The appellate court has the same powers as the original court, including the power to admit a writ petition.

1. Thewrit petition preferred by Narayan Lal petitioner was dismissed by the learned single Judge after hearing petitioner’s counsel by a speaking Judgment and order dated 7-9-1990.

2. Being aggrieved and dissatisfied the petitioner preferred a D. B. Civil Special Appeal against the said Judgment and order dated 7-9-1990. The Division Bench after hearing the counsel for the parties, came to the conclusion that the amendment to the provisions of the Rajasthan Municipalities (Disposal of Urban Land) Rules. 1974 had not been considered by the learned single Judge and the matter had been disposed of by merely considering the unamended rule though amendment to the said rule was having a bearing on the issue and, thus, the Judgment of the learned single Judge deserves to be set aside. The Division Bench set aside the Judgment and order dated 7-9-1990, admitted the writ petition and remanded the case to the learned single Judge for deciding it afresh.

.3. When the matter came up for consideration of the learned single Judge, it was observed by the learned Judge that “I am of the opinion that it is a prerogative or privilege of a Judge before whom the matter is placed and only he has to decide whether to admit the matter or not?” and framed the following question for adjudication by full Bench:

.“Can the Division Bench, while remanding the matter to the learned single Judge, direct the single Judge to treat the petition as admitted?”

.4. Learned counsel for the petitioner has urged that in view of Section 117 of the Code of Civil Procedure (referred to hereinafter as ‘the Code’), the provisions of the Code are applicable to the Letters Patent Appeals, in the present context a special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 (hereinafter called as ‘the Ordinance’). Section 117 of the Code reads as under :-

.117. Application of Code to High Courts.--Save as provided in this Part or in Part X or in rules, the provisions of this Code shall apply to such High Courts.

.5. Learned counsel for the petitioner has emphasised that neither in Part X of the Code or in the Rajasthan High Court Rules, 1952 (referred to hereinafter as ‘the Rules of 1952’) framed by the Rajasthan High Court, there is any provision which restricts the application of the Code to the appeals filed under Section 18 of the Ordinance. Once the Code is made applicable to the appeals filed under Section 18 of the Ordinance, the powers of an applicable Court as contained in Section 107 of the Code come into play. Sub-section (2) of Section 107 of the Code reads as under:--

.“(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.”

.6. This section provides that the appellate Court shall have the same powers and shall perform as nearly as may be the same duties, as are conferred by this Code, on Courts of original jurisdiction. Thus, the learned counsel for the petitioner contends that whatever are the powers of the original Court, are the powers of the original Court, are the powers of the appellate Court. Learned counsel for the petitioner has also referred to the provisions of Order 41, Rule 33 of the Code which read as under:--

.“33. Power of Court of Appeal.--The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or make and to pass or made such further or other decree or order as the case may require, and this power may be exercised by the Court not with standing that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees, in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or