TMI Blog2006 (2) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ablishing 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. 3. 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. 4. 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 Willia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9. 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:- 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 quart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived and believed to be true. (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. 12. It is of relevance to these proceedings to point out that Sub-rule (4) of Rule 15 reproduced herein above 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. 13. 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. 14. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. 18. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 21. 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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. 23. 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pril, 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. 26. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuniary 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. 30. 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 Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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. 34. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aints 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. 37. 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 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. 38. Reference was also made to two dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Original Side Rules of the Calcutta High Court. 423 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 apply to the High Court in the exercise of its ordinary original civil jurisdiction. 43. 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. 44. 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, regardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure 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 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. 46. 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. 47. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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