required certificate. Contextually, His Lordship Hon’ble Mr. Justice Jaswant Singh. (as His Lordship then was), speaking for the Court observed (Para 9 of AIR) :–
“………. .though the absence of a
provision in the Letters Patent to meet a situation like the present one, where the Judge, who passed the judgment is not available to give the requisite certificate either because of his superannuation or incapacity due to leave or death or some other reason causes great hardship, the rule is well settled that the law has to be interpreted as it is and it is not permissible to import words into the statute which are not there. (See AIR 1970 Andh Pra 332 and (1969) 10 Guj LR 164). ………..”
No authority or law propounding or taking a contrary view is laid before this Court.
In view of the clear words and phraseology of Clause 12 of the Letters Patent of our. High Court and the case law cited, I am precluded to give declaration that the case is a fit one for further appeal and accordingly I am unable to entertain the application thereto.
7. Section 100-A of C.P.C. reads as under
“100-A. No further appeal in certain cases :–Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such single Judge in such appeal or from any decree passed in such appeal.”
In view of this section which has been incorporated by Act No. 11 of 1983 and enforced w.e.f. 15-8-1983, second appeal with the declaration of the certificate as required by Clause 12 of the Letters Patent is even barred. The decision on the applicability of Section 100-A. C.P.C. In the context of issuance or refusal of certificate under Clause 12 of the Letters Patent is decisive of the matter. It may be noted at the outset that Section 102 of our Constitution (corresponding to Article 225 of the Indian Constitution) in relation to the High Court of Jammu and Kashmir, provides that the jurisdiction, law administered and the powers of Judges in
relation to the administration of justice shall be same as immediately before the commencement of Constitution of 1956. However, in all these matters, the provisions of Section 102 are subject to the other provisions of the Constitution. The provisions of any law that may be made by the State Legislature shall have the effect of amending, annuling, altering or varying any existing law, saved under the above section. The section merely preserves the existing powers of the High Court and does not confer any new or rule making powers on the High Court. The Letters Patent is nothing more than an Act on the statute book, saved by the section as applicable law so long no other provision thereto is made by the legislature.
The contention of the counsel for the applicant/respondent that the Letters Patent is a constitutional power which cannot be amended as an ordinary legislation by the legislative body, but only as constitutional amendment, cannot be countenanced. Letter Patent is like any other Act which can be amended or altered. A specific provision of Letters Patent can also be amended, annulled or subjected to restrictive legislative measures. Letter Patent is not at a higher pedestal than all other Statutes or Acts of the Legislature. Understood in this context, application for declaring the judgment fit for appeal under Clause 12 of Letters Patent pending on the date when Section 100-A of C.P.C. of the Amended Act came into force, barring further Appeal from Second Appeal, is liable to be dismissed.
In AIR 1999 Cal 29 cited by the counsel for applicant, the question of impact and overriding effect of Section 100-A of the Code over the provisions of Clause 15 of Calcutta Letters Patent, corresponding to Clause 12 of our Letters Patent, did not arise. In fact, this authority deals with applicability of principles laid down in Order 47, Rule 5 of the C.P.C., vis-a-vis the powers of the Chief Justice of the Calcutta High Court to constitute Benches and assign the review work to such Benches on writ, original or appellate side of the Court.
This case is clearly distinguishable on facts as also on application of law. The Hon’ble Chief Justice of that Court as also Hon’ble Chief Justices of all other High Courts have in terms of the constitutional provisions and High Court Rules of the respective State High Courts powers to constitute Benches, distribute and assign the work. This unfettered jurisdiction of Hon’ble Chief Justice(s), includes constitution of Benches for dealing with the review applications vis-a-vis the Judges attached/detached at a particular point of time to the Court. The case does not deal as such with the interpretation of Clause 15 of Calcutta Letters Patent corresponding to Clause 12 of Letters Patent, qua the question of giving the certificate and declaring the judgment in second appeal as fit for further appeal.
In AIR 1980 Bom 62, it has been held that the leave application under Clause 15 of the Letters Patent of Bombay (corresponding to Clause 12 of the Letters Patent of Jammu and Kashmir) in respect of any Appeal or appellate decree or order heard and decided by the Single Bench of the High Court is to be concluded as follows :–
“(1) Letters Patent Appeal against the decision of a single Judge of a High Court in any appeal from an appellate decree or order and admitted before the commencement (1st February, 1977) of Section 100-A of the Code shall be heard and disposed of as if the said Section 100-A had not come into force.
(2) Leave application arising out of Pre-Amending Act suit or proceeding and filed prior to the said Act but still pending admission or grant of leave as on 1st February, 1977 will, with effect from that date, become infractuous and will thereafter be liable to be dismissed summarily as no longer maintainable.
(3) Leave application arising out of Pre-Amending Act suit or proceeding will not be maintainable ab initio if filed after the coming into force of the Amending Act.
(4) Leave application arising out of Post-Amending Act suit or proceeding is in no case maintainable.”
In AIR 1977 Cal 285, it has been observed that after the introduction of Section 100-A of the Code, no further Appeal shall lie from the judgment, decision or order of a single Judge in the second appeal, notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force. However, this rule is subject to the exception that if an appeal is admitted under the Letters Patent before coming into force of Section 100-A of C.P.C., such appeal in spite of amending
provisions of the Code shall be disposed of as if Section 100-A was not introduced in the Code. Admittedly, here no Letters Patent Appeal is filed. The present application for the certificate has been filed under Clause 12 of the Letters Patent after coming into force of Section 100-A. Therefore, on account of this new section, no further appeal shall lie and accordingly the leave for the certificate is not also maintainable.
In AIR 1978 Cal 249, it has been observed that the principles behind incorporation of Section 100-A in the Code is to minimise the delay in finalizing the adjudication and by incorporation of this new provision in the Code, further appeal in Letters Patent against the decision of a single Judge in second appeal is barred and has overriding effect on Letters Patent or any other law providing for such an appeal. This provision is valid. It has been further held in this case that where the application for leave to file appeal under Clause 15, Calcutta Letter Patent (corresponding to the Clause 12 of the J. and K. Letters Patent) is filed after coming into force of Section 100, C.P.C. and no leave prior to the date of incorporation of the said section was given or obtained, the application is held to be not maintainable.
8. Rule 49 of the J. and K. High Court Rules reads as under :– .
“An application for a certificate under Clause 12 of the Letters Patent in the case of the judgment of a single Judge deciding a second appeal shall be made orally before him immediately after the judgment is delivered. No subsequent application for the purpose shall be entertained unless for special reason shown by an application supported by an affidavit, the Judge is satisfied that circumstances existed rendering the immediate application impossible.”
The application for certificate in terms of this provision is to be made orally before the Judge immediately after the Judge delivers the judgment. The rule bars entertainment of any subsequent application with the exception that such application can be entertained if the special reason shown to the satisfaction of the Judge is that the circumstances existed rendering the immediate application impossible. Contextually Rule 48, Sub-rule (2), reads as under :–
“It shall be duty of the officer to whom the memorandum is presented under these rules to endorse thereon the date of presentation.
to satisfy himself that it is properly stamped within time, and, where the appeal is from the judgment or order passed by a Judge sitting alone in an appeal from an appellate decree or order, that there is a declaration by the Judge who passed the judgment or the order that the case is a fit one for appeal.”
This sub-rule enjoins upon the Registry Officer among other things to note that the LPA is accompanied by a declaration by the Judge who passed the judgment or the order that the case is fit one for the appeal. Now the case when examined in the context of these provisions, it would be seen that the judgment was given at Jammu on 30-1-88. It is stated that none of the parties was present on that date at Jammu. It was only on 12-2-88, that the applicant got knowledge of the decision at Srinagar. He filed Civil Review 1 / 88 on 8-3-88, which was dismissed on 4-4-88. It was after seeking further legal advice that the applicant filed application seeking certificate and declaration on 18-4-88. It is seen from record that the necessary details have not been given. Special reasons have not been made out. The omnibus and too generalised statement as to applicant not being present when the judgment was pronounced, filing of review, its rejection and seeking legal advice (in absence of details) cannot be substitute for supplying reasons and those too ‘special reasons’ to entitle the petitioner to seek the required certificate under Clause 12 of the Letters Patent. What reasons prompted the applicant not to move an application for the certificate immediately after he came to know about the decision on 12-2-88, are not given. Simply because a review petition is filed and its decision is awaited, same cannot without any thing more, be a special reason to satisfy the Judge that the applicant was disabled to move the application immediately. Similarly, the word ‘legal advice’, shorn of the details cannot be also said to be a circumstance to render the motion of the application immediately impossible. Sufficient cause for the inability to apply for the leave at the time of the delivery of the judgment has to be made out in the cbntext of the legislative intent of the application being moved without undue delay and to minimise the litigative process and to give finality to the judgments. Even, having regard to the word ‘immediately’ not to imply something which is impossible, the applicant has not placed on record the ‘special reasons’ which could be said to advance
rather than to defeat the ends of justice.
In the result, for the aforesaid reasons, I decline to give the certificate in terms for alleged declaration that the case is fit one for further appeal.
Main matter with connected C. M. Ps. shall stand disposed of accordingly.