JUDGEMENT
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(1.)The interplay of the jurisdictions to be exercised under Letters Patent
and as the First Appellate Court while dealing with non-appealable
orders passed by the learned Single Judge in exercise of ordinary
original civil jurisdiction has given rise to the present reference. The
question, thus, which arises for consideration is:
"If an order is passed by the learned single Judge in exercise of
Ordinary Original Civil Jurisdiction which is not appealable under
Section 104 (1) read with Order 43 (1) of the Code of Civil
Procedure, 1908 (hereinafter referred to as the "said Code") whether
the remedy would be under Section 10 (1) of the Delhi High Court
Act, 1966 (hereinafter referred to as the "said Act") or under Clause
10 of the Letters Patent ?"
(2.)The occasion to make this reference arose on account of the fact that
at various times pronouncements of this Court have treated it as an
"either" or "or" situation while entertaining an appeal, i. e. , an appeal
would be maintainable from a non-appealable order provided it
satisfies certain tests and such an appeal may arise under one or the
other of the aforesaid provisions and, thus, the matter was never
examined further. A Division Bench of this Court posed this
question and subsequently analyzed it while making the reference
vide order dated 17.4.2012 so that the controversy could be put at
rest and a consistent practice is followed. This also became
necessary in a sense for assisting in, both, the administration of
justice and court management as the Chief Justice of the High Court
is the Master of the Roster and as per allocation of roster, normally,
the letters patent jurisdiction is exercised by a different Bench than
the Bench exercising jurisdiction under First Appealable Orders from
Original Side [FAO (OS)].
(3.)The Delhi High Court was constituted under the said Act. It being
one of the newer High Courts, it had the benefit of being constituted
under a legislation of the Indian Parliament. In terms of Section 5
(1) of the said Act, the Delhi High Court has been conferred with all
such original, appellate and other jurisdiction, as under the law in
force immediately before being exercised in respect of the territories
by the High Court of Punjab. However, the Punjab High Court did
not have any ordinary original civil jurisdiction. Therefore, Section
5 (2) of the said Act which begins with a non obstante clause
conferred an additional ordinary original civil jurisdiction in every
suit the value of which exceeded Rs. 25,000.00, on the Delhi High
Court. This limit has been subsequently revised and stands at Rs. 20.00
lakh now. Section 5 of the said Act reads as under:
"5. Jurisdiction of High Court of Delhi-(1) The High Court
of Delhi shall have, in respect of the territories for the time
being included in the Union territory of Delhi, all such
original, appellate and other jurisdiction as, under the law in
force immediately before the appointed day, is exercisable in
respect of the territories by the High Court of Punjab.
(2) Notwithstanding anything contained in any law for the time
being in force, the High Court of Delhi shall also have in
respect of the said territories ordinary original civil jurisdiction
in every suit the value of which exceeds rupees twenty lakhs. ?
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