A practice contrary to or inconsistent with a statutory rule could not have come into existence at all and if the same has come into existence, it should be done away with inasmuch as the same would not be in accordance with law.

( 1 ) THE question which, inter alia, arises for consideration in these appeals is as to whether this Court is denuded of the power to entertain an appeal which is not accompanied with a certified copy upon expiry of 30 days from the date of judgment of the learned single Judge. Our attention has been drawn to a decision of a Division Bench of this Court in the case of Biswanath Ghosh v. State of W. B. reported in (1993) 97 Cal WN 199, wherein it has been held that although the Memorandum of Appeal can be filed within the period of 30 days without being accompanied by a certified copy of the judgment by reason of an alleged practice of this Court such appeal cannot be entertained on the expiry of 30 days if the same is not accompanied by a certified copy.

( 2 ) MR. Bhattacharjee, learned counsel appearing on behalf of the appellant, inter alia, submitted that the said judgment proceeded with a total misconception, inasmuch as, the learned trial Judge had not considered the matter upon proper interpretation of the provision of Chapter VIII of the Appellate Side Rules vis-a-vis Rules 48 and 53 of the writ Rules framed by this Court in exercise of its jurisdiction under Art. 226 of the Constitution. From a perusal of the said judgment, it is apparent that their Lordships had taken into consideration the provisions of S. 100a of the Code of Civil Procedure which cannot be said to have any application whatsoever in the matter of entertainment of the appeal under clause 15 of the Letters Patent. A bare perusal of the aforementioned provision would clearly show that a statutory right has been conferred upon a litigant to prefer an appeal from a judgment and order passed by a learned single Judge of this Court to a Division Bench. Such a statutory right, there cannot be any doubt, can be curtailed only by reason of statute. Section 100a of the Code of Civil Procedure is one of such statutes. Such is not a position in these cases as appeals have been preferred from the judgments and orders passed by a learned single Judge to a Division Bench. In terms of Rule 48 of the writ Rules of this Court, the Rules as applicable to the appeals filed from the judgment and order passed on the Original Side and Appellate Side as the case may be are to apply in such appeals.

( 3 ) ALTHOUGH prima facie we do not find any justification for such a Rule, inasmuch, this court entertains an application under Article 226 of the Constitution of India in exercise of its original jurisdiction and thus by reason of rules laying down procedural matters, the jurisdiction of this Court to entertain a writ petition in terms of clause 2 of Art 226 of the Constitution of India cannot be sub-divided into two different jurisdiction on the ground of territorial limits by at this stage we do not intend to go into the said question.

( 4 ) IT is not disputed that in terms of Rule 53 of the Writ Rules, Civil Procedure Code applies but such application of the provision of the C. P. C. must be held to be mutatis mutandis, inasmuch as, Chapter VIII of the Appellate Side Rules clearly provides for the manner in which appeal under clause 15 of the Letters Patent is to be filed. Rules 2 and 3 of Chapter VIII read thus :-"2. Every appeal to the High Court under S. 15 of the Letters Patent from a judgment of a Division Bench, or a Judge sitting singly, on the Appellate Side of the High Court, shall be presented to the Deputy Registrar, or such other officer as the Registrar may appoint, within 60 days from the date of the judgment appealed from, unless the Court in its discretion, on good cause shown, shall grant further time. 3. The memorandum of appeal shall be drawn up in accordance with the provisions of Order XLI, Rule 1, Civil Procedure Code, and shall be subscribed by an Advocate of the Court. It need not be accompanied by a copy of the judgment appealed from. It shall be the duty of the officer to whom the memorandum is presented un