Kisumu Motor Works v Manji (Civil Appeal No. 2 of 1940) [1940] EACA 31 (1 January 1940)

## APPELLATE CIVIL

### BEFORE THACKER, J.

### KISUMU MOTOR WORKS, Appellant (Original Plaintiff)

# ν GULAMHUSSEIN MANJI, Respondent (Original Defendant)

### Civil Appeal No. 2 of 1940

Civil appeal-Practice-Procedure-Certification of judgment-Indian Evidence Act, section 76-Civil Procedure Rules Order XXXIX, R. 1.

Appellant appealed from a judgment of the Resident Magistrate, Kisumu, who is the officer who normally has the custody of the documents of his court. Owing to the temporary absence of the Resident Magistrate the copy of the judgment accompanying the memorandum of appeal was certified by a district officer holding a subordinate court of the second class for Central Kavirondo at Kisumu.

Held (16-3-40).—That the certified copy of the decree or order appealed from, which by Order XXXIX Rule I must accompany the memorandum of appeal must be certified by the officer who normally has the custody of the original, that in the present case the judgment was not so certified.

Appeal dismissed with costs and leave given to file fresh appeal within one month.

Gautama for the Appellant.

Kohli for the Respondent.

JUDGMENT.—A preliminary objection in law to this appeal has been taken by Mr. Kohli for the respondent. It is that the copy of the judgment from which the case is an appeal has been certified by Mr. Perreau, a second class magistrate, and that the copy should have been certified by Mr. Connell as the proper officer to certify such a judgment. The officer who has the normal custody of court documents appears to be, by section 76 of the Indian Evidence Act, the officer who should certify the copy of the judgment. Mr. Connell who is normally the officer who has the custody of the documents of his court was away from Kisumu on the day when Mr. Gautama applied for the certified copy, and by arrangement it appears that Mr. Perreau does some of the work for the Resident Magistrate in his absence. However practicable and convenient this arrangement may be no legal sanction for such delegation has been cited to me. Mr. Gautama states that he could not await the return of Mr. Connell to Kisumu as his application was made on the last day allowed for an appeal. However, Mr. Gautama in these circumstances had a good case for asking for extension of time within which to lodge his appeal but he was content to take a copy certified by an officer who, so far as I know, had no authority in him to certify the copy of the judgment. Order XXXIX, Rule 1, lays it down that the memorandum of appeal shall be accompanied by a certified copy of the decree or order appealed from. This must imply a copy certified by the proper or competent authority. Otherwise a certificate by anyone would suffice. Mr. Gautama takes the further point that the certification is an administrative act and not a judicial act. I cannot see that this has any relevance. The fact remains that the officer who is the proper authority, and he must be the proper custodian of court documents, is the only officer who can certify. I must therefore allow this objection not without considerable regret and some sympathy for Mr. Gautama as I deprecate very much the piling up of costs against litigants in this manner. I do not care to invoke section 99 of the Civil Procedure Ordinance in favour of the appellant. The appeal is dismissed with costs and I grant an extension of a further month in case Mr. Gautama wishes to file a further appeal.