P L D 1965 (W (PLP)

SAJJAD AHMAD, J.‑The facts of this Letters Patent Appeal briefly are these. The appellants instituted a Writ Petition (No. 988 of 1957) in this Court which was accepted with costs on the 15th of March 1960, and in consequence the order of the respondent, namely, the Controller of Estate Duty, which was challenged in the writ petition, was set aside. The respondents then filed an application under Articles 157 and 158 of the late Constitution of 1956, read with Order XLV, rule 2 of the Civil Procedure Code, praying that a certificate be granted that the case was a fit one for appeal to the Supreme Court of Pakistan. This prayer was granted on the 23rd of January 1961, in spite of the opposition of the appellants. Under Order XLV, rule 7 of the C. P. Code, the respondents had to furnish security in cash or Government securities in the sum of Rs. 2,000.00 for the costs of the appellants and also to deposit the amount required to defray the expenses of translation, transcribing, indexing, printing and transmitting to the Supreme Court a correct copy of the whole record of the suit within 90 days or such further period not exceeding 60 days as the Court may upon cause shown allow from the date of the decree complained of or within six weeks from the date, of the grant of the certificate whichever is the later date.

2. The respondents failed to deposit the requisite amount in compliance with the above provision for more than two years. However, on the 13th of June 1963, an application was filed by the counsel for the respondents for condonation of delay in depositing the security for costs. The reason for the delay was stated to be that "through inadvertence the petitioner could not comply with the aforesaid rule. This is due to the fact that the clerk of the `petitioners' counsel did not know about this rule". The application was not accompanied by an affidavit. This Application (C. M. No. 738/C‑63) was laid before a learned Single Judge of this Court on the 4th of October 1963, who passed the following order :‑ "Mr. Abdul Haq Advocate : Delay is condoned." The present Letters Patent Appeal is directed against this order and the grounds urged are‑ (1) that the delay was condoned without any notice to the respondents, (2) that after the expiry of the prescribed period the time for the deposit of security could not be extended, (3) that the power to extend time under Order XL V, rule 7 of the C. P. C. is mandatory, (4) that rule 9 of the Rules framed by the Privy Council in relation to appeals before His Majesty, which overrode this mandatory provision and under which it was possible to extend the time was no longer available, and (5) that even if the Court had the power to extend time in the present case no cogent reasons existed for condonation of delay for more than two years.

3. Lengthy arguments were addressed to us by the learned counsel for the parties on the question whether the learned Single Judge had or had not the powers to extend time, and reference was made during the arguments to a Full Bench case of the Lahore High Court reported as Diwan Ghulam Rasul v. Diwan Ghulam Qutab‑ud‑Din (A I R 1942 Lah. 147) which still holds the field as far as this Court is concerned. In‑this case it was held that under rule 9 of the Privy Council Rules which, under section 112 of the C. P. Code, had an overriding effect over Order XLV, rule 7 of the C. P. C., the Court had the power to extend time. We find that in the Supreme Court Rules, 1956, there is now a rule parallel to rule 9 of the Privy Council Rules, cited above, i.e., Rule 4 in Part II, Order XII of the Supreme Court Rules, 1956, relating to civil appeals before the Supreme Court, with a slight variation in language. However, we consider that it is not necessary for us to go into this question in the present appeal as to whether time could or could not be competently extended by the learned Single Judge or whether the extension of time as granted by him was justified, as in our view this appeal under clause 10 of the Letters Patent is not competent because it is not covered by the term, "judgment" as employed in the aforesaid clause. The test whether an "order" is a "judgment" or nest within the meaning of clause 10 aforesaid was laid down in the Full Bench case of the Madras High Court reported as T. V. Tuljaram Row v. M. K. R. V. Alagappa Chettiar (I L R 35 Mad. 1), in which clause 15 of the Madras Letters Patent, corresponding to clause 10 of the Lahore Letters Patent, was interpreted as follows :‑ "An adjudication is a judgment within the meaning of the clause if its effect, Whatever its form may be and whatever may be the nature of the application in which it is made, is, to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned or if its a effect, if not complied with, is to put an end to the suit or " proceeding. It is not necessary that the decision must affect the merits by determining some right or liability. An adjudication based on a refusal to exercise discretion is appealable if the effect of the adjudication is to dispose of the suit so far as the Court making the adjudication is concerned." In this case, an order of a Single Judge on the original side, refusing to frame an issue asked for by one of the parties was held not to be a judgment within clause 15 of the Letters Patent of the Madras High Court and, as such, not appealable. This test was armed in a Full Bench case of the Lahore High Court, reported as Firm Shaw Hari Dial & Sons v. Messrs Sohna Mal Beli Ram (A I R 1942 Lah. 95), in which Dalio Singh, J., who delivered the leading judgment, observed as follows :‑ "It is really unnecessary to say any more except that I would agree entirely with the remarks in 3 Lahore 188 that the best test propounded so far is the test laid down in 35 Mad.

1. It is not, however, necessary to decide whether that test is comprehensive so as to exclude all other tests. It is sufficient to say that each case must be considered on its own facts and circumstances and while the tests propounded in Madras and in the Calcutta High Courts serve as a good guide for this Court, it is not necessary to hold that those tests are comprehensive wand exclude other cases." In this Full Bench case the question was whether an order by a Single Judge refusing to transfer a suit is a judgment within the meaning of clause 10 and appealable which was answered in the affirmative. It is apparent that in the order under appeal before us the learned Single Judge had permitted the respondents to take a step for deposit of the security and the costs for the prosecution of their appeal in the Supreme Court which they had failed to take within the prescribed time. It was just an ancilliary order which did not have the effect of terminating any proceedings pending for adjudication before the Court in relation to the appeal in the Supreme Court for which the certificate had been granted. In pursuance of the permission grant for deposit of the amount of security and costs the records of the appeal have now to be printed and transmitted to the Supreme Court.

4. We consider that a contrary order disallowing the application for deposit of the security and the costs, resulting in the cancellation of the certificate that had been granted would have had the effect of terminating the proceedings, making the order a ‑judgment" as contemplated by clause 10 of the Letters Patent, inasmuch as it would have had the final effect of countermanding the certificate of fitness granted to the respondent and thus terminating the proceedings instituted in that behalf. But the enabling order under appeal which merely permitted the regulation of a procedural matter, aiding the progress of the main proceed ings, without in any manner affecting the rights and liabilities of the parties inter se and in no manner resulting in the termination of any proceedings taken in the High Court, cannot be viewed as a "judgment" in the context of clause 10 of the Letters Patent. As this appeal is not competent, we are constrained to dismiss it, but we leave the parties to bear their own costs. A. H. Appeal dismissed.