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Application for review of judgment in S C. A. No. 71 of 1959, decided on 8th September 1959.
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----------‑Application can be entertained from decisions in appeals under clause 15, Letters Patent (Dacca)‑Civil Procedure Code (V of 1908), Ss. 109, 110 & 111‑Constitution of Pakistan (1956), Art. 158.
Sardar Ali and others v. Doliludding Ostagar A I R 1928 Cal. 640 ref.
O. XLVII r. 1 -Question of law raised, not patent‑Provisions of rule cannot be invoked.
Syed A. B. Mahmud Hussain, Senior Government Pleader for Petitioner.
Abdul Choudhury for the Opposite‑Party No. 2.
‑This is an application for review of an order' passed by us granting leave to opposite‑party No. 1 to appeal to the Supreme Court. The leave was granted on the ground that we felt that the case was a fit one for appeal, and, therefore, came within the purview of section 109(c) of the Code of Civil Pro cedure.
2. The point that has been raised in this review petition is that the leave has been granted without jurisdiction. This point was not raised before us when the application for leave was con sidered. The contention of the petitioner is that from a decision of a Division Bench disposing of an appeal under Clause 15 of the Letters Patent, no leave can be granted to appeal to the Supreme Court as sections 109 and 110 of the Code of Civil Procedure are not attracted to such a decision. According to the contention of the learned Advocate for the petitioner, Clause 15 of the Letters Patent allows an appeal against the decision of a Single Judge to a Division Bench provided a certificate as contemplated under the said clause of the Letters Patent is given by the learned Judge. It. is urged that after the decision of the Division Bench in an appeal preferred against the decision of a Single Judge, there is no further appeal, and this is barred by the provisions of section 11 I of the Code of Civil Procedure, which bars an appeal to the Supreme Court against the decree or order of a Single Judge of a High Court. We do not find any provision in the said section which bars an appeal to the Supreme Court after the decision of the Single Judge merges into a decision of a Division Bench after the disposal of the appeal under Clause 15 of the Letters Patent. The learned Advocate had relied on a decision of a Full Bench of the Calcutta High Court in the case of Sadar Ali and others v. Daliluddin Ostagar (A I R 1928 Cal. 640). The point that was raised in that case was whether the amendment of Clause 15 of the Letters Patent made in the year 1927 would affect a case which vas pending when the amended clause came into operation. Rankin, C. J., while considering this question, incidentally referred to the provisions of section 111 of the Code of Civil Procedure. The following passage in that judgment may be quoted to show what was decided by that Bench in connection with the bar of an appeal to the Privy Council provided in section 111. The passage runs thus :
"The provisions of clause (a) of section 111 may have been motivated originally by the existence of the right of Letters Patent appeal, or by the opinion that it is not reasonable in Indian cases that the Privy Council should be called upon to decide cases until a Bench has dealt with them. But, in any case the effect of section 111, upon Clause 39, Letters Patent, cannot now be controlled by such considerations. It appears to me, therefore, that the new clause in the Letters Patent takes away in all second appeals decided by a Single Judge (without his giving a certificate that the case is a fit one for appeal) the right to go to the Privy Council under the ordinary law, though the right of the Judicial Committee to give special leave is not of course affected."
The above passage does not support the contention of the learned Advocate for the petitioner, and in our opinion supports the other view.
3. There is further difficulty in entertaining this applica tion for review. The question of law that has been raised in this case is not patent, and in. such circumstances it cannot be said that this is "an error apparent on the face of the record." At the most it can be said that the question is not absolutely clear, and in such circumstances the petitioner cannot invoke, the provisions of order XLVII, rule I of the Code of Civil Procedure.
4. There are precedents in this Court in which applications for leave to appeal to the Supreme Court have been entertained from decisions in appeals under Clause 15 of the Letters Patent, and have been disposed of on merits.
5. The application for review, therefore is summarily rejected.
K. B. A.
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