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Mohan Lal v. Lal Chand
Structured Summary of the Provided Opinion (Division Bench; N.N. Mathur, J.)
Factual and Procedural Background
This opinion records the determination of six specific, framed questions of law relating to the scope and maintainability of "Special Appeals" under Section 18 of the Rajasthan High Court Ordinance, 1949 and their relationship (if any) with Letters Patent Appeals, the effect of the life of ordinances, and whether Special Appeals lie in matters arising from subordinate courts and tribunals or where writ petitions are filed under Articles 226 and 227 of the Constitution. The questions were referred to a Division Bench (earlier Coram: R.R. Yadav and A.S. Godara) and the court gave general notice to the Bar and heard senior counsel (Mr. L.R. Mehta, Mr. M. Mridul, Mr. D.S. Shishodia and Mr. Vineet Kothari). The opinion situates the legal questions against a detailed factual narration of the historical and legislative background of the establishment of the Rajasthan High Court (integration of princely states, issuance of Covenants/Ordinances, promulgation of the Rajasthan High Court Ordinance, 1949, and subsequent constitutional developments including the enforcement of the Constitution and the States Reorganisation Act, 1956).
Legal Issues Presented
- Whether provision for Special Appeals (Section 18 of the Rajasthan High Court Ordinance, 1949) can be said to substitute Letters Patent after enforcement of the Constitution?
- Whether a Special Appeal is maintainable only against matters which originally originate in the High Court (i.e., is it restricted to matters originating in the High Court)?
- Whether provisions relating to the life of an ordinance under the Government of India Act, 1935 and thereafter under the Constitution are applicable to the Rajasthan High Court Ordinance, 1949 and, if so, the effect on filing Special Appeals after expiry of six months from issuance of the Ordinance?
- Whether Special Appeals under Section 18 of the Rajasthan High Court Ordinance, 1949 are available in proceedings and suits which originate in subordinate civil courts or tribunals against which writ petitions are filed under Article 227 of the Constitution?
- Whether Special Appeals under Section 18 are maintainable against First Appeals decided by a learned Single Judge under Section 96 CPC and miscellaneous appeals decided by a Single Judge under Section 173 of the Motor Vehicles Act?
- Whether there is a distinction between a writ petition under Article 226 and a writ petition under Article 227 arising out of subordinate courts or tribunals and whether both can be treated as having originated before the High Court in its original jurisdiction?
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State v. Babulal | Authority of earlier decisions of this Court bearing on the validity/continuance of ordinances enacted under the Covenant and their force after adoption of the Constitution. | The court cites this decision as settling the controversy on the point that such ordinances continued to have effect; it formed part of the authorities supporting the court's view that ordinances promulgated by the Rajpramukh have continuing force. |
| Sardaria v. Board of Revenue | Similarly cited as authority on the continuing force of pre-Constitution ordinances. | Used alongside State v. Babulal to show prior judicial settlement of the issue that such ordinances are existing law post-Commencement of the Constitution. |
| Anandi Lal v. State of Rajasthan | Principle that a proceeding under Article 227 is not an original proceeding and, consequently, intra-court appeal may not lie against a Single Judge's judgment if it is purely under Article 227. | The court relied on this Division Bench precedent for the proposition that proceedings under Article 227 are not original proceedings and to explain that whether a petition is under Article 226 or 227 depends on the factual content of the petition. |
| Hindustan Machine Tools Ltd. v. Industrial Tribunal, Jaipur (Apex Court) | Direct Apex Court consideration of Section 18 of the Rajasthan High Court Ordinance, 1949 and the test whether a petition is under Article 226 or Article 227 based on petition contents. | The court treated this as the only Apex Court authority directly dealing with Section 18 of the Ordinance and relied on it to support the view that the label given by a petitioner is not decisive — the contents must show whether Article 226 was invoked. |
| Lokmat Newspapers Pvt. Ltd. v. Shankarprasad (Apex Court) | Where facts justify filing under either Article 226 or Article 227 (or both), and the party files under both, the court should treat the application as under Article 226 to avoid depriving the party of the right of appeal. | The Division Bench applied this Apex Court principle to conclude that a party should not be deprived of the right to appeal under Section 18 merely because proceedings could have been described under Article 227; the substance of the petition controls. |
| Umaji Keshao Meshram v. Radhikabai (Apex Court) | Observation that when the substantial part of an order is under Article 226 it should not be deprived of appeal rights even if ancillary directions touch Article 227; guidance on treating petitions invoking both Articles. | Used (as applied in Lokmat) to support the principle that the substantial character of the order (Article 226 content) governs the availability of intra-court appeal rights. |
| Shivdayal v. Raghubardayal (Division Bench) | Validity of Rajpramukh's authority to promulgate an Ordinance erecting and establishing a High Court when legislative authority was vested in him under the Covenant. | The court relied on this decision to hold the Rajpramukh's promulgation of the Rajasthan High Court Ordinance was within the powers conferred by the Covenant and therefore valid. |
| Sukhlal v. Revenue Board Rajasthan (Division Bench) | Rejects contention that after the Constitution came into force the Rajpramukh could promulgate ordinances only in the manner provided by Article 213. | The court invoked this decision to conclude that the "life of ordinances" issue (six months expiry contention) does not survive and that Special Appeals filed after six months continue to be maintainable. |
| New India Assurance Co. Ltd. v. Santosh (Full Bench) | Whether a Special Appeal under Section 18 is maintainable against judgments of learned Single Judges rendered in appeals under the Motor Vehicles enactment (Section 110-D of 1939; Section 173 of the 1988 Act). | The court relied on the Full Bench answer (in the affirmative) to hold that Special Appeals are maintainable against such Single Judge decisions under the Motor Vehicles Act. |
Court's Reasoning and Analysis
The court structured its analysis question-by-question, grounding its conclusions in the text of Section 18 of the Rajasthan High Court Ordinance, 1949, the historical and constitutional origins of the Ordinance and High Court, and relevant precedents. The key analytical steps were:
-
Analysis of the nature of "Special Appeal" (Question 1):
- The court compared Section 18 of the Rajasthan Ordinance with Clause 15 of the Letters Patent Act applicable to certain Charter High Courts and concluded that a Special Appeal is an intra-court appeal analogous to a Letters Patent Appeal but is not strictly a substitute for Letters Patent Appeal.
-
Textual reading of Section 18 to determine scope (Questions 2 & 4):
- The court examined the language of Section 18 and identified specific exceptions in which a Special Appeal would not lie (e.g., judgments passed by a Single Judge in exercise of appellate jurisdiction over decrees/orders that themselves arose from appellate jurisdiction of courts subject to High Court superintendence; orders in revisional jurisdiction; sentences/orders under Section 43 or in criminal jurisdiction).
- From this textual construction the court concluded that Special Appeal is not limited to matters that originated in the High Court; for example, it may be maintainable against Single Judge judgments in the appellate jurisdiction with respect to decrees/orders from original civil courts.
- On Article 226 vs Article 227, the court reviewed authorities (including Anandi Lal and the Apex Court decisions) and held that whether a petition is under Article 226 or 227 depends on the factual contents of the petition — the substance, not the label, determines availability of Special Appeal under Section 18. The court applied Lokmat and Umaji Keshao Meshram to emphasize that where the facts justify either Article, the proceedings should be treated to preserve the right of appeal.
- Where the writ petition is purely under Article 227 (as shown by pleadings), a Special Appeal is not maintainable.
-
Validity and life of the Ordinance (Question 3):
- The court narrated the Covenant-based and Rajpramukh-promulgated origin of the Rajasthan High Court Ordinance, 1949, and explained that under the Covenant (Article X(3)) the Rajpramukh had full legislative authority to promulgate ordinances which had the force of law.
- The court cited Articles 372 and 366 of the Constitution and prior Division Bench authority (Shivdayal; Sukhlal) to hold that the Ordinance was "existing law" and that the ordinary six-month expiry concept (as in pre-Constitution ordinances under other regimes) is not relevant to the Ordinance's continuing effect; therefore Special Appeals filed after six months of issuance remain valid.
-
Maintainability in specific appeal types (Question 5):
- The court relied on the Full Bench decision in New India Assurance Co. Ltd. v. Santosh to hold that Special Appeals under Section 18 are maintainable against Single Judge decisions on appeals under Section 96 CPC and against miscellaneous appeals decided under Section 173 of the Motor Vehicles Act.
-
Distinction and interplay between Articles 226 and 227 (Question 6):
- The court reiterated that the availability of writs (certiorari, prohibition) and the High Court's superintendence under Article 227 mean that orders of inferior tribunals can be challenged under Article 226 where appropriate (for example, certiorari or prohibition). Thus the crucial inquiry is the pleader's averments: if the petition on its averments is maintainable under Article 226 against an order of a subordinate court or tribunal, it is to be treated as having originated in the High Court in original jurisdiction for purposes of Special Appeal.
Holding and Implications
The court answered the referred questions and directed further procedural steps. The core holdings, as framed by the court, are:
- Question 1 — Holding: A Special Appeal under Ordinance 18 of the Rajasthan High Court Ordinance, 1949, is not a substitute for Letters Patent Appeal but is analogous to a Letters Patent Appeal.
- Question 2 — Holding: No. It cannot be said that a Special Appeal is maintainable only against matters which originally originate in the High Court.
- Question 3 — Holding: References to the Government of India Act, 1935, are not relevant for the Rajasthan High Court Ordinance, 1949; the expression "ordinance" in the present context has the effect of law as an Act, and the purported expiry after six months has no relevance. As a consequence, Special Appeals filed after six months of issuance of the Ordinance continue to survive.
- Question 4 — Holding: A Special Appeal is not maintainable against a writ petition filed before a Single Judge where the averments show it is purely under Article 227 of the Constitution.
- Question 5 — Holding: A Special Appeal is maintainable against judgments of a learned Single Judge under Section 96 CPC and against miscellaneous appeals decided by a Single Judge under Section 173 of the Motor Vehicles Act.
- Question 6 — Holding: Whether a petition is under Article 226 or Article 227 depends upon the averments made in the pleadings of the writ petition before a Single Judge; the substance of the petition determines the character of the proceeding.
Direct procedural consequence ordered by the court: both the Special Appeals referred to the court are to be laid before the appropriate Bench for hearing and disposal on merits.
Broader implications: The opinion applies and reconciles existing authorities (both Division Bench/Full Bench and Apex Court decisions) to clarify the scope of Section 18 Special Appeals for the Rajasthan High Court. The opinion does not expressly state that it creates a new binding precedent beyond its answers to the framed questions; it applies established principles (textual construction of Section 18, the substance-over-label rule for writ petitions, and the constitutional character of the Ordinance) to resolve the referred queries and gives directions for further hearing.
The Judgment of the Court was delivered by
N.N Mathur, J.:— The Division Bench of this court (Coram Hon'ble Mr. Justice R.R Yadav and Hon'ble Mr. Justice A.S Godara, as his lordship then was) considered the following prima facie substantial and intricate questions as of general importance in these appeals:
“1. Whether provision for special Appeals can be said to substitute of letters patent after enforcement of the Constitution?
2. Whether special Appeal is maintainable only against those matters which originally originate in the High Court with an avowed object to check and balance?
3. Whether provision relating to life of an ordinance enshrined under Government of India Act 1935 and thereafter under the Constitution are applicable to the Rajasthan High Court Ordinance 1949. If so, its effect in filing Special Appeals after expiry of six months from the date of issuance of Rajasthan High Court Ordinance, 1949?
4. Whether Special Appeals can be filed under Section 18 of Rajasthan High Court Ordinance, 1949 even in those proceedings and suits which originate in subordinate civil courts or tribunals against which writ petition is filed under Article 227 of the Constitution?
5. Whether Special Appeals under Section 18 of Rajasthan High Court Ordinance 1949 are maintainable against first Appeals decided by learned Single Judge of this court under Section 96 CPC and Misc. Appeals decided by Single Bench under Section 173 of Motor Vehicles Act?
6. Whether there is distinction between a writ petition filed under Art. 226 and a writ petition filed u/Art. 227 of the Constitution arising out from sub-ordinate courts or tribunals and both can be treated to have originated before High Court in its original jurisdiction?”
2. A general notice was given to the learned members of the Bar to assist the court in deciding the aforesaid questions, if they so wish.
3. We have heard Mr. L.R Mehta, Mr. M. Mridul, Senior Advocate, Mr. D.S Shishodia, Senior Advocate and Mr. Vineet Kothari.
4. The above questions of law with respect to the special appeal under Sec. 18 of the Rajasthan High Court Ordinance, 1949 and that of Letters Patent Appeal, have arisen in the context that though all the High Courts in India after the commencement of Indian Constitution on 26.11.1949, owes their existence under Articles 214 and 225, of the Constitution of India, still their power of Letters Patent Appeal or Special Appeal flow from paramount Charter under which they came into existence.
5. The phrase “Letters Patent” denotes an open letter under governmental seal granting some right or privileges. Letters Patent Act, 1865 was enacted for establishing High Court of Judicature in India. By the said Act, the High Courts were established in Calcutta, Madras and Bombay. Thus, they are known as Charter High Courts. Clause 15 provided intra court appeal named as Letters Patent Appeal. The said Letters Patent Appeal has continued in the Charter High Courts even after the adoption of the Indian Constitution. On formation of the State of Rajasthan in the year 1949, by process of integration of different princely States, the Rajasthan High Court came to be established under the Rajasthan High Court Ordinance, 1949. Clause 18 of the Ordinance also provides an intra court appeal, known as special appeal. Thus, in order to better appreciate the controversy involved, it would be convenient to acquaint with the brief history of the establishment of the Rajasthan High Court.
Facts PERTAINING TO THE ESTABLISHMENT OF RAJASTHAN HIGH COURT:
6. The State of Rajasthan, as it is today, is the result of integration and amalgmation achieved in different stages. There were number of dynastic princely States each under a ruler. The Indian became free on 15.08.1947 The Indian Independence Act, 1947 was enforced in place of the Government of India Act, 1935 and in consequence thereof. Independence from British Rule and India became a sovereign Country. Most of the rulers of the princely States voluntarily chose to join the Indian Union.
7. On 17.3.1948, Matsya Union comprising four States viz; Alwar, Bharatpur, Dholpur and Karauli was formed. On 25th of March, 1948, former Rajputana States Rulers of Banswara (including Kushalgarh), Bundi, Dungarpur, Jhalawar, Kishangarh, Kotah, Pratabgarh, Shahpura and Tonk States under Covenant merged themselves initially into a Union of Nine States and formed as United State of Rajasthan (First Rajasthan Union), which was inaugurated by Hon'ble Shri V.N Gadgil, Union Minister, Government of India, Maha Rao Bhim Singh of Kota being the Rajpramukh. (The White Paper on Indian States 1950 Edition Page 53 para 134). On 18.4.1948, the Udaipur also joined the Union to make it united State of Rajasthan with Maharana Udaipur as Rajpramukh and Maharaja Kota as Up Rajpramukh with Capital at Udaipur. This was inaugurated by Pandit Jawahar Lal Nehru, the then Prime Minister of India. (Page 53 para 135). The High Court of United State of Rajasthan was also established at Udaipur and Hon'ble Mr. Justice Kamala Kant Verma, retired Chief Justice of Allahabad High Court, was appointed as Chief Justice. The Rajpramukh of the United State of Rajasthan in exercise of powers conferred upon him under Article 10 of the Covenant by promulgation of Ordinance called United State of Rajasthan High Court Ordinance, 1948 (Ordinance No. 3 of 1948) established a High Court of Judicature for United Rajasthan w.e.f the date of publication of the Ordinance in the United Rajasthan Gazette (Ordinance was published in the Gazette of Rajasthan vide Notification No. 26 dated 4.05.1948). The Principal seat of the High Court was established at Udaipur and a Bench at Kotah vide section 19 of the said Ordinance. The existing jurisdiction of High Court of the covenanting States ceased to function and transferred to the High Court of Judicature for United State of Rajasthan vide Section 35 of the Ordinance. Law inconsistent with this Ordinance was repealed as per section 38 of the said Ordinance. On 31.5.1948 His Highness the Raj Pramukh of the United State of Rajasthan Maharana Bhupal Singh executed the Instruments of Accession in cancellation of Instrument of Accession executed by the Rulers of 10 States specified in the Schedule in August, 1947, which was accepted by the Governor General of India on 13.09.1948 On 6th Sept. 1948. His Highness the Raj Pramukh of the United State of Rajasthan appointed Justice Kamala Kant Verma as the Chief Justice of the Rajasthan High Court which (Order No. 3112 dated 6.9.1948) was published in the Rajasthan Gazette Vol. 1 No. 37 Part I dated 13.9.1948 On 30.3.1949, as ten major States in the former Rajputana Agency remained unintegrated, a fresh covenant was executed, providing for the merger of four new covenanting States Bikaner, Jaipur, Jaisalmer and Jodhpur integrating their territories in one State, with common executive, legislature and Judiciary in the name of the United State of Rajasthan (Greater Rajasthan) (Covenant XL published in white paper page 274). The Maharaja Shri Sawai Man Singh, the Ruler of Jaipur assumed the office of Raj Pramukh of the newly re-constituted United State of Rajasthan by his proclamation published in Rajasthan Gazette Vol. 1 No. 1 of the Government of United State of Rajasthan (USR). On 7.04.1949, the United State of Rajasthan formed with the merger of Jodhpur and other States (18) in the Union of India. Hish Highness Maharana Bhupal Singh as Maharaj Pramukh and His Highness Maharaja Sawai Man Singh Ji as Raj Pramukh of the United State of Rajasthan. On 15.4.1949 His Highness the Raj Pramukh of the United State of Rajasthan Maharajadhiraj Sawai Sir Man Singh of Jaipur executed the Instruments of Accession in cancellation of Instruments of Accession executed by the Rulers of the New Covenanting States and the Raj Pramukh of the United State of Rajasthan in August 1947 a. 05.1948, which was accepted by the Governor General of India on 12.05.1949 Article 9 of the Instrument of Accession reads as follows:
“Save as provided by or under this Instrument nothing contained in the Instrument shall affect the exercise of any powers, authority and rights enjoyed by the Raj Pramukh or the validity of any law for the time being in force in the United State or any part thereof.”
8. On 15.5.1949, Matsya States integrated with United State of Rajasthan. This completed the process of Integration of all States. (Alra & Delwara Taluka of Sirohi District were transferred to Bombay.) On 21.06.1949 His Highness the Raj Pramukh promulgated Rajasthan High Court Ordinance 1949 (In short “High Court Ordinance” or “Ordinance”) to provide for the establishment of a High Court of Judicature for Rajasthan for the peace and good Government of the United State of Rajasthan. Hon'ble Chief Justice Shri Kamlakanta Verma of the High Court of Judicature at Udaipur and thereafter of the Former Rajasthan was appointed as the First Chief Justice of the High Court of Judicature for Rajasthan at Jodhpur vide clause 3 of the Ordinance. The Clause 10 of the Ordinance provides the place of sitting, as follows:
“10. Place of Sitting—
(1) The High Court shall sit at Jodhpur and such other place or places, if any, as the Raj Pramukh may from time to time appoint, either permanently or for a specified period.
(2) One or more of such Judges of the High Court, as the Chief Justice may nominate, shall thereupon sit at such place or places accordingly.”
9. His Highness the Raj Pramukh in exercise of powers conferred by sub-sec. (3) of Sec. 1 of the Ordinance issued a notification appointing, the 29th day of August, 1949, to be the date for the inauguration of High Court of Judicature for Rajasthan at Jodhpur. Another notification, No. 155.A/J.D/U.S.R/dated 25.08.1949, was issued with respect to sittings at other places as follows:
“In pursuance of sub-sec. (1) of Sec. 10 of the Rajasthan High Court Ordinance, 1949 (No XV of 1949). His Highness the Raj Pramukh is pleased to direct that until further orders the High Court of Judicature for Rajasthan shall also sit simultaneously:—
(i) at Jaipur to dispose of the work arising in the Jaipur and Kotah Division, and
(ii) at Udaipur to dispose of the work arising in the Udaipur Division.”
10. On 29.8.1949, the High Court of Judicature for Rajasthan started functioning at Jodhpur and simultaneously at Jaipur and Udaipur in pursuance of Notifications dated 25.08.1949 under section 10 of the Rajasthan High Court Ordinance, 1949. Existing High Court of Judicature for Former United State of Rajasthan at Udaipur under the United State of Rajasthan High Court Ordinance, 1948 (Ordinance No. 3 of 1948) Letters Patent dated 9.09.1940 and covenanting States abolished and ceased to function by operation of section 49(1) of the Ordinance.
11. On 26.11.1949, the People of India adopted, enacted and gave to ourselves the Constitution of India. On 26.1.1950, the Constitution of India enforced and under First Schedule of the Constitution Rajasthan became Part ‘B’ State and as per Article 214 and 225 of the Constitution, the High Court of Judicature for Rajasthan established under the High Court Ordinance of 1949 continued to be the High Court for the Rajasthan State with its Bench at Jaipur and Udaipur. However, in view of the notification dated 8.5.50 issued by the order of His Highness the Raj Pramukh in exercise of power under sub-section (1) of Section 10 of the High Court Ordinance, 1949, all Benches of the High Court except at Jaipur ceased to operate with effect from 22.5.50
12. On 31.8.1956, the States Reorganisation Act, 1956 (Act No. 37 of 1956) (In short “Reorganisation Act” or “SRA”) was promulgated by the President of India and in pursuance of section 10 of the States Reorganisation Act, 1956 (Act No. 37 of 1956) as from the appointed day a New State to be known as the State of Rajasthan. On 27.10.1956, by a Presidential Order dated 27.10.1956 issued under section 51(1) of the Reorganisation Act, it was directed that the principal seat of the High Court for the New State of Rajasthan shall be at Jodhpur. The 1.11.1956 was appointed as the date for coming into force of the States Reorganisation Act, 1956. On the same day, Ajmer the centrally administered Part C State, Abu a part of the Bombay State and Sunnel of Madhya Bharat were integrated with Rajasthan. Chief Justice of Rajasthan High Court in exercise of his powers under section 51(3) of the Reorganisation Act, 1956 established a temporary Bench at Jaipur. From then, it is named as ‘Rajasthan High Court’. The Chief Justice Rajasthan High Court by his order dated 14.7.58 abolished the Jaipur Bench and the pending cases transferred to Jodhpur seat. However, it was restored with effect from 31.01.1977 by the order of the President of India.
13. It emerges from the above narration that the present State of Rajasthan was integrated and formed under the Covenant of 1949 by all the then rulers of the princely States of Rajasthan. The Covenant was sort of an interim constitutional arrangement. The relevant notification as published in the Rajasthan Gazette Extra Ordinary Vol. 1 No. 150 Jan. 14, 1950, reads as follows:
“No. F.1 (13)-Pol. (C)/49.-The Covenant entered into by the Rulers of the Covenanting States for the reconstitution of the United State of Rajasthan, together with the supplementary agreement integrating the Matsya Union in the United State of Rajasthan is, hereby, published by general information.
Article - X
(1) There shall be formed, as soon as practicable, a Constituent Assembly in such manner as the Raj Pramukh may, in consultation with the Government of India in the States Ministry, prescribe.
(2) It shall be the duty of the said Assembly to frame a Constitution for the United State within the framework of this Covenant and the Constitution of India, and providing for a government responsible to the legislature.
(3) Until a Constitution so framed comes into operation after receiving the assent of the Raj Pramukh, the legislative authority of the United State shall vest in the Raj Pramukh who may promulgate ordinances for the peace and good government of the State or any part thereof, and any Ordinance so made shall have the like force of law as an Act passed by the Legislature of the United State.”
14. His Highness the Rajpramukh on 21st of January, 1949, promulgated an Ordinance to provide for establishment of High Court of Judicature for Rajasthan, known as “the Rajasthan High Court Ordinance 1949”. The Ordinance has been defined under Clause (i) of the Ordinance of 1949, which provides as follows:
“1. Ordinance, definition of.-Clause (51) of section 32 of the Rajasthan General Clauses Act, 1955 defines the term ‘Ordinance’ as under:—
“(51)” Ordinance” shall mean and include.—
(a) as respects any period before the commencement of the constitution—
(i) an Ordinance lawfully made and promulgated by the Ruler or the Government of a covenanting State;
(ii) an Ordinance lawfully made and promulgated by the Rajpramukh of the former Rajasthan State in pursuance of the Covenant;
(iii) an Ordinance likewise made and promulgated by the Rajpramukh of the former Matsya State; and
(iv) an Ordinance likewise made and promulgated by the Rajpramukh of Rajasthan; and
(b) as respects the period after such commencement, an Ordinance made and promulgated under and in accordance with the provisions of the Constitution;
(i) by the Rajpramukh upto the 31st day of October, 1956 or
(ii) by the Governor on or after the first day of November, 1956.”
15. Thus, the expression “an Ordinance so made” has the force of law as an Act passed by the Legislature of the United States of Rajasthan in Article 3(3) of the Covenant of 1949. Article X(3) of the Covenant provides full legislative powers and authority to the Rajpramukh in the United State of Rajasthan. Thus, the Rajpramukh had the legislative competence and an Ordinance made and promulgated by him, has the valid force of law under Article 372 of the Constitution of India. The existing law under Article 366(10) of the Constitution of India means any law, ordinance, order, bye-law, rule or regulation made or passed before the commencement of the Constitution by any competent legislative authority having the power to make such law. Thus, all enactments termed as ordinances, are existing law as termed under Article 372 of the Constitution. These ordinances are made and promulgated by the Raj Pramukh under the legislative powers conferred upon him before the commencement of the Constitution. Hence, such existing law i.e ordinances continues to be valid, even after commencement of the Constitution of India. It is not to be confused with the life of an ordinance under Government of India Act, 1935.
16. The controversy on the point has been settled by the various decisions of this court. A reference be made to State v. Babulal (1) and Sardaria v. Board of Revenue (2).
17. Now, in the backdrop of political and legislative history, we proceed to deal-with the questions under reference.
QUESTION NO. 1:
18. Clause 18 of the Rajasthan High Court Ordinance, 1949 provides an intra court appeal, known as Special Appeal. As discussed above, the provisions have continued even after coming into force of the Indian Constitution. The provisions of Section 18 of the Ordinance are para materia with Clause 15 of the Letters Patent Act, which applies to the Bombay High Court and certain other High Courts. Thus, Special Appeal is nothing but intra court appeal like Letters Patent Appeal. Thus, though stricto senso, Special Appeal cannot said to be substitute of Letters Patent Appeal but it can be said to be analogous to Letters Patent Appeal. The question No. 1 is answered accordingly.
QUESTIONS NO. 2 & 4:
19. In order to appreciate the controversy raised in second and fourth questions, it would be appropriate to read Ordinance 18 of the Ordinance, which reads as follows:
“18. Appeal to the High Court from judgment of Judges of the Court. (1) An appeal shall lie to the High Court from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the High Court and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under section 43 or in the exercise of criminal jurisdiction) of one Judge of the High Court.
Notwithstanding anything hereinbefore provided, an appeal shall lie to the High Court from a judgment of one Judge of the High Court made in exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court where the Judge who passed the judgment declares that the case is a fit one for appeal.”
20. An analysis of the said provision will show that under Ordinance 18, an appeal against a judgment of the learned Single Judge is maintainable, if it does not fall in any of the following exceptional categories:
Firstly, it is not a judgment passed by the learned Single Judge in exercise of the appellate jurisdiction in respect of—
(a) a decree or order made in exercise of the appellate jurisdiction by a court subject to superintendence of the High Court;
(b) not being an order made in exercise of the revisional jurisdiction;
(c) not being a sentence or order passed or made in exercise of the powers of superintendent under Sec. 43 or the exercise of criminal jurisdiction; and
(d) a sentence and order passed or made in exercise of the criminal jurisdiction.
21. Thus, it is apparent that a special appeal is maintainable even against a judgment passed by the learned Single Judge in exercise of the appellate jurisdiction in respect of decree or order passed by an original civil court. The prohibition is against the judgment of the learned Single Judge passed in exercise of the appellate jurisdiction in respect of a decree or order made in exercise of the appellate jurisdiction by a court subject to the superintendence of the High Court. Thus, it cannot be said that a special appeal is maintainable only against those matters which originally originate in the High Court.
22. As far as petition under Article 226 of the Constitution is concerned, it is definitely the original jurisdiction of the High Court and, therefore, a Special Appeal is maintainable under Section 18 of the Rajasthan High Court Ordinance. As regards Article 227 of the Constitution, a Division Bench of this court in Anandi Lal v. State of Rajasthan (3), relying on various decisions of the Apex Court, held that the proceedings under Art. 227 of the Constitution is not an original proceeding and, as such, the intra court appeal does not lie against a judgment of a learned Single Judge. The Court, however, observed that as to whether a petition is under Art. 226 or 227 of the Constitution, it will be for the High Court to examine the facts of each case and satisfy that the substantial part of the order under appeal is against Article 226 or Article 227 of the Constitution. The Court is also required to be further satisfied that the petition could be filed under both the Articles i.e Article 226 and Article 227. The Hindustan Machine Tools Ltd. v. Industrial Tribunal, Jaipur (4), is the only case of the Apex Court, which directly deals with Section 18 of the Rajasthan High Court Ordinance, 1949. In the said case, a question for consideration on facts was as to whether the writ petition filed before the High Court was a petition under Article 226 or Art. 227 of the Constitution. The Division Bench of the High Court rejected the special appeal on the ground that writ petition filed before the Single Judge was essentially a petition under Article 227 of the Constitution and that merely the label given by the petitioner would not be sufficient to hold that the petition was under Art. 226 of the Constitution. The Apex Court after perusing the contents of the writ petition, found that the appellant was invoking the extra ordinary jurisdiction of the High Court under Art. 226 of the Constitution and, therefore, the writ petition ought to have been treated as petition filed under Article 226 of the Constitution of India.
23. Recently, the Apex Court in Lokmat Newspapers Pvt. Ltd. v. Shankarprasad (5), applying the observations of the Apex Court in Umaji Keshao Meshram v. Radhikabai widow of Anandrao Banapurkar (6), held that where the fact justifies a party filing an application either under Art. 226 or Art. 227 of the Constitution and the party chooses to file an application under both the Articles, in fairness and justice to such party in order not to deprive him of the valuable right of appeal, the court ought to treat the application as being under Article 226. The court also took into consideration the observations of the Apex Court in Umaji Keshao's case (supra) that if in deciding the matter in final order, the court gives ancillary direction, which may pertain to Article 227 of the Constitution, a party should not be deprived of his right to appeal under Clause 15 of the Letters Patent, where substantial part of the order sought to be appealed against is under Article 226 of the Constitution. Thus, the Apex Court, from the relevant averments made in the writ petition, found that the writ petition was under Articles 226 and 227 of the Constitution of India. Thus, in our opinion, a party cannot be deprived of right of appeal under Section 18 of the Ordinance of 1949, simply because those proceedings and suit which originate in subordinate civil court or tribunal, are filed under Article 227 of the Constitution. It is not the label but it is the contents of the petition, which matters. The questions No. 2 and 4 are answered accordingly.
QUESTION NO. 3:
24. As already discussed, the High Court of Judicature for Rajasthan at Jodhpur was established by the Rajasthan High Court Ordinance No. 15 of 1949, promulgated by the Raj Pramukh in exercise of the powers conferred upon him by paragraph 3 of Article 10 of the Covenant under which an Ordinance has the force of law like any Act passed by the legislature of the United State of Rajasthan. Considering the relevant provisions, a Division Bench of this court in Shivdayal v. Raghubardayal (7), has held as under:
“The authority of the Raj Pramukh to make an Ordinance erecting and establishing a High Court can not, therefore, be questioned, when all legislative authority has been vested in him under the Covenant.”
25. The first meeting of the Legislative Assembly of the Rajasthan took place in March, 1952. A bare reading of Article 213 makes it clear that the Article became applicable only to those States where there was a Legislative Assembly or both the houses of the legislature, as the case may be or in the case of State like Rajasthan where there was no Legislative Assembly, after such Legislative Assembly was constituted. Thus, it cannot be contended that after coming into force of the Constitution, the Raj Pramukh can only promulgate an Ordinance as provided by Article 213 of the Constitution of India requiring the formalities to be completed as mentioned in para 2 of the Article 213 of the Constitution of India. Such a contention has been considered and rejected by a Division Bench of this court in Sukhlal v. Revenue Board Rajasthan (8). In view of this, the question pertaining to the life of the Ordinances does not survive. All the Special Appeals filed after the expiry of six months from the date of issuance of the Rajasthan High Court Ordinance, 1949 continues to survive. It appears that a confusion has arisen simply because of the use of the word “Ordinances”. At the cost of repetition, it is stated that the expression “Ordinances” so made, has the effect of the law as an Act passed by the legislature as the same has been promulgated by the Raj Pramukh under his legislative powers conferred upon him by Article 10(3) of the Covenant to be read with Article 372 and Article 366 of the Constitution of India.
QUESTION NO. 5:
26. This question has been answered by the decision of the Full Bench of this court in New India Assurance Co. Ltd. v. Santosh (9). The Full Bench settled the controversy on the point holding as follows:
“We answer the question in affirmative that is to say that a special appeal under section 18 of the Rajasthan High Court Ordinance, 1949, is maintainable against the judgment and order of the learned single Judge rendered in an appeal under section 110-D of the Motor Vehicles Act, 1939 (now Section 173 of the Motor Vehicles Act, 1988).”
QUESTION NO. 6:
27. This question has been dealt with in part while dealing with the Questions No. 2 and 4. We may add that the question whether a party would be justified in invoking the jurisdiction of the High Court under Article 226 or against an order made by the tribunal, would take us to the scope of writ of certiorari and the nature of the order of the tribunal. A writ of certiorari would lie against the order of the subordinate court and the inferior tribunals. The High Court has power of superintendence over its tribunals within its territory under Art. 227 of the Constitution and, therefore, such tribunals are inferior tribunals and are amenable to writ jurisdiction of the High Court under Article 226 of the Constitution of India. So the writs of certiorari and prohibition can be issued against them. If such tribunals assume wrong jurisdiction, it can be corrected by the writ of prohibition and if it makes an order, which falls within the scope of writ of certiorari, the same can be quashed under Article 226 of the Constitution. The object of the writ of certiorari is that the jurisdiction of the inferior tribunal should be properly exercised. This writ is issued to direct the inferior courts, tribunals or authorities to transmit to the court record of proceedings pending therein for scrutiny and if necessary, for quashing the same. Thus, it is wrong to assume that an order of the tribunal can be challenged only under Article 227 of the Constitution. Against the order of the tribunal, a writ of certiorari or a writ in the nature of certiorari can be issued even under Article 226. A party would be justified in invoking the provisions of Art. 226 of the Constitution for the writ of certiorari or writ of prohibition against the order made by the tribunal. Thus, in our view, on perusal of the averments of the pleadings of a petition, if it is found that a petition is maintainable under Article 226 of the Constitution against the order of the subordinate court or the tribunal, it can be treated to have originated before the High Court in its original jurisdiction.
28. Thus, we answer the questions as follows:
QUESTION NO. 1:
A Special Appeal under Ordinance 18 of the Rajasthan High Court Ordinance, 1949, is not a substitute of Letters Patent Appeal but is analogous to a Letters Patent Appeal.
QUESTION NO. 2:
No. It cannot be said that a Special Appeal is maintainable only against those matters, which originally originate in the High Court.
QUESTION NO. 3:
The reference to Government of India Act, 1935 is not relevant with reference to the Rajasthan High Court Ordinance, 1949. The expression ‘ordinance’ made in the present context has the effect of law as an Act passed by the legislature and it is an existing law and, as such, the expiry of the Ordinance after a period of six months, has no relevance.
QUESTION NO. 4:
A Special Appeal is not maintainable against a writ petition filed before a Single Judge, the averments of which shows that it is purely under Article 227 of the Constitution.
QUESTION NO. 5:
An appeal against the judgment of the learned Single Judge under Sec. 96 CPC and Miscellaneous Appeal decided by the learned Single Judge under Sec. 173 of the Motor Vehicles Act, is maintainable.
QUESTION NO. 6:
The question whether a petition is under Article 226 or 227 of the Constitution, will depend upon averments made in the pleadings of a writ petition before a learned Single Judge.
29. Having answered the questions, framed by this court, we now direct that both the Special Appeals be laid before the appropriate Bench for hearing and disposal on merit.
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