Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 03.08.2012
Date of Decision: 19.10.2012
+ FAO (OS) No.684 of 2010 & CM No.21681 of 2010
JASWINDER SINGH ..... Appellant
Versus
MRIGENDRA PRITAM
VIKRAMSINGH STEINER & ORS ..... Respondents
+ LPA No.879 of 2010 & CM No.22171 of 2010
JASWINDER SINGH ..... Appellant
Versus
MRIGENDRA PRITAM
VIKRAMSINGH STEINER & ORS ..... Respondents
+ LPA No.19 of 2011 & CM No.352 of 2011
GEETANJALI SINGH & ANR. ..... Appellants
Versus
MRIGENDRA PRITAM
VIKRAMSINGH STEINER & ORS ..... Respondents
Through : Mr. A.S. Chandhiok, Amicus Curiae (ASG) with
Mr. Manmeet Arora, Mr. Ritesh Kumar, Mr. Piyush Sanghi, Mr.
Sidharth Tyagi & Ms. Shweta Gupta, Advs.
Respondents 5-11 are pro forma parties in FAO (OS)
No.684/2010 & LPA No.879/2010.
Respondents 5-12 are pro forma parties in LPA No.19/2011.
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FAO (OS) No.684 of 2010, LPA Nos.879 of 2010 & 19 of 2011 Page 1 of 22
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MR. JUSTICE RAJIV SHAKDHER
SANJAY KISHAN KAUL, J.
1. The interplay of the jurisdictions to be exercised under Letters Patent
and as the First Appellate Court while dealing with non-appealable
orders passed by the learned Single Judge in exercise of ordinary
original civil jurisdiction has given rise to the present reference. The
question, thus, which arises for consideration is:
― If an order is passed by the learned single Judge in exercise of
Ordinary Original Civil Jurisdiction which is not appealable under
Section 104 (1) read with Order 43 (1) of the Code of Civil
Procedure, 1908 (hereinafter referred to as the „said Code‟) whether
the remedy would be under Section 10 (1) of the Delhi High Court
Act, 1966 (hereinafter referred to as the „said Act‟) or under Clause
10 of the Letters Patent? ‖
2. The occasion to make this reference arose on account of the fact that
at various times pronouncements of this Court have treated it as an
―either‖ or ―or‖ situation while entertaining an appeal, i.e., an appeal
would be maintainable from a non-appealable order provided it
satisfies certain tests and such an appeal may arise under one or the
other of the aforesaid provisions and, thus, the matter was never
examined further. A Division Bench of this Court posed this
question and subsequently analyzed it while making the reference
vide order dated 17.4.2012 so that the controversy could be put at
rest and a consistent practice is followed. This also became
necessary in a sense for assisting in, both, the administration of
justice and court management as the Chief Justice of the High Court
is the Master of the Roster and as per allocation of roster, normally,
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FAO (OS) No.684 of 2010, LPA Nos.879 of 2010 & 19 of 2011 Page 2 of 22
the letters patent jurisdiction is exercised by a different Bench than
the Bench exercising jurisdiction under First Appealable Orders from
Original Side [FAO (OS)].
3. The Delhi High Court was constituted under the said Act. It being
one of the newer High Courts, it had the benefit of being constituted
under a legislation of the Indian Parliament. In terms of Section 5
(1) of the said Act, the Delhi High Court has been conferred with all
such original, appellate and other jurisdiction, as under the law in
force immediately before being exercised in respect of the territories
by the High Court of Punjab. However, the Punjab High Court did
not have any ordinary original civil jurisdiction. Therefore, Section
5 (2) of the said Act which begins with a non obstante clause
conferred an additional ordinary original civil jurisdiction in every
suit the value of which exceeded 25,000.00, on the Delhi High
`
Court. This limit has been subsequently revised and stands at ` 20.00
lakh now. Section 5 of the said Act reads as under:
― 5. Jurisdiction of High Court of Delhi —(1) The High Court
of Delhi shall have, in respect of the territories for the time
being included in the Union territory of Delhi, all such
original, appellate and other jurisdiction as, under the law in
force immediately before the appointed day, is exercisable in
respect of the territories by the High Court of Punjab.
(2) Notwithstanding anything contained in any law for the time
being in force, the High Court of Delhi shall also have in
respect of the said territories ordinary original civil jurisdiction
in every suit the value of which exceeds rupees twenty lakhs.‖
4. Section 9 of the said Act makes the law in force in respect of form of
writs and other processes used, issued or awarded by the High Court
of Punjab to apply to Delhi with necessary modifications.
5. Section 10 (1) of the said Act, ordinary original civil jurisdiction
having been conferred in terms of Section 5 (2) of the said Act,
provides for an appeal to lie before a Division Bench of the Delhi
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FAO (OS) No.684 of 2010, LPA Nos.879 of 2010 & 19 of 2011 Page 3 of 22
High Court from an order of the learned Single Judge of this Court.
In terms of Section 10 (2) of the said Act, which is subject to the
provisions of sub-section (1), the law in force immediately before the
appointed day relating to the powers of the Chief Justice, Single
Judges and Division Courts of the High Court of Punjab and with
respect to all matters ancillary to the exercise of those powers shall,
with the necessary modifications, apply in relation to the High Court
of Delhi. Section 10 of the said Act reads as under:
― 10. Powers of Judge —(1) Where a single Judge of the High
Court of Delhi exercises ordinary original civil jurisdiction
conferred by sub-Section (2) of Section 5 on that Court, an
appeal shall lie from the judgment of the single Judge to a
Division Court of that High Court.
(2) Subject to the provisions of sub-section (1), the law in force
immediately before the appointed day relating to the powers of
the Chief Justice, single Judges and Division Courts of the High
Court of Punjab and with respect to all matters ancillary to the
exercise of those powers shall, with the necessary
modifications, apply in relation to the High Court of Delhi.‖
6. In terms of Section 16 of the said Act, all proceedings pending in
subordinate courts in relation to any civil suit referred to as per sub-
section (2) of Section 5 of the said Act was to stand transferred to the
High Court of Delhi.
7. The effect of the aforesaid provisions in a nutshell, thus, is that the
appellate jurisdiction is conferred on the Division Bench qua
appealable orders in view of provisions of Section 5 (2) read with
Section 10 (1) of the said Act. The question, thus, would be whether
even non-appealable orders under the said Code can be appealed
against if they satisfy certain tests which have been set out
hereinafter and whether such an appeal would lie under sub-section
(1) of Section 10 of the said Act.
8. Simultaneously insofar as powers of the Single Judges or the
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FAO (OS) No.684 of 2010, LPA Nos.879 of 2010 & 19 of 2011 Page 4 of 22
Division Benches qua matters other than ordinary original civil
jurisdiction are concerned, Section 5 (1) read with Section 10 (2) of
the said Act would make the law enforceable in the High Court of
Punjab to apply as was prevalent immediately prior to the said Act
coming into force.
9. Now coming to the issue of exercise of letter patent – Where does
the expression ‘ Letters Patent ’ originate from?
Meaning & Origin of Letters Patent:
10. The term ‗letters patent‘ is derived from the Latin term ‗ literae
patentes‟ meaning ―open letters‖. Primarily, a letters patent would
denote a public grant from the sovereign to a subject, conferring the
1
right to land, a franchise, a title, liberty, or some other endowment.
These were letters addressed by the sovereign ‗to all whom these
presents shall come,‘ reciting a grant of some dignity, office,
franchise, or other privilege that has been given by the sovereign to
2
the patentee.‘ The historical perspective of this is available in the
National Archives of the United Kingdom, which is a Government
Department and an Executive Agency of the Ministry of Justice. It
sets out that ‗ Letters Patent ‘ were letters issued ‗ open ‘ or ‗ patent ‘
expressing the sovereign‘s will on a variety of matters of public
interest, sealed with the sovereign‘s great seal pendent. The patent
rolls record the issue of letters patent from the reign of King John.
The entries on the rolls are of a very diverse nature referring to the
royal prerogative, revenue, the differential negotiations with foreign
princes and states, letters of protection, of credence and of safe-
conduct and the appointments and powers of ambassadors. There are
also grants and confirmations of liberties, offices, privileges, lands
and wardships, both to public bodies and to private individuals,
1 th
Black‘s Law Dictionary, Garner, Bryan A. (9 Edn., 2009), p. 1016
2
Chisum, Donald S. et al., Principles of Patent Law 2 (1998)
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FAO (OS) No.684 of 2010, LPA Nos.879 of 2010 & 19 of 2011 Page 5 of 22
charters of incorporation and so on. Letters patent are stated to have
th th
been much reduced in the course of the 19 and 20 centuries, as the
kinds of instruments produced thereby became obsolete or their
administration passed to other bodies. The use of great seals was
much restricted, often replaced by alternative devices.
Evolution of the system of Courts in India: Post 1600:
11. In reference to the development of the courts system in India during
British times, their origin is in the ancient English Statues and
Charters granted by the sovereign of England to the East India
Company, which was established by the Charter of Queen Elizabeth
I in 1600. The Company was established for purposes of trading
only. But by that Charter, it was also empowered to make laws for
the good governance of the Company, its employees, officers, etc.
and for the better advancement and continuance of trading and to
3
impose punishments and fines in enforcement of those laws .
12. The Company, however, gradually established factories and acquired
territories in India and for the protection of its territories and for
further acquisition, it was empowered to raise an army, make war
and peace and exercise governmental functions. It subsequently
obtained the grant of Diwani of Bengal, Bihar and Orissa from the
Emperor Shah Alam in 1765. The British Crown, however, did not
all at once and directly assume the sovereign powers, but as between
the Crown and the Company, it was distinctly agreed by an Act of
1813 that the possession and Government of British territories was
being continued by the Company without prejudice to the undoubted
sovereignty of the Crown. It is this sovereignty, which was
reiterated by the Government of India Act, 1833 and that is why the
Company remained in possession of territories ―in trust for His
3
The Chapter on ‗Prerogative Writs and the Calcutta High Court in the pre-Constitution Era‘ in
the Book released by the High Court at Calcutta on Completion of 150 years, Published by the
Indian Law Institute, West Bengal State Unit
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FAO (OS) No.684 of 2010, LPA Nos.879 of 2010 & 19 of 2011 Page 6 of 22
Majesty‖.
13. It is with the growth of the East India Company that it became
necessary to establish Courts of Justice within the territories under
the control of the Company. The Letters Patent of 1726 granted by
King George I recited that the Company by strict and equal
distribution of justice, very much encouraged not only the British
subjects but subjects of princes and natives to resort to and settle the
disputes both in civil causes and criminal matters. These Letters
Patent established and constituted three several Courts of record
known as ‗ Mayor‟s Court ‘ (consisting of a Mayor and nine (9)
Aldermen) in Fort William in Bengal, in Madras and in Bombay.
The right of appeal was to the Governor General in Council. These
Letters Patent of 1726 were surrendered by the East India Company
to King George II and the Company obtained fresh Letters Patent in
1753 by which the Mayor‘s Courts were limited in their civil
jurisdiction to suits between persons not natives and suits between
natives were directed not to be entertained by them unless by consent
of the parties.
Rise of Chartered & Non-Chartered High Courts :
14. On the East India Company securing the Dewani of Bengal, Bihar
and Orissa in 1765, it set up courts of civil and criminal jurisdiction
for the Mofussil. The Moffusil Dewani Adalat was established for
administration of civil justice, with a right of appeal to the Sadar
Dewani Adalat, Calcutta. These Courts were not the King‘s Courts
but were the Company‘s Courts established by the Company on the
authority derived from the Mogul Emperor. This had nothing to do
with the Mayor‘s Court or its successors.
15. In 1773 came the Regulating Act, the object of which was to impose
control over the Company and its servants both in England and in
India. It provided for the appointment of the Governor General and
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FAO (OS) No.684 of 2010, LPA Nos.879 of 2010 & 19 of 2011 Page 7 of 22
Council in Bengal and empowered the Crown by Charter to erect and
establish a Supreme Court at Fort William with full power and
authority to exercise and perform all civil, criminal, admiralty and
ecclesiastical jurisdictions in the Presidency towns. Pursuant to this
Act, King George III issued a Charter establishing a Court of Record
called the ―Supreme Court of Judicature at Fort William in Bengal‖
th
dated 26 March, 1774. The clauses of the Charter show that the
jurisdiction of the Supreme Court extended throughout the
Presidency towns. The Supreme Court was, thus, a Crown‘s Court.
Subsequently, the Supreme Courts at Madras and Bombay were
th th
established by King George II on 26 December 1800 and 8
December 1823 respectively.
16. The result of the aforesaid was that while the then Supreme Courts
exercised jurisdiction in the Presidency towns, the then Sadar Courts
exercised jurisdiction in the Moffusils.
17. It is after the Sepoy Mutiny of 1857 that the British Crown took over
the territories and the Government of British India from the
Company by the Government of India Act, 1858 and, thus, India
came to be governed directly by and in the name of the Crown. In
1861, the Indian High Courts Act was passed by the British
Parliament which authorized Her Majesty Queen Victoria by Letters
Patent to erect and establish High Courts in the three presidencies
which were to ―have and exercise all jurisdiction and every power
and authority whatsoever in any manner vested in any of the Courts
in the same presidency abolished under this Act at the time of
abolition of such last mentioned Courts.‖ Thus, the Supreme Courts
and the Courts of Sadar Dewani Adalat and Sadar Nizamat
(Faujdari) Adalat were abolished. It is in exercise of powers under
the Indian High Courts Act, 1861 that the Letters Patent of 1862 was
issued establishing the High Courts in the three Presidency towns of
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FAO (OS) No.684 of 2010, LPA Nos.879 of 2010 & 19 of 2011 Page 8 of 22
Calcutta, Bombay and Madras. In 1865, the Indian High Courts Act
was amended so as to authorize the the Governor General in Council
to alter the local limits of jurisdiction of High Courts and to exercise
jurisdiction beyond the limits of the Presidency. This is so far as the
Presidency towns are concerned.
18. Now coming to the provinces of Punjab and Delhi, it is by an Act by
the Governor General of India in Council (Act No.Xxiii of 1865) that
the then Chief Court of Punjab was established and the Provinces of
Punjab and Delhi were subject to its jurisdiction. This position
continued till the Letters Patent constituting the High Court of
st
Judicature at Lahore dated 21 March 1919 was issued by which the
High Court at Lahore was established for the provinces of Punjab
and Delhi. The Punjab High Court after 1947, continued to be
governed by this Letters Patent and the Union Territory of Delhi
continued to be within the jurisdiction of the Punjab High Court.
Clause 9 of the Letters Patent conferred extraordinary original civil
jurisdiction on the High Court.
19. What is the distinction between the Original Civil Jurisdiction
conferred in the Presidency towns and the Lahore High Court? The
significant difference is that on the establishment of the Chartered
High Court in the Presidency towns there were two kinds of original
jurisdiction which were transferred to it – (i) as was being exercised
by the Supreme Court in the Presidency towns; (ii) as was being
exercised by the Sadar Courts. On the other hand when the Non-
Chartered High Courts were established by different Letters Patent
including the Lahore High Court it was the second one only which
was transferred. The Supreme Courts established in the Presidency
towns prior to the establishment of the Chartered High Courts were
exercising the ordinary civil jurisdiction in the territories of the
Presidency towns while in the Mofussil, the principal Courts of
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FAO (OS) No.684 of 2010, LPA Nos.879 of 2010 & 19 of 2011 Page 9 of 22
original jurisdiction were the District Courts. It may be added here
that on the other hand establishment of City Civil Courts in the
Presidency towns, the lower pecuniary jurisdiction from the ordinary
civil jurisdiction of the Chartered High Courts came to be vested in
those city civil courts.
20. The aforesaid is the reason why there is a difference in the wording
of the Letters Patent qua the three Presidency towns, which are
almost identical, while on the other hand there are the Letters Patent
of the Courts like the Lahore High Court.
21. There is an interesting discussion on this issue in a Division Bench
Judgement of this Court in Shanta Sabharwal Vs. Sushila Sabharwal
& Ors. AIR 1979 Delhi 153, in the opinion rendered by Mr. Justice
V.S. Deshpande (Retd.), the then Chief Justice which in turn is based
on a Constitution Bench judgement of the Supreme Court in Aswini
Kumar Ghosh Vs. Arabinda Bose (1953) 4 SCR 1 by the then Chief
Justice of India, Mr. Justice M. Patanjali Sastri. The relevant portion
is reproduced hereinunder:
―5. After having given earnest consideration to the
submission, we find that (1) the decision of the Supreme Court
does not change the legal position existing at the time the Full
Bench decision was given, (2) additional reasons are found to
support those on which the Full Bench decision rested, and (3)
even otherwise reference to a larger Bench would not be
expedient.
(1) The decision of the Supreme Court in Shanti Kumar's case
(AIR 1974 SC 1719) does not define the meaning of the word
―Judgement‖ as used in cl.(15) of the Bombay and cl.(10) of
the Delhi Letters Patent. It only reaffirms the proposition
already established in Central Bank of India v. Gokal Chand,
AIR 1967 SC 799, that it is only an order which affects the
rights and liabilities of parties which can be called a
judgement. The uncertainty exists because of the difficulty in
drawing the line between an order which is merely procedural
and an order which affects any rights and liabilities of the
parties. This has been the situation from before the Full Bench
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FAO (OS) No.684 of 2010, LPA Nos.879 of 2010 & 19 of 2011 Page 10 of 22
judgement as also thereafter and is likely to continue even
after the Supreme Court decision.
(2) The view that the maintainability of an appeal against an
order of a single Judge of this Court acting in ordinary original
jurisdiction is governed by the Code of Civil Procedure and
not by the Letters Patent is supported by additional reasons
which were not mentioned in the Full Bench decision.
(A) In the Public Trustee v. Rajeshwar Tyagi, ILR (1973) 1
Delhi 29. (AIR 1972 Delhi 362), a Division Bench of this
Court to which one of us (V.S. Deshpande, J. as he then was)
was a party, pointed out the following distinction, namely (i)
when a judgement is delivered by a single Judge exercising
the jurisdiction inherited from the Punjab High Court under S.
5(1) of the Delhi High Court Act then the appeal against it lies
under cl.(10) of the Letters Patent; and (ii) on the other hand,
when a single Judge delivers a judgement in exercise of the
ordinary original civil jurisdiction obtained by this Court from
the Subordinate Court under S. 5(2) of the Delhi High Court
Act, then the appeal lies under S. 10(1) of the Act. This
position is undisputed. The question that arises is whether the
meaning of the word ―Judgement‖ in Section 10(1) of the
Delhi High Court Act is the same as that in cl.(10) of the
Letters Patent.
(B) As pointed out in Aswini Kumar Ghosh v. Arabinda Bose,
(1953) SCR 1 : AIR 1952 SC 369), by Sastri, C.J. from page 6
onwards, there is a historical distinction between original
jurisdiction exercised by two groups of High Courts in India.
This corresponds to the jurisdiction exercised by the Courts
preceding these two groups of High Courts. The then Supreme
Courts exercised jurisdiction in the Presidency Towns and the
then Sudder Courts exercise jurisdiction the Mofussil. When
the Supreme Courts and Sudder Courts were abolished on the
one hand their two different kinds of original jurisdiction were
transferred to what may be called the Non-Chartered High
Courts by different Letters Patent which were substantially
different from the Letters Patent of the Chartered High Courts.
The former Supreme Courts themselves exercised ordinary
civil jurisdiction in the Presidency Towns. In the Mofussil,
however, the principal Courts of original jurisdiction were the
District Courts. The Chartered High Courts succeeding the
Supreme Courts in the Presidency Towns obtained an ordinary
original civil jurisdiction till then exercised by the Supreme
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FAO (OS) No.684 of 2010, LPA Nos.879 of 2010 & 19 of 2011 Page 11 of 22
Courts. This continued till city Civil Courts were established
in the Presidency Towns taking away the lower pecuniary
jurisdiction from the ordinary civil jurisdiction of these
Chartered High Courts in the Presidency Towns. A challenge
to the validity of the Bombay City Civil Courts Act was
negatived by the Supreme Court in the State of Bombay v.
Narottamdas Jethabhai, AIR 1951 SC 69. It is significant to
note that the ordinary civil jurisdiction was possessed by the
Supreme Courts and the Chartered High Courts from the very
beginning. Later, a part of it was transferred to the City Civil
Courts which corresponded to the District Courts in the
Mofussil.‖
Amicus Curiae Plea:
22. We may note that Mr. A.S. Chandhiok, learned ASG appointed as
Amicus Curiae in this matter, emphasised this distinction between
the Letters Patent issued qua the Chartered High Courts and the Non-
Chartered High Courts. This distinction is premised on the existence
of the ordinary civil jurisdiction being always possessed by the
Supreme Court and thereafter by the Chartered High Courts from the
very inception. Thus, the High Courts established outside the
Presidency towns inherited only the appellate jurisdiction of the
Sadar Courts while the principal Courts of original jurisdiction
continued to be the District Courts. This is the reason why the
Letters Patent of the Chartered High Courts containing clauses 11 &
12 prescribed the local limits of ordinary original civil jurisdiction
(clause 11) and conferring the said ordinary original civil jurisdiction
on the Chartered Courts (clause 12). There are no corresponding
provisions in the Letters Patent of the other High Courts to these
clauses. Clause 13 refers to the Extraordinary Original Civil
Jurisdiction of the High Courts which was exercised when the suits
were transferred from District Courts to the High Courts while clause
15 refers to powers conferred of appeal on the High Courts over the
decision of a Judge of the High Court. These appeals under Clause
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FAO (OS) No.684 of 2010, LPA Nos.879 of 2010 & 19 of 2011 Page 12 of 22
15 came from two different jurisdictions – (i) ordinary original civil
jurisdiction which existed from the inception of the Chartered High
Courts inherited from the then Supreme Courts, and (ii) the
extraordinary original civil jurisdiction which is not really an original
jurisdiction. Thus, in the case Non-Chartered High Courts when a
suit was transferred from a subordinate Court to a Non-Chartered
High Court such a High Court could try the suit in its original civil
jurisdiction..
23. It was the submission of the learned ASG that the Letters Patent of
other High Courts did not give any ordinary original civil jurisdiction
to these Courts because none was inherited from the Sadar Courts.
The extraordinary civil jurisdiction was possessed by the Non-
Chartered High Courts because every High Court had the power to
transfer to itself a suit from a subordinate court within its territorial
jurisdiction.
24. It was, thus, the submission of the learned ASG that clause 10 of the
Letters Patent as applicable to Delhi can be invoked before the
Division Bench only from such of the decisions of the learned Single
Judge which were given in the suits transferred from the subordinate
courts in case of Non-Chartered High Courts as the question of any
appeal under the said provisions from High Courts did not possess
ordinary original civil jurisdiction. This is stated to be so despite the
fact that clause 10 of the Letters Patent of the Non-Chartered High
Courts including the High Court of Lahore was phrased in the same
language as clause 15 of the Letters Patent of the Chartered High
Courts.
25. It would be appropriate to notice at this stage that a Full Bench of
this Court in C.S. Agarwal & Ors. Vs. State & Ors. 2011 VII AD
(Delhi) 265 while dealing with the issue of maintainability of LPA in
respect of writ orders passed in quashing proceedings/criminal
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FAO (OS) No.684 of 2010, LPA Nos.879 of 2010 & 19 of 2011 Page 13 of 22
proceedings has discussed the scope of Section 5 read with Section
10 of the said Act. After extracting the provisions it opined as under:
―6. In addition to the appeals that can be filed under Section
10 of the DHC Act, three more categories of appeals lie to this
Court.
Thus the following four categories constitute appellate
jurisdiction of the Delhi High Court:
a. Firstly, appeals under Section 10 of the DHC Act but they
are limited only to those judgments referable to Section 5(2)
thereof.
b. Secondly, appeals under the Code of Civil Procedure.
c. Thirdly, appeals under different statutes, which itself
provides for an appeal.
d. Fourthly, appeals under Clause 10 of the Letters Patent.‖
26. To complete the narration we reproduce clause 10 of the Letters
Patent which reads as follows:
―10. Appeals to the High Court from Judges of the Court -
And we do further ordain that an appeal shall lie to the said
High Court of Judicature at Lahore from the judgment (not
being a judgment passed in the exercise of appellate
jurisdiction in respect of a decree or order made in the exercise
of appellate jurisdiction by a Court subject to the
Superintendence of the said High Court, and not being an
order made in the exercise of revisional jurisdiction, and not
being a sentence or order passed or made in the exercise of the
power of Superintendence under the provisions of Section 107
of the Government of India Act, or in the exercise of criminal
jurisdiction) of one Judge of the said High Court or one Judge
of any Division Court, pursuant to Section 108 of the
Government of India Act, and that notwithstanding anything
hereinbefore provided an appeal shall lie to the said High
Court from a judgment of one Judge of the said High Court or
one Judge of any Division Court, pursuant of Section 108 of
the Government of India Act, made on or after the first day of
February, one thousand nine hundred and twenty-nine in the
exercise of appellate jurisdiction in respect of a decree or
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FAO (OS) No.684 of 2010, LPA Nos.879 of 2010 & 19 of 2011 Page 14 of 22
order made in the exercise of appellate jurisdiction by a Court
subject to the superintendence of the said High Court where
the Judge who passed the judgment declares that the case is a
fit one for appeal; but that the right of appeal from other
judgments of Judges of the said High Court or of such
Division Court shall be to Us, Our heirs or Successors in our
or their Privy Council, as hereinafter provided.‖
27. Learned ASG sought to make appropriate distinction between
exercise of ordinary original civil jurisdiction and extraordinary civil
jurisdiction that the appeal under Section 10 (1) of the said Act
would lie from an order passed in exercise of the ordinary original
civil jurisdiction while clause 10 of the Letters Patent would apply in
case of exercise of extraordinary original civil jurisdiction by the
writ court.
28. The question as to the maintainability of appeals from orders passed
by a learned Judge exercising ordinary original civil jurisdiction
which are not appealable under Order 43 Rule 1 of the said Code has
been examined by the Supreme Court in Shah Babulal Khimji Vs.
Jayaben D. Kania (1981) 4 SCC 8. An appeal was held to be
maintainable if the order was within the meaning of ―judgement‖. If
the order purports to decide valuable rights of parties and what are
called the orders of the moment, an appeal was held to be
maintainable if it is not categorized in the nature of an order which is
appealable under Order 43 Rule 1 of the said Code. The expression
―judgement‖ has been held to be capable of taking three different
characters. It may be a final judgement, it may be a preliminary
judgement or it may be an intermediary or interlocutory judgement.
The third category are cases which possess characteristics and
trappings of finality and may have direct and immediate effect rather
than an indirect or remote one. It is against such orders also that an
appeal has been held to be maintainable while discussing the scope
of clause 15 of the Letters Patent of the Chartered High Courts as the
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FAO (OS) No.684 of 2010, LPA Nos.879 of 2010 & 19 of 2011 Page 15 of 22
case emanated from the Bombay High Court. As noticed aforesaid
that clause 10 of the Letters Patent of Lahore as applicable to Delhi
is distinct on view of the absence of any ordinary original civil
jurisdiction in the High Court Judicature at Lahore, not being a
Presidency town.
29. The divergent view emanating in this Court including the
observations of the Supreme Court has been discussed in the order of
reference dated 17.4.2012 as under:
―The subsequent pronouncements referred to the earlier
Full Bench decisions in University of Delhi Vs. Hafiz Mohd.
1972 AIR Del 102 and Union of India Vs. A.S. Dhupia AIR
1970 Delhi 108 to hold that they were no more good law in
view of the judgement in Shah Babulal Khimji case (supra).
The said judgement was held to have been impliedly over-
ruled in Jawahar Engineering Co. Vs. Jawahar AIR 1984 Delhi
129. The Supreme Court in Jugal Kishore Paliwal Vs. S. Satjit
Singh (1984) 1 SCC 358 expressly over-ruled the Full Bench
decision of the Delhi High Court in University of Delhi Vs.
Hafiz Mohd. case (supra).
The Division Bench of this Court in Abdul Hamid Vs.
Charanjit 60 (1995) DLT 847, however, held that the appeal
against an order passed by the learned single Judge on the
Original Side was maintainable under Clause 10 of the Letters
Patent of the Court. This according to the learned ASG was
the beginning of divergence on this aspect. Similarly in Jindal
Exports Ltd. Vs. Furest Day Lawson 1999 (51) DRJ 170 a
Division Bench held that an LPA would be maintainable
against an order passed under the Arbitration Act, 1940 in
view of Clause 10 of the Letters Patent. The subsequent
Division Bench judgement in R.K. Sharma Vs. Ashok Nagar
Welfare Association AIR 2001 Del 272 inter-changeably used
the expression of Clause 10 of the Letters Patent and Section
10(1) of the said Act to say that the appeal would be
maintainable in view of these two provisions read together.
The same is the reasoning in Sahil Singh Vs. Harpreet Singh
118 (2005) DLT 350, Crocodile Vs. Lacoste 2008 (100) DRJ
547 and Magotteaux Industries Pvtl Ltd. & Ors. Vs. AIA
Engineering Ltd. 155 (2008) DLT 73.
In Jyotika Kumar Vs. Anil Soni 156 (2009) DLT 685 an
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appeal against an order dismissing an application under Order
7 Rule 11 of the said Code has been held to be maintainable in
view of Shah Babulal Khimji case (supra) and in relation to the
Arbitration Act, the matter has been examined in Jindal
Exports Vs. Furest Day Lawson AIR 2010 Del 135.‖
Conclusion :
30. In our view the issue of maintainability of an appeal under clause 10
of the Letters Patent as against Section 10 (1) of the said Act is
vitally connected with the nature of powers conferred under the
Letters Patent to the Delhi High Court. The distinction between the
Letters Patent of the Chartered High Courts and the Non-Chartered
High Courts have, thus, been set out in detail aforesaid because there
is a fundamental difference between the two Letters Patents. This
fundamental difference arises from the jurisdictions being exercised
by the then existing courts prior to the Letters Patent by which the
Chartered and the Non-Chartered High Courts were established. The
Chartered High Courts were preceded by the Supreme Courts
established in the presidency towns. These Supreme Courts had both
the original jurisdiction and the appellate jurisdiction qua the
territory in question. Thus, when the Chartered High Courts were
established there were two kinds of original jurisdiction which were
transferred to it, i.e., one being exercised by the Supreme Court in
presidency towns as well as one being exercised by the Sadar Courts
in the Mofussil areas. This is also reflected in the Letters Patents qua
the presidency towns where clauses 11 & 12 of the Letters Patent
were included.
31. Insofar as the Non-Chartered High Courts like the Lahore High
Court are concerned, there was absence of the aforesaid clauses of
the Letters Patent on account of the fact that there were no prior
Supreme Courts enjoying original jurisdiction but the similar system
of Moffusil and Sadar Courts prevailed. Thus, the Letters Patent of
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the Chartered High Courts conferred only the appellate jurisdiction
of the Sadar Courts and if original jurisdiction would have been
conferred up to a pecuniary limit, such jurisdiction would have been
created for the first time under the Letters Patent. This, however, did
not arise as no such original jurisdiction was created. The similarity
of clause 10 of the Non-Chartered High Courts vis-a-vis clause 15 of
the Chartered High Courts would, thus, make no difference in view
of the absence of existence of any original jurisdiction when the
Letters Patent were established. Thus, when clause 10 of the Letters
Patent refers to an appeal from the Single Judge to a Division Bench,
it is not relatable to the exercise of ordinary original civil jurisdiction
by the learned Single Judge of the Court. This is the reason that
when writ jurisdictions are being exercised as extraordinary original
civil jurisdiction, an appeal lies to the Division Bench under Clause
10 of the Letters Patent as applicable to Delhi which in turn had
inherited the same from the parent Lahore High Court.
32. The establishment of the ordinary original civil jurisdiction in the
Delhi High Court is a sequitur to the statutory provisions of the said
Act. It is in terms of Section 5 (2) of the said Act that ordinary
original civil jurisdiction was conferred on the Delhi High Court for
suits exceeding ` 25,000.00 (now the limit is ` 20.00 lakh). When
such ordinary original civil jurisdiction is, thus, exercised by a
learned Single Judge of this Court, the appeal is provided for under
Section 10 (1) of the said Act. Sub-Section (2) of Section 10 of the
said Act has been made subject to the provisions of sub-section (1),
and provides that the law in force immediately before the appointed
day relating to the powers of the Chief Justice, single Judges and
Division Courts of the High Court of Punjab would apply in relation
to the High Court of Delhi.
33. It is in respect of the aforesaid prevalent legal position that
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consequences of the Supreme Court judgement in Shah Babulal
Khimji case (supra) have to be examined. The apex court examined
the issue whether any appeal can arise from exercise of ordinary
original civil jurisdiction by the learned Single Judge if it is not an
appealable order under Section 104 read with Order 43 Rule 1 of the
said Code. The judgement in Shah Babulal Khimji case (supra)
thereafter proceeded to discuss the nature of judgements and orders
which may flow from the pen of the learned Single Judge while
exercising ordinary original civil jurisdiction. It is in this context
that the labels of final judgement, preliminary judgement and an
intermediary or interlocutory judgement were given. The final
judgement was one by which the suit or action brought by the
plaintiff is dismissed or decreed in part or full. On the other hand, a
preliminary judgement is said to have two forms, i.e., where a suit
may be dismissed on preliminary objections raised by the opposite
party or the preliminary objections are decided in a manner where
the view taken would result in non-termination of the suit and the
suit is to be tried on merits but the rejection of the preliminary
objections adversely affects a valuable right inasmuch as it defers the
right to get the suit terminated on a preliminary ground. Lastly,
intermediary or interlocutory judgements are of the nature which
may not be an interlocutory order within the meaning of Order 43
Rule 1 of the said Code but possess the characteristics and trappings
of finality and is treated as a judgement. Of course here a reference
has been made to the definition of a ‗judgement‘ within the meaning
of Letters patent so as to be appealable to a larger Bench.
34. An important aspect is that the aforesaid discussion takes place in the
context of Clause 15 of the Letters Patent of the Bombay High Court.
As explained aforesaid there is a distinction between Clause 15 of
the Letters Patent of the Bombay High Court and Clause 10 of the
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Letters Patent as applicable to Delhi inasmuch as the Lahore High
Court never enjoyed the original jurisdiction, only the appellate
jurisdiction having been conferred on it from the Sadar Courts upon
its establishment.
35. We are of the view that principles enunciated in Shah Babulal
Khimji case (supra) as to what would constitute an appealable
judgement/order must equally apply to Section 10 of the said Act so
that if an order, which is not an appealable order under the said
Code, but otherwise satisfies the tests as laid down in Shah Babulal
Khimji case (supra), in other words effects vital and valuable rights
or, is an order which, decides matters of moment; the remedy of
appeal to the Division Bench would equally be available.
36. In Shanta Sabharwal case (supra) the Division Bench of this Court
while placing reliance on the judgement of the Supreme Court in
Aswini Kumar case (supra) referred to the distinction drawn between
the powers conferred under Section 5 (1) and Section 5 (2) of the
said Act. In this behalf the judgement in Public Trustee case (supra)
of a Division Bench of this Court was relied upon which observed
that when a judgement is delivered by a Single Judge exercising the
jurisdiction inherited from the Punjab High Court under Section 5 (1)
of the said Act then the appeal against it lies under Clause 10 of the
Letters Patent and on the other hand, when a Single Judge delivers a
judgement in exercise of the ordinary original civil jurisdiction
obtained by this Court from the Subordinate Court under Section 5
(2) of the said Act, then the appeal lies under Section 10 (1) of the
said Act. Thereafter it proceeded to refer to the meaning of the word
―judgement‖ under Section 10 (1) of the said Act and Clause 10 of
the Letters Patent and emphasised the historical distinction between
the original jurisdiction exercised by the two groups of High Courts,
i.e., the Chartered High Courts and the Non-Chartered High Courts.
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37. Learned Amicus Curiae rightly pointed out, as referred to in the
order of reference, that in view of judgement in Shah Babulal Khimji
case (supra) the earlier judgements on maintainability of the appeal
from non-appealable orders was held not to be good law [Jawahar
Engineering Co. case (supra) and the Supreme Court in Jugal
Kishore Paliwal case (supra) expressly over-ruled the Full Bench
decision of the Delhi High Court in University of Delhi Vs. Hafiz
Mohd. case (supra)]. However, in Abdul Hamid case (supra) an
appeal against the order passed by the learned Single Judge on the
original side was held maintainable under Clause 10 of the Letters
patent which was the beginning of the divergence on this aspect and
some subsequent judgements inter-changeably used the expression of
Clause 10 of the Letters Patent in Section 10 (1) of the said Act to
conclude that the appeal would like under one provision or the other
losing significance of the distinction between the Letters patent of
the Chartered High Courts like Bombay as compared to the Non-
Chartered High Court of Lahore.
38. It is only in the recent judgement in C.S. Aggarwal case (supra)
while examining the maintainability of the LPA in respect of writ
orders passed in quashing proceedings/criminal proceedings that a
Full Bench of this Court through the then Acting Chief Justice
(Arjan K. Sikri, J.) has emphasised the four kinds of appellate
jurisdiction being exercised in the Delhi High Court as set out in para
25 above. The first category has been stated to be appeals under
Section 10 (1) of the said Act limited to judgements referable to
Section 5 (2) thereof while the second one are appeals under the said
Code. The third and fourth are the appeals under different statutes
and Clause 10 of the Letters Patent respectively.
39. We, thus, conclude by laying down the following principle of law:
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In case of an order passed by the learned Single Judge in exercise of
ordinary original civil jurisdiction in case of a non-appealable order
under Section 104 read with Order 43 of the said Code which meets
the test of a “judgement” that decides matters of moment or affects
vital and valuable rights of parties and which works serious injustice
to the parties concerned as per the parameters laid down in Shah
Babulal Khimji case (supra) by the Supreme Court, an appeal to the
Division Bench would exclusively lie under Section 10 of the said Act
and not under Clause 10 of the Letters Patent.
40. The reference is answered accordingly.
41. The matter be now placed before the Division Bench as per roster for
directions on 16.1.2013.
SANJAY KISHAN KAUL, J.
RAJIV SAHAI ENDLAW, J.
OCTOBER 19, 2012 RAJIV SHAKDHER, J.
b‟nesh
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