The term ‘letters patent’ is derived from the Latin term ‘literae patentes’ meaning “open letters”. Primarily, a letters patent would denote a public grant from the sovereign to a subject, conferring the right to land, a franchise, a title, liberty, or some other endowment.
1 These were letters addressed by the sovereign ‘to all whom these presents shall come’, reciting a grant of some dignity, office, franchise, or other privilege that has been given by the sovereign to the patentee.’
2 The historical perspective of this is available in the National Archives of the United Kingdom, which is a Government Department and an Executive Agency of the Ministry of Justice. It sets out that ‘Letters Patent’ were letters issued ‘open’ or ‘patent’ expressing the sovereign’s will on a variety of matters of public interest, sealed with the sovereign’s great seal pendent.
The patent rolls record the issue of letters patent from the reign of King John. The entries on the rolls are of a very diverse nature referring to the royal prerogative, revenue, the differential negotiations with foreign princes and states, letters of protection, of credence and of safe-conduct and the appointments and powers of ambassadors. There are also grants and confirmations of liberties, offices, privileges, lands and wardships, both to public bodies and to private individuals, charters of incorporation and so on. Letters patent are stated to have been much reduced in the course of the 19th and 20th centuries, as the kinds of instruments produced thereby became obsolete or their administration passed to other bodies. The use of great seals was much restricted, often replaced by alternative devices.
There is an interesting discussion on this issue in a Division Bench Judgment of this Court in Shanta Sabharwal Vs. Sushila Sabharwal and Others, , in the opinion rendered by Mr. Justice V.S. Deshpande (Retd.), the then Chief Justice which in turn is based on a Constitution Bench judgment of the Supreme Court in Aswini Kumar Ghosh and Another Vs. Arabinda Bose and Another, by the then Chief Justice of India, Mr. Justice M. Patanjali Sastri.
The relevant portion is reproduced hereinunder:
5. After having given earnest consideration to the submission, we find that (1) the decision of the Supreme Court does not change the legal position existing at the time the Full Bench decision was given, (2) additional reasons are found to support those on which the Full Bench decision rested, and (3) even otherwise reference to a larger Bench would not be expedient.
(1) The decision of the Supreme Court in Shanti Kumar R. Canji Vs. The Home Insurance Co. of New York, does not define the meaning of the word “Judgment” as used in cl. (15) of the Bombay and cl. (10) of the Delhi Letters Patent. It only reaffirms the proposition already established in Central Bank of India Vs. Shri Gokal Chand, that it is only an order which affects the rights and liabilities of parties which can be called a judgment. The uncertainty exists because of the difficulty in drawing the line between an order which is merely procedural and an order which affects any rights and liabilities of the parties. This has been the situation from before the Full Bench judgment as also thereafter and is likely to continue even after the Supreme Court decision.
(2) The view that the maintainability of an appeal against an order of a single Judge of this Court acting in ordinary original jurisdiction is governed by the CPC and not by the Letters Patent is supported by additional reasons which were not mentioned in the Full Bench decision.
(A) In the The Public Trustee Vs. A. Rajeshwartyagi and Others, a Division Bench of this Court to which one of us (V.S. Deshpande, J. as he then was) was a party, pointed out the following distinction, namely (i) when a judgment is delivered by a single Judge exercising the jurisdiction inherited from the Punjab High Court under S. 5(1) of the Delhi High Court Act then the appeal against it lies under cl. (10) of the Letters Patent; and (ii) on the other hand, when a single Judge delivers a judgment in exercise of the ordinary original civil jurisdiction obtained by this Court from the Subordinate Court under S. 5(2) of the Delhi High Court Act, then the appeal lies under S. 10(1) of the Act. This position is undisputed. The question that arises is whether the meaning of the word “Judgment” in Section 10(1) of the Delhi High Court Act is the same as that in cl. (10) of the Letters Patent.
(B) As pointed out in Aswini Kumar Ghosh and Another Vs. Arabinda Bose and Another, by Sastri, C.J. from page 6 onwards, there is a historical distinction between original jurisdiction exercised by two groups of High Courts in India. This corresponds to the jurisdiction exercised by the Courts preceding these two groups of High Courts. The then Supreme Courts exercised jurisdiction in the Presidency Towns and the then Sudder Courts exercise jurisdiction the Mofussil. When the Supreme Courts and Sudder Courts were abolished on the one hand their two different kinds of original jurisdiction were transferred to what may be called the Non-Chartered High Courts by different Letters Patent which were substantially different from the Letters Patent of the Chartered High Courts. The former Supreme Courts themselves exercised ordinary civil jurisdiction in the Presidency Towns.
In the Mofussil, however, the principal Courts of original jurisdiction were the District Courts. The Chartered High Courts succeeding the Supreme Courts in the Presidency Towns obtained an ordinary original civil jurisdiction till then exercised by the Supreme Courts. This continued till city Civil Courts were established in the Presidency Towns taking away the lower pecuniary jurisdiction from the ordinary civil jurisdiction of these Chartered High Courts in the Presidency Towns. A challenge to the validity of the Bombay City Civil Courts Act was negatived by the Supreme Court in the State of Bombay Vs. Narothamdas Jethabai and Another.
It is significant to note that the ordinary civil jurisdiction was possessed by the Supreme Courts and the Chartered High Courts from the very beginning. Later, a part of it was transferred to the City Civil Courts which corresponded to the District Courts in the Mofussil.