Scope of Intra Court Appeals:
Letter patent appeal:
High Courts in India have same powers to issue the prerogative writs which English Law provides. The issue of writ is considered to be a matter of discretion which is to be exercised on sound principles of law. But once the discretion has been exercised by a single Judge of the court, it is subject to an Appeal to Division Bench of High Court, popularly called as Letters Patent Appeal. Scope of this intra court appeal has been circumscribed by Supreme Court of India in following words:
“While deciding intra court appeals against the exercise of discretion by a Single Judge, the Appellate Court would not interfere with the exercise of discretion by the Court of First Instance and substitute its own discretion, except where the discretion has been shown to have been exercised either arbitrarily, or capriciously or perversely or where the Court has ignored settled principles of law regulating grant or refusal of interlocutory injunction. Appeal against exercise of discretion is said to be an appeal on principle.”
[Source: Wander Ltd. v. Anton India Pvt. Ltd. (1990 (Suppl) SCC 727)]
It is unfortunate that despite the above authoritative pronouncements about the scope of appeals to division bench, very often the High Court travels beyond the scope and without pointing out the error in judgement of court below, pass a fresh judgement. This manner of exercise of power is not only unjust and illegal but is also contrary to judicial discipline.
Comment: It appears that jurisdiction of court in writ appeal is more akin to review than an appeal. Review is tethered to discovery of new facts or an apparent error of record but appeal is entirely a rehearing of the case. Therefore a writ appeal is not a rehearing but merely an exercise to correct an apparent error not to substitute opinion of division bench with the opinion of single judge.