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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 644 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  645 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. 647 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. 11 648 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. 653