TMI Blog2005 (1) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... t ₹ 1000 crores on the ground that it had suffered loss and/or damages on account of an alleged fraud on the part of the respondent, a foreign corporation incorporated in the United States of America. The appellant also obtained an ex parte order against the respondent in the nature of an attachment before judgment of receivables in India. On 17.9.2002, the first respondent claims to have dispatched the plaint and all connected papers by courier along with a covering letter of the same date. According to the appellant, the Sheriff of Bombay was requested to transmit the writ of summons along with the plaint and the other proceedings by Regd. A.D. post or by air mail to the respondent, and the Sheriff had done it. On 1.10.2002 the respondent filed a detailed affidavit along with an application to vacate the ex parte ad interim order made on 16.9.2002, as a result of which the ex parte order was modified by the High Court on 3.10.2002. On 16.10.2002 a second Notice of Motion was filed by the appellant. The respondent filed an affidavit opposing the prayers made in the second Notice of Motion. After hearing the parties, the High Court by an order made on 24.10.2002 refused the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Side of the High Court would be governed by the Original Side Rules and not by the amended provisions of Order VIII Rule 1 of the CPC, is contrary to the legislative intendment; the High Court (Original Side) Rules were framed under the delegated rule making power under Section 129 of the CPC and they could not override the provisions of the amended Order VIII Rule 1, which is a part and parcel of the substantive Statute itself; this is particularly so, when the intention of Parliament in making the amendment is clear, namely, to shorten the time period of endlessly long and protracted course of litigation and to discourage dishonest defendants from interminably seeking adjournments. Hence, Parliament has now made a tight schedule within which written statements have to be filed, failing which the legal consequences contemplated under the CPC, including the one as to making of an ex parte decree should follow ; rules framed by the High Court under the delegated rule making power conferred by Section 129 of the CPC could not be treated as a stand alone body of rules outside the CPC , as erroneously done by the High Court in the impugned judgment ; that Section 129 of the CPC must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedure and the procedure of the Civil Courts subject to their superintendence, but is subject to the condition of previous publication. Section 123 contemplates the constitution of Rule Committees in each of the High Courts as prescribed therein. Such a Committee makes its report to the High Court under Section 124 formulating and forwarding proposals with regard to annulment, alteration or addition in the First Schedule or for making new rules. Section 126 requires that the rules made by the High Court shall be subject to the previous approval of the State Government concerned. Section 127 requires previous publication of the rules so made in the Official Gazette. Section 128 enumerates a number of matters with regard to which rules may be framed by the High Courts. Then comes to Section 129, which is crucial for the present discussion. Section 129 reads as under: 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 or other law establishing it to regulate its own procedure in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9). This Act, as its preamble suggests, was an Act for simplifying the procedure of the Courts of Civil Judicature not established by Royal Charter and was not intended to apply to High Courts established by Royal Charter. The First Letters Patent or Charter establishing High Courts were accompanied by a Despatch from the Secretary of State on 14.5.1862, and were in force till revoked by a further Letters Patent on 28.12.1865. The learned counsel drew our attention to paragraph 36 of the Despatch, which explains the purpose of Clause 37 in the First Letters Patent. The said paragraph 36 of the Despatch reads as under: 36. Clause 37 is a very important one, and there is little doubt, will prove a very salutary provision. It has, therefore, been inserted, although the change introduced is somewhat greater and more substantial than is generally aimed at in this Charter. It extends to the High Court the Code of Civil Procedure enacted by the Legislature of India for the Court, not established by Royal Charter, and thus accomplishes the object so long contemplated of substituting one simple Code of Procedure for the various systems (corresponding to its common law, equity and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 54, clauses (a) and (b), 57, 119, 160, 182 to 185 (both inclusive), 187, 189, 190, 191, 192 (so far as relates to the manner of taking evidence), 198 to 206 (both inclusive), 261, and so much of Section 409 as relates to the making of a memorandum; and Section 579 shall not apply to the High Court in the exercise of its appellate jurisdiction. Nothing in this Code shall extend or apply to any High Court in the exercise of its jurisdiction as an Insolvent Court. The Legislature recognized the special role assigned to the Chartered High Courts and exempted them from the application of several provisions of the Code in the exercise of their ordinary or extra-ordinary civil jurisdiction for the simple reason that those jurisdictions were governed by the procedure prescribed by the rules made in exercise of the powers of the Chartered High Courts under clause 37 of the Letters Patent. Interestingly, Section 652 of this Act itself empowered the High Courts to make rules consistent with this Code to regulate any matter connected with the procedure of the Courts of Civil Judicature subject to its superintendence , suggesting that consistency with the Code was a sine qua non only wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 652 and, an ancillary amendment of Section 632, to bring the Code into perfect harmony with the provisions of those Letters Patent and to enable the High Courts referred to to regulate the exercise of their original civil jurisdiction accordingly. Then we come to the 1908 Act, which made a drastic departure from the hitherto pattern of the Code. The Code was now divided into a fascicle of substantive sections and a Schedule containing Rules, which by force of Section 121 were declared to have effect as if enacted in the body of the Code until annulled or altered in accordance with the provisions of Part X of the CPC. Despite the sweeping change made by the 1908 Act, interestingly, the amendment introduced in the Code of Civil Procedure, 1882 by Act No. XIII of 1895, which we have quoted above, was retained in a slightly modified form in Section 129. The Arguments: Learned counsel for the appellant emphasized the fact that the High Court's power of making rules and orders for 'regulation of civil proceedings before it, conferred by clause 37 of the Letters Patent, is subject to the proviso that the High Court shall be guided in making such rules and orders as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - making power which is dealt with in Part X of the Bill and in regard to Part XI (Miscellaneous), I would only call attention to clauses 145 and 148 to 150, which widen the discretion of Courts. They confer powers to enlarge time and to amend written proceedings, and they recognize the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. In these ways greater elasticity will, it is hoped, be of benefit. Far from advancing the case of the appellant, the speech of the Law Member, while introducing the Bill, suggests that it was thought necessary that the inherent powers of the Court to make appropriate orders, as may be necessary for the ends of justice or to prevent abuse of the process of the Court, was retained for the purpose of greater elasticity. It is next contended for the appellant that merely because Section 129 of the CPC begins with the non obstante clause , notwithstanding anything in this Code , the section cannot be construed as a departure from the entire body of the CPC so as to render the rules made by the High Courts to regulate its own procedure in the exercise of its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wini Kumar Ghose (supra) and Dominion of India v. Shrinbai A. Irani , this Court in Chandavarkar Sita Ratna Rao v. Ashalata S. Guram observed thus, in the context of construction of a non obstante clause: 67. A clause beginning with the expression notwithstanding anything contained in the Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non obstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non obstante clause would not be an impediment for an operation of the enactment. See in this connection the observations of this Court in South India Corporation (P) Ltd. v. Secretary, Board of Revenue, Trivandrum . 68. It is well settled that the expression 'notwiths ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words of Chinnapa Reddy, J.: Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment with the glasses of the statute- maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt of Judicature at Bombay commends itself to us. Learned counsel for the appellant next contends that even clause 37 of the Letters Patent establishing the High Court of Bombay, which empowers the High Court to make rules and orders on its Original Side, is subject to the proviso 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 .. He contends that the words as far as possible are words of limitation and must be interpreted to mean that the rules made should be consistent with the provisions of the CPC as amended from time to time. The Full Bench of the High Court of Calcutta in Manickchand v. Pratabmull had occasion to consider this very contention with regard to clause 37 of the Letters Patent and observed: The restriction upon the power of the Court as contained in the proviso to cl. 37 of the Letters Patent is that the rules framed under that clause should, as far as possible be in conformity with the provisions of the Code of Civil Procedure. This restriction as the phrase as far as possible indicates is merely directory. The provisions of the Code of Civil Procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impact of Section 129 was, in any way, watered down by Section 122. The following observations in para 5 of the judgment were relied upon: The object of Section 97 of the Amending Act appears to be that on and after February 1, 1977 throughout India wherever the Code was in force there should be same procedural law in operation in all the civil courts subject of course to any future local amendment that may be made either by the State legislature or by the High Court, as the case may be, in accordance with law. Until such amendment is made the Code as amended by the Amending Act alone should govern the procedure in civil courts which are governed by the Code. We are emphasizing this in view of the decision of the Allahabad High Court which is now under appeal before us. In our view, Section 97 of the Amending Act does not, in any way, affect the special hierarchial status given to the proceedings before the Chartered High Courts on its Original Side. It was merely intended to standardize and make uniform the law as to civil procedure in other Civil Courts. Kulwant Kaur (supra) was concerned with a situation where Punjab Courts Act, 1918 had a special right of appeal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd alteration. It was submitted that this showed that a Letters Patent was a subordinate or subservient piece of law. Undoubtedly, Clause 44 permits amendment or alteration of Letters Patent but then which legislation is not subject to amendment or alteration. CPC is also subject to amendments and alterations. In fact it has been amended on a number of occasions. The only unalterable provisions are the basic structure of our Constitution. Merely because there is a provision for amendment does not mean that, in the absence of an amendment or a contrary provision, the Letters Patent is to be ignored. To submit that a Letters Patent is a subordinate piece of legislation is to not understand the true nature of a Letters patent. As has been held in Vinita Khanolkar's case and Sharda Devi's case a Letters Patent is the charter of the High Court. As held in Shah Babulal Khimji's case a Letters Patent is the specific law under which a High Court derives its powers. It is not any subordinate piece of legislation. As set out in aforementioned two cases a Letters Patent cannot be excluded by implication. Further it is settled law that between a special law and a general law the sp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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