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TMI Blog1972 (3) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... ode the present appeal would not be maintainable as the impugned order is not one of those mentioned in these two provisions. 3. By an Act of the Governor General of India in Council (Act No. XXIII of 1865) the Chief Court of the Punjab was established and the Provinces of the Punjab and Delhi were subject to its jurisdiction. This position continued, till the Letters Patent constituting the High Court of Judicature at Lahore dated 21st March, 1919, was issued by which the High Court at Lahore was established for the provinces of the Punjab and Delhi, called the high court of Judicature at Lahore. The Punjab High Court after1947, 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. Clause 11 provided that the High Court of judicature at Lahore shall be a court of appeal from the civil courts of the provinces of the Punjab and Delhi. It is important to note that no ordinary original civil jurisdiction was conferred on the High Court under the Letters Patent. 4. The Punjab Courts Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction conferred by sub-section (2) of Section 5, an appeal shall lie from the judgment of the single judge to a Division Court of that High Court. 10. Section 122 of the Code gives power to the High Court to make rules regulating their own procedure and empowers it by such rules to annul, alter or aid any of the rules in the First Schedule. 11. Section 129 of the Code further empowers the High Court to make rules not inconsistent with the Letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its original civil jurisdiction. 12. By virtue of powers conferred by Sections 122 and 129 of the code and section 7 of the Act, this court framed Rules known as Delhi High Court (Original Side) Rules, 1967 (hereinafter called the Rules). 13. Rule 3 states that all proceedings on the original side of the court instituted or transferred pursuant to provisions of the Act or any other law shall unless ordered by the Court be governed by these Rules. 14. Rule 19 provides that except to the extent otherwise provided A in these Rules, the provisions of the Civil Procedure Code shall apply to all proceedings on original side. 15. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In order to set at rest this controversy the legislature provided by Section 4 in the Code of 1908 by laying down that in the absence of any specific provision to the contrary nothing shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. Thus in view of Section 4 of the Code the right to appeal under the Letters Patent was saved and Section 104 of the Code was held not applicable. 18. It is precisely for this reason that the appellant cannot derive any assistance from Ganpati Wadgoo v. Pilaji Kothuji and others A.I.R. 1956 Nag 211 and B ai Shri Arunkumari v. Jhala Harpalsingh Natwarsingh A.I.R. 1954 Sau 15.Both these cases were decided on the ground that the Letters Patent being a special jurisdiction which was saved by Section 4 of the Code, cannot be affected by Section 104 of the Code. 19. But it is then argued that the only criterion for ascertaining whether an appeal would lie against the order passed by a single judge when exercising ordinary original civil jurisdiction is to find out whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o elastic a sense that courts purporting to follow it have felt at liberty to treat as appealable any orders which the courts considered ought to be made a subject of appeal . 22. In Firm Shaw Hari Dial and Sons v. Messrs. Sohna Mal Bell Ram A.I.R. 1942 Lah 95 a full bench remarked, whether an order amounts to a judgment within clause 10 must be considered on the facts and circumstances of each case and the test propounded in 35 Mad. 1. But it is not, however, necessary to decide whether that test is comprehensive so as to exclude all other tests. It is sufficient to say that each case must be considered on its own facts and circumstances and while the tests propounded in Madras and in the Calcutta High Courts serve as a good guide for this court it is not necessary to hold that those tests are comprehensive and exclude other cases. 23. In a full bench case, Manohar Damodar v. Baliram Ganpat A.I.R. 1952 Nag. 357 0 Hidayatullah J. (as he then was) defined the word judgment with a warning, I shall now attempt to define the term and I do so with considerable hesitation bearing in my mind that eminent judges have failed in the task . Sinha C.J. (as he then was) who agreed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Therefore, remains that right up to the time when the Act was passed there was no authoritative pronouncement or precise definition of the term judgment in the Letters Patent. It is in this context that we must attempt to find out as to what was the intention of the legislature when it used the word judgment in Section 10(1) of the Act. 28. Judgment is defined in Section 2(9) of the Code to mean the statement given by the judge of the grounds of a decree or order. Section 96 provides for an appeal from a decree passed by a court exercising original jurisdiction and Section 104 and order 43 Rule I of the Code provide for an appeal against the orders specified therein passed by the court and no others. It will thus be seen that prior to the Act in this part of the territory, the law as to which orders were appealable, was well settled. This depended solely on finding out whether the order was one of those falling within Section 104 and Order 43 Rule I of the Code. When legislature provided in Section 10(1) of the Act that an appeal shall lie from the judgment of a single judge to the Division Court, it must have meant to refer to the expression judgment in the same terms a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Act on account of its making no alteration in those provisions is presumed only when there had been a consistent series of cases putting a Certain construction on certain provisions; (vide Purushottamdas Dalmia v. State of West Bengal 1961CriLJ728 . 33. It seems to us, Therefore, that there is no compelling reason to hold that the Legislature wanted the word judgment in Section 10(1) of the Act to be interpreted by reference to the tests given2-1 H C Delhi/72in various decisions given under the Letter Patent. To accept the contention of the appellant would be to impute illogical intention to the legislature and suggest that it wanted to create confusion and conflict in this area which had been free from it uptill then. In our view this conflict and confusion can readily be avoided if the meaning of the term judgment under Section 10(1) of the Act is interpreted as defined in the Code and we do hold accordingly. 34. Reference may be made to Patel Gordhandas Hargmindas v. Municipal Commissioner, Ahmedabad [1964]2SCR608 .In that case the meaning of the word rate in the Bombay Municipal Boroughs Act, 1925, was interpreted by taking into account the legislative histor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtain the relief from the single judge having greater powers when exercising ordinary original civil jurisdiction. 37. There is also no reason why it should be assumed that the legislature intended that those orders which were not appealable when passed by the Subordinate Judges should become appealable when passed by the High Court. This would attribute to the legislature an intention to treat the orders passed by this court as possessing less maturity and solemnity than those possessed by the Subordinate Judges. This consideration further reinforces our conclusion that Section 10(1) of the Act was never meant to provide for appeals against orders which had never been held to be appealable in this territory at any time before. 38. It was also suggested that there may be many orders which are not covered within Order 43 Rule 1 of the Code and which should be made appealable because of its consequences. It is unnecessary to go into this matter except to say that there is ample power vesting in this court under Section 129 of the Code to omit and add to the appealable orders provided under Order 43 Rule1 of the Code if that is felt necessary. 39. We were referred to Begum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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