Important pointAmended provision of Order VIII Rule 1 of the Code of Civil Procedure would not apply to the suits on the Original Side of the High Court and such suits would continue to be governed by the High Court Original Side Rules.

Headnote:Civil Procedure Code, 1908—Order VIII Rule 1, Sections 148 and 129—Powers of High Court to frame rules governing the procedure on its Original Side—Appellant company filed suit on the Original Side of the High Court at Bombay claiming about Rs. 1000 crores on ground that it had suffered loss on account of fraud on part of respondent—Respondent was a foreign corporation incorporated in United States of America—Appellant obtained an ex-parte order against respondent in the nature of an attachment before judgment of receivables in India—According to appellant, Sheriff of Bombay was requested to transmit writ of summons along with the plaint—Respondent filed a detailed affidavit along with an application to vacate the ex parte order—Ex parte order was modified by the High Court—A second Notice of Motion was filed by appellant—Respondent filed an affidavit opposing the prayers made in second Notice of Motion—High Court refused the ad interim reliefs sought in second Notice of Motion—Appellant applied for issue of duplicate summons—Respondent applied for extension of time purportedly under Order VIII Rule 1 of CPC—Further time to file written statement was granted on payment of costs quantified at Rs. 10,000/- to be paid to plaintiff appellant—Appeal filed by appellant dismissed as not maintainable holding that suits on the Original Side would be governed by Original Side Rules and not by amended provisions of Order VIII Rule 1 of the Code—Whether view taken by the Division Bench is contrary to legislative intendment—(No).
       Held : Taking into account the extrinsic evidence, i.e. the historical circumstances in which the precursor of Section 129 was introduced into the 1882 Code by a specific amendment made in 1895, we are of the view that the non obstante clause used in Section 129 is not merely declaratory, but indicative of Parliament’s intention to prevent the application of the CPC in respect of civil proceedings on the Original Side of the High Courts. The High Court noticed that the interpretation put on Section 129 had been uniformly followed in the several judgments of High Courts, including the judgments of two Full Benches of Delhi and Calcutta High Courts. (Paras 37 and 38)
       In our view, Section 97 of the Amending Act does not, in any way, affect the special hierarchial status given to the proceedings before the Chartered High Courts on its Original Side. It was merely intended to standardize and make uniform the law as to civil procedure in other Civil Courts. (Para 44)
       In the result, we are of the view that no fault can be found with the impugned judgment of the High Court under appeal. There is no merit in the appeal and it is hereby dismissed. (Para 48)

Judgment

Srikrishna, J.—Leave granted.

2. This appeal impugns the judgment of the Division Bench of the High Court of Judicature at Bombay in a Letters Patent appeal holding that the amended provision of Order VIII Rule 1 of the Code of Civil Procedure 1908 (hereinafter referred to as the ‘CPC’) would not apply to the suits on the Original Side of the High Court and that such suits would continue to be governed by the High Court Original Side Rules.

Facts :

3. The appellant company filed Suit No. 3092 of 2002 on 16.9.2002 on the Original Side of the High Court of Judicature at Bombay claiming about Rs. 1000 crores on the ground that it had suffered loss and/or damages on account of an alleged fraud on the part of the respondent, a foreign corporation incorporated in the United States of America. The appellant also obtained an ex parte order against the respondent in the nature of an attachment before judgment of receivables in India. On 17.9.2002, the first respondent claims to have dispatched the plaint and all connected papers by courier along with a covering letter of the same date. According to the appellant, the Sheriff of Bombay was requested to transmit the writ of summons along with the plaint and the other proceedings by Regd. A.D. post or by air mail to the respondent, and the Sheriff had done it. On 1.10.2002 the respondent filed a detailed affidavit along with an application to vacate the ex parte ad interim order made on 16.9.2002, as a result of which the ex parte order was modified by the High Court on 3.10.2002. On 16.10.2002 a second Notice of Motion was filed by the appellant. The respondent filed an affidavit opposing the prayers made in the second Notice of Motion. After hearing the parties, the High Court by an order made on 24.10.2002 refused the ad interim reliefs sought in the second Notice of Motion. Though the appellant preferred an appeal from both the Orders dated 3.10.2002, modifying the earlier ex parte order, and the refusal of ad interim reliefs on 24.10.2002, that appeal was finally withdrawn. On 2.3.2003, the appellant applied for issue of duplicate summons. On 13.3.2003 the respondent filed a comprehensive affidavit in reply to the Notice of Motion. On 9.4.2003, duplicate summons were served upon the respondent. On 2.5.2003 the respondent applied for extension of time purportedly under Order VIII, Rule 1 of CPC, by a letter addressed to the Prothonotary and Senior Master, High Court of Bombay. The matter came before the learned Single Judge, who after hearing both the sides was of the view that “granting of 90 days time from 9.4.2003, the date on which the duplicate writ of summons had been admittedly served upon the respondent, would provide ample opportunity to the respondent to file written statement on or before 8.7.2003”. Although, a prayer was made that the court may exercise its powers under Section 148 of the CPC and grant further extension of 30 days beyond 8.7.2003, that request was declined on the ground that the “request was premature and would be considered only on 8.7.2003, provided the defendant-respondent was able to show sufficient cause for such an indulgence.” Further time to file written statement was granted on payment of costs quantified at Rs. 10,000 to be paid to the plaintiff-appellant. According to the respondent, the written statement was ready by 6.7.2003, but had not yet been affirmed. The respondent moved the court for further extension of time. This request was also opposed by the appellant. By an order made on 7.7.2003, the High Court extended time up to 28.7.2003.

4. The appellant filed Appeal No. 608 of 2003 before the Division Bench of the High Court challenging the order extending time to file the written statement. On 28.7.2003, the written statement was actually filed by the respondent. The appeal was dismissed by the Division Bench on 17.10.2003, taking the view that the suits on the Original Side would be governed by the Original Side Rules and not by the am

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2005 Supreme(SC) 17

Important pointAmended provision of Order VIII Rule 1 of the Code of Civil Procedure would not apply to the suits on the Original Side of the High Court and such suits would continue to be governed by the High Court Original Side Rules.

Cases Referred (21)