Shah & Co Vs. H.P.
Electricity Board  Insc 748 (19 July 2007)
Dr. Arijit Pasayat & S.H.
Kapadia (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
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 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
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 (2004 (11) SCC 672).
4. The appeals are accordingly disposed of.