VIKRAMAJIT SEN, J.

1. Allowed, subject to all just exceptions.

2. This Appeal has been filed under Section 10 of the Delhi High Court Act, 1966 (DHC Act for short) against the Order passed by the learned Single Judge on 21.1.2011 dismissing the Plaintiff”s application under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (CPC for short) praying for the appointment of a Local Commissioner for carrying out measurement of the work done by the Plaintiff.

3. We have summoned and perused the original documents, especially because a copy of IA No.17646/2010 under Order XXVI Rule 9 of the CPC appears not to have been placed on record. In the said application, there is no mention of the fact that a joint inspection of the Project had been carried out and/or that the Defendant/Respondent had not conducted this exercise properly.

4. In the impugned Order, the learned Single Judge has dismissed the application opining that “the appropriate course for the Plaintiff would be to get the measurement done at its own level from an expert independent body and for this purpose, the Local Commissioner is not required to be appointed”. It had been contended before the learned Single Judge, and reiterated before us by Mr. A.S. Chandhiok, learned Additional Solicitor General that the intent behind the application is the Plaintiff/Appellant”s endeavour to wriggle out of joint measurement which has been carried out on 10.11.2010. In this regard, it has been emphasized that no objection in respect of the carrying out of the joint measurement has been articulated in the Plaintiff”s letter/notice dated 12.11.2010.

5. At the very threshold, the learned ASG has raised an objection as to the maintainability of the present Appeal under Section 10 of the DHC Act. Nevertheless, he has again offered that the Respondent would have no objection to the Plaintiff/Appellant carrying out measurement of the work allegedly executed by it. The learned ASG has submitted that the Plaintiff only needs to indicate the date on which this exercise is to be embarked upon. Mr. Ramji Srinivasan, learned Senior Counsel for the Appellant, however, has roundly rejected the offer contending that a Local Commissioner ought to have been appointed for the purpose.

6. So far as the maintainability of the Appeal under Section 10 of the DHC Act is concerned, we must refer to Shah Babulal Khimji –vs- Jayaben D. Kania, (1981) 4 SCC 8. The High Court of Delhi was constituted under the DHC Act. While Letters Patent applied to the Punjab High Court, which earlier held territorial sway, technically it was not the precursor of the Delhi High Court. This aspect of curial annals has been fully unraveled by a decision of a Constitution Bench of five learned Judges of this Court in University of Delhi –vs- Hafiz Mohd. Said, AIR 1972 102 : ILR (1972) Delhi 1, which has been set aside by a brief Order of two paragraphs on the premise that it was irreconcilable with the enunciation of the law contained in Khimji. We may emphasise, at the risk of repetition, that Khimji deals with the maintainability of a Letters Patent Appeal. We, however, must assume, because of the pronouncement in Jugal Kishore Paliwal –vs- S. Sat Jit Singh, (1984) 1 SCC 358, which has overruled Hafiz Mohd. Said, that Section 10 of the DHC Act is in pari materia in content and effect with Letters Patent. We can only conjecturise that the disparate nature of the Delhi High Court when compared to chartered High Courts, such as in Punjab, Bombay etc., was not brought to the notice of their Lordships by the Advocates in Jugal Kishore Paliwal. We are sanguine that if this aspect is revisited by the Supreme Court, a different conclusion may be pronounced with regard to the High Courts which have not emerged from Chartered High Courts. To avoid prolixity, we shall merely refer to a Division Bench decision in Wee Aar Constructive Builders –vs- Simplex Concrete Piles (India) Ltd., 2010 II AD (Delhi) 382 where a more detai