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CASE NO.: Appeal (civil)  3005 of 2005

PETITIONER: Vidyawati Gupta & Ors.

RESPONDENT: Bhakti Hari Nayak & Ors.

DATE OF JUDGMENT: 03/02/2006

BENCH: B.P. Singh & Altamas Kabir

JUDGMENT: J U D G M E N T

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.          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.         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.         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

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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."

       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.         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.         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 \026  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."

       Apart from Section 129, Order XLIX of the Code  specifically excludes the application of certain rules and  orders of the aforesaid Code to any of the Chartered  High Courts.   At the same time, Chapter XL of the  Original Side Rules indicates that the provisions of   Section 2 of the Code   and of the General Clauses Act,  1897 would apply to the Original Side Rules, but where  no other provision is made by the Code or by the said  Rules, the procedure and practice in existence would  continue to remain in force.   Chapter VII of the Original Side Rules framed by  the Calcutta High Court to regulate its own procedure  in original civil matters deals with the institution of  suits.   Inasmuch as, a good deal of submission has  been  made with regard to the provisions of Rule 1 of  Chapter VII  which will have a  significant  bearing with  regard to a decision in this case, the same is  reproduced hereinbelow:-

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"1.The plaint to be written or printed :  manner of : contents.  The plaint shall be  legibly written, or printed, in the English  language, on durable foolscap paper or other  paper similar to it in size and quality,  bookwise, and on both sides of the paper, with  not more than 25 or less than 18 lines, of  about 10 words in each line in each page, and  with an inner margin of about an inch and a  quarter wide.  It shall be stitched bookwise in  the following order : (1) Warrant to sue, where  the plaintiff appears by an Advocate acting on  the Original side ; (2) Concise statement, (3)    The plaint, (4) List of documents upon which  the plaintiff relies, (5) List of documents  produced with the plaint, (6) Exhibits or copies  of exhibits filed.   Dates, sums and numbers  occurring in the plaint shall be expressed in  figures as well as in words stated in rupees,  annas and pies, and the corresponding English  dates being added, where the dates are not  according to the English calendar.  The plaint  shall comply with O.VI of the Code, and shall  contain the particulars required by O. VII, rr 1  to 8 of the Code.  Every alteration in the plaint  shall be marked and authenticated by the  initials of the persons verifying the plaint, or  with leave of the Judge or Officer, by the  Advocate acting on the Original side."

       A glance at the aforesaid provisions will indicate  that although the heading  of the aforesaid Chapter  is  "Institution of Suits", Rule 1 does not  really indicate  the manner in which a suit is required to be instituted.   The directions contained in Rule 1 deal mainly with the  form in which a plaint is required to be prepared with  specific instructions regarding the  printing  of the  contents and the paper to be used  in the preparation  of the plaint and provides for the various other  documents which are to be filed  along with the plaint.   What it does mention in addition to the above is that  the plaint has to comply with the provisions of  Order  VI of the Code and has to contain the particulars  required by Order VII, Rules 1 to 8 of the said Code.         Order VI of the Code deals with  pleadings  generally and as provided  in Rule 1 of Order VI  "Pleadings" has been indicated to mean   ’plaint’ or  ’written statement’.  Rule 15 of Order VI provides for  verification of pleadings and reads as follows:-          "15. Verification of pleadings -  (1) Save as  otherwise provided by any law for the time  being in force, every pleading shall be verified  at the foot  by the party or by one of the  parties pleading or by some other person  proved to the satisfaction of the court to be  acquainted with the facts of the case.

(2) The person verifying shall specify, by  reference to the numbered paragraphs of the  pleading, what he verifies of his own  knowledge and what he verifies upon  information received and believed to be true.

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(3)     The verification shall be signed by the  person making it and shall state the date on  which and the place at which it was signed.

(4)     The person verifying the pleading shall  also furnish an affidavit in support of his  pleadings."

                  It is of relevance to  these proceedings to point  out that Sub-rule (4) of Rule 15 reproduced  hereinabove was  introduced by way of Amending Act  46 of 1999 with effect from 1st July 2002.  Prior to such  amendment, there was no general provision regarding  verification of pleadings in a plaint also by way of  an  affidavit, though such  a practice had been introduced  and followed in some of the High Courts in India.         Order VII referred to in Rule 1 of Chapter VII of  the Original Side Rules   deals with plaints and indicates  the contents to be included in a plaint.  Rules 1 to 8 of  Order VII  of the Code deals  specifically  with the  contents of the plaint which has to be complied with for  the purpose of institution of a suit under Chapter VII of  the Original Side Rules.         Although, we shall have occasion to advert to the  provisions of  Section 26 of the Code at a later stage of  this judgment, together with Order IV Rule 1 of  the  said Code, since the said provisions are  inter-  connected with Orders VI and VII of the Code, it would  be in the fitness of things to reproduce the same at this  stage.  Section 26 of the Code which deals with   institution of suits provides as follows:-

"Section 26. Institution of suits.\027(1)  Every  suit shall be instituted by the presentation of a  plaint  or in such other manner as may be  prescribed.

(2) In every plaint, facts shall be proved by  affidavit."

       Sub-section (2) of Section 26 was also inserted by  way of amendment with effect from 1st July, 2002.         Order IV Rule 1 which  also deals with the  institution of suits provides as follows:-

"1.Suit to be  commenced  by plaint.\027(1)  Every suit shall be instituted  by presenting a  plaint in duplicate to the Court or such officer  as it appoints in this behalf.

(2) Every plaint shall comply with the rules  contained in Orders VI and VII, so far as  they  are applicable.

(3) The plaint shall not be deemed to be duly  instituted unless it complies with the  requirements specified in sub-rules (1) and  (2)."

       As in the case of Sub-section (2) of Section 26,  Sub-rule (3) of Rule 1 of Order IV was also introduced

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by Amending Act 46 of 1999 with effect from 1st July,  2002.  We shall have occasion to refer to Sub-rule (3)  of Rule 1 of Order IV while dealing with the judgment  under appeal since a certain amount of emphasis has  been laid on the said provision by the Division Bench of  the Calcutta High Court which calls for interpretation in  the instant proceedings.         The facts of the case  resulting in the judgment   under appeal may now be stated in brief for proper  understanding of the various provisions of the Letters  Patent, the Original Side Rules and the Code.         The appellants in the instant appeal claiming to be  the owners of the entire floor, the 1st floor and a  portion of the basement of Premises No.33-A,  Jawaharlal Nehru Road, Calcutta,  filed a Civil Suit  No.352/2002 in the Calcutta High Court on or about  26th July, 2002 against the respondents herein inter alia  for certain orders of injunction against the said  respondents in respect of their right, title and interest  in the said portions of the premises in question.   Thereafter, leave was granted by the learned Single  Judge  taking up interlocutory matters under Order I,  Rule 8 of the Code on 30th July, 2002 and   writ of  summons  was issued immediately thereafter and  served upon the defendants.   An application for interim  injunction was also filed in the suit on behalf of the  appellants and as will appear from the materials on  record an application  under Section 8 of the Arbitration   and Conciliation Act, 1996, was also filed on behalf of  the respondents.  The said application  for interim  injunction was allowed by an Order dated 2nd April,2004  passed by the learned Single Judge whereby the  respondents were directed to restore the condition of  the plaintiffs’  roof-top  cooling towers and the western  side ground floor of the suit premises,  as was existing  on the date of the institution  of the suit, within a  period of three weeks from the date of the order.  The  defendants  (respondents herein) were also restrained  from interfering, in any manner, with the plaintiffs’  interest in the suit properties, including the properties  which were directed  to be restored in  terms of the  injunction order.  The learned Single  Judge   directed  that the interim order would remain in force till the  disposal of the suit.         Aggrieved by the said order of the learned Single  Judge, the respondents herein preferred an appeal,  being  APOT No. 214/2004, before the Division Bench  of the Calcutta High Court and  the same appears to  have been taken up for hearing  firstly on 27.4.2004  and thereafter on subsequent dates.         As will appear from the order of the Division  Bench of the High Court, before the matter was taken   up for consideration on merits, a preliminary objection  was raised on behalf  of the appellants, who are the  respondents herein, regarding the  valid institution of  the suit itself in view of the  amended provisions of the   Code.  The  Division Bench decided to adjudicate on the  said objection first since it felt that the said question  went to the very root of the matter concerning the  jurisdiction of the learned Single Judge to entertain the  suit and the interlocutory applications filed therein.         Before the Division Bench, it was submitted on  behalf  of the appellants that prior to 1st July, 2002,  Section 26 of the Code merely indicated that every suit  shall be instituted by the presentation of a  plaint or in

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such other manner as may be prescribed.  The manner  in which such plaint was to be prepared and presented  has been provided for in detail in Orders VI and  VII of  the  Code.  It was submitted on behalf of the appellants  that with effect from 1st July, 2002, certain  amendments were effected to the aforesaid provisions  of the Code by Act 46 of 1999 which made it  mandatory that in every plaint, facts would have to be  proved by an affidavit.  It was  submitted that sub- section (2) was added to Section 26 by way of  amendment incorporating the said provision.   Correspondingly, amendments were also introduced in  Order VI Rule 15 relating to verification of  pleadings  and Sub-rule (4) was inserted  mandating  that the  person verifying  the pleading was also required to   furnish an affidavit in support of  its pleadings.  In  addition to the above, Order IV of the Code, which  deals with the institution of suits, was also amended  and Sub-rule (3) was added to Rule 1 and it was  specifically stipulated that the plaint to be filed in   compliance with the provisions of Orders VI and VII  would not be deemed to have been duly instituted  unless it complied with the requirements specified in   Sub-rules (1) and (2).  It was the further case of the  appellants that  having regard to the provisions of  Chapter VII Rule 1 of the Original Side Rules, the  reference made  in Sub-rule (3) of Rule 1 of Order IV of   the Code would also include the amendments brought   about in the said Orders with effect from  1st July,  2002.  Consequently, it was urged that since the  amended requirements of Sub-rule (4) of Rule 15 of  Order VI had come into operation with effect from 1st  July, 2002 and since the suit had been instituted  thereafter on 26th July, 2002, the same could  not be  said to have been duly instituted within the meaning  of  Sub-rule (3) of Rule 1 of Order IV of the Code.  It was  urged that the entire proceedings from the filing of the  plaint and the entertaining of the interlocutory  applications by the learned Single Judge was without  jurisdiction and was liable to be declared as such.         On behalf of the respondents, who are the  appellants before us, it was submitted that the  provisions of the Code being subject to the rules  framed by the Chartered High Courts, of which the  Calcutta High Court was one, the Rules as framed by  the High Court would have an overriding effect over the  provisions of the Code.  It was contended that the  Original Side Rules relating to the institution of   suits  had been framed under the Letters Patent and would  prevail over the provisions of the Code.  It was further  submitted that Rule 1 of Chapter VII of the Original  Side Rules, while  setting out the specifications relating  to the  filing of the plaint, has merely indicated that the  plaint should comply with the provisions of Order VI of  the Code and shall contain the particulars required by  Rules 1 to 8 of Order VII of the Code.  It was  contended that there was no stipulation in the said Rule  which required the plaintiff to file an affidavit for the  purpose of verification of the contents of the plaint and  in the absence of such  requirement, it could not be  insisted that having regard to the amendments of the  Code, verification  in a plaint presented in the  Original  Side of the Calcutta High Court was also required to be  supported by an affidavit.         In addition to the above, it was also urged on

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behalf of the  respondents that mere procedural  omissions which were curable could not affect the   validity of a plaint  as filed.  Various decisions of the  different High Courts relating to failure in complying  with the provisions  of Order VI of the Code were cited  on behalf of the respondents and  it was pointed out  that in all the said cases it was consistently held that  the court has a discretion to remove  the illegality  to  be cured  if the plaintiff has acted in  good faith and  without any gross negligence and after the defect is  cured the suit will be deemed to have been filed when  it was  first instituted.  In particular the decision of the  Bombay High Court in  Hirabai Gendalal vs.  Bhagirath  Ramchandra & Co. reported in AIR  1946 Bombay 174,  that of the Special Bench of the Allahabad High Court in  the case of  Wali Mohammad Khan vs. Ishak Ali Khan &  Ors. reported in AIR 1931 Allahabad  507 and the  decision of the Calcutta High Court in the case of  Ramgopal Ghose vs. Dhirendra Nath Sen & Ors.,  reported in AIR 1927 Calcutta 376 were relied upon.  In  addition, the respondents also relied on a recent  decision of this Court in the case of  Salem Advocate  Bar Association, Tamil Nadu  vs.  Union of India,  reported in  (2003) 1 SCC 49,  wherein   while  considering the effect of the amendments introduced   in the  Code  by the Amending Acts 46 of 1999 and 22  of 2002, it was observed  in paragraph 16 that   the  attention of the Court had  been drawn  to Order VII  Rule 11 to which  clauses (e) and (f) had been added  which enabled the Court to reject the plaint where it is  not filed in duplicate or where the plaintiff  failed to  comply   with the provisions of Rule 9 of Order VII.   This Court was of the view that the said clauses  being  procedural  would not require the automatic rejection of  the plaint at the first instance.  If there was any defect   as contemplated by Rule  11 (e) or non-compliance  as  referred to  in Rule 11 (f), the Court should ordinarily  give an opportunity for rectifying the defects and in the  event of the same not being done, the Court will have  the liberty or the right to reject the plaint.         On the basis of the aforesaid submissions, it was  contended on behalf of the respondents that the non- filing of an affidavit in support of the pleadings in the  plaint at the time of presentation thereof was a mere  procedural error which was  capable of being cured and  had actually been cured pursuant to leave granted by  the Appeal Court and that an affidavit in support of the  plaint was affirmed and filed before the Division Bench  on 28th April, 2004.  It was submitted that having  regard to the various decisions referred to above, the  plaint must be deemed to have been presented in the  Computer Department of the Calcutta High Court on   26th July, 2002 and the preliminary objection taken  regarding the validity of the plaint was required to be  rejected.         After considering the various provisions of the  Code  along with the relevant amendments introduced  in the Code with effect from  1st July, 2002 and the  relevant provisions of the Letters Patent and after  considering various decisions cited at the Bar, in  particular the decision of this Court in the case of State  of M.P. vs. M.B. Narasimhan, reported in AIR 1975 SC  1835, the Appeal Court  came to the conclusion that  the instant case stood on a different footing from the  various decisions cited in view of the express provisions

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of  Order IV Rule 3 of the Code, as amended.  Relying   on the interpretation of the expression "duly" used in  Order IV Rule 3 in a decision of this Court  in the case  of Life Insurance Corporation of India vs. D.J. Bahadur,  (1981) 1 SCC 315 and the  decision of the House of  Lords in  the case of  East End Dwellings Co.Ltd. vs.  Finsbury Borough Council, reported in  1951 (2) All E.R.  587, the Division Bench  was of the  view  that unless  the plaint complied with the requirements of the  amended provisions, there would be  no  due institution  of the plaint.  The Division Bench held that if a plaint is  filed without compliance with the requirement of the  amended provisions, in the eye of law no plaint can be  said to have been filed and the same is non-est.   However, having regard to the various decisions cited,  including the decision of this Court in Salem Advocate  Bar Association (supra) it was also held by the  Division  Bench that from the moment the error is rectified, the  plaint will be deemed to have been properly instituted  but the rectification could not relate back to a period   when  in view of the deeming clause there was no due  institution of the plaint.  On the aforesaid reasoning,  the Division Bench held that the suit could not be  dismissed nor could the plaint be rejected because of  non-compliance with the amended provisions since the  omission had been  remedied by the filing of an  affidavit by the respondent-plaintiff.  It was held that  after the defect was removed the suit must be deemed  to have been duly instituted with effect from 28th July,  2004 and not before that date and consequently the  interlocutory order that had been passed by the learned  single Judge at a point of time when the suit had not  been duly instituted  could not survive.   The Division Bench accordingly set aside the order  passed by the learned Single Judge on 2nd April, 2004  but made it clear that the same had been set aside  not  on merits but for the reasons discussed in the  judgment and the plaintiff, if so advised, would not be  prevented from approaching the learned Single Judge  with another prayer for injunction and if such a prayer  was made  the said application may be dealt with in  accordance with law.         It is against the aforesaid order of the Appeal  Court that the instant civil appeal is directed.           Appearing in support of the appeal, Mr. Anindya  Mitra, learned senior advocate, repeated and reiterated  the submissions made before the Division Bench of the  Calcutta  High Court.  In particular, Mr. Mitra, upon a  reference to Section 26, Orders IV, VI and VII of the  Code, contended that the provisions contained therein  had been held to be directory and not mandatory in  nature.  In other words, Mr. Mitra submitted that  omission to comply with  any of the provisions  contained therein would not render  a suit invalid but  that an opportunity was required  to be given by the  Court to the plaintiff to cure the defect by supplying the  omission.   In this regard,  a reference was made to the  decision of this Court in  Mr.Shaikh Salim Haji Abdul  Khayumsab vs. Mr. Kumar & Ors.,  JT 2005 (10) SC 1,  wherein the provisions of Order VIII Rule 1, after  amendment, were held to be directory on the   reasoning that rules of procedure are  handmaids of  justice and while the   language employed by the  draftsman of processual law may be   liberal or  stringent, the fact remains that the object of

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prescribing procedure is to advance the cause of  justice.  Reference was also made to the decision of  this Court   in  Kailash vs. Nankhu & Ors.,  (2005) 4  SCC 480, wherein also while considering the amended  provisions of Order VIII Rule 1 of the Code this court  held that unless compelled by express and  specific  language of the statute the provisions  of the Code or  any other procedural  enactment ought not to be  construed in a manner which would leave the Court  helpless to meet extraordinary situations in the ends of  justice.  This Court went on to hold that merely  because the provision of law is couched in negative  language, implying a mandatory character, the same is  not without exceptions and that the directions   contained regarding the  period for filing  written  statement in Order VIII Rule 1 of the Code was  directory and not mandatory being procedural law.         As an extension of the aforesaid submission, Mr.  Mitra urged that it had been consistently held by the  different High Courts from as far back as in the case of  Ramgopal Ghose vs.  Dhirendra Nath Sen & Ors., AIR  1927 Calcutta 376, that when  a pleading does not  conform with the provisions of Order VI Rule 15, the  defect therein is a mere irregularity that can be cured  by amendment and consequently when the verification  in the plaint is  amended being originally defective, the  plaint must be taken to have been presented not on the  date of  the amendment but on the date when  it was  first presented.   Reliance was also placed on the decision of the  Madras High Court in  Subbiah Pillai alias  S.S.M.  Subramania Pillai vs.  Sankarapandiam Pillai & Ors.,  AIR 1948 Madras 369 and on a decision  of the Bombay  High Court in the case of All India Reporter Ltd.,  Bombay vs.  Ram Chandra Dhondo Datar, AIR 1961  Bombay 292, where similar views were expressed.         Mr. Mitra contended that  an analogy similar to the  decision in the aforesaid cases  could and  should  also  be drawn in the facts of the instant case where the  omission  complained of was also procedural in nature  and did  not affect  either the  territorial or the   pecuniary jurisdiction  of the Court to entertain the   suit.  Mr. Mitra urged  that having held that the defect  and omission were curable, the Division Bench of the  Calcutta High Court had thereafter erred in holding that  having regard to the provisions of Sub-rule (3) of Rule  1  of Order IV of the Code, the suit will be  deemed to  have been instituted from the date on which the  defects stood cured and not from the date of initial  presentation of the plaint.  Mr. Mitra urged that the  said error had  caused the Division Bench to set aside  the order impugned in the appeal on the said  technical  ground without going into the merits of the matter.         Mr. Mitra submitted that after the decision  rendered by the Division Bench  on 9th   June, 2004 this  Court had occasion to consider the provisions of the  Letters Patent of the Madras High Court and the  Bombay High Court  in the case of P.S. Sathappan  (Dead) By Lrs. vs. Andhra Bank Ltd. & Ors.,  (2004) 11  SCC 672 and in the case of  Iridium India Telecom Ltd.  vs.  Motorola Inc., (2005) 2 SCC 145.  In the first of  the said two cases, to which one of us (B.P. Singh,J.)  was a party, while considering the effect of the  amended provisions of Section 100A and Section 104 of  the Code in relation to  appeals provided for under

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Clause 15 of the  Letters Patent of the Bombay High  Court,  the majority view of the Constitution Bench was  that a Letters Patent   is a  special law of the High  Court concerned while the  Code is a general law  applicable to all courts.  It was observed that it was  well settled law that in the event of a  conflict  between  a special law and a general law, the special law  must  always prevail and though there was no  apparent  conflict between the Letters Patent and Section 104, if  there was any conflict between the Letters Patent and  the C.P.C., then the provisions of the Letters Patent  would always prevail, unless  there was  a specific  exclusion,  which position would also be clear  from  Section 4 of the Code which provides that  nothing in  the Code  would limit or  affect any special law.         In the latter case, this Court had occasion to  consider in detail the relevant amendments in the Code  referred to above  also in the context of the Bombay  High Court  Original Side Rules and the Bombay High  Court Letters Patent and after a detailed analysis of the  various  provisions, and in particular  the provisions of  Clause 37 of the Letters Patent and Section 129 of the  Code, this Court in no uncertain terms, upon a  reference to the decision in P.S. Sathappan’s case  (supra), concluded that far from doing away with the  Letters Patent, the  Amending Act of 2002 has  left    unscathed  the provisions of Section 129 of the Code  and   what  follows  therefrom and  upheld  the  contention  of the Division Bench of the Bombay High  Court that  suits  on the  Original Side of the High Court    were to be governed  by the Original Side  Rules  and  not by the  amended provisions of Order VIII Rule 1 of  the Code.         Mr. Mitra submitted that since the matter had  been set at rest by the two aforesaid decisions, the  finding of the Division Bench of the Calcutta High Court   that the Original Side Rules and the Code  were   supplementary  to each other,  was liable  to be set  aside and not only was the  suit   liable to be held to  have been duly instituted on 26th July, 2002, but  the  interim order of injunction passed therein was also  liable to be restored.         Appearing on behalf of the  respondents, who  were the defendants in the suit, Mr. Ranjit Kumar,   learned senior advocate,  tried  to convince us  with his  usual eloquence  that the amended provisions of the  Code relating to  presentation  of plaints would have to  be interpreted in their  literal sense, as otherwise the  very purpose for which the  amendments had been  introduced would be  rendered  nugatory.  He laid  special emphasis on the provisions of Sub-rule (3) of  Rule 1 of Order IV of  the Code which provides that the  plaint shall not  be deemed to be duly instituted unless  it complies with the requirements specified in Sub-rules  (1) and (2) which in their turn provide that every   plaint shall comply with the Rules contained in Orders  VI and VII of the Code.         Mr.Ranjit Kumar pointed out that even Rule (1) of  Chapter VII of the Original Side Rules is similar to Sub- rule (2)   of  Rule 1 of Order IV and provides that the  plaint shall comply with Order VI of the Code and shall  contain the particulars  required by Order VII  Rules 1  to 8 of the Code.  Mr. Ranjit  Kumar submitted that the  reference  made to Order VI of the Code in Clause 1 of  Chapter VII must mean a reference to Order VI  as it

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stood at the time when the  Original Side Rules were   framed and also  as it stands today since the provisions    of Order VI had been incorporated  in Rule 1 of Chapter  VII by reference which could not be taken to be partial  but had to be considered as a whole.  According to Mr.  Ranjit Kumar, the provisions of Sub-rule (4) of Rule 15  of Order VI were equally attracted  to the facts of the  instant case and non-compliance thereof  had been  very rightly held by the Division Bench  to have  rendered the suit non-est when it was instituted  on  26.7.2002 without being accompanied by an affidavit.   Mr. Ranjit Kumar,  however,    accepted the  position as  explained by this Court in the  Salem Advocate Bar  Assocn. case (supra), paragraph 16 whereof was  relied  upon by the Division  Bench of the Calcutta High Court  and wherein it was observed that on non-compliance of  the provisions of Order VII and clauses (e) and (f) of  Rule 11 and Rule 9 there should not be any automatic  rejection of the plaint at the first instance but that the  Court should ordinarily give an opportunity for  rectifying the  defect.  Mr. Ranjit Kumar submitted that  pursuant to the above, the Division Bench  of the  Calcutta High Court  had granted leave to the  appellants  herein to file an affidavit in support of the  pleadings in the  plaint and that such an affidavit had  been filed pursuant to the leave granted on 28th April,  2004 and the plaint must be deemed to have been duly  instituted only thereafter as had been held by the  Division Bench of the Calcutta High Court.           Although, various decisions were cited by Mr.  Ranjit Kumar on the question of legislation by  reference, we are not really required to dwell on such  submission since it is the common case of the parties  that the provisions of Order VI and select portions of  Order VII would have application to plaints filed on the  Original Side of the Calcutta High Court and it is also  the settled position that the Rules of the Original Side   as framed under the Letters Patent, unless excluded   and/or modified, would continue to have primacy over  the Code and matters not provided for.  What we are  really required to consider is the effect of the amended  provisions of the Code in relation to Chapter VII Rule 1  of the Original Side Rules.  We need not, therefore,  advert   to the various decisions cited by Mr. Ranjit  Kumar on this aspect of the matter.   In support of his submission that failure to comply  with Order VII Rule 15 would render the suit non-est,  Mr. Ranjit Kumar submitted that the omission to   comply with the requirements of the amended  provisions of the Code relating to  filing of  plaints could  not be condoned  but require rectification. Mr. Ranjit  Kumar referred to and relied  on  a decision of this  Court  in State of Kerala vs. M.S. Mani & Ors., (2001) 8  SCC 82 , which arose  out of an application under the  Contempt of Courts Act, 1971, Section 15 whereof  requires a person to obtain the prior consent in writing  of the Advocate General for making a motion under the  said Act and it was held that  such a provision being  mandatory, the failure to obtain such prior consent  would render the motion  not  maintainable.  In fact, it  was also  held  in  the said case that obtaining consent  subsequently would not  cure the initial defect.  Relying heavily on the said decision, Mr. Ranjit  Kumar pointed out that in the  Statement of Objects  and Reasons for the amendments to the   Code, it had

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been indicated  that the decision to introduce the  provisions for the filing of  an affidavit  in support of  the pleadings and the plaint  had been taken to quicken  the process of disposal of suits by fixing responsibility   on the party initiating the suit  and such object would  be frustrated if a liberal  approach was adopted in  implementing the amended provisions.   Reference was also made to two decisions of this  Court  in the case  of Life Insurance Corporation of  India vs.  D.J. Bahadur  & Ors.,  (1981) 1 SCC 315 and  Delhi Development Authority vs. Kochhar Construction  Work & Anr., (1998) 8 SCC 559, where similar views  have been expressed  in the context of the Industrial  Disputes Act, Life Insurance Corporation Act and  Arbitration Act, 1940.  Certain other decisions  were  also referred to in the context of Section 69 of the  Partnership Act, which do not need any elucidation. Mr. Ranjit Kumar submitted that the reasoning   and  the      judgment of the Division Bench of the  Calcutta High Court  did not call for any interference  and the matter had been rightly remanded  to the First  court for a denovo decision if a fresh application for  injunction was filed on behalf of the  plaintiffs/appellants.         Mr.Pradip Kumar Ghosh, learned senior advocate,  appearing for one of  the respondents, while adopting  the submissions made by Mr. Ranjit Kumar, drew our  attention to  Section 4 of the Code which provides  that  in the absence of any provision to the contrary nothing  in the Code shall be deemed to  limit or otherwise   affect any special local law  now in force or any special  jurisdiction or power conferred, or any special form of   procedure prescribed, by or any other law for the time  being in force.  Mr. Ghosh contended that when there  was specific provision available the provisions of the  Code must be deemed to have primacy over other   special  or  local laws, especially in the context of  Section 26 and Orders IV, VI and VII of the Code  dealing with the  institution of suits.         Referring to the Constitution Bench decision of this  Court  in the case of P.S. Sathappan  (supra), Mr.  Ghosh pointed out that in  paragraph 32 of the  judgment, while discussing the special nature of the  Letters Patent, it was also observed   with reference to  Section 4 of the Code that only a specific provision  to  the contrary,  such as Section 100A of the Code,  could  exclude the special law.  Mr. Ghosh submitted that  since specific provision had been made in Section 26,   Order IV   as also Order VII Rule 15, for the filing of an  affidavit along with the verification in support of the  plaint, such a provision being special in nature and not  being provided for in Rule 1 of Chapter VII of the  Original Side Rules, would prevail and its requirement  would  acquire a  mandatory form even in respect of  plaints filed under the  Original Side Rules  of the  Calcutta High Court.         Mr. Ghosh also referred to Section 116 contained  in Part IX of the Code  and submitted that the same  made the said Part applicable to High Courts not being  the Court of a Judicial Commissioner and that save as  provided in the said Part   or in Part X or under the  Rules,  the provisions of the Code would apply to such  High Courts.   Mr. Ghosh submitted that Section 120 of  the Code made specific provision as to which sections  of the Code, namely, Sections 16, 17 & 20, would not

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apply to the High Court in the exercise of its ordinary  original civil jurisdiction.         Mr. Ghosh also urged  that  no  interference was   called for with the order passed by the  Division Bench  of the Calcutta High Court and the appeal was liable to  be dismissed.           Mr. Tapash Ray, learned senior advocate  appearing for the Corporation of Caclutta, submitted  that although the Corporation of Calcutta was an  interested party, it had  no role to play  in the instant  proceedings.                  While we have noted and considered  the views  expressed by this Court in the  case of Iridium India  Telecom Ltd. (supra) and P.S. Sathappan’s case  (supra), with which we respectfully agree, regarding  the primacy of the Original Side Rules framed under the  Letters Patent over the provisions of the Code in case  of conflict, in the instant case, no such conflict has  surfaced which  necessitates a reference thereto.   Although, Mr. Mitra  did urge that  matters relating to   the Ordinary Original  Civil Jurisdiction of the Calcutta  High Court would  be governed by the Original Side  Rules, which would prevail over the provisions of the  Code, he also accepted the position that a plaint which  is presented in the  Original Side will have to comply  with the requirements of  Orders VI and VII as  incorporated by way of  reference in Rule 1 of Chapter  VII of the Original Side Rules.  What is in controversy   is whether a person  presenting such plaint after 1st  July 2002,  would also be  required to comply with the   amended provisions of Order VI Rule 15 of the Code.   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.  Both in  the case of  Khayumsab (supra)  and  Kailash (supra),  although dealing with the amended  provisions of Order  VIII  Rule 1 of the Code, this Court gave expression  to

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the  salubrious principle  that procedural enactments   ought not to be construed in  a manner which would  prevent the Court  from meeting the ends of justice in  different situations.         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.           Considering the aforesaid contention, 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.  

       The decision in  M.S. Mani’s case (supra) relied  upon by Mr. Ranjit Kumar and Mr. P.K. Ghosh, cannot  be equated with the views expressed in  Khayumsab’s   and Kailash’s case,  inasmuch as, in the former case,  the provision requiring the prior consent in writing of  the Advocate General was an intrinsic part of the  application touching upon the maintainability of the  motion itself and not procedural as in the facts of the  instant case.  The said decision, therefore, cannot come  to the aid of the respondents.

       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.   

The appeal is accordingly allowed and the  impugned order under challenge is set aside.   Consequent upon the views expressed by us, the plaint  as filed on behalf of the appellants herein must be

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deemed to have been presented on 26th July, 2002 and  not on 28th April, 2004 and the interim order passed by  the learned Single Judge on 2nd April, 2004, stands  revived.  The Division Bench of the Calcutta High Court   is directed to re-consider and hear the appeal filed by  the respondents herein on merits as expeditiously  as  possible.

       Having regard to the peculiar facts of the case, the  parties will bear their own costs.