Full Judgment Text
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CASE NO.:
Appeal (civil) 5593 of 1997
PETITIONER:
R.J. Shah & Co
RESPONDENT:
H.P. State Electricity Board
DATE OF JUDGMENT: 19/07/2007
BENCH:
Dr. ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
(With C.A. No. 5594 of 1997)
Dr. ARIJIT PASAYAT, J.
1. In the present appeals, an interesting question is raised
about the sustainability of the High Court’s view in the
impugned order that the Letters Patent in Lahore Court was
not maintainable as no appeal either under Clause 9 or Clause
10 of the Letters Patent was maintainable in the High Court
and the impugned order was not covered by Order 43 Rule 1 of
the Code of Civil Procedure, 1908 (in short the ’CPC’). The
High Court held as follows:
"In view of the discussion aforesaid, the
Letters Patent of High Court of Judicature at
Lahore has no application in the State of
Himachal Pradesh and hence no appeal either
under Clause 9 or Clause 10 of the said
Letters Patent would lie to this High Court. The
appeal against the judgment of a single Judge
of this Court exercising ordinary original civil
jurisdiction will, however, lie to a Division
Bench of the High Court by virtue of Section
10 of the Delhi Act. This appellate jurisdiction
is available against decrees and appellable
orders covered under Section 104 read with
Order 43 Rule 1 of the Code of Civil Procedure.
In the instant case, the impugned order is
admittedly not covered by any part of Order 43
Rule 1 of the Code of Civil Procedure and
hence no appeal against the said order would
lie to the Division Bench of this Court.
For the reasons aforesaid, the appeal fails
and is dismissed."
2. In support of the appeals, learned counsel for the parties
referred to the legislative history of the Letters Patent: Prior to
1919 the Chief Court of Punjab was at Lahore. The Letters
Patent was promulgated on 21.3.1919. The establishment and
constitution of the High Court of Punjab as done under Clause
10 provided for intra Court appeal. On 11.8.1947 the High
Court (Punjab Order), 1947 under Section 9 of the Indian
Independence Act, 1947 was promulgated. The Punjab High
Court was constituted and included Delhi. Power exercised by
erstwhile Punjab High Court was to be exercised by the High
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Court of East Punjab. Power of Letters Patent continued to
operate at Punjab High Court. Himachal Pradesh was ’Part-C’
State. It was under the Punjab High Court. Subsequently,
separate Court of Judicial Commission in various ’Part-C’
States started functioning. On 26.1.1950 the Judicial
Commission was declared as the High Court by the Judicial
Commission’s Court (Declaration of High Court), 1950. On
1.7.1954 two ’Part-C’ States amalgamated were Himachal
Pradesh and Bilaspur by the New States Act, 1954. There was
one Judicial Commission for the State of Himachal Pradesh.
On 1.11.1956 ’Part-C’ States were abolished by the
Constitution (7th Amendment) Act. Accordingly, the erstwhile
Part-C State became the State of Himachal Pradesh. On
1.5.1967 the Delhi (High Court) Act, 1966 came into force. The
jurisdiction extended over Himachal Pradesh by carving out
Delhi and Himachal Pradesh from the original Punjab High
Court. Under Section 5, the powers exercised by the Punjab
High Court came to be exercised by the Delhi High Court in its
territories including Himachal Pradesh. Accordingly, Judicial
Commission, Himachal Pradesh came to be abolished by the
Delhi High Court Act. On 25.12.1970 by the State of Himachal
Pradesh Act, 1970 Delhi High Court ceased to have
jurisdiction over Himachal Pradesh and the Himachal Pradesh
High Court came into existence. Section 23 of the Act made
this position clear.
3. It is to be noted that the foundation of the impugned
judgment is a Full Bench decision of Delhi High Court which
decided that if order of the learned Single Judge is in its
ordinary original jurisdiction, no Letters Patent would lie to
the Division Bench of the High Court. (See University of Delhi
v. Hafiz Mohd. Said (AIR 1972 Delhi 102). The Division Bench
in the impugned judgment ought to have followed Jugal
Kishore Paliwal v. S. Sat Jit Singh and Anr. (1984 (1) SCC 358)
and two earlier decisions in Asha Kochar’s case (ILR 1976 (5)
H.P. 551) and State of Himachal Pradesh v. Ajit Kumar (ILR
(1976) HP 24). This Court in Jugal Kishore’s case (supra)
expressly over-ruled the view in Hafiz Mohd. Said’s case
(supra). The High Court has not noticed the view expressed in
Jugal Kishore’s case (supra). We, therefore, set aside the order
of the High Court, remand the matter to it to decide the
controversy afresh in the light of Jugal Kishore’s case (supra)
and also to take note of the view expressed by this Court in
P.S. Sathappan (dead) by Lrs. Vs. Andhra Bank Ltd. and Ors.
(2004 (11) SCC 672).
4. The appeals are accordingly disposed of.