APPENDIX. CHARTERS OF THE INDIAN HIGH COURTS. 1. Letters Patent for the High Court of Judicature at Fort William in Bengal, bearing date December 28, 1865. [N. B.-The Letters Patent for the High Courts of Madras and Bombay are mutatis mutandis in exactly the same terms.] VICTORIA, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the faith. To all to Recital of Acts 24 & whom these presents shall come, greeting: Whereas 25 Vic., c. 104. by an Act of Parliament passed in the twenty-fourth and twenty-fifth years of Our reign, entitled "An Act for establishing High Courts of Judicature in India," it was, amongst other things, enacted that it shall be lawful for Her Majesty, by Letters Patent under the Great Seal of the United Kingdom, to erect and establish a High Court of Judicature at Fort William in Bengal, for the Bengal Division of the Presidency of Fort William, aforesaid, and that such High Court should consist of a Chief Justice and as many Judges, not exceeding fifteen, as Her Majesty might, from time to time, think fit to appoint, who shall be selected from among persons qualified as in the said Act is declared: Provided always that the persons who at the time of the establishment of such High Court were Judges of the Supreme Court of Judicature and perman. ent Judges of the Court of Sudder Dewany Adawlut or Sudder Adawlut of the same Presidency, should he and become Judges of such High Court without further appointment for that purpose, and the Chief Justice of such Supreme Court should become the Chief Justice of such High Court, and that upon the establishment of such High Court as aforesaid, the Supreme Court and the Court of Sudder Dewany Adwalut and Sudder Nizamut Adawlut at Calcutta, in the said Presidency, should be abolished. And that the High Court of Judicature so to be established should have and exercise all such Civil, Criminal, Admiralty and Vice-Admiralty, Testamentary, Intestate and Matrimonial Jurisdiction, original and appellate, and all such powers and authority for, and in relation to, the administration of justice in the said Presidency as Her Majesty might, by such Letters Patent as aforesaid, grant and direct, subject, however, to such directions and limitations as to the exercise of original, civil and criminal jurisdiction beyond the limits of the Presidency Town as might be prescribed thereby and save as by such Letters Patent might be otherwise directed subject and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor-General of India in Council, the High Court so to be established should have and exercise all jurisdiction, and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under the said Act at the time of the abolition of such last mentioned Courts (a): (a) Certain paragraphs of the preamble, which follow here, have been omitted. Revocation of Letters Patent of 1862. 1. Now know ye that We, upon full consideration of the premises, and of Our special grace, certain knowledge, and mere motion, have thought fit to revoke, and do by these presents (from and after the date of the publication thereof as hereinafter provided, and subject to the provisions thereof) revoke Our said Letters Patent of the fourteenth of May, one thousand eight hundred and sixtytwo, except so far as the Letters Patent of the fourteenth year of His Majesty King George the Third, dated the twenty-sixth March, one thousand seven hundred and seventy-four, establishing a Supreme Court of Judicature at Fort William in Bengal, were revoked or determined thereby. 2. And We do by High Court at Fort William to be continued. these presents grant, direct, and ordain that notwithstanding the revocation of the said Letters Patent of the fourteenth of May, one thousand eight hundred and sixty-two, the High Court of Judicature, called the High Court of Judicature at Fort William in Bengal, shall be and continue, as from the time of the original erection and establishment thereof, the High Court of Judicature at Fort William in Bengal, for the Bengal Division of the Presidency of Fort William aforesaid; and that the said Court shall be and continue a Court of Record, and that all proceedings commenced in the said High Court prior to the date of the publication of these Letters Patent, shall be continued and depend in the said High Court, as if they had commenced in the said High Court after the date of such publication, and that all rules and orders in force in the said High Court immediately before the date of the publication of these Letters Patent, shall continue in force, except so far as the same are altered hereby, until the same are altered by competent authority. Judges of the said High Court to be continued. 3. And we do hereby appoint and ordain that the person and persons, who shall immediately before the date of the publication of these Letters Patent, be the Chief Justice or Judges, or acting Chief Justice or Judges, if any, of the said High Court of Judicature at Fort William in Bengal, shall continue to be the Chief Justice and Judges, or acting Chief Justice or Judges of the said High Court, until further or other provision shall be made by Us or Our heirs and successors in that behalf, in accordance with the said recited Act for establishing High Courts of Judicature in India. Clerks, &c., of the said High Court to be continued. 4. And we do hereby appoint and ordain that every clerk and ministerial officer of the said High Court of Judicature at Fort William in Bengal, appointed by virtue of the said Letters Patent of the fourteenth of May, one thousand eight hundred and sixty-two, shall continue to hold and enjoy his office and employment, with the salary thereunto annexed, until he be removed from such office and employment; and he shall be subject to the like power of removal, regulations, and provisions as if he were appointed by virtue of these Letters Patent. Declaration made by Judges. to be 5. And we do hereby ordain that the Chief Justice and every Judge who shall be from time to time appointed to the said High Court of Judicature at Fort William in Bengal, previously to entering upon the execution of the duties of his office shall make and subscribe the following declaration before such authority or person as the Governor-General in Council may commission to receive it : “I, A. B., appointed Chief Justice [or a Judge] of the High Court of Judicature at Fort William in Bengal, do solemnly declare that I will faithfully perform the duties of my office to the best of my ability, knowledge, and judgment. Seal. 6. And we do hereby grant, ordain, and appoint that the said High Court of Judicature at Fort William in Bengal, shall have and use, as occasion may require, a seal bearing a device and impression of Our Royal Arms, within an exergue or label surrounding the same, with this inscription: "The Seal of the High Court at Fort William in Bengal." And We do further grant, ordain, and appoint that the said Seal shall be delivered to and kept in the custody of the Chief Justice, and in case of vacancy of the office of Chief Justice or during any absence of the Chief Justice, the same shall be delivered over and kept in the custody of the person appointed to act as Chief Justice under the provisions of section 7 of the recited Act; and We do further grant, ordain, and appoint that, whensoever it shall happen that the office of Chief Justice or of the Judge to whom the custody of the said Seal be committed shall be vacant, the said High Court shall be and is hereby authorized and empowered to demand, seize, and take the said Seal from any person or persons whomsoever, by what ways and means soever the same may have come to his, her, or their possession. 7. And we do hereby further grant, ordain, and appoint that all writs, summons, precepts, rules, orders, and other mandatory process to be used, issued, or awarded by the said High Court of Judicature at Fort William in Bengal, shall run and be in the name and style of Us, or of Our heirs and successors, and shall be sealed with the Seal of the said High Court. Writs, &c., to issue in name of the Crown and under Seal. officers. 8. And we do hereby authorize and empower the Chief Justice of the said High Court of Judicature at Fort William in Bengal, Appointment of from time to time, as occasion may require, and subject to any rules and restrictions which may be prescribed by the Governor-General in Council, to appoint so many and such clerks and other ministerial officers as shall he found necessary for the administration of Justice and the due execution of all the powers and authorities granted and committed to the said High Court by these Our Letters Patent. And We do hereby ordain that every such appointment shall be forthwith submitted to the approval of the Governor-General in Council, and shall be either confirmed or disallowed by the Governor-General in Council. And it is Our further will and pleasure, and We do hereby, for Us, Our heirs and successors, give, grant, direct, and appoint that all and every the officers and clerks to be appointed as aforesaid shall have and receive respectively such reasonable salaries as the Chief Justice shall from time to time, appoint for each office and place respectively, and as the Governor-General in Council shall approve of: Provided always, and it is Our will and pleasure, that all and every the officers and clerks to be appointed as aforesaid shall be resident within the limits of the jurisdiction of the said Court so long as they shall hold their respective offices; but this proviso shall not interfere with or prejudice the right of any officer or clerk to avail himself of leave of absence under any rules prescribed by the Governor-General in Council, and to absent himself from the said limits during the term of such leave, in accordance with the said rules. Admission of Advocates, Vakeels, and Attorneys. Powers of High Court in admitting Advocates, Vakeels and Attorneys. 9. And we do hereby authorize and empower the said High Court of Judicature at Fort William in Bengal, to approve, admit, and enrol such and so many Advocates, Vakeels, and Attorneys as to the said High Court shall seem meet; such Advocates, Vakeels and Attorneys shall be and are hereby authorized to appear for the suitors of the said High Court, and to plead or to act, or to plead and act, for the said suitors, according as the said High Court may by its rules and directions determine, and subject to such rules and directions. In making rules for the qualifications &c., of Advocates, Vakeels and Attor. 10. And we do hereby ordain that the said High Court of Judicature at Fort William in Bengal shall have power to make rules for the qualification and admission of proper persons to be Advocates, Vakeels, and Attorneys-at-law of the said High Court, and shall be empowered to remove or to suspend from practice, on reasonable cause, the said Advocates, Vakeels, or Attorneys-at-law; and no person whatsoever but such Advocates, Vakeels, or Attorneys shall be allowed to act or to plead for, or on behalf of, any suitor in the said High Court, except that any suitor shall be allowed to appear, plead, or act on his own behalf or on behalf of a co-suitor. neys. Local limits of the ordinary original jurisdiction of the High Court. Civil jurisdiction of the High Court. 11. And We hereby ordain that the said High Court of Judicature at Fort William in Bengal shall have and exercise ordinary original civil jurisdiction within such local limits as may from time to time, be declared and prescribed by any law made by competent legislative authority for India, and until some local limits shall be so declared and prescribed, within the limits declared and prescribed by the proclamation fixing the limits of Calcutta, issued by the Governor-General in Council, on the 10th day of September, in the year of Our Lord, one thousand seven hundred and ninety-four, and the ordinary original civil jurisdiction of the said High Court shall not extend beyond the limits for the time being declared and prescribed as the local limits of such jurisdiction (b). further ordain that the said High Court of Judicature at Fort William in Bengal in the exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try, and determine suits of every description, if, in the case of suits for land or other immoveable property, such land or property shall be situated, or, in all other cases, if the cause of action shall have arisen either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court, or if the defendant at the time of the commencement of the suit shall dwell or cárry on business, or personally work for gain, within such limits: except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Calcutta, in which the debt or damage, or value of the property sued for does not exceed one hundred rupees. 12. And We do Original jurisdiction as to suits. (b) In the Madras and Bombay Letters Patent the words are "by any law made by the Governor in Council." In the same Letters Patent, for the words " within the limits declared and prescribed," &c., are substituted "within the limits of the local jurisdiction of the said Bombay High Court of at the date of the publication of these presents." Madras Scope of the section. - Barring certain suits specified at the end of this clause, the High Courts of Calcutta, Madras and Bombay, are empowered to try the following suits in the exercise of their ordinary original civil jurisdiction, namely, I. suits for land or other immoveable property, if the land or property is situated within the local limits of the ordinary original jurisdiction of the said High Courts: II. suits other than those for land, that is, suits in which land or other immoveable property is not involved (c), (a) if the cause of action has arisen wholly within the said limits, or (c) if the defendant at the time of the commencement of the suit dwells Suits for land or other immoveable property.-This expression has given rise to conflicting decisions. It has been held by the High Court of Calcutta that a "suit for land" within the meaning of this clause is a suit substantially for land, that is, for the purpose of acquiring title to or possession of land (d), or for declaring any interest in land (e). A agrees in Calcutta to sell to B land situated outside the original jurisdiction of the Calcutta High Court. If A fails to perform his contract, and B sues A for specific performance, the suit is one for land, and it will not be entertained by the Court, the land being situated outside its jurisdiction. But if B fails to perform his contract, and A sues B for specific performance, the suit is not one for land, and hence the suit will lie in the Calcutta Court (f). Similarly a suit by a mortgagee for specific performance of an agreement to execute a mortgage of land is a suit for land, and it will not be entertained by the Calcutta Court, if the land is situated beyond the jurisdiction of the Court (g). And it has been laid down by the same Court that suits for redemption or foreclosure or for sale of mortgaged property are all suits for land, and they will not be entertained by the Calcutta Court, if the land is situated beyond its jurisdiction (h). In short, the Calcutta High Court would appear to hold that the suits referred to in cls. (a) to (e) of s. 16 of the Code are all suits for land. The same view has been taken by the Madras High Court (i). The High Court of Bombay has adopted a more restricted meaning of the expression "suits for land." Thus it was held by that Court in Holkar v. Dadabhai (j) that it had jurisdiction under clause 12 to try a suit for specific performance of an agreement to execute a mortgage made in Bombay, but relating to land situate outside the original jurisdiction, and to order the mortgage-debt to be realized by sale of such land. Such a suit, according to the Bombay Court, is not a suit for land, though according to the Calcutta and Madras decisions it would be a suit for land. Similarly it has been held by the same Court that a suit for foreclosure of a mortgage of land is not a suit for land, and that it could therefore be entertained though the land is situate outside the jurisdiction of the Court (k). According to the Calcutta and Madras decisions such a suit would be a suit for land. Similarly a suit by a purchaser for specific performance of an agreement to sell land situated outside the jurisdiction of the Court is not a suit for land according to the Bombay High Court (1). But as we have seen above it is a suit for land according to the Calcutta High Court. A suit for partition of land (m), or a suit to establish a title to possession of land and to secure molestation (n), is a suit for land, and it will not be entertained if the land is situated outside the jurisdiction of the Court. This class of suits, of course, will not be entertained by the Calcutta (0) and Madras High Courts either. (c) Seshagiri v. Rama Ramu, 19 Mad. 448. (e) Kanti Chunder v. Kissory Mohun Roy, 19 (f) Land Mortgage Bank v. Sudurudeen, (g) Sreenath Roy v. Cally Doss, 5 Cal. 82. G |