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Shanta Sabharwal Vs. Sushila Sabharwal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberF.A.O. (O.S.) No. 33 of 1978
Judge
Reported inAIR1979Delhi153; 1979RLR223
ActsDelhi High Court Act, 1966 - Sections 10 (1); ;Constitution of India - Article 133; Delhi High Court Act - Sections 10(1)
AppellantShanta Sabharwal
RespondentSushila Sabharwal and ors.
Appellant Advocate F.C. Bedi, Adv
Respondent Advocate D.D. Chawla, Sr. Adv., Shyam Kishore, ; R.S. Khandelwal, ;
Cases ReferredHigh Courts. In Raja Soap Factory v. S. P. Shantharaj
Excerpt:
.....one enjoyed by the supreme courts in the presidency towns. the mere appellate jurisdiction of the high courts over the decisions of the subordinate courts was not sufficient for transferring a matter from the subordinate courts to the high court if the jurisdiction to try such a matter had not been independently conferred on the high court, it is also well settled that the transfer of a suit from a subordinate court to the high court, under, s. on the other hand, the historical background being different and the sudder courts not having enjoyed ordinary original civil jurisdiction the above reason did not exist to justify the same meaning of the word 'judgment' being given in clause (10) of the letters patent of the non -chartered high court. in these days when number of cases pending..........uniform interpretation was placed on the word 'judgment' as used in the said clause by different high courts. the legislature in enacting section 10(1) of the delhi high court act could not have, thereforee, intended to use the word 'judgment' in the wider sense which had been given to it by clause (10) of the letters patent.4. the learned counsel for the appellant points out that since then the supreme court has held in shanti. kumar r. canji v. home insurance co. of new york, : [1975]1scr550 , that the word 'judgment' in clause (15) of the letters patent of the bombay high court corresponding to clause (10) of the letters patent of this high court can apply to an order allowing or disallowing an amendment of pleading if such an order has the effect of affecting the rights and.....
Judgment:

V.S. Deshpande, C.J.

1. After a five-Judge Bench in University of Delhi v. Hafiz Mohd. Said, : AIR1972Delhi102 to which one of us (Deshpande, J. as he then was) was a party, held that the maintainability of an appeal against an order of a learned single Judge exercising ordinary original civil jurisdiction in this Court is governed by the provisions of the Code of Civil Procedure and not by those of Letters Patent, the question is concluded for this Court. Nevertheless, attempts are being made from time to time to persuade different Benches to take a different view, and if necessary, to refer the question to a larger Beach of seven Judges. It would, thereforee, be necessary to consider the expediency of reference also in deciding upon the maintainability of this appeal.

2. In Suit No. 117 of 1974 filed by Mrs. Sushila Sabharwal against Mrs. Shanta Sabharwal and others, for the partition and separate possession of the house in which both the parties proceeded on the footing of an absence of joint Hindu family business the defendants had applied for taking up the plea of the existence of a joint Hindu family business by amending their written statement. The amendment was disallowed by the learned single Judge as not being sought in good faith. This appeal is against the order disallowing the application for amendment.

3. In urging that the appeal is maintainable, under S. 10(1) of the Delhi High Court Act wherein the word 'Judgment' has the same meaning as it had under Clause (10) of the Letters Patent originally granted to the High Court of Lahore and which has thereafter applied to the High Court of Punjab and Haryana and the Delhi High Court, the learned counsel argues that the reason given in the University of Delhi case : AIR1972Delhi102 of the report for holding that such an appeal, as the present one, cannot be entertained under S. 10(1) of the Act is that before the enactment of the Delhi High Court Act no consistent and uniform interpretation was placed on the word 'Judgment' as used in the said clause by different High Courts. The legislature in enacting Section 10(1) of the Delhi High Court Act could not have, thereforee, intended to use the word 'Judgment' in the wider sense which had been given to it by clause (10) of the Letters Patent.

4. The learned counsel for the appellant points out that since then the Supreme Court has held in Shanti. Kumar R. Canji v. Home Insurance Co. of New York, : [1975]1SCR550 , that the word 'Judgment' in clause (15) of the Letters Patent of the Bombay High Court corresponding to clause (10) of the Letters Patent of this High Court can apply to an order allowing or disallowing an amendment of pleading if such an order has the effect of affecting the rights and liabilities of a party to the suit. The learned counsel argues that if this decision had been given before the decision in the University of Delhi case this reason would not have been available for the conclusion reached by the Full Bench and that the decision of the Full Bench could then have been different. He, thereforee, submits that the question decided by the Full Bench deserves to be reconsidered by a larger, Bench.

5. After having given earnest consideration to the submission, we find that (1) the decision of the Supreme Court does not change the legal position existing at the time the Full Bench decision was given, (2) additional reasons are found to support those on which the Full Bench decision rested, and (3) even otherwise referencee to a larger Bench would not be expedient.

(1) The decision of the Supreme Court in Shanti Kumar's case AIR 1971 Sc 1719 does not define the meaning of the word 'Judgment' as used in clause (15) of the Bombay and clause (10) of the Delhi Letters Patent. It only reaffirms the proposition already established in Central Bank of India v. Gokal Chand, : [1967]1SCR310 , that it is only an order which affects the rights and liabilities of parties which can be called a judgment. The uncertainty exists because of the difficulty in drawing the line between an order which is merely procedural and an order which affects any rights and liabilities of the parties. This has been the situation from before the Full Bench judgment as also thereafter and is likely to continue, even after, the Supreme Court decision.

(2) The view that the maintainability of an appeal against an order of a single Judge of this Court acting in ordinary original jurisdiction is governed by the Code of Civil Procedure and not by the Letters Patent is supported by additional reasons which were not mentioned in the Full Bench decision.

(A) In the Public Trustee v. Rajeshwar Tyagi, : AIR1972Delhi362 , a Division Bench of this Court to which one of us (V. S, Deshpande, J. as he then was) was a party, pointed out the following distinction, namely (i) when a judgment is delivered by a single Judge exercising the jurisdiction inherited from the Punjab High Court under S. 5(1) of the Delhi High Court Act then the appeal against it lies under clause (10) of the Letters Patent; and (ii) on the other hand, when a single Judge delivers a judgment in exercise of the ordinary original civil jurisdiction obtained by this Court from the Subordinate Court under S. 5(2) of the Delhi High Court Act, then the appeal lies under S. 10(1) of the Act. This position is undisputed. The question that arises is whether the meaning of the word 'Judgment' in Section 10(1) of the Delhi High Court Act is the same as that in cl, (10), of the Letters Patent.

(B) As pointed out in Aswini Kumar Ghosh v. Arabinda Bose, : [1953]4SCR1 , by Sastri, C. J. from Page 6 onwards, there is a historical distinction between original jurisdiction exercised by two groups of High Courts in India. This corresponds to the jurisdiction exercised by the Courts preceding these two groups of High Courts. The then Supreme Courts exercised jurisdiction in the Presidency Towns and the then Sudder Courts exercise jurisdiction in the Mofussil. When the Supreme Courts and Sudder Courts were, abolished on the one hand their two different kinds of original jurisdiction were transferred to what may be called, Chartered High Courts at Bombay, Calcutta and Madras, whose Letters Patent were almost identical. On the other hand, the jurisdiction of only the Sudder Courts were transferred to what may be called the non-Chartered High Courts by different Letters Patent which were substantially different from the Letters Patent of the Chartered High Courts. The former Supreme Courts themselves exercised ordinary civil jurisdiction in the Presidency Towns. In the Mofussil, however, the principal Courts of original jurisdiction were the District Courts. The Chartered High Courts succeeding the Supreme Courts in the Presidency Towns obtained an ordinary original civil jurisdiction till then exercised by the Supreme Courts. This continued till city Civil Courts were established in the Presidency Towns taking away the lower pecuniary jurisdiction from the ordinary civil jurisdiction of these Chartered high Courts in the Presidency Towns. A challenge to the validity of the Bombay City Civil Courts Act was negatived by the Supreme Court in the State of Bombay v. Narottamdas Jethabhai, : [1951]2SCR51 . It is significant to note that the ordinary civil jurisdiction was possessed by the Supreme Courts and the Chartered High Courts from the very beginning. Later, a part of it was transferred to the City Civil Courts which corresponded to the District Courts in the Mofussil.

6-10. The reverse process was in operation in the Mofussil. The Sudder Courts did not have the ordinary original jurisdiction in the Mofussil similar to the one enjoyed by the Supreme Courts in the Presidency Towns. The High Courts established outside the Presidency Towns, thereforee, inherited only the appellate jurisdiction of the Sudder Courts, while the principal Courts of original jurisdiction continued to be the District Courts.

11. Following this distinction the Letters Patent issued to the Chartered High Courts and those issued to the non-Chartered High Courts contained different provisions regarding the exercise of original civil jurisdiction by these two groups of High Courts, The Charters of the Bombay, Calcutta and Madras High Courts contain cls. (11) and (12) which had no corresponding provisions in the Letters Patent issued to the other High Courts, Clause (11) prescribed the local limits of the ordinary original civil jurisdiction of the Chartered High Courts, Clause (12) conferred the said ordinary original civil jurisdiction on these Chartered High Courts. Clause (13) referred to the extraordinary original civil jurisdiction of the High Courts. Such extraordinary jurisdiction was exercised when a suit was transferred from a District Court to the High Court. Clause (15) conferred powers of appeal on these High Courts over the decision of a Judge of the said High Court. Appeals under clause (15) come from two different jurisdictions. One is the ordinary original civil jurisdiction which has always existed from the inception of the Chartered High Courts inherited from the then Supreme Courts. The other is the extraordinary original civil jurisdiction which is not really original. It is only when a suit is transferred to the High Court from Subordinate Court that it has to be tried as a suit by the High Court. Hence it is called the extraordinary jurisdiction. It is really the jurisdiction to try a transferred suit.

12-13. The Letters Patent of the other High Courts did not give any ordinary original civil jurisdiction to these Courts because none was inherited by them from the Sudder Courts. The extraordinary civil jurisdiction was possessed by these non-Chartered High Courts simply because every High Court had the power to transfer to itself a suit from a Subordinate Court within its territorial jurisdiction. Under clause (10) appeals can come to Division Benches of the High Courts from only those decisions of single Judges, which were given in suits transferred from Subordinate Courts. Question of any appeal under clause (110) from the ordinary original civil jurisdiction does not arise at all as the non-Chartered High Courts do not possess it. Its scope and context are, thereforee, quite different from those of clause (15) of the Letters Patent of the Chartered High Courts, Nevertheless, clause (10) of the Letters Patent of the non-Chartered High Courts including the High Court of Lahore was phrased in the same language as clause (15) of the Letters Patent of the Chartered High Courts was phrased. It is this deceptive similarity of language between clause (15) of the Letters Patent of the Chartered High Court and clause (10) of the Letters Patent of the non-Chartered High Courts which has given rise to the argument that construction of the word 'Judgment' in the former should be the same as the construction of the word 'Judgment' in the latter. The correctness of this argument was not considered by the five-Judge Full Bench.

(C) The argument looks only to the similarity of the language of the provisions for appeals in the Letters Patent of the two groups of High Courts in cl, (15) and clause (10) respectively, but it does not take note of the fact that by far the largest number of appeals under clause (!5) of the Letters Patent of the Chartered High Courts are from the decisions of the single Judge of the High Court exercising ordinary original civil jurisdiction, though a negligible number may be from Judges exercising extra-ordinary civil jurisdiction, while the appeals under clause (10) of the Letters Patent of the non-Chartered High Courts are only from the judgments of Judges exercising extraordinary civil jurisdiction, namely, in respect of suits transferred from Subordinate Courts to the High Courts. The question immediately arises whether the meaning of 'Judgment' in clause (15) and clause (10) of the Letters Patent respectively of these two groups of High Courts would still be the same in spite of the difference between the two different original civil jurisdictions against the exercise of which these two kinds of appeals am preferred to these two kinds of High Courts. In Raja Soap Factory v. S. P. Shantharaj, : [1965]2SCR800 , the proposition was settled that the extraordinary original civil jurisdiction of the High Court was confined to the transfer of only those in matters to the High Court in respect of which by special legislation the High Court was specifically invested with jurisdiction. Unless such jurisdiction existed the matter cannot be transferred from Subordinate Court to the High Court. The mere appellate jurisdiction of the High Courts over the decisions of the Subordinate Courts was not sufficient for transferring a matter from the Subordinate Courts to the High Court if the jurisdiction to try such a matter had not been Independently conferred on the High Court, It is also well settled that the transfer of a suit from a Subordinate Court to the High Court, under, S. 24 of the Code of Civil Procedure does not in any way change the nature of the suit. The procedure governing the suit remains the same whether it is tried by a Subordinate Court or by High Court except in so far as the High Court in exercise of its rule making power has made different rules, in respect of suits tried by it. Rules framed by this Court for the trial of suits on its original side do not make any orders passed by Single Judges exercising original civil jurisdiction which is really extraordinary original civil jurisdiction appealable except under S. 104 and 43, Civil P. C.

14. On the other hand, the word 'Judgment' in clause (15) of the Letters Patent of the Chartered High Courts has been given a meaning which would include orders even though they, are not appealable under S. 104 and 43, Civil P. C., Civil P. C. This is mainly due to the historical reasons that originally and before setting up of the city Civil Courts in Presidency Towns these Chartered High Courts were the principal Courts of original jurisdiction in the Presidency Towns as succeeding the former Supreme Courts in the Presidency Towns. On the other hand, the historical background being different and the Sudder Courts not having enjoyed ordinary original civil jurisdiction the above reason did not exist to justify the same meaning of the word 'Judgment' being given in clause (10) of the Letters Patent of the non -Chartered High Court. It would, thereforee, appear that when a suit is transferred from a Subordinate Court to a High Court for trial in its extraordinary original civil jurisdiction it would be governed by the Code of Civil Procedure including the order passed by single Judges during the trial of those suits.

15-17. An appeal against an order in the extraordinary civil jurisdiction would I thereforee, be governed in respect of suit by the Civil P. C. Hence the word 'Judgment' in clause (10) of the Letters Patent of the non-Chartered High Courts would not mean anything beyond the decrees and the appealable orders which alone are appealable under the civil P. C.

(D) It is for this reason that the jurisdiction transferred to this High Court from the Subordinate Courts by the Delhi High Court Act would be more akin in its origin to the extraordinary original civil jurisdiction rather than the ordinary, original civil jurisdiction. This is an important consideration why the appeal would be continued to be governed by the Code of Civil Procedure in the suits transferred from the Subordinate Courts to the High Court as also in the suits which are instituted in this High Court only because the pecuniary jurisdiction to some extent has been transferred from the Subordinate Courts to this Court. There is no difference in principle in a suit being transferred from a Subordinate Court to the High Court and in a suit being instituted in the High Court instead of the Subordinate Court because the higher pecuniary jurisdiction of the Subordinate Courts is itself transferred to the High Court. Both these cases differ essentially from the ordinary original civil jurisdiction of the Chartered High Courts. For, while a Chartered High Court was a principal Court with original civil jurisdiction in a Presidency Town the non-Chartered High Court was not so in the Mofussil.

(3) If at all any arguments can be mustered in support of two different meanings to be given to the word 'Judgment' in S, 10 (1) of the Delhi High Court Act, it is that meaning which should be accepted which would lead to substantial justice. In these days when number of cases pending in High Courts as well as Subordinate Courts have created a crisis and the legislature, the Government and the Court are concerned as to how to expedite the disposal of cases, a view which leads to the reduction in the number of appeals would be preferable to the view which leads to an increase in their number. In India we have a sophisticated legal system. But, the time has come when the number of appeals available under our procedure may be reduced with a view to terminate litigation finally sooner than later. Recently, the Supreme Court had to consider the question whether it would be constitutional if a criminal case were to be tried in the first instance by the High Court itself with an appeal on facts and law to the Supreme Court rather than being tried first by the Magistrate or by the Sessions Judge and then being subjected to appeal at various stages. The principal change in the procedure was the reduction in the number of appeals. The proposed change was upheld by the Supreme Court as being constitutional.

18. The Full Bench of five Judges in the University of Delhi case has pointed out how undesirable it would be to treat orders passed by single Judges of the High Court as being appealable under S. 10(1) of the Delhi High Court Act, even though they would not have been appealable under the Code of Civil Procedure. Experience has shown us that trial of suits by single Judges of this Court was exasperatingly delayed, thwarted and stultified by appeals being preferred against them to Division Benches at each stage. The scope of such appeals being larger than the scope of revision under S. 115 of the Civil P. C, against orders of Subordinate Courts the evil became worse than the evil effect of too many revisions being filed against orders of the Subordinate Courts. On the recommendation of the Law Commission S. 115 of the Civil P. C. has been amended to reduce the number of revisions that can be filed under it. The view adopted by the five-Judge Bench has the same merit of reducing the number of appeals from orders of a single Judge to a Division Bench of this Court. The expediency of this result has been greatly appreciated by all concerned. The Delhi High Court Act being an Act of local operation only in the Union Territory of Delhi the decision of such a large Bench of this Court is likely to be left undisturbed by the Supreme Court. No other High Court would be concerned in construing this Act and the constructions put upon it by this Court has substantially done justice to the litigants. It is certainly, thereforee, not expedient particularly when the decision is also justified in law to refer the same question over again to a still larger Bench of seven Judges. After all, it is better to have the final decision quickly rather than chase the will-o'-the-wisp of abstract truth by going from one appeal, to another. It is recognized that a final Court of appeal is right only because it is final and not vice versa.

19. For all these reasons we I hold that the appeal is not maintainable and is dismissed with no order as to costs,

20. An oral application for a certificate of fitness under Art. 133 of the Constitution for appeal to the Supreme Court was made by Mr. F. C. Bedi, learned counsel for the appellant, Such a certificate is issued either when there is conflict of judicial decisions on the question of law sought to be raised before the Supreme Court by way of, an appeal or two equally plausible views on the question of law can be held. There is no likelihood of any conflict of decisions because this is the only High Court which is concerned with the construction of the Delhi High Court Act. As for holding two equally plausible views, such a possibility is remote. On the contrary, several decisions of this Court have, consistently followed the Full Bench decision of five Judges. The oral application is, thereforee, dismissed.

21. Order accordingly.


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