Vidyawati
Gupta & Ors Vs. Bhakti Hari Nayak & Ors [2006] Insc 61 (3 February 2006)
B.P.
Singh & Altamas Kabir Altamas Kabir,J.
The
submissions advanced in this appeal by way of special leave necessitates a
brief glance into the historical origin of the Calcutta High Court.
In
August 1861, the British Parliament passed the Indian High Courts Act which
empowered the Crown to establish, by Letters Patent, High Courts of Judicature
at Calcutta, Madras and Bombay. Consequent to such authority, the
Letters Patent dated 14th
May, 1862 was issued
establishing the High Court of Judicature at Calcutta. By subsequent Letters Patent dated 26th June, 1862, the High Court at Bombay and Madras were also established.
The
Letters Patent empowered the High Court of Calcutta to exercise Ordinary
Original Civil Jurisdiction within the local limits of the Presidency town of Calcutta as might be prescribed by a
competent Legislative Authority for India. Within such local limits, the High Court was authorized to try and
determine suits of every description, except those falling within the
jurisdiction of the Small Causes Court at Calcutta. Apart from its Original Jurisdiction, the Letters Patent vested the
High Court with wide powers including appellate powers from the Courts of Original
Jurisdiction and in procedural matters, the High Court was given the power to
make rules and orders in order to regulate all proceedings, civil and criminal,
which were brought before it.
In
this connection, it may not be out of place to refer to the provisions of
Clause 37 of the Letters Patent which provides as under:- "37, Regulation
of Proceedings, And We do further ordain, that it shall be lawful for the said
High Court of Judicature at Fort William in Bengal from time to time to make rules
and orders for the purpose of regulating all proceedings in civil cases which
may be brought before the said High Court, including proceedings in its
Admiralty, Vice-Admiralty, Testamentary, Intestate, and Matrimonial
jurisdictions respectively: Provided always that the said High Court shall be
guided in making such rules and orders, as far as possible, by the provisions
of the Code of Civil Procedure, being an Act passed by the Governor-General in
Council, and being Act No. VII of 1859, and the provisions of any law which has
been made, amending or altering the same, by competent legislative authority
for India." As will be seen from the
above, the aforesaid clause vested in the High Court the power to make rules
and orders for the purpose of regulating all proceedings in civil cases, which
may be brought before it. It was, however, also provided that in making such
rules and orders, the High Court should be guided, as far as possible, by the
provisions of the Code of Civil Procedure, (hereinafter referred to as 'the
Code') which had been enacted for courts in India not established by Royal Charter.
By
virtue of the issuance of the Letters Patent, the High Courts of Calcutta, Bombay and Madras came to be known as the Chartered High Courts empowered to
regulate their own procedure, inter alia in respect of its Ordinary Original
Civil Jurisdiction.
The
Original Side Rules of the Calcutta High Court (for short 'the Original Side
Rules'), which are still in force, came to be framed by the High Court under
Clause 37 of the Letters Patent which has to be read along with Section 129 of
the Code which also confers on the High Courts powers to make rules as to their
own original civil procedure and reads as follows:-
"129. Power of High Courts to make rules
as to their original civil procedure Notwithstanding anything in this Code,
any High Court not being the Court of a Judicial Commissioner may make such
rules not inconsistent with the Letters Patent or order other law establishing
it to regulate its own procedure in the exercise of its original civil
jurisdiction as it shall think fit, and nothing herein contained shall affect
the validity of any such rules in force at the commencement of this Code."
Apart from Section 129, Order XLIX of the Code specifically excludes the
application of certain rules and orders of the aforesaid Code to any of the
Chartered High Courts. At the same time, Chapter XL of the Original Side Rules
indicates that the provisions of Section 2 of the Code and of the General
Clauses Act, 1897 would apply to the Original Side Rules, but where no other
provision is made by the Code or by the said Rules, the procedure and practice
in existence would continue to remain in force.
Chapter
VII of the Original Side Rules framed by the Calcutta High Court to regulate
its own procedure in original civil matters deals with the institution of
suits. Inasmuch as, a good deal of submission has been made with regard to the
provisions of Rule 1 of Chapter VII which will have a significant bearing with
regard to a decision in this case, the same is reproduced hereinbelow:-
"1.The plaint to be written or printed
: manner of : contents. The plaint shall be legibly written, or printed, in the
English language, on durable foolscap paper or other paper similar to it in
size and quality, bookwise, and on both sides of the paper, with not more than
25 or less than 18 lines, of about 10 words in each line in each page, and with
an inner margin of about an inch and a quarter wide. It shall be stitched bookwise
in the following order :
-
Warrant to sue, where the plaintiff
appears by an Advocate acting on the Original side ;
-
Concise statement,
-
The plaint,
-
List of documents upon which the
plaintiff relies,
-
List of documents produced with the
plaint,
-
Exhibits or copies of exhibits
filed. Dates, sums and numbers occurring in the plaint shall be expressed in
figures as well as in words stated in rupees, annas and pies, and the
corresponding English dates being added, where the dates are not according to
the English calendar. The plaint shall comply with O.VI of the Code, and shall
contain the particulars required by O. VII, rr 1 to 8 of the Code. Every
alteration in the plaint shall be marked and authenticated by the initials of
the persons verifying the plaint, or with leave of the Judge or Officer, by the
Advocate acting on the Original side." A glance at the aforesaid
provisions will indicate that although the heading of the aforesaid Chapter is
"Institution of Suits", Rule 1 does not really indicate the manner in
which a suit is required to be instituted.
The
directions contained in Rule 1 deal mainly with the form in which a plaint is
required to be prepared with specific instructions regarding the printing of
the contents and the paper to be used in the preparation of the plaint and
provides for the various other documents which are to be filed along with the
plaint.
What
it does mention in addition to the above is that the plaint has to comply with
the provisions of Order VI of the Code and has to contain the particulars
required by Order VII, Rules 1 to 8 of the said Code.
Order
VI of the Code deals with pleadings generally and as provided in Rule 1 of
Order VI "Pleadings" has been indicated to mean 'plaint' or 'written
statement'. Rule 15 of Order VI provides for verification of pleadings and
reads as follows:-
"15.
Verification of pleadings –
-
Save as otherwise provided by any
law for the time being in force, every pleading shall be verified at the foot
by the party or by one of the parties pleading or by some other person proved
to the satisfaction of the court to be acquainted with the facts of the case.
-
The person verifying shall specify,
by reference to the numbered paragraphs of the pleading, what he verifies of
his own knowledge and what he verifies upon information received and believed
to be true.
-
The verification shall be signed by
the person making it and shall state the date on which and the place at which
it was signed.
-
The person verifying the pleading
shall also furnish an affidavit in support of his pleadings." It is of
relevance to these proceedings to point out that Sub-rule (4) of Rule 15
reproduced hereinabove was introduced by way of Amending Act 46 of 1999 with
effect from 1st July
2002. Prior to such
amendment, there was no general provision regarding verification of pleadings
in a plaint also by way of an affidavit, though such a practice had been
introduced and followed in some of the High Courts in India.
Order
VII referred to in Rule 1 of Chapter VII of the Original Side Rules deals with
plaints and indicates the contents to be included in a plaint. Rules 1 to 8 of
Order VII of the Code deals specifically with the contents of the plaint which
has to be complied with for the purpose of institution of a suit under Chapter
VII of the Original Side Rules.
Although,
we shall have occasion to advert to the provisions of Section 26 of the Code at
a later stage of this judgment, together with Order IV Rule 1 of the said Code,
since the said provisions are inter- connected with Orders VI and VII of the
Code, it would be in the fitness of things to reproduce the same at this stage.
Section 26 of the Code which deals with institution of suits provides as
follows:- "Section 26. Institution of suits.
-
Every suit shall be instituted by
the presentation of a plaint or in such other manner as may be prescribed.
-
In every plaint, facts shall be
proved by affidavit." Sub-section (2) of Section 26 was also inserted by
way of amendment with effect from 1st July, 2002.
Order
IV Rule 1 which also deals with the institution of suits provides as follows:-
"1.Suit to be commenced by plaint.
-
Every suit shall be instituted by
presenting a plaint in duplicate to the Court or such officer as it appoints in
this behalf.
-
Every plaint shall comply with the
rules contained in Orders VI and VII, so far as they are applicable.
-
The plaint shall not be deemed to be
duly instituted unless it complies with the requirements specified in sub-rules
(1) and (2)." As in the case of Sub-section (2) of Section 26, Sub-rule
(3) of Rule 1 of Order IV was also introduced by Amending Act 46 of 1999 with
effect from 1st July,
2002. We shall have
occasion to refer to Sub-rule (3) of Rule 1 of Order IV while dealing with the
judgment under appeal since a certain amount of emphasis has been laid on the
said provision by the Division Bench of the Calcutta High Court which calls for
interpretation in the instant proceedings.
The
facts of the case resulting in the judgment under appeal may now be stated in
brief for proper understanding of the various provisions of the Letters Patent,
the Original Side Rules and the Code.
The
appellants in the instant appeal claiming to be the owners of the entire floor,
the 1st floor and a portion of the basement of Premises No.33-A, Jawaharlal
Nehru Road, Calcutta, filed a Civil Suit No.352/2002 in the Calcutta High Court
on or about 26th July, 2002 against the respondents herein inter alia for
certain orders of injunction against the said respondents in respect of their
right, title and interest in the said portions of the premises in question.
Thereafter,
leave was granted by the learned Single Judge taking up interlocutory matters
under Order I, Rule 8 of the Code on 30th July, 2002 and writ of summons was issued
immediately thereafter and served upon the defendants. An application for
interim injunction was also filed in the suit on behalf of the appellants and
as will appear from the materials on record an application under Section 8 of
the Arbitration and Conciliation Act, 1996, was also filed on behalf of the
respondents. The said application for interim injunction was allowed by an
Order dated 2nd April,2004 passed by the learned Single Judge whereby the
respondents were directed to restore the condition of the plaintiffs' roof-top
cooling towers and the western side ground floor of the suit premises, as was
existing on the date of the institution of the suit, within a period of three
weeks from the date of the order. The defendants (respondents herein) were also
restrained from interfering, in any manner, with the plaintiffs' interest in
the suit properties, including the properties which were directed to be
restored in terms of the injunction order. The learned Single Judge directed
that the interim order would remain in force till the disposal of the suit.
Aggrieved
by the said order of the learned Single Judge, the respondents herein preferred
an appeal, being APOT No. 214/2004, before the Division Bench of the Calcutta
High Court and the same appears to have been taken up for hearing firstly on
27.4.2004 and thereafter on subsequent dates.
As
will appear from the order of the Division Bench of the High Court, before the
matter was taken up for consideration on merits, a preliminary objection was
raised on behalf of the appellants, who are the respondents herein, regarding
the valid institution of the suit itself in view of the amended provisions of
the Code. The Division Bench decided to adjudicate on the said objection first
since it felt that the said question went to the very root of the matter
concerning the jurisdiction of the learned Single Judge to entertain the suit
and the interlocutory applications filed therein.
Before
the Division Bench, it was submitted on behalf of the appellants that prior to 1st July, 2002, Section 26 of the Code merely indicated
that every suit shall be instituted by the presentation of a plaint or in such
other manner as may be prescribed. The manner in which such plaint was to be
prepared and presented has been provided for in detail in Orders VI and VII of
the Code. It was submitted on behalf of the appellants that with effect from 1st July, 2002, certain amendments were effected
to the aforesaid provisions of the Code by Act 46 of 1999 which made it
mandatory that in every plaint, facts would have to be proved by an affidavit.
It was submitted that sub- section (2) was added to Section 26 by way of
amendment incorporating the said provision.
Correspondingly,
amendments were also introduced in Order VI Rule 15 relating to verification of
pleadings and Sub-rule (4) was inserted mandating that the person verifying the
pleading was also required to furnish an affidavit in support of its pleadings.
In addition to the above, Order IV of the Code, which deals with the
institution of suits, was also amended and Sub-rule (3) was added to Rule 1 and
it was specifically stipulated that the plaint to be filed in compliance with
the provisions of Orders VI and VII would not be deemed to have been duly
instituted unless it complied with the requirements specified in Sub-rules (1)
and (2). It was the further case of the appellants that having regard to the
provisions of Chapter VII Rule 1 of the Original Side Rules, the reference made
in Sub-rule (3) of Rule 1 of Order IV of the Code would also include the
amendments brought about in the said Orders with effect from 1st July, 2002.
Consequently, it was urged that since the amended requirements of Sub-rule (4)
of Rule 15 of Order VI had come into operation with effect from 1st July, 2002
and since the suit had been instituted thereafter on 26th July, 2002, the same
could not be said to have been duly instituted within the meaning of Sub-rule
(3) of Rule 1 of Order IV of the Code. It was urged that the entire proceedings
from the filing of the plaint and the entertaining of the interlocutory applications
by the learned Single Judge was without jurisdiction and was liable to be
declared as such.
On
behalf of the respondents, who are the appellants before us, it was submitted
that the provisions of the Code being subject to the rules framed by the
Chartered High Courts, of which the Calcutta High Court was one, the Rules as
framed by the High Court would have an overriding effect over the provisions of
the Code. It was contended that the Original Side Rules relating to the
institution of suits had been framed under the Letters Patent and would prevail
over the provisions of the Code. It was further submitted that Rule 1 of
Chapter VII of the Original Side Rules, while setting out the specifications
relating to the filing of the plaint, has merely indicated that the plaint
should comply with the provisions of Order VI of the Code and shall contain the
particulars required by Rules 1 to 8 of Order VII of the Code. It was contended
that there was no stipulation in the said Rule which required the plaintiff to
file an affidavit for the purpose of verification of the contents of the plaint
and in the absence of such requirement, it could not be insisted that having
regard to the amendments of the Code, verification in a plaint presented in the
Original Side of the Calcutta High Court was also required to be supported by
an affidavit.
In
addition to the above, it was also urged on behalf of the respondents that mere
procedural omissions which were curable could not affect the validity of a
plaint as filed. Various decisions of the different High Courts relating to
failure in complying with the provisions of Order VI of the Code were cited on
behalf of the respondents and it was pointed out that in all the said cases it
was consistently held that the court has a discretion to remove the illegality
to be cured if the plaintiff has acted in good faith and without any gross
negligence and after the defect is cured the suit will be deemed to have been
filed when it was first instituted. In particular the decision of the Bombay
High Court in Hirabai Gendalal vs. Bhagirath Ramchandra & Co. reported in
AIR 1946 Bombay 174, that of the Special Bench of the Allahabad High Court in
the case of Wali Mohammad Khan vs. Ishak Ali Khan & Ors. reported in AIR
1931 Allahabad 507 and the decision of the
Calcutta High Court in the case of Ramgopal Ghose vs. Dhirendra Nath Sen &
Ors., reported in AIR 1927 Calcutta 376
were relied upon. In addition, the respondents also relied on a recent decision
of this Court in the case of Salem Advocate Bar Association, Tamil Nadu vs.
Union of India, reported in (2003) 1 SCC 49, wherein while considering the
effect of the amendments introduced in the Code by the Amending Acts 46 of 1999
and 22 of 2002, it was observed in paragraph 16 that the attention of the Court
had been drawn to Order VII Rule 11 to which clauses (e) and (f) had been added
which enabled the Court to reject the plaint where it is not filed in duplicate
or where the plaintiff failed to comply with the provisions of Rule 9 of Order
VII.
This
Court was of the view that the said clauses being procedural would not require
the automatic rejection of the plaint at the first instance. If there was any
defect as contemplated by Rule 11 (e) or non-compliance as referred to in Rule
11 (f), the Court should ordinarily give an opportunity for rectifying the
defects and in the event of the same not being done, the Court will have the
liberty or the right to reject the plaint.
On the
basis of the aforesaid submissions, it was contended on behalf of the
respondents that the non- filing of an affidavit in support of the pleadings in
the plaint at the time of presentation thereof was a mere procedural error
which was capable of being cured and had actually been cured pursuant to leave
granted by the Appeal Court and that an affidavit in support of the plaint was
affirmed and filed before the Division Bench on 28th April, 2004. It was
submitted that having regard to the various decisions referred to above, the
plaint must be deemed to have been presented in the Computer Department of the
Calcutta High Court on 26th July, 2002 and the preliminary objection taken
regarding the validity of the plaint was required to be rejected.
After
considering the various provisions of the Code along with the relevant
amendments introduced in the Code with effect from 1st July, 2002 and the
relevant provisions of the Letters Patent and after considering various
decisions cited at the Bar, in particular the decision of this Court in the
case of State of M.P. vs. M.B. Narasimhan, reported in AIR 1975 SC 1835, the
Appeal Court came to the conclusion that the instant case stood on a different
footing from the various decisions cited in view of the express provisions of
Order IV Rule 3 of the Code, as amended. Relying on the interpretation of the
expression "duly" used in Order IV Rule 3 in a decision of this Court
in the case of Life Insurance Corporation of India vs. D.J. Bahadur, (1981) 1
SCC 315 and the decision of the House of Lords in the case of East End
Dwellings Co.Ltd. vs. Finsbury Borough Council, reported in 1951 (2) All E.R.
587, the Division Bench was of the view that unless the plaint complied with
the requirements of the amended provisions, there would be no due institution
of the plaint. The Division Bench held that if a plaint is filed without
compliance with the requirement of the amended provisions, in the eye of law no
plaint can be said to have been filed and the same is non-est.
However,
having regard to the various decisions cited, including the decision of this
Court in Salem Advocate Bar Association (supra) it was also held by the
Division Bench that from the moment the error is rectified, the plaint will be
deemed to have been properly instituted but the rectification could not relate
back to a period when in view of the deeming clause there was no due
institution of the plaint. On the aforesaid reasoning, the Division Bench held
that the suit could not be dismissed nor could the plaint be rejected because
of non-compliance with the amended provisions since the omission had been
remedied by the filing of an affidavit by the respondent-plaintiff. It was held
that after the defect was removed the suit must be deemed to have been duly
instituted with effect from 28th July, 2004 and not before that date and
consequently the interlocutory order that had been passed by the learned single
Judge at a point of time when the suit had not been duly instituted could not
survive.
The
Division Bench accordingly set aside the order passed by the learned Single Judge
on 2nd April, 2004 but made it clear that the same had been set aside not on
merits but for the reasons discussed in the judgment and the plaintiff, if so
advised, would not be prevented from approaching the learned Single Judge with
another prayer for injunction and if such a prayer was made the said
application may be dealt with in accordance with law. It is against the
aforesaid order of the Appeal
Court that the
instant civil appeal is directed.
Appearing
in support of the appeal, Mr. Anindya Mitra, learned senior advocate, repeated
and reiterated the submissions made before the Division Bench of the Calcutta
High Court. In particular, Mr. Mitra, upon a reference to Section 26, Orders
IV, VI and VII of the Code, contended that the provisions contained therein had
been held to be directory and not mandatory in nature. In other words, Mr. Mitra
submitted that omission to comply with any of the provisions contained therein
would not render a suit invalid but that an opportunity was required to be
given by the Court to the plaintiff to cure the defect by supplying the
omission. In this regard, a reference was made to the decision of this Court in
Mr.Shaikh Salim Haji Abdul Khayumsab vs. Mr. Kumar & Ors., JT 2005 (10) SC
1, wherein the provisions of Order VIII Rule 1, after amendment, were held to
be directory on the reasoning that rules of procedure are handmaids of justice
and while the language employed by the draftsman of processual law may be
liberal or stringent, the fact remains that the object of prescribing procedure
is to advance the cause of justice. Reference was also made to the decision of
this Court in Kailash vs. Nankhu & Ors., (2005) 4 SCC 480, wherein also
while considering the amended provisions of Order VIII Rule 1 of the Code this
court held that unless compelled by express and specific language of the
statute the provisions of the Code or any other procedural enactment ought not
to be construed in a manner which would leave the Court helpless to meet
extraordinary situations in the ends of justice. This Court went on to hold
that merely because the provision of law is couched in negative language,
implying a mandatory character, the same is not without exceptions and that the
directions contained regarding the period for filing written statement in Order
VIII Rule 1 of the Code was directory and not mandatory being procedural law.
As an
extension of the aforesaid submission, Mr. Mitra urged that it had been
consistently held by the different High Courts from as far back as in the case
of Ramgopal Ghose vs. Dhirendra Nath Sen & Ors., AIR 1927 Calcutta 376,
that when a pleading does not conform with the provisions of Order VI Rule 15,
the defect therein is a mere irregularity that can be cured by amendment and
consequently when the verification in the plaint is amended being originally
defective, the plaint must be taken to have been presented not on the date of
the amendment but on the date when it was first presented.
Reliance
was also placed on the decision of the Madras High Court in Subbiah Pillai
alias S.S.M. Subramania Pillai vs. Sankarapandiam Pillai & Ors., AIR 1948 Madras 369 and on a decision of the Bombay
High Court in the case of All India Reporter Ltd., Bombay vs. Ram Chandra Dhondo Datar, AIR
1961 Bombay 292, where similar views were
expressed. Mr. Mitra contended that an analogy similar to the decision in the
aforesaid cases could and should also be drawn in the facts of the instant case
where the omission complained of was also procedural in nature and did not
affect either the territorial or the pecuniary jurisdiction of the Court to
entertain the suit. Mr. Mitra urged that having held that the defect and
omission were curable, the Division Bench of the Calcutta High Court had
thereafter erred in holding that having regard to the provisions of Sub-rule
(3) of Rule 1 of Order IV of the Code, the suit will be deemed to have been
instituted from the date on which the defects stood cured and not from the date
of initial presentation of the plaint. Mr. Mitra urged that the said error had
caused the Division Bench to set aside the order impugned in the appeal on the
said technical ground without going into the merits of the matter.
Mr. Mitra
submitted that after the decision rendered by the Division Bench on 9th June,
2004 this Court had occasion to consider the provisions of the Letters Patent
of the Madras High Court and the Bombay High Court in the case of P.S. Sathappan
(Dead) By Lrs. vs. Andhra Bank Ltd. & Ors., (2004) 11 SCC 672 and in the
case of Iridium India Telecom Ltd. vs. Motorola Inc., (2005) 2 SCC 145. In the
first of the said two cases, to which one of us (B.P. Singh,J.) was a party,
while considering the effect of the amended provisions of Section 100A and
Section 104 of the Code in relation to appeals provided for under Clause 15 of
the Letters Patent of the Bombay High Court, the majority view of the
Constitution Bench was that a Letters Patent is a special law of the High Court
concerned while the Code is a general law applicable to all courts. It was
observed that it was well settled law that in the event of a conflict between a
special law and a general law, the special law must always prevail and though
there was no apparent conflict between the Letters Patent and Section 104, if
there was any conflict between the Letters Patent and the C.P.C., then the
provisions of the Letters Patent would always prevail, unless there was a
specific exclusion, which position would also be clear from Section 4 of the
Code which provides that nothing in the Code would limit or affect any special
law.
In the
latter case, this Court had occasion to consider in detail the relevant
amendments in the Code referred to above also in the context of the Bombay High
Court Original Side Rules and the Bombay High Court Letters Patent and after a
detailed analysis of the various provisions, and in particular the provisions
of Clause 37 of the Letters Patent and Section 129 of the Code, this Court in
no uncertain terms, upon a reference to the decision in P.S. Sathappan's case
(supra), concluded that far from doing away with the Letters Patent, the
Amending Act of 2002 has left unscathed the provisions of Section 129 of the
Code and what follows therefrom and upheld the contention of the Division Bench
of the Bombay High Court that suits on the Original Side of the High Court were
to be governed by the Original Side Rules and not by the amended provisions of
Order VIII Rule 1 of the Code.
Mr. Mitra
submitted that since the matter had been set at rest by the two aforesaid
decisions, the finding of the Division Bench of the Calcutta High Court that
the Original Side Rules and the Code were supplementary to each other, was
liable to be set aside and not only was the suit liable to be held to have been
duly instituted on 26th July, 2002, but the interim order of injunction passed
therein was also liable to be restored.
Appearing
on behalf of the respondents, who were the defendants in the suit, Mr. Ranjit
Kumar, learned senior advocate, tried to convince us with his usual eloquence
that the amended provisions of the Code relating to presentation of plaints
would have to be interpreted in their literal sense, as otherwise the very
purpose for which the amendments had been introduced would be rendered
nugatory. He laid special emphasis on the provisions of Sub-rule (3) of Rule 1
of Order IV of the Code which provides that the plaint shall not be deemed to
be duly instituted unless it complies with the requirements specified in
Sub-rules (1) and (2) which in their turn provide that every plaint shall
comply with the Rules contained in Orders VI and VII of the Code.
Mr.Ranjit
Kumar pointed out that even Rule (1) of Chapter VII of the Original Side Rules
is similar to Sub- rule (2) of Rule 1 of Order IV and provides that the plaint
shall comply with Order VI of the Code and shall contain the particulars
required by Order VII Rules 1 to 8 of the Code. Mr. Ranjit Kumar submitted that
the reference made to Order VI of the Code in Clause 1 of Chapter VII must mean
a reference to Order VI as it stood at the time when the Original Side Rules
were framed and also as it stands today since the provisions of Order VI had
been incorporated in Rule 1 of Chapter VII by reference which could not be
taken to be partial but had to be considered as a whole. According to Mr. Ranjit
Kumar, the provisions of Sub-rule (4) of Rule 15 of Order VI were equally
attracted to the facts of the instant case and non-compliance thereof had been
very rightly held by the Division Bench to have rendered the suit non-est when
it was instituted on 26.7.2002 without being accompanied by an affidavit.
Mr. Ranjit
Kumar, however, accepted the position as explained by this Court in the Salem
Advocate Bar Assocn. case (supra), paragraph 16 whereof was relied upon by the
Division Bench of the Calcutta High Court and wherein it was observed that on
non-compliance of the provisions of Order VII and clauses (e) and (f) of Rule
11 and Rule 9 there should not be any automatic rejection of the plaint at the
first instance but that the Court should ordinarily give an opportunity for
rectifying the defect. Mr. Ranjit Kumar submitted that pursuant to the above,
the Division Bench of the Calcutta High Court had granted leave to the
appellants herein to file an affidavit in support of the pleadings in the
plaint and that such an affidavit had been filed pursuant to the leave granted
on 28th April, 2004 and the plaint must be deemed to have been duly instituted
only thereafter as had been held by the Division Bench of the Calcutta High
Court.
Although,
various decisions were cited by Mr. Ranjit Kumar on the question of legislation
by reference, we are not really required to dwell on such submission since it
is the common case of the parties that the provisions of Order VI and select
portions of Order VII would have application to plaints filed on the Original
Side of the Calcutta High Court and it is also the settled position that the
Rules of the Original Side as framed under the Letters Patent, unless excluded
and/or modified, would continue to have primacy over the Code and matters not
provided for. What we are really required to consider is the effect of the
amended provisions of the Code in relation to Chapter VII Rule 1 of the
Original Side Rules. We need not, therefore, advert to the various decisions
cited by Mr. Ranjit Kumar on this aspect of the matter.
In
support of his submission that failure to comply with Order VII Rule 15 would
render the suit non-est, Mr. Ranjit Kumar submitted that the omission to comply
with the requirements of the amended provisions of the Code relating to filing
of plaints could not be condoned but require rectification. Mr. Ranjit Kumar
referred to and relied on a decision of this Court in State of Kerala vs. M.S. Mani
& Ors., (2001) 8 SCC 82 , which arose out of an application under the
Contempt of Courts Act, 1971, Section 15 whereof requires a person to obtain
the prior consent in writing of the Advocate General for making a motion under
the said Act and it was held that such a provision being mandatory, the failure
to obtain such prior consent would render the motion not maintainable. In fact,
it was also held in the said case that obtaining consent subsequently would not
cure the initial defect.
Relying
heavily on the said decision, Mr. Ranjit Kumar pointed out that in the
Statement of Objects and Reasons for the amendments to the Code, it had been
indicated that the decision to introduce the provisions for the filing of an
affidavit in support of the pleadings and the plaint had been taken to quicken
the process of disposal of suits by fixing responsibility on the party
initiating the suit and such object would be frustrated if a liberal approach
was adopted in implementing the amended provisions.
Reference
was also made to two decisions of this Court in the case of Life Insurance Corporation
of India vs. D.J. Bahadur & Ors., (1981) 1 SCC 315 and Delhi Development
Authority vs. Kochhar Construction Work & Anr., (1998) 8 SCC 559, where
similar views have been expressed in the context of the Industrial Disputes
Act, Life Insurance Corporation Act and Arbitration Act, 1940. Certain other
decisions were also referred to in the context of Section 69 of the Partnership
Act, which do not need any elucidation.
Mr. Ranjit
Kumar submitted that the reasoning and the judgment of the Division Bench of
the Calcutta High Court did not call for any interference and the matter had
been rightly remanded to the First court for a denovo decision if a fresh
application for injunction was filed on behalf of the plaintiffs/appellants.
Mr.Pradip
Kumar Ghosh, learned senior advocate, appearing for one of the respondents,
while adopting the submissions made by Mr. Ranjit Kumar, drew our attention to
Section 4 of the Code which provides that in the absence of any provision to
the contrary nothing in the Code shall be deemed to limit or otherwise affect
any special local law now in force or any special jurisdiction or power
conferred, or any special form of procedure prescribed, by or any other law for
the time being in force. Mr. Ghosh contended that when there was specific
provision available the provisions of the Code must be deemed to have primacy
over other special or local laws, especially in the context of Section 26 and
Orders IV, VI and VII of the Code dealing with the institution of suits.
Referring
to the Constitution Bench decision of this Court in the case of P.S. Sathappan
(supra), Mr. Ghosh pointed out that in paragraph 32 of the judgment, while
discussing the special nature of the Letters Patent, it was also observed with
reference to Section 4 of the Code that only a specific provision to the
contrary, such as Section 100A of the Code, could exclude the special law. Mr. Ghosh
submitted that since specific provision had been made in Section 26, Order IV
as also Order VII Rule 15, for the filing of an affidavit along with the
verification in support of the plaint, such a provision being special in nature
and not being provided for in Rule 1 of Chapter VII of the Original Side Rules,
would prevail and its requirement would acquire a mandatory form even in
respect of plaints filed under the Original Side Rules of the Calcutta High
Court.
Mr. Ghosh
also referred to Section 116 contained in Part IX of the Code and submitted
that the same made the said Part applicable to High Courts not being the Court
of a Judicial Commissioner and that save as provided in the said Part or in
Part X or under the Rules, the provisions of the Code would apply to such High
Courts. Mr. Ghosh submitted that Section 120 of the Code made specific
provision as to which sections of the Code, namely, Sections 16, 17 & 20,
would not apply to the High Court in the exercise of its ordinary original
civil jurisdiction.
Mr. Ghosh
also urged that no interference was called for with the order passed by the
Division Bench of the Calcutta High Court and the appeal was liable to be
dismissed.
Mr. Tapash
Ray, learned senior advocate appearing for the Corporation of Caclutta,
submitted that although the Corporation of Calcutta was an interested party, it
had no role to play in the instant proceedings.
While
we have noted and considered the views expressed by this Court in the case of
Iridium India Telecom Ltd. (supra) and P.S. Sathappan's case (supra), with
which we respectfully agree, regarding the primacy of the Original Side Rules
framed under the Letters Patent over the provisions of the Code in case of
conflict, in the instant case, no such conflict has surfaced which necessitates
a reference thereto.
Although,
Mr. Mitra did urge that matters relating to the Ordinary Original Civil Jurisdiction
of the Calcutta High Court would be governed by the Original Side Rules, which
would prevail over the provisions of the Code, he also accepted the position
that a plaint which is presented in the Original Side will have to comply with
the requirements of Orders VI and VII as incorporated by way of reference in
Rule 1 of Chapter VII of the Original Side Rules. What is in controversy is
whether a person presenting such plaint after 1st July 2002, would also be required to comply
with the amended provisions of Order VI Rule 15 of the Code.
In
this regard we are inclined to agree with the consistent view of the three
Chartered High Courts in the different decisions cited by Mr. Mitra that the
requirements of Order VI and Order VII of the Code, being procedural in nature,
any omission in respect thereof will not render the plaint invalid and that
such defect or omission will not only be curable but will also date back to the
presentation of the plaint. We are also of the view that the reference to the
provisions of the Code in Rule 1 of Chapter VII of the Original Side Rules
cannot be interpreted to limit the scope of such reference to only the
provisions of the Code as were existing on the date of such incorporation. It
was clearly the intention of the High Court when it framed the Original Side
Rules that the plaint should be in conformity of the provisions of Order VI and
Order VII of the Code. By necessary implication reference will also have to be
made to Section 26 and Order IV of the Code which, along with Order VI and
Order VII, concerns the institution of suits. We are ad idem with Mr. Pradip Ghosh
on this score. The provisions of Sub-rule (3) of Rule 1 of Order IV of the
Code, upon which the Division Bench of the Calcutta High Court had placed
strong reliance, will also have to be read and understood in that context. The
expression "duly" used in Sub-rule (3) of Rule 1 of Order IV of the
Code implies that the plaint must be filed in accordance with law. In our view,
as has been repeatedly expressed by this Court in various decisions, rules of
procedure are made to further the cause of justice and not to prove a hindrance
thereto. Both in the case of Khayumsab (supra) and Kailash (supra), although
dealing with the amended provisions of Order VIII Rule 1 of the Code, this
Court gave expression to the salubrious principle that procedural enactments
ought not to be construed in a manner which would prevent the Court from
meeting the ends of justice in different situations.
The
intention of the legislature in bringing about the various amendments in the
Code with effect from 1st
July, 2002 were aimed
at eliminating the procedural delays in the disposal of civil matters. The
amendments effected to Section 26, Order IV and Order VI Rule 15, are also
geared to achieve such object, but being procedural in nature, they are
directory in nature and non-compliance thereof would not automatically render
the plaint non-est, as has been held by the Division Bench of the Calcutta High
Court.
In our
view, such a stand would be too pedantic and would be contrary to the accepted
principles involving interpretation of statutes. Except for the objection taken
that the plaint had not been accompanied by an affidavit in support of the
pleadings, it is nobody's case that the plaint had not been otherwise verified
in keeping with the unamended provisions of the Code and Rule 1 of Chapter VII
of the Original Side Rules. In fact, as has been submitted at the Bar, the
plaint was accepted, after due scrutiny and duly registered and only during the
hearing of the appeal was such an objection raised.
Considering
the aforesaid contention, even though the amended provisions of Order VI are
attracted in the matter of filing of plaints in the Original Side of the
Calcutta High Court on account of the reference made to Order VI and Rule 1 of
Chapter VII of the Original Side Rules, non-compliance thereof at the initial
stage did not render the suit non-est. On account of such finding of the
Division Bench of the Calcutta High Court, not only have the proceedings before
the learned Single Judge been wiped out, but such a decision has the effect of
rendering the proceedings taken in the appeal also non-est.
The
decision in M.S. Mani's case (supra) relied upon by Mr. Ranjit Kumar and Mr.
P.K. Ghosh, cannot be equated with the views expressed in Khayumsab's and Kailash's
case, inasmuch as, in the former case, the provision requiring the prior
consent in writing of the Advocate General was an intrinsic part of the
application touching upon the maintainability of the motion itself and not
procedural as in the facts of the instant case. The said decision, therefore,
cannot come to the aid of the respondents.
We
have, therefore, no hesitation in holding that the Division Bench of the
Calcutta High Court took a view which is neither supported by the provisions of
the Original Side Rules or the Code nor by the various decisions of this Court
on the subject. The views expressed by the Calcutta High Court, being contrary
to the established legal position, must give way and is hereby set aside.
The
appeal is accordingly allowed and the impugned order under challenge is set
aside.
Consequent
upon the views expressed by us, the plaint as filed on behalf of the appellants
herein must be deemed to have been presented on 26th July, 2002 and not on 28th April, 2004
and the interim order passed by the learned Single Judge on 2nd April, 2004, stands revived. The Division Bench
of the Calcutta High Court is directed to re-consider and hear the appeal filed
by the respondents herein on merits as expeditiously as possible.
Having
regard to the peculiar facts of the case, the parties will bear their own
costs.
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