2012 Supreme(Cal) 891

IN THE HIGH COURT OF CALCUTTA
J.N. Patel, Soumen Sen, JJ.
Khaitan (India) Ltd.
Vs.
Maharshi Commerce Ltd.
APD No. 331 of 2010; E.O.S. No. 7 of 2008
Decided on : 28.9.2012

Chapter XIIIA of the Original Side Rules would apply to a transferred proceeding under Clause 13 of the Letters Patent.

Headnote:

The High Court has the power to accept and decide an application under Chapter XIIIA of the Original Side Rules in respect of a transferred proceeding from a Subordinate Court under Clause 13 of the Letters Patent.

Fact of the Case:

The respondent filed a suit for eviction of the appellant in the City Civil Court. Thereafter, the appellant filed a suit in the High Court praying, inter alia, for a declaration that the notice of eviction is bad in law and other consequential reliefs. Consequent upon an application being made by the appellant under Clause 13 of the Letters Patent for transferring the suit filed by the respondent in the City Civil Court to the High Court, an order was passed on 28th July, 2008 recording that the parties have agreed that the City Civil Court Suit be brought before the High Court at the cost of the plaintiff/appellant. The application was disposed of by observing that in view of such agreement between the parties, the two suits would be taken up one after another and no further order required to be passed in the application filed by the respondent under Section 10 of the Code of Civil Procedure for stay of the appellant’s suit in the High Court.

Finding of the Court:

The High Court has the power to accept and decide an application under Chapter XIIIA of the Original Side Rules in respect of a transferred proceeding from a Subordinate Court under Clause 13 of the Letters Patent.

Issues: Whether the High Court has the power to accept and decide an application under Chapter XIIIA of the Original Side Rules in respect of a transferred proceeding from a Subordinate Court under Clause 13 of the Letters Patent.

Ratio Decidendi: The Letters Patent, 1865 or duly considering the other judgments on which the same decision was based, and was as such per incuriam. The learned Counsel referred to the decision of the Hon’ble Supreme Court in the case of Bhagawan Pillai (dead) by LRS Vs. State of Kerala reported in AIR 2004 SC 2317 (para 14) where it has been held that a view expressed without analyzing the statutory provision cannot be treated as a binding precedent. Further reference made to the decision of this Hon’ble Court in the matter of Texmaco Ltd. Vs. Tirupati Buildestates Pvt. Ltd. reported in AIR 2011 Cal 158 where it has been held that a judgment can be said to have been rendered in ignorance of law and, therefore, having no binding value, if such judgment is contrary to any statute. The Division Bench decision of this Hon’ble Court reported in 2007 (1) CHN 237 (Shree Shree Gopal Jew & Ors. Vs. Jumbo Traders Private Ltd.) has failed to notice that while clause 12 of the Letters Patent provides for the original jurisdiction of this Hon’ble Court as to suits, clause 13 of the Letters Patent provides for the power of this Hon’ble Court to remove, and to try and determine, as a Court of extraordinary original jurisdiction, suits falling within the jurisdiction of any Court that is subject to its superintendence. While clause 19 of the Letters Patent provides that the law or equity to be applied to each case coming before this Hon’ble Court in exercise of its ordinary original civil jurisdiction will be the law or equity which would have been applied by this Hon’ble Court to such case if the Letters Patent had not been issued, clause 20 of the Letters Patent provides that the law and equity and the rule of good conscience to be applied to each case coming before this Hon'’le Court in the exercise of its extraordinary original civil jurisdiction will be such law or equity and rule of good conscience which would have been applied to such case by any local Court having jurisdiction therein. The Hon’ble Division Bench has further failed to notice that clause 37 of the Letters Patent only provides for the power of this Hon’ble Court to make rules and orders for the purpose of regulating proceedings in civil cases which may be brought before this Hon’ble Court, and not for the purpose of regulating proceedings removed to this Hon’ble Court. Consequently Chapter XIIIA of the Original Side Rules of this Hon’ble Court could not have been made applicable to a transferred suit, which could not have been and had not been brought before this Hon’ble Court at the first instance. Without examining the aforementioned and other provisions of the Letters Patent, in the judgment reported in 2007(1) CHN 237 the Hon’ble Division Bench has simply proceeded to hold that “learned Senior Counsel appearing on behalf of the Refugee Handicrafts has also admitted the applicability of the Original Side Rules to a transfer suit when he submitted that entering of appearance has to be made by a memorandum in writing in accordance with Form 4 or 5 of Appendix B of the Original Side Rules.”

Final Decision: The appeal fails.