P L D 1971 Lahore 408 (PLP)

The object of clause 10 of the Letters Patent (Lahore) is to ensure finality of decision within the High Court, in cases where a Single Judge feels that the question decided by him is such that another view may be possible. It is precisely for this reason that the certificate has to be granted by the Judge who decides the second appeal in the first instance. Where, therefore, the Judge who had decided the second appeal had ceased to be on the Bench of the High Court, an application for the grant of a fitness certificate was dismissed as having become infructuous. Dasaundha Singh and another v. Ganda Singh and others A I R 1933 Lah. 534(1) and Allah Bux v. Mst. Sardaran A I R 1935 Lah. 330(1) ref. S. A. Nasir for Petitioner. This is an application for the grant of a certificate of fitness to file on appeal under clause 10 of the Letters Patent. The judgment sought to be appealed against was delivered by Mr. Justice Muhammad Ali Saeed on the 12th of March 1970 in R. S. A. No. 1045 of 1969, dismissing the appeal in liming. As Mr. Justice Muhammad Ali Saeed is no longer a Judge of this Court, having been allocated to the Sind and Baluchistan High Court at Karachi on the dissolution of the Province of West Pakistan, it is clear that the application has become infructuous, for the certificate in question could only be granted by the Judge who had passed the judgment (see Dasaundha Singh and another v. Ganda Singh and others (A I R 1933 Lah. 534 (1)) and Allah Bux v. Mst. Sardaran (A I R 1935 Lah. 330 (1)).

2. It was however, submitted by the learned counsel for the petitioner that the combined effect of the provisions contained in clause 26 of the Letters Patent and rule 2 of Chapter 4‑G, Volume V of the High Court Rules and Orders, is that any Judge of the High Court could grant the necessary certificate. A reference to the provisions relied upon by the learned counsel is sufficient to show that the contention is not tenable. Clause 26 of the Letters Patent contemplates that " . . any function which is hereby directed to be performed by the High Court of Judicature at Lahore in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court, thereof, . . . . . " It will be seen that the function under consideration here namely, the grant of a certificate of fitness for appeal under clause 10 of the Letters Patent, is not a function directed to be performed by the High Court of Judicature at Lahore; on the contrary it is a function specifically directed to be performed under clause 10 by the Judge who passed the judgment sought to be appealed against. Clause 26, therefore, has no application in the present context.

3. Similarly, the procedure laid down in rule 2 of Chapter 4‑G of Volume V of the High Court Rules and Orders to the effect that when a Judge dies or ceases to be a Judge, evidence recorded by him may be dealt with by the Judge before whom the case continues if he thinks fit as if it had been recorded by him or in his presence, has no application to this matter. That is a procedure specifically prescribed for the recording and considering of evidence in pending proceedings, which is an entirely different matter from the one contemplated under clause

10. The object of clause 10 is to ensure finality oft decision within the High Court, in cases where a Single Judge feels that the question decided by him is such that another view may be possible. It is precisely for this reason that the certificate has to be granted by the Judge who decides the second appeal in the first instance.

4. For the foregoing reasons, the application is dismissed as having become infructuous owing to the non‑availability of Mr. Justice Muhammad Ali Saeed as Judge of this Court. K. B. A. Petition dismissed.