Promotho Nath Roy v. W.A. Lee

Sanderson, C.J:— This is an application by the defendant for a certificate that the decree of this Court, from which the appeal is sought to the Privy Council, involves a claim of Rs. 10,000 and that the appeal involves some substantial question of law. A point was taken on behalf of the plaintiff that the decree of the High Court was not one “passed on appeal” within the meaning of clause (a) of Section 109 of the CPC.—The order of Mr. Justice Greaves against which the appeal was directed, was made on the 26th July, 1918. On the 30th August, 1918, the last day of the sitting of the Court, at about 5 P.M after the Court of appeal had risen an application was made to Mr. Justice Chaudhuri sitting on the Original Side for leave to file the memorandum of appeal without a copy of the order against which the defendant desired to appeal. The learned Judge granted leave to the defendant to file the memorandum of appeal subject to any objection which might be taken on behalf of the plaintiff. When the matter came before the appeal Court, the plaintiff took the point that the appeal was out of time. The appeal Court decided that the appeal was out of time, being barred by the Limitation Act, and the Court further refused an application under Section 5 of the Limitation Act to admit the appeal after the prescribed time and the appeal was dismissed with costs.

2. Having regard to the abovementioned facts I think we cannot hold that the order was not one “passed on appeal.”

3. I do not think that, having regard to the facts of this case, it is covered by the case Karsondas v. Gangabai (1), which was cited by the learned counsel, Mr. Milter, on behalf of the plaintiff.

4. In that view, the decree was one of affirmance: there is no question as to the value of the subject matter in dispute on appeal and the only question is whether the appeal involves some substantial question of law. The point raised on behalf of the plaintiff was that the order of the 26th July, 1918, was made on the application of the defendant and that he could have applied to the Court for a copy of order any day after the 26th July, 1918 or that, at any rate, the defendant could have applied for a copy of the order, in default of the plaintiff applying within four days from the date of the order, in accordance with the provisions of Chap. 16 R. 27, of the High Court Rules, Original Side, and that it the defendant desired to appeal against the order it was his duty to get the order drawn up in accordance with the rule.

5. On the other hand the point raised on behalf of the defendant was that a period between the 7th August, 1918, and the 3rd September, 1918, should be excluded from the period of limitation as time requisite for obtaining a copy of the order.

6. Even if there is a question of law involved, I have considerable doubt whether there is any substance in it, having regard to the facts of this case, which are stated in my judgment Pramatha Nath v. Lee (2) but inasmuch as my learned brother is of opinion that there is a substantial question of law involved and my judgment is one of those from which it is desired to appeal I do not press my view upon the matter, and I agree that a certificate should be granted.

7. The costs of this application will be costs in the appeal.

Woodroffe, J.:— In my opinion there is a substantial question of law and a certificate should be granted.

8. Application allowed.