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High Court Of Delhi
PUBLIC TRUSTI - Appellant
Versus
RAJESHWAR TYAGI - Respondent
First Appeal (OS) 16 of 1972
Decided On : 04/27/1972
APPEAL - MAINTAINABILITY - LETTERS PATENT OF HIGH COURT OF DELHI, CLAUSE 10 - DELHI HIGH COURT ACT, 1966, SECTIONS 5(1), 5(2), 10(1) - DISTINCTION BETWEEN SUIT AND COMPANY PETITION - SCOPE OF SECTION 155 OF COMPANIES ACT, 1956 - APPEAL AGAINST ORDER IN SUIT ENTERTAINED UNDER SECTION 5(2) OF DELHI HIGH COURT ACT LIES UNDER SECTION 10(1) OF THE ACT AND NOT UNDER CLAUSE 10 OF LETTERS PATENT.
Fact of the Case:
The appellant filed an appeal against an order of a learned Single Judge of the Delhi High Court in a suit filed by the respondent challenging the legality of a trust created by the Indian Iron and Steel Company Ltd. and the authority of the Public Trustee to deal with the shares subject to the trust. The appellant contended that the appeal was maintainable under clause 10 of the Letters Patent of the High Court of Delhi, as the suit was in the nature of a company petition and the order appealed against was a judgment within the meaning of clause 10.
Finding of the Court:
The court held that the appeal was not maintainable under clause 10 of the Letters Patent, as the suit was not entertained under section 5(1) of the Delhi High Court Act, 1966, which deals with the pre-existing jurisdiction of the Punjab High Court, but under section 5(2) of the Act, which confers ordinary original civil jurisdiction on the Delhi High Court. The court further held that the order appealed against was not a decree or an order appealable under the Code of Civil Procedure, and therefore, the appeal was not maintainable under section 10(1) of the Act.
Issues: 1. Whether the appeal was maintainable under clause 10 of the Letters Patent of the High Court of Delhi? 2. Whether the suit was entertained under section 5(1) or section 5(2) of the Delhi High Court Act, 1966? 3. Whether the order appealed against was a judgment within the meaning of clause 10 of the Letters Patent?
Ratio Decidendi: 1. The court held that the appeal was not maintainable under clause 10 of the Letters Patent, as the suit was not entertained under section 5(1) of the Delhi High Court Act, 1966, but under section 5(2) of the Act. 2. The court held that the suit was entertained under section 5(2) of the Act, which confers ordinary original civil jurisdiction on the Delhi High Court, and not under section 5(1) of the Act, which deals with the pre-existing jurisdiction of the Punjab High Court. 3. The court held that the order appealed against was not a decree or an order appealable under the Code of Civil Procedure, and therefore, the appeal was not maintainable under section 10(1) of the Act.
Final Decision: The appeal was dismissed as not maintainable.
( 1 ) THE question which arises for decision is whether this appeal is maintainable to this Division Bench as being from the judgment of a learned Single Judge of this Court under clause 10 of the Letters Patent of the High Court of Labore or of the High Court of Punjab and Haryana or of the High Court of Delhi.
( 2 ) THIS Court was established by the Delhi High Court Act, 1966 thereinaftetr called the Act ).
( 3 ) SECTION 5 (1) of the Act contained the "original, appellate and other jurisdiction " exercised by the High Court of Punjab in the Union Territory of Delhi prior to the coming into force of the Act. Section 5 (2) of the Act, on the other hand, conferred on this Court ordinary origmal Civil jurisdiction in every suit the value of which exceeded at first Rs. 25,000. 00 and since 1st October, 1969 Rs. 50,000. 00. Before the commencement of the Act, this jurisdiction vested in the subordinate courts at Delhi. For, the High Court of Punjab did not have ordinary original civil jurisdiction as a court of first instance to entertain civil suits of any value whatever. This Court has thus two distinct kinds of original jurisdiction, namely:- (1) The pre-existing jurisdiction of the Punjab High Court, and (2) the ordinary original civil jurisdicetion transferred from the subordinate courts from the commencement of the Act. Consequently, the provisions governing appeals against judgments of a learned Single Judge of this Court in these two different jurisdictions are also different. When a judgment is delivered by a learned Single Judge exercising the jurisdiction inherited from the Punjab High Court under section 5 (1) of the Act, then the appeal against it lies under clause 10 of the Letters Patent. On the other hand, when a learned Single Judge delivers a judgment in exercise of the ordinary original civil jurisdiction obtained from the subordinate courts under section 5 (2) of the Act then the appeal lies under section 10 (1) of the Act. Due to this basic difference, the meanings of the word "judgment in clause 10 of the Letters Patent and section 10 (1) of the Act are diffirent. The former includes a preliminary, interlocutory of final judgment or orders while the latter includes only a decree or an order appealable under the Code of Civil Procedure. This has been so held by a Full Bench of five Judges of this Court in University of Delhi etc. v. Hafiz Mohd Said etc 1 FAO (03) 6/1968 decided on 2nd March, 1972 ). It is in the light of the above legal position that we have to see whether the present appeal is maintainable before us.
( 4 ) SUIT No. 370 of 1970 filed by Rajeshwar Tyagi (Respondent No. I herein) was entertained by a learned Single Judge of this Court exercising the ordinary original civil jurisdiction under section 5 (2) of the Act. Tyigi is a shareholder in the Indian Iron and Steel Company Ltd. , (Respondent No. 2 herein ). He avers, inter alia, that a trust was created on 18th December, 1957 under which a large number of equity and right shares were transferred to the trustees whose powers are exercised by the Public Trustee under sections 187-A and 187-B of the Companies Act, 1956. This Trust is challenged as being illegal and void. Consequently the Public Trustee has no authority to deal with these shares. The plaintiff, therefore, claims a declaration that-
(A) the Public Trustee has no power to deal with the shares which are allegedly the subject-matter of the illegal and void Trust; (b) the continuance of the Trust is void which incidentally means that the Registrar of the Indian Iron and Steel Company should be rectified by showing these shares as being not held by the Public Trustee; (e) the provisions of section 187-B of the Companies Act are themselves ultra vires the Constitution; and (d) a preliminary decree for accounts in favour of the plaintiff.
( 5 ) BY the order appealed against, the learned single Judge has held that a part of the cause of action for the suit has arisen in D
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