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High Court Of Delhi
UNIVERSITY OF DELHI - Appellant
Versus
HAFIZ MOHAMMND SAID - Respondent
First Appeal (OS) 6 of 1968
Decided On : 03/02/1972
DELHI HIGH COURT ACT - SECTION 10(1) - APPEAL - SCOPE - JUDGMENT - INTERPRETATION - CIVIL PROCEDURE CODE, 1908 - SECTIONS 104, 122, 129 - ORDER 43 RULE 1 - DELHI HIGH COURT (ORIGINAL SIDE) RULES, 1967 - RULE 19 - MEANING OF JUDGMENT - ORDERS APPEALABLE - JURISDICTION OF DIVISION COURT.
Fact of the Case:
The University of Delhi appealed against the order of a single judge of the Delhi High Court holding that the suit for partition of the plaintiff's interest in respect of two khasra numbers out of four was maintainable.
Finding of the Court:
The court held that an appeal under Section 10(1) of the Delhi High Court Act against the order of a single judge in the exercise of ordinary original civil jurisdiction to a Division Court lies only in those cases where an order is a judgment as defined in the Code of Civil Procedure, 1908. In other words, apart from the orders which have the force of a decree, appeals will, therefore, lie only against those orders passed by the single judge which are mentioned in Section 104 read with Order 43 Rule 1 of the Code and no appeal will lie against other orders which are outside these two provisions.
Issues: 1. Whether an appeal lies under Section 10(1) of the Delhi High Court Act against the order of a single judge holding that the suit for partition of the plaintiff's interest in respect of two khasra numbers out of four was maintainable? 2. What is the meaning of 'judgment' under Section 10(1) of the Delhi High Court Act? 3. Which orders are appealable under Section 10(1) of the Delhi High Court Act?
Ratio Decidendi: 1. The court interpreted the term 'judgment' in Section 10(1) of the Delhi High Court Act as defined in Section 2(9) of the Code of Civil Procedure, 1908, which means the statement given by the judge of the grounds of a decree or order. 2. The court held that appeals under Section 10(1) of the Delhi High Court Act will lie only against those orders passed by a single judge which are mentioned in Section 104 read with Order 43 Rule 1 of the Code of Civil Procedure, 1908, and no appeal will lie against other orders which are outside these two provisions.
Final Decision: The court dismissed the appeal as incompetent since the impugned order of the learned single judge was not one of those orders specified in Section 104 read with Order 43 Rule 1 of the Code of Civil Procedure, 1908, and hence could not be held to be a judgment within the meaning of Section 10(1) of the Delhi High Court Act.
( 1 ) THE question for decision before us is whether an appeal by the University of Delhi, defendant, lies under Section 10 (1) of the Delhi High Court Act (No. 26/66) of 1966 (here in after to be called the Act) against the order of learned single judge of this court holding that the suit for partition of plaintiff s interest in respect of two khasra numbers out of four, was maintainable; the plaintiff has not filed an appeal in respect of other two khasra numbers in respect of which the suit was heldto be not maintainable, in view of the evacuee having interest inthe property.
( 2 ) IT was not disputed that if an appeal lay only against thoseorders specified in Section 104 read with Order 43 Rule I of thecode of Civil Procedure, 1908 (hereinafter to be called the Codethe present appeal would not be maintainable as the impugnedorder is not one of those mentioned in these two provisions.
( 3 ) BY an Act of the Governor General of India in Council (Actno. XXIII of 1865) the Chief Court of the Punjab was established and the Provinces of the Punjab and Delhi were subject to itsjurisdiction. This position continued, till the Letters Patentconstituing the High Court of Judicature at Lahore dated 21stmarch, 1919, was issued by which the High Court at Lahore wasestablished for the provinces of the Punjab and Delhi, called thehigh Court of Judicature at Lahore. The Punjab High Court after1947, continued to be governed by this Letters Patent and theunion Territory of Delhi continued to be within the jurisdictionof the Punjab High Court. Clause 9 of the Letters Patent conferred extraordinary original civil jurisdiction on the High Court. Clause II provided that the High Court of judicature at Lahoreshall be a court of appeal from the civil courts of the provincesof the Punjab and Delhi. It is important to note that no ordinaryoriginal civil jurisdiction was conferred on the High Court underthe Letters Patent.
( 4 ) THE Punjab Courts Act, 1918 (as in force in Delhi) providesfor different classes of civil courts, the court of District Judge shallbe deemed to be the District Court or principal civil court oforiginal jurisdiction in the District. Subsequently jurisdiction tobe exercised in original civil suits was conferred on three classesof subordinate judges, with class I subordinate judges exercisingthe jurisdiction without limit as to the value of the cases.
( 5 ) IT will thus be seen that in the Union Territory of Delhi prior to the coming into force of the Act the ordinary original civil jurisdiction was exercised by the subordinate judges and the High Court did not at all exercise any ordinary original civil jurisdiction.
( 6 ) SECTION 5 (2) of the Act provided that notwithstanding anything in any law for the time being in force, the High Court shallalso have in respect of the said territories ordinary original civiljurisdiction in every suit the value of which exceeds twenty-fivethousand rupees (the said valuation has now been raised to fifty thousand rupees vide Act 37 of 1969 ).
( 7 ) SECTION 16 of the Act provided that all proceedings pendingimmediately before the appointed day in any subordinate courtin the Union Territory of Delhi in or in relation to any such civilsuit as is referred to in sub-section (2) of Section 5 shall on thatday stand transferred to the High Court of Delhi which shall proceed to try, hear and determine the matter as if it had been pending therein.
( 8 ) THUS for the first time by the passing of the Act, in the Unionterritory of Delhi, High Court came to exercise the ordinary original civil jurisdiction above certain valuation. The suits regarding the valuation below the prescribed valuation continued to betried by the Subordinate Judges. As the ordinary original civiljurisdiction was being conferred on the High Court for the firsttime Section 7 of the Act also provided that the High Court ofdelhi shall have all such powers to make rules and orders withrespect to practice and procedure as are
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