AI Structured Summary
Not yet generated for this judgment
Judgment
V.D. Misra, C.J.—This Letters Patent Appeal is directed against the judgment of a single Judge of this Court.
The Himachal Pradesh Agro-Industries Corporation Ltd. (referred to as the Plaintiff) filed a suit for the recovery of Rs. 3,31,369.50 against M/s. Solvex Oils and Fetilizers and M/s. Swastika Oils and Fertilizers (referred to as the Defendants) on the following facts.
In September, 1980, the Plaintiff issued a public notice inviting tenders for the supply of Deoiled Rice Bran. The tenders were to be opened at Simla on 30th September, 1980. The Defendants submitted their tenders. Tender of Defendant No. 1 was accepted. One Shri Brij Bhushan, representative of the Defendant, issued a cheque for Rs. 10,000/- as earnest money. The Plaintiff placed an order for the supply of 700 MT of Deoiled Rice Bran at Parwanoo and 400 MT at Jachh by an order, dated 13/14th October, 1980. Defendant No. 1 supplied 9.36 MT of Deoiled Rice Bran worth Rs. 2,878.20 at Parwanoo. This amount was credited towards the security amount of Defendant No. 1. However, thereafter this Defendant failed to make any supplies despite the repeated requests of the Plaintiff. The Plaintiff received a letter from this Defendant that the latter did not want to stick to the contract and that his earnest money be refunded. The Plaintiff filed the suit claiming damages for the breach of contract. The suit was filed on 26th June, 1981.
The Defendants in their written statement filed on 18th September, 1981, raised a preliminary objection to the effect that the suit was liable to be stayed since the Defendant No. 1 had filed suit No. 168 of 1981 on 30th April, 1981, against the Plaintiff in the Court of Sub-Judge, Karnal.
The following preliminary issue was framed on 17th November, 1981:
Whether the present suit is liable to be stayed as alleged in preliminary objection No. 1? O.P.D.
The learned single Judge decided this issue against the Defendants holding that the provisions of Section 10 of the CPC were not applicable.
In this appeal Miss Kamlesh Sharma, learned Counsel for the Plaintiff, has raised a preliminary objection. It is contended by her that the impugned decision is not a judgment in terms of Section 10(1) of the Delhi High Court Act.
The State of Himachal Pradesh Act, 1970, provides for the establishment of the High Court of Himachal Pradesh. By Section 23 the jurisdiction, powers, and authority which were exercisable in respect of the territories of this State by the High Court of Delhi are given to this Court. The practice and procedure of the High Court of Delhi became applicable to this Court by virtue of Section 25. By Section 28 the powers of the Judges of the High Court of Delhi were given to the Judges of this Court. It was by Sub-section (2) of Section 5 of the Delhi High Court Act that the High Court of Delhi was conferred ordinary original civil jurisdiction. The High Court of Delhi made rules known as Delhi High Court (Original side) Rules, 1967, which are applicable to this Court. Rule 19 provides that except to the extent otherwise provided in these rules, the provisions of the CPC shall apply to all proceedings on original side. The rules have thus made the provisions of Order 43, Rule 1 of the CPC applicable to the proceedings.
It is not disputed that the impugned decision is not an appeal under Order 43, Rule 1 of the Code of Civil Procedure. However, Mr. Sood, learned Counsel for the Appellants, contends that this decision amounts to a judgment in terms of Section 10(1) of the Delhi High Court Act and is, therefore, appealable.
Section 10(1) reads:
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 a single Judge to a Division Court of that High Court.
The meaning of the word ''judgment'' was the subject-matter of decision of this Court in Asa Singh Kochhar and Anr. v. Darshan Singh Kochhar and Ors. . ILR 1976 H.P. 551. The Bench consisting of the then Chief Justice R.S. Pathak and Justice D.B. Lal differed and the matter was referred to Justice T.U. Mehta (as he then was). Mehta, J., concurred with Lal, J., in holding that the word ''judgment'' in Section 10 of the Delhi High Court Act has the same meaning as has been ascribed to it in the CPC which includes orders appealable under Order 43, Rule 1 of the Code of Civil Procedure.
Mr. Sood contends that in view of the judgment of the Supreme Court in Shah Babulal Khimji Vs. Jayaben D. Kania and Another, , defining the expression ''judgment'' as used in Clause 10 of the Letters Patent of various High Courts the decision of this Court in Asa Singh Kochhar''s case is no longer good law. On the other hand Miss Kamlesh Sharma, learned Counsel for the Respondent, contends that the judgment of the Supreme Court does not affect Section 10(1) of the Delhi High Court Act.
It may be noticed that for the first time a Full Bench consisting of five Judges of the High Court of Delhi in University of Delhi and Another Vs. Hafiz Mohd. Said and Others, , went into the question as to what does the expression ''judgment'' used in Section 10(1) of the Delhi High Court Act means. It was contended before that Bench that the tests laid down by various High Courts in interpreting the expression ''judgment'' found in Clause 15 of the Letters Patent of Bombay, Calcutta and Madras should be applied. After tracing out the history it was observed:
Keeping these principles in view can it be said that when the legislature used the word ''judgment'' in Section 10(1) of the Act it must be taken to have used the word in the sense it has been interpreted by the various High Courts under the Letters Patent. We do not think so. The reason is because there has been no consistent and uniform interpretation placed on the word ''judgment'' by different High Courts or even by different Benches of the same High Court. The approval of the Legislature of a particular construction put on the provisions of an Act on account of its making no alteration in those provisions is presumed only when there had been a consistent series of cases putting a certain construction on certain provisions; vide Purushottamdas Dalmia Vs. The State of West Bengal, .
It seems to us, therefore, that there is no compelling reason to hold that the Legislature wanted the word ''judgment'' in Section 10(1) of the Act to be interpreted by reference to the tests given in various decisions given under the Letters Patent. To accept the contention of the Appellant would be to impute illogical intention to the legislature and suggest that it wanted to create confusion and conflict in this area which had been free from it uptill then. In our view this conflict and confusion can readily be avoided if the meaning of the term ''judgment'' u/s 10(1) of the Act is interpreted as defined in the Code and we do hold accordingly.
The Bench concluded that an appeal u/s 10(1) of the Act against the order of a single Judge in the exercise of ordinary original civil jurisdiction to a Division Bench lay in those cases where the order is a ''judgment'' as defined in the Code apart from those orders which have the force of a decree. Later on in Shanta Sabharwal Vs. Sushila Sabharwal and Others, , the Division Bench was asked to reconsider the earlier Full Bench decision. It was held that the maintainability of an appeal against an order of a single Judge exercising ordinary original civil jurisdiction is governed by the provisions of the CPC and not by those of Letters Patent. It was further observed that no High Court would be concerned in construing this Act and the constructions put upon it by that Court has substantially done justice to the litigants in addition to reducing the number of appeals and expediting the final decision in a suit. The Full Bench decision of the Delhi High Court, as already stated, found favour with D.B. Lal, J. as well as T.U. Mehta, J. In Shah Babulal Khimji''s case the substantial question of law raised before the Supreme Court was about the scope, ambit and meaning of the word ''judgment'' appearing in Clause 15 of the Letters Patent of the Bombay High Court and corresponding clauses of Letters Patent of other High Courts. After noticing the serious divergence of judicial opinions, Fazal Ali, J., speaking for himself and on behalf of A. Varadarajan, J., observed that the time has now come when the entire controversy on the subject should be set at rest and an authoritative pronouncement on the matter may be given so as to maintain complete consistency in deciding the matter by the High Courts whenever it arises. A.N. Sen, J., however, refrained from expressing any opinion on this question. After exhaustive survey of the decisions of the various High Courts on the question, Fazal Ali, J., held:
Whenever a trial Judge decides a controversy which affects valuable rights of one of the parties, it must be treated to be a judgment within the meaning of the Letters Patent.
We are of the opinion that the aforementicned decision of the Supreme Court will not govern the meaning of the expression ''judgment'' used in Section 10(1) of the Delhi High Court Act in view of the peculiar legislative history of the Delhi High Court Act.
The result is that we will dismiss the appeal as not maintainable. No order as to costs.