(1) The question for decision before us is whether an appeal by the University of Delhi, defendant, lies under Section 10(1) of the Delhi High Court Act (No. 26/66) of 1966 (here in after to be called the Act) against the order of learned single judge of this court holding that the suit for partition of plaintiff's interest in respect of two khasra numbers out of four, was maintainable; the plaintiff has not filed an appeal in respect of other two khasra numbers in respect of which the suit was heldto be not maintainable, in view of the evacuee having interest inthe property.
(2) It was not disputed that if an appeal lay only against thoseorders specified in Section 104 read with Order 43 Rule I of theCode of Civil Procedure, 1908 (hereinafter to be called the Codethe present appeal would not be maintainable as the impugnedorder is not one of those mentioned in these two provisions.
(3) By an Act of the Governor General of India in Council (ActNo. Xxiii of 1865) the Chief Court of the Punjab was established and the Provinces of the Punjab and Delhi were subject to itsjurisdiction. This position continued, till the Letters Patentconstituing the High Court of Judicature at Lahore dated 21stMarch, 1919, was issued by which the High Court at Lahore wasestablished for the provinces of the Punjab and Delhi, called theHigh Court of Judicature at Lahore. The Punjab High Court after1947, continued to be governed by this Letters Patent and theUnion Territory of Delhi continued to be within the jurisdictionof the Punjab High Court. Clause 9 of the Letters Patent conferred extraordinary original civil jurisdiction on the High Court.Clause Ii provided that the High Court of judicature at Lahoreshall be a court of appeal from the civil courts of the provincesof the Punjab and Delhi. It is important to note that no ordinaryoriginal civil jurisdiction was conferred on the High Court underthe Letters Patent.
(4) The Punjab Courts Act, 1918 (as in force in Delhi) providesfor different classes of civil courts, the court of District Judge shallbe deemed to be the District Court or principal civil court oforiginal jurisdiction in the District. Subsequently jurisdiction tobe exercised in original civil suits was conferred on three classesof subordinate judges, with class I subordinate judges exercisingthe jurisdiction without limit as to the value of the cases.
(5) It will thus be seen that in the Union Territory of Delhi prior to the coming into force of the Act the ordinary original civil jurisdiction was exercised by the subordinate judges and the High Court did not at all exercise any ordinary original civil jurisdiction.
(6) Section 5(2) of the Act provided that notwithstanding anything in any law for the time being in force, the High Court shallalso have in respect of the said territories ordinary original civiljurisdiction in every suit the value of which exceeds twenty-fivethousand rupees (the said valuation has now been raised to fifty thousand rupees vide Act 37 of 1969).
(7) Section 16 of the Act provided that all proceedings pendingimmediately before the appointed day in any subordinate courtin the Union Territory of Delhi in or in relation to any such civilsuit as is referred to in sub-section (2) of Section 5 shall on thatday stand transferred to the High Court of Delhi which shall proceed to try, hear and determine the matter as if it had been pending therein.
(8) Thus for the first time by the passing of the Act, in the UnionTerritory of Delhi, High Court came to exercise the ordinary original civil jurisdiction above certain valuation. The suits regarding the valuation below the prescribed valuation continued to betried by the Subordinate Judges. As the ordinary original civiljurisdiction was being conferred on the High Court for the firsttime Section 7 of the Act also provided that the High Court ofDelhi shall have all such powers to make rules and orders withrespect to practice and procedure as are immediately before theappointed day exercisable by the High Court of Punjab and shall -also have powers to make rules and orders with respect to practice and procedure for the exercise of its ordinary original civiljurisdiction.
(9) Section 10 of the Act provided that where a single judge ofthe High Court of Delhi exercises ordinary original civil jurisdiction conferred by sub-section (2) of Section 5, an appeal shall liefrom the judgment of the single judge to a Division Court of thatHigh Court.
(10) Section 122 of the Code gives power to the High Court tomake rules regulating their own procedure and empowers it bysuch rules to annul, alter or aid any of the rules in the First Schedule.
(11) Section 129 of the Code further empowers the High Court tomake rules not inconsistent with the Letters Patent or order orother law establishing it to regulate its own procedure in the exercise of its original civil jurisdiction.
(12) By virtue of powers conferred by Sections 122 and 129 ofthe Code and Section 7 of the Act, this court framed Rules knownas Delhi High Court (Original Side) Rules, 1967 (hereinaftercalled the Rules).
(13) Rule 3 states that all proceedings on the original side of thecourt instituted or transferred pursuant to provisions of the Act or any other law shall unless ordered by the Court be governedby these Rules.
(14) Rule 19 provides that except to the extent otherwise provided A in these Rules, the provisions of the Civil Procedure Code shall apply to all proceedings on original side.
(15) Thus Rule 19 applies the provisions of the Code in terms tothe proceedings on the original side except to the extent providedotherwise in the Rules. It is not the case of the appellant thatorder 43 Rule I has been made inapplicable to the proceedingson the original side of the High Court by the Rules. If that benot so it is apparent that Order 43 Rule I of the Code will applyto the proceedings on the original side with the result that anappeal shall lie only from those orders of the single judge whichare mentioned in Section 104 and Rule I of Order 43 of the Code.The argument that Rule 19 of the Rules is ultra vires, as beingin conflict with Section 10(1) of the Act, has no merit. Section 10(1) only provides for an appeal against the judgment of a singlejudge to a Division Court. It does not indicate which orders areto be appealable nor is there any definition of the word 'judgment'in the Act. It is not, thereforee, correct to say that because bythe application of Rule 19, the orders which are appealable arerestricted to those mentioned in Order 43 Rule I of the Codethere is a conflict between Section 10(1) and Rule 19 of the Rulesas the two provisions deal with different matters. Section 10(1) deals with the forum of appeal whereas Rule 19 of the Rules readwith Order 43 Rule I of the Code indicates the orders which areappealable. Thus by the application of Rule 19 which in termsalso applies the Code to the ordinary original civil jurisdictionof this court, an appeal under Section 10(1) of the Act would becompetent only if it falls within Section 104 or Order 43 Rule Iof the Code.
(16) It is true that an appeal provided by the Letters Patent is not governed by Section 104 of the Code. It is, however, pertinent to note that in the Code of 1882 Section 588 which is analogous to Section 104 of the Code there was a difference of opinion amongst various High Courts about its nterpretation.
(17) The High Courts of Calcutta, Bombay and Madras had takenthe view that an order not appealable under Section 588 of the1882 Code may still be appealable provided it amounted to judgment within the meaning of Clause 15 of the Letters Patent ofthe respective High Courts. The Allahabad High Court, however, took the view that if the order was not appealable under section 588 it could not be appealed against under the LettersPatent of the High Court. In order to set at rest this controversythe legislature provided by Section 4 in the Code of 1908 by laying down that in the absence of any specific provision to the contrary nothing shall be deemed to limit or otherwise affect anyspecial or local law now in force or any special jurisdiction orpower conferred, or any special form of procedure prescribed,by or under any other law for the time being in force. Thus in view of Section 4 of the Code the right to appeal under the LettersPatent was saved and Section 104 of the Code was held notapplicable.
(18) It is precisely for this reason that the appellant cannot deriveany assistance from Ganpati Wadgoo v. Pilaji Kothuji and others A.I.R. 1956 Nag 211 0 and Bai Shri Arunkumari v. Jhala Harpalsingh Natwarshingh A.I.R. 1954 Sau 15.Both these cases were decided on the ground that the LettersPatent being a special jurisdiction which was saved by Section 4 of the Code, cannot be affected by Section 104 of the Code.
(19) But it is then argued that the only criterion for ascertaining whether an appeal would lie against the order passed by a singlejudge when exercising ordinary original civil jurisdiction is to findout whether his order amounts to a judgment and if it is so thenby virtue of Section 10(1) of the Act an appeal will lie against thatorder, the further corollary to this argument is that in order tofind out the meaning of the expression 'judgment' one must apply the tests laid down by the various High Courts when interpretingthe expression 'judgment' to be found in clause 15 of the LettersPatent of Bombay, Calcutta and Madras which provides that anappeal shall lie to a Division Court of the said High Court from the judgment of one judge of the said High Court.
(20) It is, however, pertinent to remember that the Letters Patent for the High Courts of Calcutta, Bombay and Madras whichwere almost in the same terms were enacted in 1862 and 1865 ata time when English law was still in a some-what fluid state. Atthat time the Civil Procedure Code (Act Viii of 1859) applicableto India did not even contain the definition of the term 'judgment'.The term 'judgment' was defined for the first time in the Code of Civil Procedure of 1882 and this definition continues in the present Code. Thus when in the matters arising under the LettersPatent, the courts came to consider the meaning of the term'judgment' they had necessarily to give an interpretation as theoccasion arose keeping in view the facts of each case and thehistorical context and absence of any definition of it in the Letters Patent. The term 'judgment' thus not having been defined in theLetters Patent attempts have been made by the various HighCourts to define the term, but it has unfortunately to be concededthat their efforts have not yet been successful, even after a periodof hundred years.
(21) The earliest attempt to define the term 'judgment' was made as far back as (1872) 8 Ben. L.R. 433 (Justices of the Peace forCalcutta V. The Oriental Gas Co. The observations of SirArnold White, C.J. in Tuljaram Row v. Alagappa Chettiar 19235 Mad.1 have been often quoted. Page C.J., however, in theFull Bench decision in Dayabhai Jiwandass and others v. A. N.M. Murugappa Chettyar A.I.R. 1935 Ran 267 wasconstrained to observe that what the meaning of 'judgment' inLetters Patent of Indian High Courts is a question over which,controversy has arisen in India for nearly 70 years, and is stillunsettled, and that 'the result has been that Sir Arnold White'sjudgment has not, infrequently been interpreted in so elastic asense that courts purporting to follow it have felt at liberty totreat as appealable any orders which the courts considered oughtto be made a subject of appeal'.
(22) In Firm Shah Hari Diyal and Sons v. Messrs. Sohna MalBell Ram A.I.R. 1942 Lah 95 a full bench remarked,whether an order amounts to a judgment within clause 10 mustbe considered on the facts and circumstances of each case andthe test propounded in 35 Mad. 1. But it is not, however, necessary to decide whether that test is comprehensive so as to excludeall other tests. It is sufficient to say that each case must be considered on its own facts and circumstances and while the testspropounded in Madras and in the Calcutta High Courts serve asa good guide for this court it is not necessary to hold that thosetests are comprehensive and exclude other cases.'
(23) In a full bench case, Manohar Damodar Bhoot v. BaliramGanpat Bhoot A.I.R. 1952 Nag. 357 0 Hidayatullah J. (as he then was) defined the word 'judgment' with a warning, 1 shall nowattempt to define the term and I do so with considerable hesitation bearing in my mind that eminent judges have failed in thetask'. Sinha C.J. (as he then was) who agreed with the order proposed by Hidayatullab J. however, cautioned and stated :
'SPEAKINGfor myself I would not attempt a definition whichthe legislature has not attempted so far, beyond saying that'judgment' means the statement given by the judge of thegrounds of a decree or order. That is a definition given bythe Code of Civil Procedure, which may not be conterminouswith the meaning attached to the term 'judgment under theLetters Patent.'
(24) In Central Brokers v. Ramnarayana Poddar and Co. : AIR1954Mad1057 , a full bench was again faced with thesame problem and referring to the definition given by Hidayatullah J., Govinda Menon J. (as he then was) commented;
'HOWdifficult it is to define 'judgment' is manifest from thelarge body of case law in India.'Mack, J. was more forthright and observed:1 think any attempt to define the word 'judgment' in clause15, Letters Patent, a difficulty rightly emphasised by mylearned brother Govinda Menon J. can only lead to freshcontroversy intensifying it further in this domain of law. I venture to express the hope here that no further attempt willeven be made by any bench however full and howeverauthoritative as in my view to define the word 'judgment' inthe year 1954 as the framers of the statute intended the wordto apply in 1862 is attempting an impossibility.'
(25) In Asrumati Debi v. Kumar Rupendra Deb Rajkot and others : 4SCR1159 their lordships noticed the conflicting views of the various High Courts and observed;
'INview of this wide divergence of judicial opinion, it maybe necessary for this court at some time or other, to examinecarefully the principles upon which the different views mentioned above purport to be based and attempt to determinewith as much definiteness as possible the true meaning andscope of the word 'judgment' as it occurs in clause 15 of theLetters Patent of the Calcutta High Court and in the corresponding clauses of the Letters Patent of other High Courts.'
(26) Similarly the cleavage of opinion was again noticed by the Supreme Court in State of Uttar Pradesh and others v. Dr. VijayAnand Maharaj : 45ITR414(SC) D. But againtheir lordships did not attempt to reconcile the said decisionsapart from merely observing that the definition given by the Madras High Court was wider than the one given by the Calcutta andBombay High Courts.
(27) The result, thereforee, remains that right up to the time whenthe Act was passed there was no authoritative pronouncement orprecise definition of the term 'judgment' in the Letters Patent.It is in this context that we must attempt to find out as to whatwas the intention of the legislature when it used the word 'judgment' in Section 10(1) of the Act.