Important pointEven though the amended provisions of Order VI of the Civil Procedure Code 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.

Headnote:Civil Procedure Code, 1908—Sections 26 and 129; Order VI Rule 1(3) Introduced by Amending Act 46 of 1999 w.e.f. 1.7.2002—Clause 37 of Letters Patent—Institution of suits—Ordinary Original Civil Jurisdiction of Calcutta High Court—Appellants claiming to be owners of entire floor filed a civil suit in Calcutta High Court against respondents for certain orders of injunction—Application for interim injunction was allowed—Respondents were directed to restore the condition of plaintiffs’ roof top cooling towers—Appeal filed before the Division Bench of the Calcutta High Court—Preliminary objection regarding valid institution of suit in view of amended provisions of the Code—Failure in complying with provisions of Order VI of the Code were cited on behalf of respondents—Non filing of affidavit in support of pleadings in the plaint at the time of presentation of plaint—Division Bench held that the suit could not be dismissed nor could the plaint be rejected because of non-compliance with amended provisions since the omission had been remedied by the filing of an affidavit by plaintiff—It was held that after the defect was removed the suit must be deemed to have been duly instituted w.e.f. 28.7.2004 and not before that date—It was held that interlocutory order that had been passed by Single Judge at a point of time when the suit had not been duly instituted could not survive—Whether judgment of the Division Bench is sustainable—(No)—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.
       Held : 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. (Para 48)
       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. (Paras 49 and 50)
       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. (Para 51)
       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. (Para 53)

Judgment

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.

2. 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.

3. 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.

4. 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."

5. 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.

6. 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.

7. 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."

8. Apart from Section 129, Order XLIX of the Code specifically exclud

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2006 Supreme(SC) 106

Cases Referred (9)