Honble MATHUR, J.–The Division Bench of this court (Coram Honble Mr. Justice R.R. Yadav and Honble Mr. Justice A.S. Godara, as his lordship then was) considered the following prima facie substantial and intricate questions as of general importance in these appeals:

``1. Whether provision for special Appeals can be said to substitute of letters patent after enforcement of the Constitution?

2. Whether special Appeal is maintainable only against those matters which originally originate in the High Court with an avowed object to check and balance?

3. Whether provision relating to life of an ordinance enshrined under Government of India Act 1935 and thereafter under the Constitution are applicable to the Rajasthan High Court Ordinance 1949. If so, its effect in filing Special Appeals after expiry of six months from the date of issuance of Rajasthan High Court Ordinance, 1949?

4. Whether Special Appeals can be filed under Section 18 of Rajasthan High Court Ordinance, 1949 even in those proceedings and suits which originate in subordinate civil courts or tribunals against which writ petition is filed under Article 227 of the Constitution?

5. Whether Special Appeals under Section 18 of Rajasthan High Court Ordinance 1949 are maintainable against first Appeals decided by learned Single Judge of this court under Section 96 CPC and Misc. Appeals decided by Single Bench under Section 173 of Motor Vehicles Act?

6. Whether there is distinction between a writ petition filed under Art.226 and a writ petition filed u/Art. 227 of the Constitution arising out from sub-ordinate courts or tribunals and both can be treated to have originated before High Court in its original jurisdiction?

(2). A general notice was given to the learned members of the Bar to assist the court in deciding the aforesaid questions, if they so wish.

(3). We have heard Mr. L.R. Mehta, Mr. M. Mridul, Senior Advocate, Mr. D.S. Shishodia, Senior Advocate and Mr. Vineet Kothari.

(4). The above questions of law with respect to the special appeal under Sec. 18 of the Rajasthan High Court Ordinance, 1949 and that of Letters Patent Appeal, have arisen in the context that though all the High Courts in India after the commencement of Indian Constitution on 26.11.1949, owes their existence under Articles 214 and 225, of the Constitution of India, still their power of Letters Patent Appeal or Special Appeal flow from paramount Charter under which they came into existence.

(5). The phrase ``Letters Patent denotes an open letter under governmental seal granting some right or privileges. Letters Patent Act, 1865 was enacted for establishing High Court of Judicature in India. By the said Act, the High Courts were established in Calcutta, Madras and Bombay. Thus, they are known as Charter High Courts. Clause 15 provided intra court appeal named as Letters Patent Appeal. The said Letters Patent Appeal has continued in the Charter High Courts even after the adoption of the Indian Constitution. On formation of the State of Rajasthan in the year 1949, by process of integration of different princely States, the Rajasthan High Court came to be established under the Rajasthan High Court Ordinance, 1949. Clause 18 of the Ordinance also provides an intra court appeal, known as special appeal. Thus, in order to better appreciate the controversy involved, it would be convenient to acquaint with the brief history of the establishment of the Rajasthan High Court.

FACTS PERTAINING TO THE ESTABLISHMENT OF RAJASTHAN HIGH COURT:

(6). The State of Rajasthan, as it is today, is the result of integration and amalgmation achieved in different stages. There were number of dynastic princely States each under a ruler. The Indian became free on 15.08.1947. The Indian Independence Act, 1947 was enforced in place of the Government of India Act, 1935 and in consequence thereof. Independence from British Rule and India became a sovereign Country. Most of the rulers of the princely States voluntarily chose to join the Indian Union

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