Shiva Jute Baling Ltd. Vs. Hindley
& Co. Ltd. [1955] INSC 23 (5 April 1955)
MUKHERJEE, BIJAN KR. (CJ) DAS, SUDHI RANJAN
CITATION: 1955 AIR 464 1955 SCR (2) 243
ACT:
Appeal by Special Leave under Article 136 of
the Constitution Procedure to be followed on grant of such leave-Supreme Court
Rules, rules 8, 9, 12 and 13 of Order XIII-Circumstances warranting action
against an Appellant for rescinding special leave-Civil Procedure Code, Order
XLV, rule 8-"Admission " Of appeal to Supreme CourtApplicability to
appeals under article 136 of ConstitutionExtent of Rule 9, Order XIII, of
Supreme Court Rules-Rules and Practice of High Courts-Formal motion in High
Court for "admission" of appeal when special leave was granted under
article 136-Whether necessary-Calcutta High Court (original Side) Rules, rule 9
of Chapter 32-Scope of.
HEADNOTE:
By an order dated May 25, 1954, the Supreme Court granted the petitioners in the case special leave to appeal against the
judgment and order of the High Court at Calcutta. In accordance with the order,
the petitioners furnished the security amounts directed to be deposited within
the time specified in the order. The Registrar of the High Court did not issue
any notice of admission of 'appeal to be served by the Appellant's Solicitor on
the Respondents as envisaged in rule 9 of Order XIII, S.C.R. Nor did the
Appellant following the practice of the High Court, move that Court for It
admission" of the appeal until January 11, 1955. The Respondents first moved the High Court complaining of default on the part of the appellants in due
prosecution of the appeal and latter moved the Supreme Court for action under
rule 13 of Order XIII of the Supreme Court Rules. The application in the High
Court was therefore kept pending.
Held: After the grant of special leave under
article 136, the Registrar of the Supreme Court transmits, in accordance with
the 244 provisions of rule 8 of Order XIII of the Supreme Court Rules, a
certified copy of the Supreme Court's order to the Court or tribunal appealed
from, Rule 9 of Order XIII of the Supreme Court Rules enjoins upon the Court or
tribunal appealed from to act, in the absence of any special directions in the
order, in accordance with the provisions contained in Order XLV of the Civil
Procedure Code, so far as they are applicable. Accordingly the Court or
Tribunal to which the order is transmitted receives deposits on account of
security for the Respondents' costs, printing costs, and any other deposits if
so ordered by the Supreme Court, and sets about preparing the record of the
appeal for transmission to the Supreme Court. Therefore, action under rule 13
of Order XIII, S.C.R., for rescinding the order granting special leave cannot
be initiated unless the Court or tribunal appealed from reports to the Supreme
Court that the appellant has not been diligent in taking steps to enable that
Court to carry out the directions, if any, contained in the order of the
Supreme Court and to act in accordance with the provisions of Order XLV of the
Civil Procedure Code so far as applicable to appeals under Article 136 of the
Constitution.
In view of rule 9 of Order XIII of the
Supreme Court Rules, the application of Order XLV of the Code of Civil
Procedure to appeals under Article 136 of the Constitution is restricted. The
Court or tribunal appealed from, no doubt, has to carry out the directions
contained in the order granting special leave, and to receive the security for
the Respondents' costs and other necessary deposits, but once the security is
furnished and the other deposits are made, the formality of
"admission" envisaged by rule 8 of Order XLV of the Civil Procedure
Code is unnecessary, because in such cases the order .granting special leave by
itself operates as an admission of the appeal as soon as the conditions in the
order relating to the furnishing of security or making of deposits are complied
with. Appeals under Article 136 thus stand on a different footing from appeals
on grant of certificate by the High Court itself.
In the letter case, the High Court has
exclusive jurisdiction over the matter until it admits the appeal under rule 8
of Order XLV of the Civil Procedure Code.
Rule 9 of Chapter 32 of the Original Side
Rules of the Calcutta High Court envisages "admission" of appeals to
the Supreme Court whether by an order of the Supreme Court or under Order XLV
of the Civil Procedure Code. And when an appeal arising from an order made by
the Supreme Court under Article 136 of the Constitution, has been so "admitted",
the said rule enjoins upon the Registrar to issue notice of such admission for
service by the appellant on the Respondents.
In cases where special leave has been granted
by the Supreme Court, it is not necessary for the appellant to move the High Court
appealed from for the formal admission of his appeal. As the order granting
special leave itself lays down the conditions to be fulfilled by the
appellants, the admission will be regarded as final only when the directions
are complied with and as 245 soon as this is done it would be the duty of the
Registrar to issue a notice of the admission of the appeal for service upon the
respondents. In default of the issue of such notice, the appellant cannot be
held responsible for laches in the prosecution of his appeal with regard to the
steps required to be taken after the admission of his appeal.
CIVIL APPELLATE JURISDICTION: In the matter
of Petition for Special Leave to Appeal No. 230 of 1953.
Rajinder Narain for the Respondents.
N. C. Chatterjee (Sukumar Ghose with him) for
the Appellants.
1955. April 5. The Order of the Court was
delivered by MUKHERJEA C.J.-This is an application by the respondents in
Special Leave Petition No. 230 of 1953, praying for summons to the appellants
to show cause why the special leave obtained by the latter should not be
rescinded in accordance with the provision of Order XIII, rule 13 of the
Supreme Court Rules.
The appeal is directed against a judgment of
a Division Bench of the Calcutta High Court affirming, on appeal, a decision of
a single Judge sitting on the Original Side of that Court. The appellants,
having been refused certificate by the High Court, presented before us an
application under article 136 of the Constitution and special leave to appeal
was granted to them by an order of this Court dated the 25th May 1954. By that order the appellants were required to furnish security for costs amounting to Rs.
2,500 within six weeks and the enforcement of the award, which was the
subject-matter of the appeal, was stayed on condition that the appellants
deposited in Court a sum of Rs. 28,000 within four weeks from the date of the
order. On the 15th of June 1954 the Registrar of this Court transmitted to the
Original Side of the Calcutta High Court certified copies of the order granting
special leave and also of the special leave petition with a request that these
documents might be included in the printed records of the case. It is not
disputed that in pursuance of the directions given 246 by this Court the
appellants did deposit the amount required as security for costs and also the
sum of Rs. 28,000 within the time mentioned in the order. On the 29th November
1954 the respondents' Solicitors in Calcutta wrote a letter to the Registrar of
the Original Side of the Calcutta High Court complaining of delay on the part
of the appellants in prosecuting the appeal. It was stated inter alia that
although six months had elapsed since special leave was granted by this Court,
the respondents were not served with notice of the admission of the appeal and
no steps were taken by the appellants to get the records printed or transmitted
to this Court. In reply to this letter the Registrar informed the respondents'
Solicitors that according to the practice of the Calcutta High Court it was
incumbent on the appellants to make a formal application to the Appellate Bench
of the Court for declaring the appeal finally admitted, and this was to be done
on notice to the other parties under Order XLV, rule 8 of the Civil Procedure
Code and on filing in Court a copy of the order of the Supreme Court granting
special leave to appeal as well as the application upon which such order was
made. Unless and until an order was made by the High Court declaring the appeal
to be admitted, no action could be taken by the office in the matter.
Thereupon on the 11th of January 1955 an
application was filed by the appellants praying that leave might be given to
them to file the certified copy of the special leave petition and also that of
the order passed upon it and that the appeal might be finally admitted. This
application came up for hearing before the learned Chief Justice and Lahiri, J.
of the Calcutta High Court and on the 20th of January 1955 the learned Judges
made the following order:
"In this matter special leave to appeal
to the Supreme Court was granted by that Court on the 25th May 1954. On the
21st June following, the Appellant furnished the necessary security. It was
then the duty of the Appellant to take the necessary steps for the final
admission of the appeal in order that the preparation of the Paper Book might
thereafter be 247 undertaken. Under the Rules and practice of this Court the
step to be taken is that the Appellant to the Supreme Court should make an
application for leave to file the certified copy of the petition for Special
Leave and also a certified copy of the order granting Special Leave which have
been filed along with the present application......................." When
the matter came up for hearing on the last occasion we enquired whether the
Appellantshad any explanation to give for the delay which bad occurred. It was
said that the certified copy of the application for Special Leave had been
obtained only recently. It was however not explained why when an application
for a certified copy of the order was made a similar application for a
certified copy of the petition also could not be made.
In all the circumstances we consider it right
that the disposal of the present application should stand over for a month in
order that the respondents may take such steps as they desire to take before
the Supreme Court".
The above facts and order of the High Court
were communicated to the Registrar of this Court by Shri Rajinder Narain,
Advocate for the respondents, by his letters dated the 17th and 31st of January
1965 and on the basis of the facts stated above, he requested that action
should be initiated by the Registrar against the appellants for non prosecution
of the appeal. The Registrar told the learned Advocate that he had not received
any report from the High Court regarding any laches on the part of the
appellants and without any such report, it was not possible for him to take any
action in the matter. The Advocate himself, it was said, was quite at liberty
to make a formal application to the Court in such way as he considered proper.
The views thus expressed by the Registrar of this Court were communicated by
him to the Registrar of the High Court, Original Side, Calcutta. On the 4th
March 1955 Shri Rajinder Narain filed a formal petition addressed to the
Registrar alleging inordinate delay on the part of the appellants in filing in
the High Court certified copies of 248 the Special Leave petition and the order
made by this Court thereupon and praying that summons might be issued to the
appellants to show cause why the appeal should not be dismissed for
non-prosecution. Before the Registrar could take any further steps in the
matter, the application of the appellants for final admission of the appeal
made in the High Court came up for further consideration before the Appellate
Bench consisting of the Chief Justice and Mr. Justice Lahiri and on the 7th
March, 1955 the learned Judges made an order directing, for the reasons given
therein, adjournment of the application for admission of the appeal before
them, sine die pending orders which this Court might pass on the application of
the respondents. The application of the respondents which purports to have been
made under Order XIII, rule 13 of the Supreme Court Rules was referred by the
Registrar for orders to the Court and it has now come up for hearing before us.
Shri Rajinder Narain appearing in support of
the petition has Contended before us that the appellants were guilty of serious
laches inasmuch as they did not file in the High Court, till 8 months after the
special leave was granted, copies of the special leave petition as well as of
the order passed upon it; nor did they make an application to the Appellate
Bench for admission of the appeal without which no further steps could be taken
in the matter of printing and transmission of the record. As the appellants
could not give any satisfactory explanation for this inordinate delay on their
part, the special leave, it is argued, should be rescinded. Mr. Chatterjee, who
appeared for the appellants, has contended @n the other hand that in a case
like the one before us where the appeal has come up to this Court by special
leave and not by a certificate granted by the High Court, there was no duty
cast upon the appellants to make a formal application in the High Court for
final admission of the appeal or to file therein certified copies of the
special leave petition and the order made thereupon. His argument is that under
Order XXXII, rule 9 of the Original Side Rules of the Calcutta High Court, a
249 Supreme Court appeal must be deemed to have been admitted by the very order
of this Court granting special leave and as soon as the appellants have carried
out the directions of the Supreme Court regarding furnishing of security or making
of other deposits as the case may be, it is incumbent upon the Registrar to
issue a notice of the admission of the appeal for service upon the respondents.
Such notice indeed has got to be served by the appellants' attorney; but as no
notice was at all issued by the Registrar in the present case as is
contemplated by rule 9 of Order XXXII of the Original Side Rules of the
Calcutta High Court, no blame could attach to the appellants for not taking
further steps in the matter. The contention of Mr. Chatterjee appears to us to
be well founded and as it seems to us that doubts have arisen at times
regarding the precise procedure to be followed in cases where an appeal comes
to this Court by special leave granted under article 136 of the Constitution,
it is necessary to examine the provisions bearing upon it as are contained in
the Rules of the Supreme Court or of the High Court concerned read along with
the relevant provisions of the Civil Procedure Code.
Ordinarily when a High Court grants a
certificate giving leave to a party to appeal to this Court, it is ,that Court
which retains full control and jurisdiction over the subsequent proceedings
relating to the prosecution of the appeal till the appeal is finally admitted.
It is for the High Court to see that its directions are carried out regarding
the furnishing of security or the making of deposit and when these conditions
are fulfilled, it has then to declare the appeal finally admitted under Order
XLV,rule 8 of the Civil Procedure Code. The jurisdiction of the Supreme Court
begins after the appeal is finally admitted.
When however the appeal comes to this Court
on the strength of a special leave-' granted by it, the position is different.
In such cases the order of the Supreme Court granting special leave by itself
operates as an admission of the appeal as soon as the conditions in the order
relating to furnishing of security or making of a deposit are complied with.
That this is the true position will be clear from the procedural provisions
contained in the Rules of the Supreme Court as well as of the Original Side of
the Calcutta High Court. Order XIII, rule 8 of the Supreme Court Rules lays
down:
"After the grant of special leave to
appeal by the Court, the Registrar shall transmit a certified copy of the order
to the court or tribunal appealed from".
Rule 9 then says:
"On receipt of the said order, the court
or tribunal appealed from shall, in the absence of any special directions in
the order, act in accordance with the provisions contained in Order XLV of the
Code, so far as applicable".
It is to be noted here that although this
rule does refer to the provisions of the Order XLV of the Civil Procedure Code,
these provisions are to be followed only so far as they are applicable. It is
surely the duty of the High Court to see that security is furnished or a
deposit is made in accordance with the directions of the Supreme Court and
these directions are to be found in the order of the Supreme Court which the
Registrar is bound to transmit to the High Court under Order XIII, rule 8 of
our Rules. We do not think it is necessary for the appellants to file afresh a
copy of the Supreme Court order or the petition upon which it was made in order
that they may form part of the record of the Supreme Court appeal. They would
come in the record as soon as they are transmitted by the Registrar in
accordance with the rule of our Court mentioned above and would have to be
included in the Paper Book when it is printed. The Registrar of the High Court
undoubtedly took these orders as part of the record without the appellants'
filing them afresh, for he accepted the security and deposit of other moneys
from the appellants on the basis of these orders. If there was any failure on
the part of the appellants to furnish the security or to make the deposit in
the way indicated in the order of the Supreme Court, it would have been the
duty of the Registrar of the High Court to intimate these 251 facts to the
Registrar of the Supreme Court and the latter thereupon could take steps for
revoking the special leave as is contemplated by Order XIII, rule 12 of our
Rules. In our opinion, it is also not necessary for the appellants to make a
formal application for admission of the appeal in cases where special leave has
been granted by the Supreme Court;
-and this appears clear from the provision of
Order XXXII, rule 9 of the Original Side Rules of the Calcutta High Court which
runs as follows:
"9. On the admission of an appeal to the
Supreme Court whether by the order of this Court under Order XLV, rule 8 of the
Code, or by an order of the Supreme Court giving the appellant Special Leave to
Appeal, but subject in the latter case to the carrying out of the directions of
the Supreme Court as to the security and the deposit of the amount required by
rule 5, notice of such admission shall be issued by the Registrar for service
on the respondent on the record, whether be shall have appeared on the hearing
of the application for a certificate under Order XLV, rule 3 of the Code, or
not. Such notice shall be served by the attorney for the appellant and an
affidavit of due service thereof shall be filed by such attorney immediately
after such service".
The opening words of this rule plainly
indicate that there could be admission of appeal either by order of the High
Court under Order XLV, rule 8 of the Civil Procedure Code or by the order of
the Supreme Court itself giving special leave to appeal. (As the order granting
special leave itself lays down the conditions to be fulfilled by the appellants,
the admission will be regarded as final only when the directions are complied
with and as soon as this is done it would be the duty of the Registrar to issue
a notice of the admission of the appeal for service upon the respondents).
This notice is to be served by the attorney
for the appellants and an affidavit of due service shall be filed by him
immediately after the service is effected.
In the present case the Registrar, Original
Side of the, Calcutta High Court should have issued a notice of 252.
the admission of the appeal to be served upon
the respondents as soon as the security for costs and other deposits of money
were made by the appellants. This was not done as the procedure to be followed
was not correctly appreciated. It is true that the appellants remained idle for
a considerable period of time even after they furnished security and did not
take any steps towards printing of the record. But as there was an initial
irregularity in the matter of issuing a notice under. Order XXXII, rule 9 of
the Original Side Rules of the Calcutta High Court, we are unable to hold that
the appellants were guilty of any laches for which the special leave deserves
to be rescinded. The result is that the application of the respondents is
dismissed. The Registrar, Original Side of the Calcutta High Court, will now
issue a notice under Order XXXII, rule 9 of the Original Side Rules and prompt
steps should be taken by the appellants towards printing and transmission of
the record to this Court. We make no order as to costs of this application.
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