SANJAY KISHAN KAUL, J.

1. The interplay of the jurisdictions to be exercised under Letters Patent and as the First Appellate Court while dealing with non-appealable orders passed by the learned Single Judge in exercise of ordinary original civil jurisdiction has given rise to the present reference. The question, thus, which arises for consideration is:

“If an order is passed by the learned single Judge in exercise of Ordinary Original Civil Jurisdiction which is not appealable under Section 104 (1) read with Order 43 (1) of the Code of Civil Procedure, 1908 (hereinafter referred to as the “said Code”) whether the remedy would be under Section 10 (1) of the Delhi High Court Act, 1966 (hereinafter referred to as the “said Act”) or under Clause 10 of the Letters Patent?”

1. 2. The occasion to make this reference arose on account of the fact that at various times pronouncements of this Court have treated it as an “either” or “or” situation while entertaining an appeal, i.e., an appeal would be maintainable from a non-appealable order provided it satisfies certain tests and such an appeal may arise under one or the other of the aforesaid provisions and, thus, the matter was never examined further. A Division Bench of this Court posed this question and subsequently analyzed it while making the reference vide order dated 17.4.2012 so that the controversy could be put at rest and a consistent practice is followed. This also became necessary in a sense for assisting in, both, the administration of justice and court management as the Chief Justice of the High Court is the Master of the Roster and as per allocation of roster, normally, the letters patent jurisdiction is exercised by a different Bench than the Bench exercising jurisdiction under First Appealable Orders from Original Side [FAO (OS)].

2. 3. The Delhi High Court was constituted under the said Act. It being one of the newer High Courts, it had the benefit of being constituted under a legislation of the Indian Parliament. In terms of Section 5 (1) of the said Act, the Delhi High Court has been conferred with all such original, appellate and other jurisdiction, as under the law in force immediately before being exercised in respect of the territories by the High Court of Punjab. However, the Punjab High Court did not have any ordinary original civil jurisdiction. Therefore, Section 5 (2) of the said Act which begins with a non obstante clause conferred an additional ordinary original civil jurisdiction in every suit the value of which exceeded Rs.25,000.00, on the Delhi High Court. This limit has been subsequently revised and stands at Rs.20.00 lakh now. Section 5 of the said Act reads as under:

“5. Jurisdiction of High Court of Delhi—(1) The High Court of Delhi shall have, in respect of the territories for the time being included in the Union territory of Delhi, all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of the territories by the High Court of Punjab.

(2) Notwithstanding anything contained in any law for the time being in force, the High Court of Delhi shall also have in respect of the said territories ordinary original civil jurisdiction in every suit the value of which exceeds rupees twenty lakhs.”

1. 4. Section 9 of the said Act makes the law in force in respect of form of writs and other processes used, issued or awarded by the High Court of Punjab to apply to Delhi with necessary modifications.

2. 5. Section 10 (1) of the said Act, ordinary original civil jurisdiction having been conferred in terms of Section 5 (2) of the said Act, provides for an appeal to lie before a Division Bench of the Delhi High Court from an order of the learned Single Judge of this Court. In terms of Section 10 (2) of the said Act, which is subject to the provisions of subsection (1), the law in force immediately before the appointed day relating to the powers of the Chief Justice, Single