Rahul Gupta vs Mr Pratap Singh And Ors.
2013 Latest Caselaw 5444 Del

             THE HIGH COURT OF DELHI AT NEW DELHI
%                         Judgment delivered on: 26.11.2013
+            FAO (OS) 183/2013
RAHUL GUPTA                                                 .....Appellant
                                    versus
MR PRATAP SINGH AND ORS.                                    .....Respondents
Advocates who appeared in this case:
For the Appellant    : Mr Jasmeet Singh with Mr Saurabh Tiwari &
                       Mr Kritika Mehra.
For the Respondents  : Mr A.P.S. Ahluwalia, Sr. Advocate with Mr S.
                       S. Ahluwalia for R-1.
                       Mr Rajesh Kumar for R-2.
                       Mr Arjun Pant, Advocate for R-3.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE VIBHU BAKHRU
                                JUDGMENT

VIBHU BAKHRU, J

1. This is an appeal preferred by the appellant/plaintiff challenging the order dated 05.02.2013 passed by a learned Single Judge of this Court in OA No.19/2011 which in turn was filed in CS(OS) No.1098/2008. The said order dated 05.02.2013 is hereinafter referred to as the "impugned order".

2. The learned Single Judge has, by the impugned order, set aside the order dated 14.12.2010 passed by a Joint Registrar of this Court in IA No.15286/2008 in CS(OS) No.1098/2008. The Joint Registrar had, by the said order dated 14.12.2010, rejected the application filed by respondent no. 1 under Order 1 Rule 10(2) of the Code of Civil Procedure (hereinafter referred to as the "Code") seeking impleadment as a defendant in the aforementioned suit filed by the appellant/plaintiff.

3. Aggrieved by the order dated 14.12.2010 passed by the Joint Registrar rejecting the application of respondent no. 1 for impleadment as a defendant in the suit, the respondent no. 1 had preferred an appeal under Rule 4 of Chapter II of the Delhi High Court (Original Side) Rules, 1967 (hereinafter referred to as the „O.S. Rules‟) before the learned Single Judge. The learned Single Judge has by the impugned order allowed the said appeal and impleaded respondent no. 1 as a party to the suit filed by the plaintiff. The plaintiff being aggrieved by the said impugned order has filed the present appeal.

4. The respondent no. 1 has raised a preliminary objection as to the maintainability of the present appeal and has contended that the impugned order has been passed in an appeal from an order passed by a Joint Registrar of this Court and, thus, the impugned order has not been passed by the learned Single Judge in exercise of his ordinary original civil jurisdiction. Consequently, the present appeal is not maintainable by virtue of section 100A of the Code.

5. The disputes between parties relates to a plot of land measuring 460 sq. yds. bearing no. 39, Motia Khan Dump Scheme, Rani Jhansi Road, New Delhi (hereinafter referred to as the "said property") which was allotted jointly to one Brij Lal Mehra and Gurdayal Singh by the Delhi Improvement Trust sometime in 1956. Brij Lal Mehra expired in 1960 and was survived by his two sons and a daughter (who has been arrayed as defendant no. 2 in the suit). Both the sons of late Sh. Brij Lal Mehra were unmarried and expired in the year 1999. Accordingly, his daughter, namely defendant no. 1, is claiming one half share of the suit property as a legal

heir of late Sh. Brij Lal Mehra. There is no dispute with regard to the undivided share of the said property belonging to late Sh. Brij Lal Mehra and/ or the claim of defendant no. 1 to the said share. The disputes relate to Gurdyal Singh‟s share of the said property (hereinafter referred to as the "suit property"). Sh. Gurdayal Singh also expired in the year 1974 and was not survived by any class I legal heir. His brother Rajender Singh filed a probate case being Probate Case No.193/1978 claiming to be the legal heir of Gurdayal Singh and was granted the letters of administration by an order dated 19.12.1979 passed in the said probate case. Rajinder Singh passed away on 02.10.1989.

6. The plaintiff is claiming to be the owner of the suit property belonging to Gurdayal Singh. The plaintiff claims that Rajender Singh had, prior to his demise on 02.10.1989, sold the suit property by executing a General Power of Attorney in favour of one Raghubir Singh and executing an Agreement to Sell in favour of his wife Darshan Kaur. Both the General Power of Attorney as well as the Agreement to Sell are dated 21.08.2009. It is claimed that Raghubir Singh and Darshan Kaur had further sold the suit property to the plaintiff by a registered General Power of Attorney and an Agreement to Sell.

7. Respondent no. 1 is also claiming ownership of the suit property through late Sh. Rajender Singh, as being one of his legal heirs. It is stated by respondent no. 1 that Rajender Singh was survived by his widow, two sons namely Hardas Singh and Pratap Singh and two daughters namely Paramjeet Kaur and Smt Narender Bhatia. The widow of Rajender Singh expired on 05.06.1995 and subsequently one of his daughters namely

Paramjeet Kaur also passed away on 05.01.2000. The other two legal heirs of Rajender Singh namely Smt Narender Bhatia and Sh Hardas Singh are stated to have relinquished their rights in the suit property in favour of respondent no. 1.

8. Defendant no. 1 had preferred a writ petition against the DDA, in this Court being W.P.(C) No.9169/2007, in respect of the said property. Both the appellant and respondent no. 1 had filed applications for being impleaded as parties in the said writ petition which were allowed and both the appellant and the respondent no. 1 had been impleaded in the said writ petition. The said writ petition was disposed of by this Court by an order dated 03.02.2010 directing the DDA to dispose of the claims of all the three claimants namely the appellant/plaintiff, respondent no. 1 and respondent no. 2/defendant no. 1 after hearing the said parties.

9. The appellant filed a suit being CS(OS) No.1098/2008, inter-alia, seeking a decree of declaration that the plaintiff was the owner of the suit property. The plaintiff has further sought a decree of possession directing the DDA to handover possession of the suit property. In addition, the plaintiff has also sought a decree of mandatory injunction directing the DDA to execute a perpetual lease in respect of the said property in favour of the plaintiff and defendant no. 1. Respondent no. 1 filed an application being IA No.15286/2008 under Order 1 Rule 10(2) of the Code for being impleaded as a party in the said suit filed by the appellant/plaintiff. The said application was not opposed by the respondent no. 2 & the DDA (defendants in the suit). However, the plaintiff opposed the said application contending that respondent no. 1 was neither necessary nor a proper party

to the proceedings filed by the plaintiff. It was contended that respondent no.1 was claiming a title adverse to that of the vendor from whom the plaintiff had acquired the title to half share of the suit property and this dispute could not be made the subject matter of the suit filed by the plaintiff. The appellant further resisted the application filed by respondent no. 1 on the ground that the appellant was dominus litus. The learned Registrar accepted the contention of the appellant and rejected the application filed by the respondent no. 1 by an order dated 14.12.2010.

10. Aggrieved by the order dated 14.12.2010 passed by the learned Registrar, respondent no. 1 preferred an appeal under Rule 4 of Chapter II of the O.S. Rules which was allowed by the impugned order.

11. It is not necessary to examine the rival contentions on merits to consider the preliminary objection raised by respondent no. 1 regarding maintainability of the present appeal. The only question that arises for our consideration at the present stage is whether the present appeal is barred by virtue of Section 100A of the Code.

12. The impugned order has been passed by the learned Single Judge in exercise of his powers under Rule 4 of Chapter II of the O.S. Rules which provides for an appeal against any order made by the Registrar under Rule 3 of Chapter II of the said Rules. It is contended by the respondent that an appeal, by virtue of section 10 of the Delhi High Court Act, 1966 (hereinafter referred to as the „Act‟) would lie to a Division Bench of the High Court only against a judgment of a Single Judge passed in exercise of the original civil jurisdiction. It is contended that since, in the present case,

the impugned order has not been passed in exercise of the original civil jurisdiction, an appeal under Section 10 of the Act would not be available. Respondent no. 1 has relied upon the decision of a Full Bench of this Court in Avtar Narain Behal v. Subhash Chander Behal: 154 (2008) DLT 140, in support of his contention that after insertion of Section 100A in the Code, a Letters Patent Appeal would not lie against a judgment passed by a Single Judge in a first appeal. The respondent has further relied upon the decision of a Division Bench of this Court in the case of Akash Gupta v. Frankfinn Institute of Air Hostess Training & Anr.: AIR 2006 Delhi 325, in support of his contention that Rule 4 of Chapter II of the O.S. Rules not only provides for a forum of appeal but also provides a right to appeal and therefore, the jurisdiction exercised by the learned Single Judge while passing the impugned order in an appeal preferred under said Rule 4 was appellate jurisdiction. The learned counsel for the appellant has also placed strong reliance on the order dated 16.09.2013 passed by a Division Bench of this Court in FAO(OS) No. 403/2013 titled Doctor Morepan Ltd. and Anr. v. Poysha Power Generation Pvt. Ltd. wherein the Division Bench had, following the judgment in Avtar Narain Behal v. Subhash Chander Behal (supra), dismissed the appeal as not being maintainable. It is stated by the learned counsel appearing on behalf of the respondent, that the question raised in the said appeal being FAO(OS) No.403/2013 was identical to the question of maintainability being raised in the present appeal.

13. The learned counsel appearing on behalf of the appellant has contended that the jurisdiction exercised by the learned Single Judge under

Rule 4 of Chapter II of the O.S. Rules is not appellate jurisdiction but the High Court's original jurisdiction. It is contended that the O.S. Rules have admittedly been made under Section 122 and 129 of the Code. Section 129 of the Code expressly empowers the High Court to make rules as to their Original Civil Procedure. Thus, the expression „appeal‟ occurring in Rule 4 of Chapter II of the O.S. Rules cannot be considered to be an appeal in the true sense. The powers exercised by the learned Single Judge under the said Rule 4 are in essence powers of review. As such, any orders passed in respect of a challenge to any order passed by the Registrar would be an order in exercise of the original civil jurisdiction and not appellate jurisdiction. The learned counsel for the appellant has also placed reliance on a decision dated 09.07.2007 in OSA No. 141/2007 & AMP No. 142/2007 rendered by a Division Bench of the Madras High Court in case of Sreyas Sripal v. M/s. Upasana Finance Ltd., wherein a similar issue had arisen in the context of the original side rules framed by the Madras High Court.

14. We have heard the learned counsel for the parties.

15. The principal controversy that has to be addressed is whether the jurisdiction exercised by a Single Judge while hearing an appeal under Rule 4 of Chapter II of the O.S. Rules is appellate jurisdiction or ordinary original civil jurisdiction.

16. In order to address the controversy in the present case, it would be relevant to refer to Section 10 of the Act as well as Rules 3 and 4 of Chapter II of the O.S. Rules. Section 10 of the Act reads as under:-

"10. Powers of Judge -- (1) Where a single Judge of the High Court of Delhi exercises ordinary original civil jurisdiction conferred by sub-Section (2) of Section 5 on that Court, an appeal shall lie from the judgment of the single Judge to a Division Court of that High Court.

(2) Subject to the provisions of sub-section (1), the law in force immediately before the appointed day relating to the powers of the Chief Justice, single Judges and Division Courts of the High Court of Punjab and with respect to all matters ancillary to the exercise of those powers shall, with the necessary modifications, apply in relation to the High Court of Delhi."

17. Rule 4 and the relevant extract of Rule 3 of Chapter II of the O.S. Rules are reproduced below:-

"3. Power of the Registrar -- The powers of the Court including the power to impose costs in relation to the following matters may be exercised by the registrar:

xxxx xxxx xxxx xxxx xxxx

(57) Deal with and decide applications under Order I Rule 10 of the Code of Civil Procedure.

xxxx xxxx xxxx xxxx xxxx

4. Appeal against the Registrar's orders -- Any person aggrieved by any order made by the Registrar under Rule 3 may, within fifteen days of the making of such order, appeal against it to the Judge in Chambers. The appeal shall be in the form of a petition bearing Court fee stamp of the value of Rs. 2.65 P. "

18. Section 122 of the Code, inter alia, provides that the High Courts may make Rules regulating their own procedure. Section 128(1) of the Code provides that such Rules made by the High Court may provide for matters relating to the procedure of Civil Courts subject to the same not

being inconsistent with the Code. Section 128(2) of the Code specifies the matters in respect of which rules may be made. Clause (i) of section 128(2) of the Code, inter alia, provides for delegation of judicial, quasi-judicial and non-judicial duties to a Registrar. Section 129 of the Code enables the High Court to make rules to regulate its own procedure in exercise of its original civil jurisdiction. Section 122, 128(2)(i) and section 129 of the Code are relevant for the purposes of examining whether the present appeal is maintainable and are reproduced hereunder for ready reference.

"122. Power of certain High Courts to make rules.-- High Courts not being the Court of a Judicial Commissioner may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule.

              xxxx            xxxx          xxxx          xxxx          xxxx
              128. Matters for which rules may provide.--
        (1)     xxxx          xxxx          xxxx          xxxx

(2) In particular, and without prejudice to the generality of the powers conferred by sub-section (1), such rules may provide for all or any of the following matters, namely:--

xxxx xxxx xxxx xxxx

(i) delegation to any Registrar, Prothonotary or Master or other official of the Court of any judicial, quasi-judicial and non-judicial duties; and

xxxx xxxx xxxx xxxx xxxx

129. Power of High Courts to make rules as to their original civil procedure.-- Notwithstanding anything in this

Code, any High Court not being the Court of a Judicial Commissioner may make such rules not inconsistent with the Letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code."

19. The O.S. Rules must be read in conjunction with sections 122, 128 and 129 of the Code. The Preamble of the O.S. Rules also expressly states that the O.S. Rules have been made, in exercise of powers conferred by section 122 and section 129 of the Code, with respect to practice and procedure for exercise of the ordinary original civil jurisdiction. Rule 1 of Chapter II of the said O.S. Rules mandates that every suit before the Court in its ordinary original civil jurisdiction would be tried and heard by a Single Judge. Rule 1 of Chapter II of the O.S. Rules is quoted below:-

"1. Jurisdiction to be exercised by a Judge/Single - Every suit coming before the Court in its Ordinary Original Civil Jurisdiction shall be tried and heard by a Single Judge."

Rule 3 of Chapter II of the said O.S. Rules provides that the powers of the Court in relation to certain matters specified therein would be exercised by the Registrar. It is clear from the language of the O.S. Rules read with section 128 of the Code that the judicial functions to be discharged by a Registrar are discharged by the Registrar as a delegate of the court.

20. In terms of Rule 1 of Chapter II of the O.S. Rules, the suit itself has to be tried and heard by a Single Judge. Thus, while the original jurisdiction is exercised by the Single Judge, the Registrar acts in certain matters as a delegate of the Single Judge. Rule 4 of Chapter II of the O.S. Rules, which

provides for an appeal against the order of the Registrar, in effect provides an appeal to the delegator from the orders passed, by the delegate, in exercise of the powers and discharge of functions delegated to the delegate. Thus, viewed from this perspective, the Single Judge while hearing an appeal under Rule 4 of Chapter II of the O.S. Rules is in fact examining orders which are passed in discharge of the functions of the Single Judge and in exercise of the same powers which are otherwise vested with the Single Judge that is the ordinary civil jurisdiction of the court while trying a suit.

21. Given that the powers exercised by the Registrar under Rule 3 of Chapter II of the O.S. Rules are as a delegate of the court and that the Ordinary Original Civil Jurisdiction of the Delhi High Court vests with the Single Judge, the next question that is to be addressed is whether an order passed by a Registrar under Rule 3 of Chapter II of the O.S Rules can be considered as an order of the delegator. A Constitution Bench of the Supreme Court in the case of Roop Chand v. State of Punjab: AIR 1963 SC 1503 considered the question whether an Order passed by a delegate of the government was an order of the government or the delegate, in the context of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 and held as under:

"11. The question then arises, when the Government delegates its power, for example, to entertain and decide an appeal under Section 21(4), to an officer and the officer pursuant to such delegation hears the appeal and makes an order, is the order an order of the officer or of the Government? We think it must be the order of the Government. The order is made under a statutory power. It is

the statute which creates that power. The power can, therefore, be exercised only in terms of the statute and not otherwise. In this case the power is created by Section 21(4). That section gives a power to the Government. It would follow that an order made in exercise of that power will be the order of the Government for no one else has the right under the statute to exercise the power. No doubt the Act enables the Government to delegate its power but such a power when delegated remains the power of the Government, for the Government can only delegate the power given to it by the statute and cannot create an independent power in the officer. When the delegate exercises the power, he does so for the Government. It is of interest to observe here that Wills, J. said in Huth v. Clarke [ LR (1890) 25 QBD 391] that "the word delegate means little more than an agent". An agent of course exercises no powers of his own but only the powers of his principal. Therefore, an order passed by an officer on delegation to him under Section 41(1) of the power of the Government under Section 21(4), is for the purposes of the Act, an order of the Government. If it were not so and it were to be held that the order had been made by the officer himself and was not an order of the Government and of course it had to be one or the other then we would have an order made by a person on whom the Act did not confer any power to make it. That would be an impossible situation. There can be no order except as authorized by the Act. What is true of Section 21(4) would be true of all other provisions in the Act conferring powers on the Government which can be delegated to an officer under Section 41(1). If we are wrong in the view that we have taken, then in the case of an order made by an officer as delegate of the Government's power under Section 21(4) we would have an appeal entertained and decided by one who had no power himself under the Act to do either. Plainly, none of these things could be done."

Applying the ratio of the aforesaid judgment of the Supreme Court in Roop Chand v. State of Punjab (supra), it follows that the order of the Registrar under Rule 3 of the O.S Rules is an order of the court exercising Original

Jurisdiction (and not of the Registrar, who merely acts as a delegate). Viewed in this context, any appeal from the order of the Registrar to a Single Judge would, in effect, amount to the principal examining an order which is passed by his delegate in exercise of the powers which are originally vested with the principal. There is a complete identity of the powers exercised by the Registrar in matters specified in Rule 3 of Chapter II of the O.S. Rules and the jurisdiction vested with the Single Judge.

22. As an ordinary rule, delegation of powers or functions by an authority or a person to another authority does not imply that the said principal authority is completely denuded of its power. This is so, because the delegate in exercise of the delegated powers acts as a principal. Thus, while the delegate can exercise the power, the principal too can exercise the same power unless there is any specific statutory provision which bars the same. The Supreme Court in the case of Godawari S. Parulekar & Ors. v. State of Maharashtra: AIR 1966 SC 1404 also expressed a similar view and cited the following passage, from Huth v. Clarke: 25 Q.B.D. 391, with approval:-

"Delegation, as the word is generally used, does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself."

23. In view of the above, would it be correct to consider an appeal under Rule 4 of the said Rules as an appeal in the true sense? In our view, the answer to the said question would be in the negative. This is so because an authority cannot sit in appeal against an order which has been passed in exercise of its jurisdiction, albeit by its delegate. At best the power

exercised by the Single Judge under Rule 4 of the O.S. Rules is a power to review and re-examine orders passed by the Registrar. We accept the contention that the expression appeal in Rule 4 of the O.S. Rules is a misnomer as an appeal under Rule 4 of chapter II of the O.S. Rules, could certainly not be considered as an appeal but a mere re-examination/review of the order passed by the Registrar. We are persuaded by the decision of a Division Bench of the Madras High Court in Sreyas Sripal v. M/s. Upasana Finance Ltd. (supra), whereby, on the basis of similar reasoning, that Court has also concluded that the court did not exercise powers of appeal, against an order of a Master, under Order XIV Rule 12 of the Madras High Court Original Side Rules. Accordingly, the bar under Section 100A of the Code was not applicable and appeals before a Division Bench, against an orders passed by Single Judges, were maintainable. The relevant extract of the said judgement is quoted below:-

"8. Applying the same logic, this Court cannot exercise the power of appeal or revision against the order of the Master, which is passed by him in the capacity as a delegate of the High Court. It is well settled that ordinarily an appeal would lie from a lower Authority to the higher Authority and an order passed by the delegate is in exercise of powers given by the delegator and such an order is not appelable or revisable. Therefore, we are inclined to accept the contention of the learned Senior Counsel Mr. Yashod Vardhan that the word appeal in Order XIV Rule 12 is a misnomer, but it is actually a power of review of this Court. Therefore, such an order passed by the Master is not appealable or revisable by the learned Judge under Rule 12. The power conferred under Rule 12 is really in the nature of power of revision. Consequently, the bar under Section 100A of the Code of Civil Procedure is not attracted and the appeals are perfectly maintainable."

24. The decision of the Full Bench of this Court in the case of Avtar Narain Behal v. Subhash Chander Behal (supra) is inapplicable to the facts of the present case. The question that fell for consideration by the Court in that case was whether the Letters Patent Appeal, against a judgment of a Single Judge of this Court in first appeal, would be maintainable having regard to the provisions of Section 100A of the Code. In the said case, the respondent had filed a petition for grant of probate/letters of administration which were allowed by the learned District Judge, Delhi. The appellant preferred an appeal against the judgment of the learned District Judge under Section 299 of the Indian Succession Act, 1925 which was dismissed by a learned Single Judge of this Court. A Letters Patent Appeal was filed by the appellant against the judgment passed by the learned Single Judge. The controversy in that case related to maintainability of an appeal against a judgment passed by a Single Judge in appeal preferred under a special statute. The Court held that since the powers exercised by the learned Single Judge were appellate powers, a Letters Patent Appeal would not be maintainable by virtue of Section 100A of the Code. The issue whether the learned Single Judge exercised appellate powers was not an issue in that case as, indisputably, the judgment of the learned Single Judge in that case was passed in an appeal provided under the Indian Succession Act, 1925. The Full Bench of this Court followed the decision of the Supreme Court in Kamal Kumar Dutta & Anr. v. Ruby General Hospital Ltd. & Ors.: (2006) 7 SCC 613 whereby the Supreme Court had concluded that where an appeal from an original order, has been decided by a Single Judge then in such cases, Letters Patent Appeal is not available as the same has been withdrawn by amending Section 100A of the

Code. In that case, the question arose whether a Letters Patent Appeal would lie against an order of a Single Judge passed in an appeal preferred, under Section 10F of the Companies Act, 1956, from an order passed by the Company Law Board. This case too was in respect of an appeal decided by a Single Judge under a special statute i.e. the Companies Act, 1956. As stated earlier, the question examined in Avtar Narain Behal v. Subhash Chander Behal (supra) was in the context of Letters Patent Appeal against orders passed by the Single Judge in appeals from original orders preferred under special acts. The controversy in the present case essentially revolves around whether the appeal provided under Rule 4 of the O.S. Rules is an appeal in the true sense. As stated earlier, in our view, a Single Judge does not exercise appellate jurisdiction while exercising powers under Rule 4 of the O.S. Rules. Rule 4 in essence only provides for re-examination by a Single Judge of an order that, has been passed by the Registrar as his delegate and in that sense, in substance, is an order passed by the Court which is being re-examined by the Court itself.

25. In the case of Akash Gupta v. Frankfinn Institute of Air Hostess Training & Anr.: AIR 2006 Delhi 325 (DB), the question that arose for consideration was whether an appeal would lie under Rule 4 of Chapter II of the O.S. Rules against any order made by the Registrar under Rule 3 of Chapter II of the said Rules, even if no appeal was provided under the Code, the Act or the Letters Patent. The Court held that Rule 4 of Chapter II of the O.S. Rules provided not only a forum but also the right of appeal and all orders made under Rule 3 of Chapter II of the O.S. Rules could be made subject matter of an appeal under Rule 4 of Chapter II of the O.S.

Rules. Reference to Order 43 Rule 1 of the Code was not required, to examine whether an appeal under Rule 4 of Chapter II of the O.S. Rules was maintainable or not. This decision also does not further the case of the respondent. The controversy in that case related to whether all orders of the Registrar were subject to an appeal under Rule 4 of the O.S. Rules. Indisputably, an order passed in exercise of powers under said Rule 3 by a Registrar of this Court can be made a subject matter of challenge under Rule 4 of Chapter II of the O.S. Rules. The issue whether the powers exercised under said Rule 4 was appellate power or not was not a subject matter of consideration in that case.

26. The order dated 16.09.2013 passed by a Division Bench of this Court in Doctor Morepan Ltd. and Anr. v. Poysha Power Generation Pvt. Ltd. (supra), dismissed the said appeal in limine in view of the decision in Avtar Narain Behal v. Subhash Chander Behal (supra). The said order dated 16.09.2013 neither contains any discussion as to the facts of the said matter nor records any of the rival contentions. The said order does not provide any reasoning as to the controversy involved. It is apparent that the questions, whether the powers exercised by the Registrar under Rule 3 of Chapter II of the O.S. Rules were exercised as a delegate or not and whether a Single Judge exercises original civil jurisdiction while deciding a challenge under Rule 4 of Chapter II of the O.S. Rules were neither placed nor considered by the court. The said order thus offers no assistance to the respondent.

27. It is necessary to consider that the scheme and the provisions of the O.S. Rules relate to the exercise of original jurisdiction. The O.S. Rules

have been framed in respect of the practice and procedure for the exercise of the ordinary original civil jurisdiction, as is made explicit in the Preamble to the said Rules. The heading of Chapter II of the O.S. Rules is "exercise of original civil jurisdiction". The same also indicates that the Rules contained in Chapter II of the O.S. Rules relate to exercise of original civil jurisdiction. If the entire scheme of the O.S. Rules is considered in the perspective that it relates to exercise of ordinary original civil jurisdiction, then it would be apparent that a Single Judge exercises ordinary original civil jurisdiction even while considering a challenge under Rule 4 of Chapter II of the said Rules. In this view of the matter, an appeal under Section 10 of the Act from a judgment of a Single Judge would lie to a Division Bench of this Court. Section 100A of the Code would not be applicable as the powers exercised by a Single Judge under Rule 4 of Chapter II of the O.S. Rules cannot be termed as appellate powers and the expression „appeal‟ in Rule 4 of Chapter II of the O.S. Rules is a misterm.

28. In view of the above, we reject the preliminary objection regarding maintainability of the present appeal. Renotify the present appeal for directions on 06.01.2014.

VIBHU BAKHRU, J

BADAR DURREZ AHMED, J

NOVEMBER 26, 2013 RK