High CourtDivision Bench2007-07-19Appeals disposed of.

R.J. Shah & Co. v. H.P. State Electricity Board

Case / Petition Number:Civil Appeal No. 5593 of 1997

Neutral Citation:2007 (8) SCC 416

Case Details & Bench

Court: High Court
Hon'ble Judges: Dr. Arijit Pasayat
S. H. Kapadia
Judgment Date: 2007-07-19
Court Decision / Holding: The High Court’s order is set aside and the matter is remanded to decide the controversy afresh in light of Jugal Kishore Paliwal and the view in P.S. Sathappan, with due regard to prior HP authorities referred to in the judgment.
Final Disposition: Appeals disposed of.

Parties to the Case

Appellants / Petitioners

R.J. Shah & Co.

Respondents

H.P. State Electricity Board

Legal Representation & Advocates

Counsels for Petitioners

• Jaideep Gupta
• A.Y. Chitale
• S.A. Chitake
• Sujeeta Srivasatava
• Madhuip Singhal
• Aditay Vikas Singh
• Nimeka Jha
• S. Janani

Counsels for Respondents

• Maninder Singh
• Pratibha M. Singh
• Gaurav Sharma
• Rahul Ajatshatru
• E.C. Agrawala

Case Synopsis & Summary

This Civil Appeal concerns the applicability of the Lahore High Court’s Letters Patent (through its historical appellate route) to the State of Himachal Pradesh and the proper right of appeal. The Himachal Pradesh High Court had held that the Lahore Letters Patent has no application in Himachal Pradesh, concluding that no appeal lay under Clauses 9 or 10 of the Letters Patent and that the impugned order was not covered by Order 43 Rule 1 CPC, thereby denying the Division Bench jurisdiction. The Supreme Court, in a judgment delivered by Dr. Arijit Pasayat, J., with S. H. Kapadia, J., sets aside that view. It notes that the High Court overlooked the position in Jugal Kishore Paliwal v. S. Sat Jit Singh and Anr., which expressly overruled Hafiz Mohd Said’s Full Bench decision. The Court emphasizes the historical legislative evolution and the jurisprudence surrounding Letters Patent and intra-court appeals, including the Delhi Act and the scope of Order 43 Rule 1 CPC. It remands the matter to the HP High Court to decide the controversy afresh in light of Jugal Kishore and the referenced precedents, notably P.S. Sathappan (dead) by Lrs. v. Andhra Bank Ltd. The appeals are disposed of with directions to reconsider in conformity with the correct precedents.”

Provisions of Law Cited

Clause 9 of the Letters PatentClause 10 of the Letters PatentSection 10 of the Delhi ActOrder 43 Rule 1 of the CPCCode of Civil Procedure, 1908Section 104 read with Order 43 Rule 1 CPC

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that the Lahore Letters Patent continues to provide the remedy of intra‑court appeal in Himachal Pradesh and that the Division Bench jurisdiction is available under Section 10 of the Delhi Act, read with Clause 9/10 of the Letters Patent, since the impugned order is not covered by Order 43 Rule 1 CPC. They contended that Hafiz Mohd Said’s Full Bench reasoning is obsolete after Jugal Kishore Paliwal, which overruled it, and that HP’s earlier decisions (including Asha Kochhar and Ajit Kumar) align with the modern view. They urged remand to apply the correct precedents and to consider legislative history of the Letters Patent.

Contentions of Respondents

The respondents contended that the Lahore Letters Patent has no applicability in HP; no appeal lies under Clauses 9 or 10; the impugned order is not within Order 43 Rule 1 CPC; therefore there is no Division Bench jurisdiction. They relied on the Delhi High Court’s Full Bench position supporting Hafiz Mohd Said’s reasoning, arguing that the HP High Court’s order was proper under the prevailing law and practice.

Cited Precedents (6)

Case Name	Citation	Treatment	Explanation
Jugal Kishore Paliwal v. S. Sat Jit Singh and Anr.	[1984] 1 SCC 358	Positive	The Supreme Court states that this decision overruled Hafiz Mohd Said and should have been followed; it guides the remand and re‑consideration of the issue.
University of Delhi v. Hafiz Mohd. Said	AIR 1972 Delhi 102	Overruled	Described as having been expressly overruled by Jugal Kishore Paliwal’s decision.
Asha Kochhar and Anr. v. Darshan Singh Kochhar and Ors.	ILR (1976) HP 551	Positive	Earlier HP decision recommended for consideration; to be followed in light of Jugal Kishore’s guidance.
State of Himachal Pradesh v. Ajit Kumar	ILR (1976) HP 24	Positive	Earlier HP decision to be followed along with Jugal Kishore’s approach.
Asa Singh Kochhar and Anr. v. Darshan Singh Kochhar and Ors.	ILR (1976) HP 551	Positive	Included among two HP precedents to be followed in light of Jugal Kishore.
P.S. Sathappan (dead) by Lrs. v. Andhra Bank Ltd and Ors.	[2004] 11 SCC 672	Positive	Cited as a view to be noted by the Court in applying the correct precedents.

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Extracted Judgment Text

Exact text extracted from official judgment records.

~ _f-_ A ## R.J. SHAH AND CO. v. ## . H.P. STA TE ELECTRICITY BOARD JULY 19, 2007 B ## [DR. ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] _Letters Patent Appeal in Himachal Pradesh High Court-Appeal to Division Bench against order of single Judge lies as ultimate succession of Lahore High Court from Himachal Pradesh area-Code of Civil Procedure, 1908-043 r.1_ c The question which arose for consideration in the present appeal is about the sustainability of the High Court's view in the impugned order that the Letters Patent in Lahore Court was not applicable in the State of Himacbal D[Pradesh ][an~ ][hence no appeal either under Clause 9 ][or ][Clause ][10 ][of ][the Letters ] Patent was maintainable in the Himachal Pradesh High Court and the impugned order was not covered by 0.43 r. l CPC and hence no appeal against the said order would lie to the Division Bench of High Court. _f-_ -+ .. ## Disposing of the appeal, the Court ## E HELD: The High Court has not noticed the view expressed in _Jugal Kishore 's*_ case. It wrongly relied upon full Bench decision in _Hafiz Mohd**_ which was over-ruled. The order of the High Court is set aside and the matter is remanded to it to decide the controversy afresh in the light of _Jugal Kishore 's_ case. (Para 3) (418-G-H) F ,==l _P.S. Sathappan (dead) by Lrs._ \'. _Andhra Bank Ltd. and Ors.,_ 12004111 SCC 672 and _Jugal Kishore Paliwal_ v. _S. Sat Jit Singh and Anr._ * 11984) 1 sec 358, relied on. _University of Delhi_ v. _Hafiz Mohd. Said**_ AIR (1972) Delhi 102; ILR G (1976) 5 H.P. 551: _State of Himachal Pradesh_ v. _Ajit Kumar,_ ILR (1976) HP 24 and _Asa Singh Kochhar and Anr._ v. _Darshan Singh Kochhar and Ors.,_ ILR (1976) 5 H.P. 551, referred to. _r_ CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5593 of 1997. H 416 R.J. SHAHv. H.P. STATE ELECTRICITY BOARD[PASAYAT,J.J 417 ' -.i..: 1c '· From the Judgment & Order dated 28. 10.1994 of the High Court of Himachal Pradesh at Shimla in LP.A. No. 8of1994. ## WITH ## C.A. No. 5594of1997. B Jaideep Gupta, A.Y. Chitale, S.A. Chitake, Sujeeta Srivasatava, Madhuip Singhal, Aditay Vikas Singh, Nimeka Jha and S. Janani for the Appellant. Maninder Singh, Pratibha: M. Singh. Gaurav Sharma. Rahul Ajatshatru and E.C. Agrawala for the Respondent. > The Judgment of the Court was delivered by \ > DR. ARIJIT PASA YAT, J. I. In the present appeals, an interesting question is raised about the sustainability of the High Court's view in the impugned order that the Letters Patent in Lahore Court was not maintainable as no appeal either under Clause 9 or Clause I 0 of the Letters Patent was D maintainable in the High Court and the impugned order was not covered by Order 43 Rule I of the Code of Civil Procedure, 1908 (in short the 'CPC'). The High Cou.rt held as follows: "In view of the discussion aforesaid, the Letters Patent of High Court of Judicature at Lahore has no application in the State of E Himachal Pradesh and hence no appeal either under Clause 9 or Clause JO of the said Letters Patent would lie to this High Court. The appeal against the judgment of a single Judge of th is Court exercising ordinary original civil jurisdiction will, however, lie to a Division Bench of the High Court by virtue of Section I 0 of the Delhi Act. This _p_ appellate jurisdiction is available against decrees and appellable orders covered under Section I 04 read with Order 43 Rule I of the Code of Civil Procedure. In the instant case, the impugned order is admittedly not covered by any part of Order 43 Rule I of the Code of Civil Procedure and hence no appeal against the said order would lie to the Division Bench of this Court. G G For the reasons aforesaid, the appeal fails and is dismissed." 2. In support of the appeals, learned counsel for _the_ parties referred to the legislative history of the Letters Patent: Prior to 1919 the Chief Court of H 418 SUPREME COURT REPORTS (2007) 8 S.C.R. A Punjab was at Lahore. The Letters Patent was promulgated on 21.3.1919. The establishment and constitution of the High Court of Punjab as done under Clause I 0 provided for intra Court appeal. On 11.8.194 7 the High Court (Punjab Order), 1947 under Section 9 of the Indian Independence Act, 1947 was promulgated. The Punjab High Court was constituted and included Delhi. B Power exercised by erstwhile Punjab High Court was to be exercised by the High Court of East Punjab. Power of Letters Patent continued to operate at Punjab High Court. Himachal Pradesh was 'Part-C' State. It was under the Punjab High Court. Subsequently, separate Court of Judicial Commission in various 'Part-C' States started functioning. On 26.1.1950 the Judicial Commission was declared as the High Court by the Judicial Commission's C Court (Declaration of High Court), 1950. On 1.7.1954 two 'Part-C' States amalgamated were Himachal Pradesh and Bilaspur by the New States Act, 1954. There was one Judicial Commission for the State of Himachal Pradesh. On l. l l. l 956 'Part-C' States were abolished by the Constitution (7th Amendment) Act. Accordingly, the erstwhile Part-C State became the State of Himachal Pradesh. On l.5. l 967 the Delhi (High Court) Act, 1966 came into D force. The jurisdiction extended over Himachal Pradesh by carving out Delhi and Himachal Pradesh from the original Punjab High Court. Under Section 5, the powers exercised by the Punjab High Court came to be exercised by the Delhi High Court in its territories including Himachal Pradesh. Accordingly, Judicial Commission, Himachal Pradesh came to be abolished by the Delhi E High Court Act. On 25 .12.1970 by the State of Himachal Pradesh Act, 1970 Delhi High Court ceased to have jurisdiction over Himachal Pradesh and the Himachal Pradesh High Court came into existence. Section 23 of the Act made this position clear. > 3. It is to be noted that the. foundation of the impugned judgment is a F Full Bench decision of Delhi High Court which decided that if order of the learned Single Judge is in its ordinary original jurisdiction. no Letters Patent would lie to the Division Bench of the High Court. (See _University of Delhi_ v. _Hafiz Afohd._ Said AIR (l 972) Delhi 102). The Division Bench in the impugned judgment ought to have followed _Jugal Kishore Paliwal_ v. _S. Sat Jit Singh and Anr.,_ {1984] l SCC 358 and two earlier decisions in _Asha Kochar's_ case G ILR (l 976) 5 H.P. 551 and _State of Himachal Pradesh_ v. _Ajit Kumar,_ ILR (l 976) HP 24. This Court in _Jugal Kishore 's_ case (supra) expressly over-ruled the view in _Hafiz Mohd_ Said's case (supra). The High Court has not noticed the view expressed in _Jugal Kishore 's_ case (supra). We, therefore, set aside the order of the High Court, remand the matter to it to decide the controversy H afresh in the light of _Jugal Kishore 's_ case (supra) and also to take note of _r_ R.J. SHAH _v._ H.P. ST ATE ELECTRICITY BOARD [PASAYA T, J.] 419 _..i,_ view expressed by this Court in _P.S. Sathappan (dead) by Lrs._ v. _Andhra_ A _Bank Ltd and Ors.,_ [2004] 11 SCC 672. 4. The appeals are accordingly disposed of. D.G. Appeals disposed of. ~·