During the period from 1834 to 1861, i.e., before the enactment of the Indian High Courts Act, two sets of courts were administering justice in India. The King’s Courts and the Company’s Courts formed the dual system of courts having their separate jurisdictions. Efforts to unite the two sets of Courts began much earlier than 1861. In 1858 the East India Company was abolished and the assumption of direct responsibility of the Government of India by the Crown made the problem of uniting two sets of Courts much easier. Uniform Penal Code, Civil and Criminal Procedure Codes were passed and the next step was to implement uniformity in the administration of Justice to amalgamate the Supreme Courts and Sadar Adalats. This object was achieved by the Indian High Courts Act passed by the British Parliament in 1861 (24 and 25 Vic. C104) whereby Her Majesty was empowered to abolish the Supreme Courts and Sadar Adalats, and in their place to constitute a High Court of Judicature for each of the three Presidencies, which should be the supreme over all the Courts in the Presidency towns and also in the Mofussil. Earlier while introducing the Bill, Sir Charles Wood said: “ We shall have one Supreme Court, one sole court of appeal instead of two; and inasmuch as the administration of justice in the minor courts depends on the mode in which the appeals sent up from them are treated, the Superior court thus constituted, will, I hope, improve the administration of justice generally throughout India.”

By section 16 of the same Act, the Crown was also empowered to create any other High Court within British India. In exercise of the powers conferred by the said section, the Crown by Letters Patent established in 1866 at Agra, High Court of Judicature for the North Western Provinces of the Presidency of Fort William with Chief Justice Sir Walter Morgan and five other judges named in the Charter itself. The High Court was constituted to be a Court of Record (Clause I). On its establishment, the Sadar Diwani Adalat and Sadar Nizamat Adalat functioning in the Province of Agra for the Last 35 years were abolished and the High Court by virtue of its Letters Patent and of sections 16 and 9 of the Act became vested with all the appellate and superintending powers, authority and jurisdiction of the Courts abolished. By its Letters Patent the High Court was also vested with original Jurisdiction in certain special matters with the same powers and authority as possessed in those matters by the Calcutta High Court. These special matters included Disciplinary actions against Advocates (Cl.8) Guardianship (Col. 12). Testamentary and Intestate (Cl..25) and Matrimonial (Cl.26) matters. However, the matrimonial jurisdiction could be exercised by this High Court, like the Calcutta High Court only over ‘Her Majesty’s-subjects’- professing Christian religion.

This High Court was not given Ordinary Civil jurisdiction and the Ordinary Original Criminal jurisdiction conferred upon it by clause 15 of the Letters Patent, extended only to European British Subjects resident in the North Western Provinces, who had been previous to the establishment of the High Court, amenable to the Ordinary Original Criminal Jurisdiction of the Calcutta High Court. In the exercise of its ordinary original Criminal Jurisdiction, the High Court could try any person brought before it in due course of law,(cl.16) and, under this power, the High Court could try European-British subjects resident beyond the territories comprised in the North-western Provinces. The High Court was also not conferred with the jurisdiction of Insolvency, Admiralty or Vice-Admiralty Court.

In the exercise of its Extra-Ordinary Original Civil Jurisdiction (Clause 9), the High Court was empowered to remove any civil case from Courts subordinate to it and cause it to be tried and determined by itself. In the exercise of its Appellate Jurisdiction (Cl.11 & 20) it was authorized to hear appeals, like Sadar Adalats, from the decisions of the Courts subject to its appellate jurisdiction. It could also hear appeal in Division Benches from certain decisions of a Single Judge of its own Court sitting on the Civil Side (cl.10). The High Court was made a Court of reference and revision in respect of judgment of its subordinate criminal courts (Cl.21) and was also empowered to direct the transfer of any criminal case or appeal from one court to another (cl.22). But this High Court never possessed the power of issuing writs, until 1950; as it was neither the successor of the Supreme Court, nor was that power conferred upon it by its Letters Patent nor by section 45 of the Specific Relief Act, 1877.

The law or equity to be applied by it in the exercise of its Extraordinary Original Civil Jurisdiction was to be such law or equity as would have been applied by the Courts subordinate to it (cl.13); and in the exercise of its Civil appellate Jurisdiction the law of equity and good conscience to be applied by it was to be the same as ought to have been applied by the Courts below (cl.14). English law was not applicable in its territories by its own force. It had been applied there by supplementing the rules of equity and good conscience and that too if found applicable to Indian society and circumstances.

The High Court, in the exercise of its criminal jurisdiction, both as original as well as court of appeal, reference or revision, was ordained to apply the Indian Penal Code for punishing any person charged with an offence (cl.23). It was further ordained that the proceedings in all the criminal cases tried by the High Court in the exercise of its ordinary Original Criminal Jurisdiction (Cl.15) would be regulated by the 'Criminal Procedure and Practice' which was in use in the High Court of Calcutta immediately before the publication of the Letters Patent, and that the proceedings in all other criminal matters would be regulated by the Code of Criminal Procedure, 1861, or by such further and other laws made or to be made for that purpose by the Governor-General-in Council (Cl.29).

By section 15 of the Indian High Courts Act, 1861(24 & 25 Vict.C.104) and the Government of India Act, 1915, the High Courts were invested with power of superintendence over all courts subject to their appellate jurisdiction, and to that end were empowered to call for returns, direct transfer of any suit or appeal from one subordinate court to another, make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts. These powers of the High Courts, except the power of transfer which is covered by section 24 of the Code of Civil Procedure, were continued by the Government of India Act, 1935 (Sec.224) and then by the Constitution of India (Art.227).

The seat of the ‘High Court for the North-Western Provinces’ was shifted from Agra to Allahabad in 1869 and its designation was altered to ‘the High Court of Judicature at Allahabad’ in 1919 by a supplementary Letters Patent issued on March 11, 1919. This designation continues upto the present day.

In Oudh, a Judicial Commissioner and a Financial Commissioner were appointed in 1856. Omanney, Campbell and Couper acted as Judicial Commissioners in succession during the period 1856-63. The Court of the Judicial Commissioner was re-constituted under the C.P.Court’s Act XIV of 1865, extended to Oudh by section 25 thereof, and was again constituted by Act XXXII of 1871. Under sections 23 and 24 of this Act, the Judicial Commissioner of Oudh, in case of doubt as to the decision to be passed on any appeal, had to make a reference to the Allahabad High Court and transmit the record of such case and all the proceedings connected therewith to the said Court; and the High Court, after deciding it as if it were instituted in that very Court, sent a copy of its judgment to the Judicial Commissioner of Oudh, who would then dispose of the case in conformity therewith. Additional Judicial Commissioners were appointed under Acts IV of 1885, XIV of 1891 and XVI of 1897.

The Court of the Judicial Commissioner had been the highest court of Appeal in Oudh for nearly 70 years. In rent and revenue cases, however, the Financial Commissioner acted as the highest court during the progress of the settlement of land revenue in that province, under the Oudh Revenue Courts Act, XVI of 1865, ss.2-3, and the Judicial Commissioner had no jurisdiction over such cases during that period. Sec.84 of Act XXXII of 1871 abolished the post of the Financial Commissioner and then such cases were again assigned to the Judicial Commissioner.

Oudh Chief Court

The Oudh Chief Court at Lucknow, replacing the Oudh Judicial Commissioner’s Court, was established on November 2, 1925 not by Letters Patent but by the Oudh Civil Courts Act, IV of 1925, enacted by the U.P. Legislature with the previous sanction of the Governor-General to the passing of this Act, as required by the Government of India Act, 1919 80-A(3).This Court was made to consist of a Chief Judge and four puisne judges (five since 1945). Mr. Justice Stuart, a Judge of the Allahabad High Court, was appointed the first Chief Judge of the Chief Court of Oudh. The Court was invested with the Ordinary Original Civil Jurisdiction for the trial of suits valued at rupees 5 Lakhs or above and was declared to be the highest court of Appeal and Revision in Civil and Criminal cases arising in Oudh. Its Ordinary Original Civil Jurisdiction was, however, abolished by U.P. Act IX of 1939, when the original suits and other proceedings pending therein were ordered to be transferred to the District Judges concerned.

The High Courts Act of 1911 raised the maximum number of Judges in each High Court from sixteen to twenty, which included the Chief Justice also. It was provided that the judges will be paid salary out of the revenue of India.

The Government of India Act, 1915 was passed by the British Parliament in order to consolidate and re-enact the existing statutes concerning the Government of India and the High Courts. The provisions of the High Court Acts of 1861 and 1911 were re-enacted.

The Act of 1915 provided for the constitution, jurisdiction and powers of the High Courts. Each High Court was to consist of a Chief Justice and as many other Judges as were appointed by Her Majesty. It stated qualifications for the appointment of a Judge of the High Court. The High Courts were given jurisdiction both original and appellate, including admiralty jurisdiction in respect of offences committed on the High seas. They were declared courts of record and were given power to make rules for regulating the Court’s practice. They were not authorised to exercise any original jurisdiction in revenue matters or to set aside any act ordered or done in collecting revenue according to the local usage and custom. They had powers of supervision over all subordinate Courts under their respective jurisdictions.

The British Parliament by enacting the Government of India Act 1935 gave a new constitution to regulate functions of the Legislature, executive and judiciary of India. The Act contained many provisions regulating the establishment, constitution, jurisdiction and powers of the High Courts. Some important provisions of the Act relating to High Courts may briefly be stated as follows.

Act of 1935 provided that every High Court will be a Court of Record consisting of a Chief Justice and other Judges as appointed by Her Majesty from time to time. The provision of the Act of 1911, fixing the maximum number of the Judges as twenty, was dropped and the Act of 1935 empowered the King-in’Council to fix the number of Judges from time to time for each High Court.

The jurisdiction of the existing High Courts, the law administered in it and the powers of the Judges continued the same under the Act of 1935 as they were before it. The prohibition which was imposed on the three presidency High Courts in 1915 on their original jurisdiction to take cognisance of any matter concerning revenue was allowed to continue.

The Act of 1935 made specific provision for the salaries, allowances and pensions of the Judges of the High Courts that it will be fixed by Her Majesty on their appointment. It was also provided that none of these will be changed to the disadvantage of a Judge after his appointment. This important provision ensured the independence of the judiciary from any executive interference.

Provision was also made for an appeal to the Federal Court from any judgment, decree or final order of a High Court.

The Letters Patent of the High Court contained a provision that in case of difference of opinion amongst the judges, when neither opinion was in the majority, the view of the senior Judge was to prevail, while on the other hand section 98 of the Code of Civil Procedure contained a provision that where a Bench consisting of two Judges while hearing an appeal was faced with a difference of opinion between the Judges, on a point of law, they had to state the point and refer the matter and the appeal was then to be heard on that point only by one or more other Judges, in accordance with whose opinion the appeal was to be disposed of.

Amalgamation of Oudh Chief Court with the High Court

After the attainment of Independence by India, the historical anomaly of existence of the two highest courts of appeal within the same province for the territories known as Agra and Oudh which had come under one local Government as far back as the year 1902, was keenly felt. By the U.P. High Court Amalgamation Order, 1948, the Chief Court of Oudh was amalgamated with the High Court of Allahabad and the new High Court was conferred the jurisdiction of both the Courts so amalgamated. The Chief Justice of the Allahabad High Court Sri B. Mulik was appointed the Chief Justice of the new High Court and the Chief Judge and the Judges of the Oudh Chief Court were appointed puisne Judges of the new Court. By the Amalgamation Order the jurisdiction of the Court under the Letters Patent and that of the Chief Court under the Oudh Courts Act was preserved. The seal of the new Court was to be provided by the Chief Justice, but the laws in force immediately before amalgamation with respect to the forms of writs and other processes used by the High Court of Allahabad, with necessary modification were adopted by the new High Court, and the Judges were to sit at Allahabad or at such other places as the Chief Justice with the approval of the Governor might direct, provided, however, that two judges at least were to sit at Lucknow, unless the Governor with the concurrence of the Chief Justice, was to direct otherwise. The power to direct any case or class of cases arising in the territory of Oudh to be heard at Allahabad was reserved to the Chief Justice. There was no corresponding provision for transferring cases to Lucknow Bench.

In July, 1949 the States Merger (Governor’s Provinces) Order was passed which was, in November, amended by the States Merger (United Provinces) Order, 1949. Thereby the powers of the Government of some Indian States specified in the Schedule, which had vested in the Dominion Government were transferred to the adjoining Governors’ Provinces. In its Schedule VII, states of Rampur, Benaras and Tehri Garhwal were specified, and by section 3, the said states were to be administered in all respects as if they formed part of the absorbing province. As a necessary corollary, the Merged States Laws Act was passed by the Governor General in Council. By this Act various enactments specified in the Schedule were made applicable to merged States.

As for the local laws, the U.P. Merged States (Application of Laws) Act, 1950 was passed on the 16th March, 1950. This Act replaced the U.P. Merged States (Application of Laws) Ordinance, whereby certain laws had been extended to the merged States of Benaras, Rampur and Tehri Garhwal, administered as part of Uttar Pradesh. The jurisdiction of Allahabad High Court was extended to the merged State of Rampur by section 12 of the States Merger Order. The Ijlas-e-Humanyun, which was the privy council presided over by the Ruler, the High Court of Rampur and Civil Courts were abolished and all proceedings pending in the Ijalas-e-Humanyun and High Court Rampur stood transferred to the High Court Allahabad and those of the Subordinate Courts stood transferred to the District Judge, Rampur.

In case of Benaras the Governor, on the 30^th November, 1949 under the authority delegated to him by the Central Government issued the Benaras State (Abolition of Privy Council and Chief Court) Order, 1949 whereby these courts were abolished and all the appeals and other proceedings pending before these courts stood transferred to the Allahabad High Court. The subordinate courts were substituted by other district courts by means of a separate order.

Similarly the jurisdiction of the Allahabad High Court was extended to Tehri Garhwal by the Tehri Garhwal (Abolition of Huzur’s Court and High Court) Order, 1949 and the pending appeals were transferred to the Allahabad High Court.

On the eve of the Republic Day Celebrations on the 26th January, 1950 the date of commencement of the Constitution of India- the present Allahabad High Court of Judicature came to have jurisdiction throughout the entire length and breadth of the State of Uttar Pradesh.

By the Uttar Pradesh Reorganisation Act, 2000, State of Uttaranchal and Uttaranchal High Court came into existence from the midnight intervening 8 and 9 November, 2000 and in view of section 35 of the Act, High Court at Allahabad ceased to have jurisdiction of 13 districts falling within the territory of State of Uttaranchal.

The High Court Under the Constitution of India

Each State has its own judiciary which administers both union and State laws. It is set in hierarchical pattern. At the apex of the State judiciary is the High Court, which is the highest court of appeal and revision in the State for civil and criminal matters, including the wide powers, both administrative and judicial, over the subordinate judiciary. The present Constitution of India makes a number of provisions concerning the High Courts though it is not the place to expound the full ramifications of these provisions as the matter falls more appropriately within the realm of Constitution law, yet a general picture of the High Court as it emerges there under may be painted here.

The Constitution recognized all the existing High Courts. It provided a High Court for each State. The Parliament is empowered to establish a common High Court for two or more States or Union territories. The High Court is a court of record and as such can punish for its contempt. It is not subject to the superintendence of any Court or authority, though appeals from its decisions may lie to the Supreme Court. It consists of a Chief Justice and as many Judges as the President of India may sanction. At Present sanctioned strength of Hon'ble Judges of Allahabad High Court is 95.

The Chief Justice is Incharge of the administrative work of the Court and distributes judicial work among his companion Judges. He is also consulted in the appointment of judges in his own court. But while sitting in court, his judicial status is no higher than that of any other Judge and his decision can be reversed by any two judges in Special Appeal, and if sitting on a bench of three judges, he can be over-ruled by his colleagues. He has no administrative control over any judge and his status may be described as primus inter pares (first among equals).

A person to be eligible for appointment as a High Court Judge must be a citizen of India and must either have held a judicial office for at least ten years or has been an advocate of high court for at least ten years. Comparing this provision with the qualifications prescribed formerly for the High Court Judge under the Government of India Act, 1935, the following changes would appear to have been made in this respect. A barrister is not entitled ipso facto to be appointed as a High Court Judge; he can be so appointed only when he has been practicing in a High Court or has held a judicial office for at least ten years; the period of judicial service qualifying a person to be appointed as a High Court Judge has been raised from five to ten years; a civil servant can now be appointed to the High Court only if he has held a judicial office for ten years; previously, a civil servant became eligible for the High Court Judgeship after acting as a District Judge for three years. Thus, it will be seen that significant changes have been made in the qualifications for appointment as a High Court Judge. The Judges of the High Court are appointed by the President after consulting the Chief Justice of India, the Governor of the State concerned and the Chief Justice of the High Court to which the appointment is made.

The Constitution makes a number of provisions to preserve the integrity of the High Courts, and to render them independent of the executive control so that they may discharge their judicial functions without fear and favour. The Judges have a fixed tenure and they retire at the age of sixty two years. They cannot be removed earlier except when the two Houses of Parliament pass an address on the ground of proved misbehaviour or incapacity by a majority of the total membership of each House, and by a majority of not-less than two thirds of the members present and voting. This provision gives to the High Court Judges the same security of tenure as the Judges enjoy in England. This is an innovation as no such provision existed in the Government of India Act, 1935. The President may after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. The salaries of the Judges have been prescribed in the Second Schedule to the Constitution and so cannot be varied without a Constitutional amendment. The allowances, leave and pension of a High Court, Judge cannot be varied to his disadvantage after his appointment . The Conduct of a High Court Judge in the discharge of his duties cannot be discussed in any legislature, Central or State, except on a motion for his removal as mentioned above, The ban on legislative discussion of the conduct of a High Court Judge insulates him from local political pressures.

The expenses of a High Court are charged upon the Consolidated Fund of the State concerned.

The jurisdiction of the High Courts, the law administered by them and the power to make rules of the Court were allowed by the Constitution of India to continue as were immediately before the commencement of the Constitution. This jurisdiction and power of the High court is subject to the provisions of the constitution of India and provisions of any law of the appropriate legislature. The status quo is maintained by the Constitution (Article 225) in order to maintain the Historical continuity. The law administered at the commencement of the Constitution includes "Case law". It is therefore, specifically provided that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. A decision of the Privy Council or the Federal Court, therefore, is binding upon the High Court until the Supreme Court holds to the contrary.

LETTERS PATENT OF HER MAJESTY

(March 17, 1866)

VICTORIA by the Grace of God of the United kingdom of great Britain and Ireland, Queen, Defender of the Faith To all to whom these presents shall come greeting : Whereas 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 should 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 should 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 permanent Judges of the Court of the Sudder Dewanny Adawlut or Sudder Adawlut of the same Presidency should be 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 Dewanny Adawlut 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 authorities 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 the 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 and subject and without prejudice to the legislative powers in relation to the matter 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. And whereas it is further declared by the said recited Act that it shall be lawful for Us by letters Patent to erect and establish a High Court of Judicature in and for any portion of the territories within Her Majesty’s Dominions in India not included within the limits of the local jurisdiction of another High Court to consist of a Chief Justice and such number of other Judges with such qualifications as were by the same Act required in person to be appointed to the High Courts established at the said Presidencies as We from time to time might think fit and appoint and that subject to the directions of the Letters Patent all the provisions of the said recited Act relative to High Courts and to the Chief Justice and other Judges of such Courts and to the Governor-General of Governor of the Presidency in which the such High Courts were established shall as for as circumstances may permit be applicable to any new High Court which may be established in the said territories and to the Chief Justice and other Judges thereof and to the persons administering the government of the said Territories . And whereas We did upon full consideration of the premises think fit to erect and establish and by our Letters patent under the Great Seal of the United Kingdom of Great Britain and Ireland bearing date at Westminster the fourteenth day of May in the twenty fifth year of our reign in the Year of Our Lord one thousand eight hundred and sixty-two did accordingly for Us Our heirs and successors erect and establish at Fort William in Bengal for the Bengal Division of the Presidency of Fort William aforesaid a High Court of Judicature which should be called the High Court of Judicature at Fort William in Bengal and did not constitute the said Court to be a Court of Record.

1.Now know Ye that We upon full consideration of the premises and of Our special grace certain knowledge and mere motion have to ought fit to erect and establish and by these presents We do accordingly for Us Our heirs and successions erect and establish for the North-Western provinces of the Presidency of Fort William aforesaid (hereinafter referred to as the said territories ) a High Court of Judicature which shall be called The High Court of Judicature at Allahabad. And We do hereby constitute the said Court to be a Court of Record.

2. And we do hereby appoint and ordain that the said High Court of Judicature at Allahabad shall 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 consist of a Chief Justice and five Judges the first Chief Justice being Walter Morgan Esquire and the five Judges being Alexender Rose Esquire, William Edwards Esquire, William Roberts Esquire. Francis Boyle Pearson Esquire and Charles Arthm Turner Esquire being respectively qualified as in the said Act is declared.

3. And We do hereby ordain that the Chief Justice and every Judge of the said High Court of Judicature at Allahabad 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.E. appointed Chief Justice (or a Judge) of the High Court of Judicature at Allahabad do solemnly declare that I will faithfully perform the duties of my office to the best of my ability, knowledge and judgment”

4. And We do hereby grant ordain and appoint that the said High Court 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 Allahabad” 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 said 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 soever the same may have come to his, her or their possession.

5. And We do hereby further grant ordain and appoint that all writs, Summons, percepts, rules orders and other mandatory process to be used issued or awarded by the said High Court of Judicature at Allahabad shall run and be in the name and style of Us or of Our heirs and successors and shall be sealed with of the said High Court.

6. And We do hereby authorize and empower the Chief Justice of the said High Court of Judicature at Allahabad from time to time as occasion may require and subject to any rules and restrictions which may be prescribed by the Lieutenant-Governor of the United Provinces of Agra and Oudh to appoint so many and such Clerks and other Ministerial officers as shall be 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 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 saiaries as the Chief Justice shall from time to time appoint for each office and place respectively and as the Leiutenant-Governor of the United Provinces of Agra and Oudh subject to the control of 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 no interfere with or prejudice the right of any Officer and 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.

7. And We do hereby authorize and empower the said High Court of judicature at Allahabad to approve, admit and enrol such and so many Advocates, Vakeels and Attorneys as to the said High Court shall seem meet and such Advocates, Vakeels and Attorneys shall be and are hereby authorized to appear for the said 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 direction.

8. And We do hereby ordain that the said High Court of judicature at Allahabad 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.

9. And be do further ordain that the said High Court of Judicature at Allahabad shall have power to remove and to try and determine as a Court of extraordinary original jurisdiction any Suit being or falling within the jurisdiction of any Court subject to its superintendence when the said High Court shall think proper to do so either on the agreement of the parties to that effect or for purposes of justice the reasons for so doing being recorded on the proceedings of the said High Court.

10. And We do further ordain that an appeal shall lie to the said High Court of Judicature at Allahabad from the judgment (not being a judgment passed in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed of made in the exercise of the power of superintendence under the provision of section 107 of the Government of India Act, or in the exercise of Criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act. Made on or after the first day of February one thousand nine hundred and twenty nine 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 said High Court, where the Judge who passed the judgment declares that the case is a fit one appeal: but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or successors or Our or Their Privy Council, as hereinafter provided.

11. And We do further ordain that the said High Court of Judicature at Allahabad shall be a Court of Appeal from the Civil Courts of the said territories and from all other Courts to which there is now an appeal to the Sudder Dewanny Adawlut and shall exercise appellate jurisdiction in such cases as are subject to appeal to the said High Court by virtue of any laws or regulation now in force.

12. And We do further ordain that the said High Court of Judicature at Allahabad shall have the like power and authority with respect to the persons and estates of infants, idiots and lunatics within the said territories as that which is exercised in the Bengal Division of the Presidency of Fort William by the High Court of Judicature at Fort William in Bengal but subject to the provisions of any laws or regulations now in force.

13. And We do further ordain that with respect to the law or equity to be applied to each case coming before the said High Court of Judicature at Allahabad in the exercise of its extraordinary original civil jurisdiction, such law or equity shall until otherwise provided be the law or equity which would have been applied to such case by any local Court having jurisdiction therein.

14. And We do further ordain that with respect to the law or equity and rule of good conscience to be applied by the said High Court of Judicature at Allahabad to each case coming before it in the exercise of its appellate jurisdiction such law or equity and rule of good conscience shall be the law or equity and rule of good conscience which the Court in which the proceedings in such case were originally instituted ought to have applied to such case.

15. And We do further ordain that the said High Court of Judicature at Allahabad shall have ordinary original criminal Jurisdiction in respect of all such persons within the said territories as the High Court of Judicature at Fort William in Bengal shall have criminal Jurisdiction over at the date of the publication of these presents and the criminal jurisdiction of the said last-mentioned High Court over such persons shall cease at such date Provided nevertheless that Criminal Proceedings which shall at such date, have been commenced in the said last mentioned High Court shall continue as if these presents had not been issued.

16. And We do further ordain that the said High Court of Judicature at Allahabad in the exercise of its ordinary original criminal jurisdiction shall be empowered to try all persons brought before it in due course of law.

17. And We do further ordain that the said High Court of judicature at Allahabad shall have extraordinary original criminal jurisdiction over all persons residing in place within the jurisdiction of any court now subject to the superintendence of Sudder Nizamut Adawlut and shall have authority to try at its discretion any such persons brought before it on charges preferred by nay Magistrate or other Officer specially empowered by any Government in that behalf .

18. And We do further ordain that there shall be no appeal to the said High Court from any sentence or order passed or made in any Criminal Trial before the Courts of original criminal Jurisdiction which may be constituted by one or more judges of the said High Court. But it shall be at the discretion of any such Court to reserve any point or points of law for the opinion of the said High Court.

19. And We do further ordain that on such point or points of law being so reserved as aforesaid the said High Court shall have full power and authority to review the case or such part of it as may be necessary and finally determine such point or points of law and there upon to alter the sentence passed by the Court of original jurisdiction and to pass such judgment and sentence as to the said High Court shall seem right.

20. And We do further ordain that the said High Court of Judicature at Allahabad shall be a Court of Appeal from the Criminal Courts of the said territories and from all other Courts from which there is now an appeal to the Court of Sudder Nizamut Adawlut for the said territories and shall exercise appellate jurisdiction in such cases as are subject to appeal to the said Court of Sudder Adawlut by virtue of any law now in force.

21. And We do further ordain that the said High Court shall be a Court of reference and revision from the Criminal Courts subject to its appellate Jurisdiction and shall have power to hear and determine all such cases referred to it by the Sessions Judges or by any other officer now authorized to refer cases to the Court of Sudder Nizamut Adawlut of the said territories and to revise all such cases tried by any officer or Court possessing criminal jurisdiction as are now subject to reference to or revision by the said Court of Sudder Nizamut Adawlut.

22. And We do further ordain that the said High Court shall have power to direct the transfer of any criminal cases or appeal from any court to any other Court of equal or superior jurisdiction and also to direct the preliminary investigation or trial of any criminal case by any Officer or Court otherwise competent to investigate or try it though such case belongs in ordinary course to the jurisdiction of some other Officer or Court.

23. And We do further ordain that all persons brought for trial before the said High Court of Judicature at Allahabad either in the exercise of its original jurisdiction or in the exercise of its jurisdiction as a Court of appeal reference or revision charged with any offence for which provision is made by Act No.XLV of 1860 called the "Indian Penal Code" or by any Act amending or excluding the said Act which may have been passed prior to the publication of these presents shall be liable to punishment under the said Act or Acts and not otherwise.

Exercise of jurisdiction elsewhere than at the ordinary place of sitting of the High Court

24. And We do further ordain that whenever it shall appear to the Lieutenant-Governor of the United Provinces of Agra and Oudh subject to the control of the Governor-General in Council convenient that the jurisdiction and power by these Our Letters patent or by the recited Act vested in the said High Court should be exercised in any place within the jurisdiction of any Court now subject to the superintendence of the Sudder Dewanny Adawlut or the Sudder Nuzamut Adawlut of the said territories other than the usual place of sitting of the said High Court or at several places by way of Circuit the proceedings in cases before the said High Court at such place or places shall be regulated by any law relating thereto which has been or may be made by competent legislative authority for India.

25. And We do further ordain that the said High Court of Judicature at Allahabad shall have the like power and authority as that which is now lawfully exercised within the said territories by the said High Court of Judicature at Fort William in Bengal in relation to the granting of Probates of last Wills and Testaments and Letters of administration of the goods, Chattels, Credits and all other effects whatsoever of persons dying intestate and that the jurisdiction of the said last-mentioned High Court in relation thereto shall cease from the date of the publication of these presents : Provided always that any proceedings already commenced in relation to any of the matters aforesaid in the said last-mentioned High Court shall continue as if these presents had not been issued : Provided also that nothing in these Letters Patent contained shall interfere with the provisions of any law which has been made by competent legislative authority for India by which power is given to any other Court to grant such Probates and Letters of Administration.

26. And We do further ordain that the said High Court of Judicature at Allahabad shall have jurisdiction within the said territories in matters matrimonial between Our Subjects professing the Christian religion : Provided always that nothing herein contained shall be held to interfere with the exercise of any jurisdiction in matters matrimonial by any Court not established by Royal Charter within the said territories lawfully possessed thereof.

27. And We do hereby declare that any function which is hereby directed to be performed by the said High Court of Judicature at Allahabad in the exercise of its original or appellate jurisdiction may be performed by any Judge or by any Division Court thereof appointed or constituted for such purpose in pursuance of section one hundred and eight of the Government of India Act,1915, and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point such point such point shall be decided according to the opinion of the majority of the Judges if there shall be a majority but if the judges should be equally divided they shall state the point upon which they differ and the case shall then be beard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.

28. And We do further ordain that it shall be lawful for the said High Court of Judicature at Allahabad from time to time to make rules and orders for the purpose of adapting as far as possible the provisions of the Code of Civil procedure being an Act passed by the Governor-General in Council and being Act No.VIII of one thousand eight Hundred and fifty-nine and the provisions of any law which has been or may be made amending or altering the same by competent legislative authority for India to all proceedings in its testamentary intestate and matrimonial jurisdiction respectively.

29. And we do further ordain that the proceedings in all criminal cases which shall be brought before the said High Court in the exercise of its ordinary original criminal jurisdiction shall be regulated by the procedure and practice which was in use in the High Court of Judicature for Fort William in Bengal immediately before the publication of these presents subject to any law which has been or may be made in relation thereto by competent legislative authority for India and that the proceedings in all other criminal cases shall be regulated by the Code of Criminal procedure prescribed by an Act passed by the Governor-General in Council and being Act No. XXV of 1861 or by such further or other laws in relation to criminal procedure as may have been on may be made by such authority as aforesaid.

30. And We do further ordain that any person or persons may appeal to Us, Our heirs and successors in Our or Their privy Council in any matter not being of criminal Jurisdiction from any final judgment decree or order of the said High Court of Judicature at Allahabad made on appeal and from any final judgment decree or order made in the exercise of original jurisdiction by Judges of the said High Court or of any Division Court from which an Appeal shall not lie to the said High Court under the provision contained in the 10th clause of these presents provided in either case that the sum or matter at issue is of the amount or value of not less than ten thousand rupees or that such judgment decree or order shall involve directly or indirectly some claim demand or question to or respecting property amounting to or of the value of not less than ten thousand rupees or from any other final judgment decree or order made either on appeal or otherwise as aforesaid when the said High Court shall declare that the case is a fit one for appeal to Us, Our heirs or successors in Our or their privy Council subject always to such rules and orders as are now in force or may from time to time be made respecting appeals to Ourselves in Council from the Courts of the said territories except so far as the said existing rules and orders respectively are hereby varied and subject also to such further rules and orders as We may with the advice of our privy Council hereafter make in that behalf.

31. And We do further ordain that it shall be lawful for the said High Court of Judicature at Allahabad at its discretion on the motion or if the said High Court be not sitting then for any Judge of the said High Court upon the petition of any party who considers himself aggrieved by any preliminary or interlocutory judgment, decree, order or sentence of the said High Court in any such proceeding as aforesaid not being of criminal jurisdiction to grant permission to such party to appeal against the same to Us, Our heirs and successors in Our or Their Privy Council subject to the same rules, regulation and limitations as are herein expressed respecting appeals from final judgments, decrees, order and sentences.

32. And We do further ordain that form any judgment, order or sentence of the said High Court of Judicature at Allahabad made in the exercise of original criminal jurisdiction or in any criminal case where any points of law have been reserved for the opinion of the said High Court in manner hereinbefore provided by any Court which has exercise original jurisdiction it shall be lawful for the person aggrieved by such judgment, order or sentence to appeal to Us, Our heirs or successors in Council provided the said High Court shall declare that the case is a fit one for such appeal and under such conditions as the said High Court may establish or require subject always to such rules and orders as we may with the advice of Our privy Council hereafter make in that behalf.

33. And We do further ordain that in all cases of appeal made from any judgment, order, sentence or decree of the said High Court of Judicature at Allahabad to Us, Our heirs or successors in Our or, their Privy Council such High Court shall certify and transmit to Us Our heirs and successors in Our or Their privy Council a true and correct copy of all evidence, proceedings, judgments, decrees and orders had or made in such case appealed so far as the same have relation to the matters of appeal such copies to be certified under the seal of the said High Court and that the said High Court shall also certify and transmit to Us, Our heirs and successors in Our or Their privy Council a copy of the reasons given the Judges of such Court or by any of such judges for or against the judgment or determination appealed against. And We further ordain that the said High Court shall in all cases of appeal to Us, Our heirs or successors conform to and execute or cause to be executed such judgments and orders as We Our heirs or successors in Our or Their Privy Council shall think fit to make in the premises in such manner as any original judgment, decree or decretal orders or other order or rule of the said High Court should or might have been executed.

34. And it is our further will and pleasure that the High Court of Judicature at Allahabad shall comply with such requisitions as may be made by the Government for records, returns and statements in such form and manner as such Government may deem proper.

35. And We do further ordain and declare that all the provisions of these our Letters Patent are subject to the legislative powers of the Governor General in Legislative Council, and also of the Governor General in Council under section seventy-one of the Government of India Act, 1915 and also of the Governor-General in cases of emergency under section seventy-two of that Act and may be in all respects amended and altered thereby.

In witness whereof we have caused these our Letters to be made Patent.

Witness ourself at Westminster the seventeenth day of March in the twenty-ninth year of our reign.

By warrant under the Queen’s Sign Manual.

C. ROMILLY

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THE UNITED PROVINCES HIGH COURTS (AMALGAMATION) ORDER, 1948

WHEREAS as both Chambers of the Legislature of the United Provinces have presented addresses to the Governor of that Province to amalgamate the High Court in Allahabad and the Chief Court in Oudh, and the said addresses have been submitted to the Governor-General;

Now therefore, in the exercise, of the powers conferred by section 229 of the Government of India Act, 1935 and of all others powers enabling him in that behalf, the Governor-General is pleased to made the following order:

1. (a) This order may be cited as the United Provinces High Courts (Amalgamation) order, 1948.

(b) It shall come into force on the date of its publication in the Gazette of India.

2. (a) In this order:-

“the Act” means the Government of India Act. 1935, as for the time being in force in the Dominion of India;

“appointed day” means the twenty-sixth day of July, 1948;

and

“existing High Courts” means the High Courts referred to in

section 219 of the Act as the High Court in Allahabad and the Chief Court in Oudh.

(b) the Interpretation Act, 1889, applies for the interpretation of this order as it applies for the interpretation of an Act of Parliament.

3. As from the appointed day, the High Court in Allahabad and the Chief Court in Oudh shall be amalgamated and shall constitute one High Court by the name of the High Court of Judicature at Allahabad (hereinafter referred to as ‘the new High Court’)

4 (1) Every person who, immediately before the appointed day, is a permanent judge of either of the existing High Courts shall as from that day be a permanent judge of the new High Court.

(2) Every person who, having been appointed and additional judge of either of the existing High Courts for a term extending beyond the appointed day, is immediately before that day an additional judge of that High Court, shall as from that day be an additional judge of the new High Court, and shall be deemed to have been so appointed until the expiration of the said term.

(3) Every person who, immediately before the appointed day. is as acting judge of either of the existing High Courts shall as from that day be an acting judge of the new High Court, and shall be deemed to have been so appointed under sub-section (2) of section 222 of the Act .

5. (1) The person, who immediately before the appointed day, is the Chief Justice of the High Court in Allahabad shall be the Chief Justice of the new High Court.

(2) The other persons who by virtue of paragraph (1) of Article 4 of this order become permanent judges of the new High Court shall rank in that Court in the following order, namely-

Firstly, the former Chief Judge of the Chief Court in Oudh, and the former Puisne Judges of the High Court in Allahabad , according to the priority of their respective appointments as such Chief Judge or puisne judge, and

Secondly, the former Puisne Judges of the Chief Court in Oudh according to the priority of their respective appointments in that Court.

(3) The persons who by virtue or paragraphs (2) and (3) of Article 4 of this order become additional judges and acting judges of the new High Court shall rank in that Court according to the priority of their respective appointments as additional judges or acting judges in either of the existing High Courts.

6. Every person who, immediately before the appointed day , is an officer or servant of either of the existing High Courts shall as from that day be and officer or servant as the case may be of the new High Court, and shall be deemed to have been appointed to a corresponding office or post in the new High Court on the same terms and conditions of service (or on terms and conditions as similar thereto as the changes effected by this order may permit) as were applicable to him immediately before the appointed day:

Provided that nothing in this Article shall be deemed to prevent the Chief Justice of the new High Court from altering the designation or the duties of any office or post.

7. (1) The new High Court shall have, in respect of the whole of the United Provinces all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of any part of that Province by either of the existing High Courts.

(2) The new High Court shall also have in respect of any area outside the United Provinces all such original, appellate and other jurisdiction as under the law in force immediately before the appointed day is exercisable in respect of that area by the High Court in Allahabad.

8. (1) The new High Court shall have the like powers to approve admit, enrol, remove and suspend advocates and attorneys, and to make rules with respect to advocates and attorneys, in the whole of the united Provinces as are, under the law in force immediately, before the appointed day, exercisable by either of the existing High Courts.

(2) The right of audience in the new High Court shall be regulated in accordance with the like principles, as immediately before the appointed day, are in force with respect to the right of audience in the High Court in Allahabad:

Provided that, subject to any rule made or direction given by the new High Court in the exercise of the powers conferred by this Article, any person who, immediately before the appointed day, is an advocate entitled to practice or an attorney entitled to act in either of the existing High Courts shall be recognised as an advocate or an attorney entitled to practice or to act as the case may be, in the new High Court .

Provided further that notwithstanding the amalgamation of the existing High Courts all undertakings given by persons who have held office as judges of either of the existing High Courts or of the new High Court not to practice as advocates within the jurisdiction of either of the existing High Courts shall be deemed to continue in force, and the Chief Justice shall issue directions prohibiting from practice as advocates such persons to such extent as may be appropriate having regard to the terms of their undertakings, and for this purpose the said undertaking shall be construed as applicable to the new High Courts.

9. Subject to the provisions of this order, the law in force immediately before the appointed day with respect to practice, and procedure in the High Court in Allahabad shall, with the necessary modifications apply in relation to the new High Court, and accordingly that High Court shall have all such powers to make rules and orders with respect to practice and procedure as are immediately before the appointed day exercisable by the High Court in Allahabad :

Provided that any rules or orders which are in force immediately before the appointed day with respect to practice and procedure in the High Court in Allahabad shall, until varied or revoked by rules or orders made for the new High Court, apply with the necessary modifications in relation to practice and procedure in the new High Court as if made by that court:

Provided further that the Chief Justice may, in his discretion order that any rules or orders which were in force immediately before the appointed day with respect to practice and procedure in the Chief Court in Oudh shall, until varied or revoked by new rules or orders made for the new High Court, apply with the necessary modifications in relation to practice and procedure in the new High Court sitting at Lucknow.

10. Any rules or orders which, having been made by either of the existing High Courts for regulating the practice and procedure of or otherwise exercising control over, courts subject to its superintendence shall until varied or revoked by rules or orders made by the new High Court continue to apply with the necessary modifications in relation to the said subordinate courts.

11. (1) The new High Court shall have a seal of such form and design as the Chief Justice may direct.

(2) The law in force immediately before the appointed day with respect to the custody of the seal of the High Court in Allahabad shall, with the necessary modification apply with respect to the custody of the seal of the new High Court.

12. The law in force immediately before the appointed day with respect to the form of writs and other processes used, issued or awarded by the High Court in Allahabad shall, with the necessary modifications, apply with respect to the form of writs and other processes used issued or awarded by the new High Court.

13. The law in force immediately before the appointed day relating to the powers of the Chief Justice, single judges and division courts of the High Court in Allahabad and with respect to all matters ancillary to the exercise of those powers, shall, with the necessary modifications, apply in relation to the new High Court.

14. The new High Court, and the judges and division courts thereof, shall sit at Allahabad or at such other places in the United Provinces as the Chief Justice may, with the approval of the Governor of the United Provinces, appoint:

Provided that unless the Governor of the united Provinces with the concurrence of the Chief Justice otherwise directs, such judges of the new High Court not less than two in number , as the Chief Justice , may, from time to time nominate, shall sit at Lucknow in order to exercise in respect of cases arising in such areas in Oudh, as the Chief Justice may direct, the jurisdiction and power for the time being vested in the new High Court:

Provided further that the Chief Justice may in his discretion order that any case or class of cases arising in the said areas shall be heard at Allahabad.

15. The law in force immediately before the appointed day relating to appeals to Her Majesty in Council or to the Federal Court from the High Court in Allahabad and the judges and division courts thereof shall, with the necessary modifications, apply in relation to the new High Court.

16. (1) proceedings which immediately before the appointed day are pending in either of the existing High Courts shall, by virtue of this order, stand transferred to the new High Court and shall be continued as if they had been proceedings instituted in that High Court.

(2) Any order made by either of the existing High Courts in any such proceedings as aforesaid shall for all purposes have effect, not only as an order of that Court, but also as an order made by the new High Court

17. As from the appointed day-

(a) the Letters Patent of Her Majesty, dated the 17th March, 1866, establishing the High Court of Judicature for the North Western Provinces and Chapter II of the Oudh Courts Act, 1925 (U.P. Act IV of 1925), shall cease to have effect except for the purpose of construing, or giving effect to, the provisions of this order ;

(b) the Government of India (High Court Judges) Order, 1937, shall be further amended as follows:

(i) in the First Schedule in the entry relating to the High Court at Allahabad for the figures ‘12’ the figures ‘21’ shall be substituted, and the entry relating to the Chief Court of Oudh shall be omitted and.

(ii) in the Second Schedule, the entry relating to the Chief Court of Oudh shall be omitted and in the Note, the words "a Chief Judge and an acting Chief Judge" shall be omitted; and

(c) references in any Indian Law to either of the existing High Courts by whatever name shall, unless the context otherwise requires, be construed as references to the new High Court.

18. Nothing in this order shall prejudice the application to the new High Court of any relevant provisions of the Act, and this order shall have effect subject to any provisions that may be made on or after the appointed day with respect to the new High Court by any Legislature or authority having power to make such provision.

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