High Courts Act 1861

Sec.9 of the High Courts Act 1861: Each of the High Courts to be established under the High Courts Act, 1861, shall 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 Presidency for which it is established as Her Majesty may by such Letters Patents, grant and direct subject, however, to such directions and limitations as to the exercise of original, civil and criminal juridiction beyond the limits of the Presidency towns as may be prescribed thereby; and save as such Letters Patent may be otherwise directed and subject and without prejudice to the legislative powers in relation to matters aforesaid of the Governor General of India in Council, the High Court to be established in each Presidency shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolihsed under this Act at the time of the abolition of such last-mentioned Courts.

Outside Presidency: Under this provision therefor the High Court’s original jurisdiction beyond the limits of the Presidency towns was to be such as was directed by Letters Patent. The Civil jurisdiction outside the Presidency town limits was dealt with by Clause 13 of the Letters Patent: “And we do further ordain that the said High Court of Judicature at Madras, Fort William in Bengal, Bombay shall have power to remove, and to try and determine, as a Court of extraordinary original jurisdiction, any suit being or failling within the jurisdiction of any Court, whether within or without Presidency of Madras, Bengal Division of the Presidency of Fort William, Bombay, subject to his superintendence, when the said High Court shall think proper to do so, either on the agreement of the parties to that effect, or for the purpose of justice, the reasons for so doing being recorded on the proceedings of the said High Court.”

Clause 13 was in contrast to the ordinary civil jurisdiction of the High Court under Clause 12. By virtue, therefore, of Sec.9 of the High Courts Act the jurisdiction of the High Court in relation to the exercise of civil jurisdiction outside the Presidency towns would be subject to the limits prescribed by Clause 13 of the Letters Patent.

In the Clause 12 the words used are ‘to receive, try and determine”. The framers of the Letters Patent therefore drew distinction between the power ‘to receive’ conferred by Clause 12 and the power ‘to remove’ referred to in Clause 13.

Under Clause 17 of Letters Patent the jurisdiction of the High Court over infants and lunatics extends over the entire Presidency. 

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