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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.