H.R. Wool Trading Co. And Ors. vs Ram Lal And Anr.
1974 Latest Caselaw 65 Del

JUDGMENT

T.V.R. Tatachari, J.

(1) This Letters Patent Appeal came up originally before S. N. Andley, C. J. and Prakesh Narain, J. on February 19, 1974, for admission. Notice was ordered to the respondents by the Division Bench to show cause why the Appeal should not be admitted. An affidavit showing cause has been filed by the respondents, and the matter has now come up before us for admission. The respondents have raised a preliminary objection that the Letters Patent Appeal is not maintainable. We have heard the arguments of the learned counsel for both the parties, and we are of the opinion that the appeal is not maintainable for the following reasons.

(2) A suit (No. 442 of 1973) was filed on the Original Side of this High Court for the recovery of Rs. 1,14,375.72 under Order 37 of the Code of Civil Procedure. On receiving notice of the same, the defendants to the suit filed an application, I.A. No. 3015 of 1973, under Order 37, Rule 3 and Section 151 of the Code of Civil Procedure for leave to appear and defend the suit. By an order, dated January 25, 1974, Avadh Behari, J. granted lae ve to the defendants to defend the suit on the condition that they deposit in the Court the amount claimed in the suit and costs within four weeks from the date of the order. Against that order, the petitioners filed the present appeal, L.P.A. No. 23 of 1974, under clause X of the Letters Patent.

(3) From the facts narrated above, it is clear at the suit out of which this Letters Patent Appeal has arisen was filed in 1973 on the Original Side of this High Court. This High Court exercises ordinary Original Civil Jurisdiction by virtue of the provision in Section 5(2) of the Delhi High Court Act 1966. Section 10(1) of the said Act provides that where a single Judge of the High Court of Delhi exercises ordinary Original Civil Jurisdiction conferred by sub-section (2) of Section 5, an appeal shall lie from the judgment of the single Judge to a Division Court of the High Court of Delhi. In University of Delhi and another v. Hafiz Mohd. Said and others, , (1) a Full Bench of this High Court held as under :- "ANappeal under Section 10(1) of the Act against the order of a single Judge in the exercise of ordinary original civil jurisdiction to a Division Court lies only in those cases where an order is a judgment as defined in the Code of Civil Procedure. In other words, apart from the orders which have the force of a decree, appeals will, therefore, lie only against those orders passed by the single Judge which are mentioned in section 104 read with O.43 R.1 of the Code and no appeal will lie against other orders which are outside these two provisions."

In the present case, the learned single Judge exercised ordinary original civil jurisdiction conferred by Section 5(2) of the Delhi High Court Act and, therefore, the impugned order passed by him is governed by the provision in Section , of the said Act. The said impugned order is admittedly not one of those orders specified in section 104 read with Order 43 Rule I of the Code of Civil Procedure, and consequently no appeal lay against the said order under Section 10(1) of the Act. Apparently, that was why the present appeal was not filed under section 10(1) of the aforesaid Act, but was filed under Clause X of the Letters Patent.

(4) Now, in The Public Trustee v. Shri Rajeshwar Tyagi and others, 1972 D.L.T. 252(2), it has been held by a Division Bench of this Court (V. S. Deshpande and S. Rangarajan JJ.) that in a proceeding entertained in exercise of the ordinary original Civil Jurisdiction under Section 5(2) of the Delhi High Court Act, 1966, an appeal against an order in such proceeding will lie, only if it satisfies the provisions of section 10(1) of the Act, and no appeal will lie under clause X of the Letters Patent., A similar view was taken also in Smt. Neelum v. Shri Sheel Kumar Mittal, F.A.O. (O.S.) No. 70 of 1969, decided by a Division Bench of this High Court (Prakash Narain and R. N. Aggarwal, JJ.) on April 2, 1973. (3). In view of the said decisions, it has to be held that clause X of the Letters Patent is not attracted and, therefore, the Letters Patent Appeal filed under the said clause is not maintainable.

(5) Mr. Bikramajit Nayyar, learned counsel for the appellant, referred to the decisions in Begum Aftab Zamani v. Shri Lal Chand Khanna, A.I.R. 1969 Delhi 85 (FB) (4) ; The Traders Bank Ltd. New Delhi v. Seth Hari Ram (dead) Rewa Chand and others, L.P.A. 20-D of 1965, decided on July 16, 1971, by Hardayal Hardy J(5), (as his lordship then was) and M. R. A. Ansari J.; and Manbhari Bai v. Sat Narain, etc., 1974 Rajdhani Law Reporter 33, decided by S. N. Andley CJ. and S. N. Shankar, J (6). We are unable to see how the learned counsel can derive any assistance from these decisions in view of the decisions in the cases of University of Delhi and another v. Hafiz Mohd. Said and others, The Public Trustee v. Shri Rajeshwar Tyagi and others, and Smt. Neelum v. Shri Sheet Kumar Mittal, referred to by us above.

(6) For the foregoing reasons, we hold that the impugned order of Avadh Behari, J. is not appealable under Clause X of the Letters Patent. Accordingly, L.P.A. No. 23 of 1974 is dismissed in liming.