1961 Supreme(Cal) 28

HIGH COURT OF CALCUTTA
S. C. Lahiri, R. S. Bachawat, G. K. Mitter
MANICKCHAND DURGAPRASAD - Appellant
Versus
PRATABMULL RAMESWAR - Respondent
Appeal 167  Of  1957 (Supreme Court Matter)
Decided On : FEBRUARY 20, 1961

The Court has power under Order XII, Rule 3 of the Supreme Court Rules and Chapter XXXIIIA, Rule 5 of the Original Side Rules to extend the time limited by Order XLV, Rule 7 of the Code of Civil Procedure.

Headnote:

CIVIL PROCEDURE CODE - Order XLV, Rule 7 - Extension of time - Power of the Court - Order XII, Rule 3 of the Supreme Court Rules - Scope and effect - Chapter XXXIIIA, Rule 5 of the Original Side Rules - Validity and effect.

Fact of the Case:

The respondent filed a suit against the petitioner for the recovery of a sum of Rs. 87,000/- as damages. The suit was dismissed by a single Judge sitting on the Original Side. Against that decree the respondent filed an appeal which was heard by a Division Bench. The Division Bench reversed the judgment and decree of the Court of first instance and decreed the respondent's suit. Against the decree of the Division Bench the petitioner filed an application for a certificate under Article 133 of the Constitution, and a certificate was granted in favour of the petitioner. The petitioner was required to furnish security within a period of six weeks from the date of the certificate or within a period of ninety days from the date of the decree complained of, which period could be extended by the Court for a maximum period of sixty days, whichever was the later date. The petitioner could not make the deposit on the reopening day. On November 23, 1960, the petitioner took out a Notice of Motion for an order that the delay in depositing the amount of security for costs be condoned under Rules 5 and 6 of Chapter XXXIIIA of the Original Side Rules. The Division Bench which had to deal with the Notice of Motion was inclined to think that the decisions of this Court to the effect that the Court is powerless to extend the time fixed by Order XLV, Rule 7 were wrong, and upon that view it referred the following questions to the Full Bench:1. Has the Court power under Order XII, Rule 3 of the Supreme Court Rules to extend the time limited by Order XLV, Rule 7 of the Code of Civil Procedure. 2. Has the Court power under Chapter XXXIIIA, Rule 5 of the Original Side Rules to extend the time limited by Order XLV, Rule 7 of the Code of Civil Procedure. 3. Were the cases of Raj Kumar Govind Narain Singh v. Shamlal Singh, 39 Cal WN 651; Bipin Behari Ray v. Rakhal Krishna, and Akimuddin Chaudhury v. Fateh Chand, ILR (1941) 1 Cal 299 correctly decided.

Finding of the Court:

1. The Court has power under Order XII, Rule 3 of the Supreme Court Rules to extend the time limited by Order XLV, Rule 7 of the Code of Civil Procedure. 2. The Court has power under Chapter XXXIIIA, Rule 5 of the Original Side Rules to extend the time limited by Order XLV, Rule 7 of the Code of Civil Procedure. 3. The cases of Raj Kumar Govind Narain Singh v. Shamlal Singh, 39 Cal WN 651; Bipin Behari Ray v. Rakhal Krishna, and Akimuddin Chaudhury v. Fateh Chand, ILR (1941) 1 Cal 299 were wrongly decided.

Issues: 1. Whether the Court has power under Order XII, Rule 3 of the Supreme Court Rules to extend the time limited by Order XLV, Rule 7 of the Code of Civil Procedure. 2. Whether the Court has power under Chapter XXXIIIA, Rule 5 of the Original Side Rules to extend the time limited by Order XLV, Rule 7 of the Code of Civil Procedure. 3. Whether the cases of Raj Kumar Govind Narain Singh v. Shamlal Singh, 39 Cal WN 651; Bipin Behari Ray v. Rakhal Krishna, and Akimuddin Chaudhury v. Fateh Chand, ILR (1941) 1 Cal 299 were correctly decided.

Ratio Decidendi: 1. Order XII, Rule 3 of the Supreme Court Rules gives the Court power to extend time upon the respondent's application for cancellation of the certificate or upon the appellant's application for extension. 2. The Court can extend time of its own motion when sufficient grounds are placed before it by the appellant's application. 3. The rule making power conferred by Clause 37 of the Letters Patent is not confined to the making of rules relating to suits and proceedings instituted or initiated on the Original Side. 4. The rules framed by the High Court under Chapter XXXIIIA of the Original Side Rules are within the rule making powers of this Court under Clause 37 of the Letters Patent. 5. The provisions of the Code of Civil Procedure are intended for the purpose of guidance of this Court in framing rules under Clause 37 of the Letters Patent. 6. If any rule framed by the High Court under Clause 37 be inconsistent with or confers any additional power besides what is granted by the Code of Civil Procedure, the rule framed under Clause 37 will prevail over the corresponding provisions of the Code of Civil Procedure.

Final Decision: 1. Question No. 1 referred to the Full Bench is answered in the affirmative. 2. Question No. 2 should be answered in the affirmative. 3. Question No. 3 should be answered in the negative.