Full Judgment Text
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PETITIONER:
SHEW BUX MOHATA AND ANOTHER
Vs.
RESPONDENT:
SM. TULSIMANJARI DASI AND ANOTHER
DATE OF JUDGMENT:
29/03/1961
BENCH:
GAJENDRAGADKAR, P.B.
BENCH:
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
CITATION:
1961 AIR 1453 1962 SCR (1) 643
ACT:
Practice-Security for costs-Appeal to Supreme Court-
Certificate granted by High Court -Power of High Court to
extend time-Code of Civil Procedure, 1908 (Act 5 of 1908),
O. 45, rr. 7, 10, 11-Supreme Court Rules, 1950, O. XII, r.
3.
HEADNOTE:
On an application made by the appellant, the Calcutta High
Court granted a certificate on May 18, 1956, enabling him to
appeal to the Supreme Court against the judgment and decree
of the High Court. Under 0. 45, r. 7(1)(a), of the Code of
Civil Procedure, 1908, the appellant had to deposit the
security amount for costs of the respondent within ninety
days or such further period, not exceeding sixty days, as
the court may upon cause shown allow, from the date of the
decree complained of, or within six weeks from the date of
the grant of the certificate, whichever was the later date.
Being unable to deposit
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the amount on the due date, the appellant filed an
application on July 4, 1956, before the High Court praying
that the amount tendered by him be accepted after condoning
the delay, but the High Court rejected it on the ground that
according to the uniform current of decisions of that Court
it had no jurisdiction to extend the time for depositing the
amount.
Held, that reading 0. 45" r. 7, of the Code of Civil
Procedure, 1908, along with the other relevant provisions Of
the said Order, a High Court has jurisdiction to extend time
for furnishing security under the rule, and that the
decisions of the Calcutta High Court to the contrary are
erroneous.
Order XII, r. 3, of the Supreme Court Rules, 1950, expressly
recognises and gives jurisdiction to the High Courts to
extend the time for furnishing the security in a proper
case.
Raja Kumar Govind Narayan Singh and others v. Shamlal Singh
and others, (1934) 39 C.W.N. 65 1 and Akimuddin Chowdhury v.
Fateh Chand Mahesri & others, (1939) 44 C. W. N. 920, disap-
proved.
Roy Jyotindranath Chowdhury & Ors. v. Rai Prasanna Kumar
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Banerjee Bahadur, (1906) 11 C.W.N. I 104, Harendra Lal
Choudhry v. Sm. Hari Dasi Debei, (1909) 14 C.W.N. 420,
Nilkanth Balwant Natu & Ors. v. Shri Satchidanand Vidya
Narsinha Bharati & Ors., (1927) I.L.R. 51 Bom. 430, Bishnath
Singh & Ors. v. Balwant Rao Naik Kalia & Ors., I.L.R. [1939]
All 549, Ismail Piperdi v. Momin BiBi & Ors, [1939] Rangoon
L.R. 668, Lachmeshway Prasad Shukul v. Girdhari Lal
Choudhuri, (1940) I.L.R. 19 Pat. 123, Ghulam Rasul v. Ghulam
Qutabud-din, (1942) I.L.R.23 Lah.447, Gulam Hussain v.
Mansurbeg & Ors., I.L.R. [1952] Nag. 406 and Thota Pitchaiah
JUDGMENT:
Andhra 55, approved.
&
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 34 of 1958.
Appeal by special leave from the order dated July 6, 1956,
of the Calcutta High Court in appeal to the S. C. No. 32
of 1955.
N. C. Chatterjee and D. N. Mukherjee, for the appellants.
Syamdas Bhattacharya and S. N. Mukherjee, for the
respondents.
1961. March 29. The Judgment of the Court was delivered by
GAJENDRAGADKAR, J.-The short question of law which arises
in this appeal is whether the Calcutta High Court had
jurisdiction to extend the time for
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furnishing security for costs of the respondents under 0.
45, r. 7, of the Code of Civil Procedure. The Calcutta High
Court has held that it had no jurisdiction to extend time as
prayed for by the appellants, and so the certificate already
granted by it to the appellants to appeal to this Court
against its own decree has been cancelled. The order
canceling the said certificate has given rise to this appeal
by special leave; and so the only question which we are ca.
led upon to consider is one of construing 0. 45, r. 7, of
the Code as well as 0. XII, r. 3, of the Supreme Court
Rules.
The relevant facts leading to the present controversy are
not in dispute. The appellants had instituted a suit (No.
73 of 1944) in the First Additional Court of the Subordinate
Judge of 24 Parganas against the six respondents. In this
suit they claimed a declaration of title to the immovable
property in question and prayed for recovery of possession
of the said property together with mesne profits. The
learned trial judge decreed the suit on March 20, 1948. Two
appeals were then filed against the said decree by two sets
of respondents (Appeals Nos. 111 of 1948 and 135 of 1948).
Of these two appeals Appeal No. 135 of 1948 was dismissed
but Appeal No. III of 1948 was partly allowed and the decree
passed in favour of the appellants granting possession and
mesne profits to the appellants against respondent 3 was set
aside. Thereupon the appellants applied for and obtained a
certificate from the Calcutta High Court to enable them to
appeal to this Court. The decree under appeal was one of
reversal and the valuation of the subject-matter of the
dispute both in the trial court and in the intended appeal
before this Court exceeded the statutory limit prescribed in
that behalf and so the appellants ’were in fact entitled to
a certificate under Art. 133 (1)(a) of the Constitution.
Accordingly a certificate was issued on May 18, 1956. The
last date for the deposit of the security amount of Rs.
2,500 and the printing cost of Rs. 1,184 was June 29, 1956.
According to the appellants owing to circumstances over
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which they had no control they could not deposit
646
he said two amounts on the due date. Consequently in July
4, 1956, they filed an application before the High Court
praying that the requisite amounts tendered by them be
accepted after condoning the delay made by them in the
payment of the said amounts. This application was rejected
on the ground that according to the uniform current of
decisions in the said Court it had no jurisdiction to extend
the time for depositing the amount of security. It is
against this order that the appellants have come to this
Court by special leave.
O. 45, r. 7, of the Code occurs in the Chapter dealing
with appeals to the Supreme Court, and it deals with the
security and deposit which are required to be furnished and
made on grant of certificate to a party intending to prefer
an appeal to this Court. 0. 45, r. 7(l)(a), provides that
where the certificate is granted the applicant shall, within
ninety days or such further period, not exceeding sixty
days, as the Court may upon cause shown allow, from the date
of the decree complained of, or within six weeks from the
date of the grant of the certificate, whichever is the later
date, furnish security in cash or in Government Securities
for the costs of the respondent. The word "within ninety
days or such further period not exceeding sixty days" which
occur in the first part of the rule have been added by Act
26 of 1920 in substitution for the words "six months" which
were originally enacted in the said rule. It is common
ground, and indeed it is not disputed, that prior to the
amendment made in 1920 High Courts had jurisdiction to
extend time for furnishing security for cogent and
satisfactory reasons. In Burjore and Bhawani Pershad v.
Mussumat Bhagana (1) the Privy Council had held, agreeing
with the view taken by the Full Bench of the Calcutta High
Court that the words in s. 602 of the Code of 1877 (Act X of
1877), in regard to extending time for giving security in
appeal were directive only and there was jurisdiction in the
High Court to grant extension of time for cogent reason. In
other words, the time of six months prescribed by the
(1) [1883] L.R. 11 I.A. 7.
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statute could not be departed from without cogent reason.
As a result of this decision under the provisions of 0. 45,
r. 7, as they stood until the amending’ Act 26 of 1920 was
passed, all the High Courts consistently exercised their
jurisdiction in the matter of furnishing securities and
extended time where they were satisfied that there was a
proper and valid reason to do so. The question which arises
for our decision is whether by the amendment made in 1920
this position has been altered.
There can be no doubt that the object of the amendment was
to expedite the final decision of the appeals which were
taken before the Privy Council, and so the restrictive words
have now been introduced whereby the period prescribed by
the first part of the rule can. not be extended beyond 150
days; but, does the use of these restrictive words indicate
that there is no jurisdiction in the High Courts to extend
the period for a sufficient cause ? Having regard to the
fact that even before the amendment the period of six months
had been indicated it seems somewhat difficult to hold that
by restricting the period to 150 days by the use of the
restrictive words the Legislature had intended to take away
the preexisting jurisdiction of the High Courts to extend
the period for a reasonable cause. The jurisdiction to
enlarge the period for a good cause shown could not have
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been intended to be taken away by implication merely by the
use of the restrictive clause introduced in the amendment.
Besides, it is significant that even after the amendment
there is no specific provision which provides for the effect
of failure to comply with 0. 45, r. 7. Rule 8 deals with
cases where security has been furnished and deposit made,
and it provides that on the security being furnished and
deposit made the Court shall declare the appeal admitted,
give notice thereof to the respondent, transmit to the
Supreme Court the record, as therein provided, and give to
either party one or more authenticated copies as specified.
There is no rule which prescribes the consequence of non-
compliance with the order made under r. 7. Failure to make
this provision is not without significance because r. 11
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expressly provides for the effect of failure to comply with
the order made under r. 10. In other words, where the Court
makes an order calling upon the appellant to furnish
within a time to be fixed by it other and sufficient
security, or to make within like time the required payment,
and the appellant fails to comply with the said order, r. 11
expressly provides that on such failure of the appellant the
proceeding shall be stayed and the appeal shall not proceed
without an order in that behalf of the Supreme Court and in
the meantime execution of the decree appealed from shall not
be stayed. It would thus be seen that where the Legislature
intended that failure to comply with a specific order should
lead to the consequence of a specific result it has made an
appropriate provision in that behalf, and so failure to make
any such provision in regard to the consequence of non-
compliance with the order made under r. 7 may suggest that
the jurisdiction of the Court to extend time was not
intended to be taken away. Since it is open to the Court to
extend time, the Legislature may have thought that it should
be left to the discretion of the Court to decide whether the
failure to comply with its order under r. 7 should be
condoned and the period extended for furnishing security, or
whether the default should not be condoned and the
certificate should therefore be cancelled. In our opinion,
therefore, reading 0. 45, r. 7, as amended along with the
other relevant provisions of the said Order it would be
difficult to hold that the High Court has no jurisdiction to
extend time for furnishing security under the said rule.
High Courts had jurisdiction to extend time prior to the
amendment of 1920 and the amendment of 1920 has made no
difference in that behalf.
There is another statutory provision which leads to the same
conclusion, and that is 0. XII, r. 3, of the Supreme Court
Rules framed by this Court in exercise of its rule-making
powers under Art. 145 of the Constitution. Rule 3 reads
thus:
"Where an appellant, having obtained a
certificate from the High Court, fails to
furnish the security or make the deposit
required, that Court
649
may, on its own motion or on application in
that behalf made by the respondent, cancel the
certificate, and may give such directions as
to the costs of the’ appeal and the security
entered into by the appellant as it shall
think fit or make such further or other order
as the justice of the case requires."
This rule corresponds exactly to r. 9 of the Privy Council
Rules. On a fair construction of this rule there appears to
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be no doubt that if a party having obtained a certificate
from the High Court fails to furnish security or to make the
required deposit it is open to the High Court to adopt
either of two courses; it may cancel the certificate and may
give directions as to the costs of the appeal and the
security entered into by the appellant or it may make such
further or other order as the justice of the case may
require; and that clearly suggests that the High Court has
jurisdiction to consider the question as to whether the
justice of the case requires that the certificate already
granted should not be cancelled and further time should be
given to the party to furnish the security or to make the
required deposit. The last clause of r. 3 refers to such
further or other order as the justice of the case requires,
and that must necessarily mean an order other than, and
different from, the order canceling the certificate. It is
true that the intention behind this rule might have been
differently and better expressed but the object of the rule
is plain and unambiguous and its construction presents no
difficulty whatever. Failure to furnish the security or to
make the deposit in time does not inevitably and in every
case lead to the cancellation of the certificate. Despite
the said failure some further or other order according to
the justice of the case may still be passed by the Court in
its discretion, and that, in our opinion, must mean an order
condoning the default and granting further time to furnish
the security or to make the required deposit. If this be
the true position about the effect of 0. XII, r. 3, of the
Supreme Court Rules it would follow that the High Courts
would have jurisdiction to extend time for furnishing
security even
82
650
if r. 7 of 0. 45 after its amendment in 1920 had taken away
the said jurisdiction. Section 112 of the Code expressly
provides that nothing contained in the Code shall be
deemed, inter alia, to interfere with any rules made by the
Supreme Court, and for the time being in force, for the
presentation of appeals to that Court or their conduct
before that Court. Therefore, if 0. xII, r. 3, expressly
recognises and gives jurisdiction to the High Courts to
extend the time for furnishing the security or to make the
deposit in a, proper case that provision would not be
interfered with by r. 7 of 0. 45. That is how, apart from
the provisions of r. 7 of 0. 45, we reach the conclusion
that the Calcutta High Court had jurisdiction to extend time
for furnishing the security in the present case. However,
as we have already held -the amendment of r. 7 of O. 45 does
not really take away the preexisting jurisdiction of the
High Courts to extend time and so there is complete harmony
between the said rule and 0. XII, r. 3, of the Supreme Court
Rules.
On this question there appears to be consensus of judicial
opinion in the decisions of all the High Courts in India
except the Calcutta High Court which for some years past has
struck a note of dissent. It is unnecessary to deal with a
catena of decisions on which Mr. Chatterjee relied in
support of his contentions. It would be enough merely to
mention them. It appears that in some High Courts the
present question was referred to a Full Bench and the
decisions of the Full Bench have negatived the view which
appears to have been taken by the Division Benches in the
said High Courts on the earlier occasions that the High
Courts had no jurisdiction to extend time (Vide: Nilkanth
Balwant Natu & Ors. V. Shri Satchidanand Vidya Narsinha
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Bharati & Ors. (1) (Full Bench); Bishnath Singh & Ors. v.
Balwant Rao Naik Kalia & Ors. (Full Bench); Gulam Hussain v.
Mansurbeg & Ors. (Full Bench); Lachmeshwar Prasad Shukul v.
Girdhari Lal Chaudhuri (4) (Full Bench); Ghulam Rasul V.
Ghulam Qutabud-din (5) (Full Bench); Thota Pitchaiah
(1) (1927) I.L.R. 51 Bom. 430.
(3) I.L.R. (1952) Nag. 406.
(2) I.L.R. [1939] All..549.
(4) (1040) I.L.R. 19 Pat. 123.
(5) (1942) I.L.R. 23 Lah. 447.
651
& Or8. ’V. M. Vedanta Narasimhacharyulu & Ors. (1) (Full
Bench); and Ismail Piperdi v. Momin Bi Bi & Ors. (2) (Full
Bench).
Even in Calcutta it was held by the Calcutta High Court by a
Full Bench in Roy Jotindranath Chowdhury & Ors. v. Rai
Prasanna Kumar Banerjee Bahadur & Ors. (3) that the High
Court had power to extend time as provided by s. 602 of the
Code for depositing the estimated cost of translating,
transcribing, indexing and transmitting to the Privy Council
the records of the case under appeal, but it was added that
the Court should not extend time without some cogent reason.
In support of this conclusion the High Court relied upon the
decision of the Privy Council in the case of Burjore and
Bhawani Pershad (4). The same view was expressed by the
said High Court in Harendra Lal Choudhry v. Sm. Hari Dasi
Debei (5) where it was held that High Court had power to
extend the time for depositing costs in Court but it ought
not to do so without some cogent reasons. In reaching this
conclusion the Court followed its earlier decision in the
case of Roy Jyotindranath Chowdhury (3). It, however,
appears that in Raj Kumar Govind Narayan Singh & Ors. V.
Shamlal Singh & Ors.(6) Chief Justice Rankin and Ghose, J.,
took a contrary view and held that there was no jurisdiction
to extend time for furnishing the security under 0. 45, r.
7, as amended in 1920. With respect, the question does not
appear to have been fully argued before the Court, for the
judgment does not discuss the question of construing the
relevant provisions of 0. 45, r. 7 or of r. 9, of the Privy
Council Rules, and indeed the earlier decisions of the Court
on that point do not appear to have been cited either. Even
so, this decision was subsequently followed and that led to
a consistent practice in the said High Court on which the
learned judges have relied in rejecting the appellant’s
application for extension of time in the present case. In
this connection it may be relevant. to note that when this
question was raised before the
(1) I.L.R. [1956] Andhra 55.
(3) (1906) 11 C. W.N. 1104.
(5) (1909) 14 C.W.N. 420
(2) [1939] Rangoon L.R. 668.
(4) (1883) L.R. 111 I. A. 7.
(6) (1934) 39 C.W.N. 6511.
652
Calcutta High Court again in Akimuddin Chowdhury v. Fateh
Chand Mahesri & Ors. (1) Chief Justice Derbyshire was
referred to the Full Bench decision of the Bombay High
Court in Nilkanth Balwant Natu (2) in support of the
argument that there was a jurisdiction to extend time for
furnishing security, but he observed that though he had
great respect for the said Full Bench decision there was a
contrary decision of the Calcutta High Court in the case of
Raj Kumar Govind Narayan Singh(’) and so he was bound to
follow the said decision and conform to the practice
prevailing in the Calcutta High Court. In our opinion, the
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practice prevailing in the Calcutta High Court since the
decision of Chief Justice Rankin in the case of Raj Kumar
Govind Narayan Singh (3) is not justified either by the
provisions of 0. 45, r. 7, of the Code or 0. XII, r. 3, of
the Supreme Court Rules. We must accordingly hold that the
High Court was in error in holding that it had no
jurisdiction to entertain the application made by the
appellants to extend time for furnishing the security. On
the view which it took the High Court naturally did not
examine the merits of the appellants’ case that there were
sufficient and cogent reasons for condoning the delay.
We would therefore allow the appeal, set aside the order
passed by the High Court and remit the matter to that Court
for disposal of the appellants’ application in accordance
with law. In the circumstances of this case there would be
no order as to costs.
Appeal, allowed.
(1) [1939]44 C.W.N. 920.
(2) [1927] I.L.R. 51 Bom. 430.
(3) [1934] 39 C.W.N. 651.
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