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Sadiq Ali and anr. Vs. Manu Narrang - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberWrit Petn. No. 3328 of 1984
Judge
Reported inAIR1985Bom274; 1985(1)BomCR164; (1984)86BOMLR491; 1984MhLJ1075
ActsCode of Civil Procedure (CPC), 1908 - Sections 122 - Order 21, Rule 98; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 97(1), 127 and 128
AppellantSadiq Ali and anr.
RespondentManu Narrang
Appellant AdvocateC.K. Jaisinghani, Adv.
Respondent AdvocateD.S. Parikh and;Sheela Balsara, Advs.
Excerpt:
.....in bombay in 1981 -- 'proceedings whether to be governed by provisions of order 21, rule 98 of the code as amended by amendment act of 1976 or by provisions of order 21, rule 98 as framed by bombay high court in 1966 -- effect of rule 98 of order 21 as amended by bombay high court with effect from october 1, 1983.;the words 'principal act', mentioned in section 97 of the code of civil procedure, 1908 necessarily mean the entire code of civil procedure, 1908, which includes not only the sections but also the schedules including the first schedule.;devendra kumar v. jaidayal [1981] a.i.r. m.p. 160 (d.b.), dissented from.;even those rules of the high courts contained in the first schedule to the code, which were inconsistent with the amended provisions of the first schedule to the code,..........body of this code, until annulled or altered in accordance with the provisions of part x of the code. rules made after following the procedure prescribed in ss. 123 to 126 were to be published in the official gazette and upon such publication or with effect from such other date as may be specified, they were to have the same force and effects as if they had been contained in the first schedule, in other words, the power to make rules under s. 122 was co-extensive with the legislative power of a competent legislature and the rules made in exercise of powers contained in s. 122 of the code were to have the same effect as the rules which were enacted by the parliament. there was, however, one major restriction on the same, namely, the rules which were thus framed 'shall be not.....
Judgment:

1. The Petitioners are obstructing the execution of a decree obtained by the respondent as long ago as in March 1973 against the one Balsara who was the original defendant in the suit. That suit was suit No. 3032 of 1962 and had been filed by the predecessor-in-title of the respondent against the said Balsara for possession of certain property. A Chamber Summons for the removal of the obstruction of the petitioner has been taken out in the year 1981 and that is Chamber Summons No. 74 of 1981. Apart from the merits of the obstruction, the petitioner told the Court below, namely, the City Civil Court, that the proceedings in obstruction are to be conducted in accordance with R. 98 of O. 21 of the Civil P.C. as substituted by the Bombay High Court by its Notification dt. 30th Sept. 1966 and not in accordance with the procedure as amended by the Central Parliament by the Amending Act 104 of 1976. The Court below was invited to frame an issue as per this contention and it has been so done by the court below. It is in the following terms :

'Is R. 98 of O. 21 as substituted by the Bombay High Court by Notification dt. 30-9-1966 applicable to the present Chamber Summons or whether R. 98 of the First Sch. Of the Civil P.C. 1908 as amended by the Civil P.C. (Amendment) Act, 1976, is applicable?'

Later the court was invited to decide that issue as a preliminary issue, which again the court did and answered that issue against the petitioner. Inn other words, it held that O. 21 R. 98 as enacted by the Amending Act of 1976 governed the proceedings and not R. 98 of O. 21 of the Code as amended by Bombay High Court in the year 1966. This order dt. 16th April 1984 is the subject-matter of challenge in this petition under Art. 227 of the Constitution.

2. Before proceedings to consider the contentions raised on behalf of the petitioner, it would be profitable to review the relevant provisions of law in this regard. Civil P.C. 1908,is Act No. 5 of 1908, and as is well knows, it consists of two parts. There is that part of the Code which consists of Sections from S. 1 to S. 158. Then there are Schedules annexed to this body of the Code. What is important for our purpose if the First Sch. Which contains the rules of procedure. This Schedule itself is divided into several parts called Orders which in turn contain the rules prescribing the procedure which are necessarily consistent with the sections contained in the main part of the Code. That part of the Code which contains the sections has been consistently referred to in legal books as well as in judgments of the courts as the body of the Code and the rules contained in the First Schedule have been referred to as the rules. For the sake of uniformity, I will continue to refer to the same in those terms.

3. The body of the Code containing the sections could naturally be amended only by a legislature having legislative competence to do so. However, the rules contained in the First Schedule were allowed to be amended by the High Courts, if the High Court so desired. This power to amend and the procedure for amending are provided in Part X of the body of the Code which deals with the rules in the First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of Part X. S. 122 of the Code empowers the High Courts to make rules regulating their own procedure and the procedure of the Civil Courts subject to the Superintendence of the High Court. In exercise of this power, the High Courts may by such rules annul, alter or add to all or any of the rules in the First Schedule. Though, therefore, the first part of S. 122 mentions that the High Court may make rules regulating their own procedure and the procedure of the courts subject to their superintendence, the latter part of S. 122 specifically empowered the High Courts to amend the rules contained in the First Schedule of the Code. The procedure for amending the rules has been prescribed in Ss. 123 to 125 of the Code. It is already noted that S. 121 provides that the rules in the First Schedule were to have the effect as if they were enacted in the body of this Code, until annulled or altered in accordance with the provisions of Part X of the Code. Rules made after following the procedure prescribed in Ss. 123 to 126 were to be published in the Official Gazette and upon such publication or with effect from such other date as may be specified, they were to have the same force and effects as if they had been contained in the First Schedule, In other words, the power to make rules under S. 122 was co-extensive with the legislative power of a competent Legislature and the rules made in exercise of powers contained in S. 122 of the Code were to have the same effect as the rules which were enacted by the Parliament. There was, however, one major restriction on the same, namely, the rules which were thus framed 'shall be not inconsistent with the provisions in the body of this Code.........' (sec S. 128)

4. In exercise of the powers conferred upon the High Courts by S. 122 of the Code, different High Courts made different rules amending the rules contained in the First schedule of the Code. As far as the Bombay High Court is concerned, by a Notification issued on 30th Sept. 1966 several rules amending the rules as enacted in the Code were framed and brought into force with effect from 1st Oct. 1966. Among the said rules which were framed by the Bombay High Court, R. 98 of O. 21 was one. It was slightly different from the one that had been enacted by the Parliament in the First Schedule to the Code itself.

5. As is now well-known, large-scale amendments amending practically the whole of the Code or what some textbooks have called 'overhauling of the Act' were made by Parliament by Act 104 of 1976. That was the Code of Civil Procedure (Amendment) Act of 1976. The Civil P.C. could be amended conceivably by the State Legislature also in exercise of the concurrent legislative power. The State Legislatures could, subject to the relevant legislative provisions in the Constitution, amend not only the body of the Code consisting, amend not only the body of the Code consisting of the sections but also the provisions contained in the Schedules to the Code. By virtue of powers contained in S. 122 of the Code, different High Courts could also amend the First Schedule of the Code though the High Courts themselves could not touch the body of the Code consisting of the section. That the Code includes rules is evident from the definition of the Code contained in S. 2(1) of the Code. But for the sake of convenience that body of the Code, while the First Schedule to the Code has been referred to as the rules. I have already made a reference to the same earlier in the judgment. Prior to the amendments of the Code in 1976, conceivably some State Legislatures might have made amendments not only in the sections of the Code but also in the rules contained in the First Schedule of the Code. Various High Courts had in exercise of the powers contained in S. 122 of the Code made amendments to the rules contained in the First Schedule. Both the amendments made by the appropriate Legislature and the High Court were existing prior to the Amendment Act of 1976.

6. When the Amending Act of 1976 came into force on 1st Feb 1977, there was naturally the possibility of inconsistency between the amendments made by the State Legislatures both in the body and the Schedules of the Code on the one hand and the 1908 Act as amended by the 1976 Act on the other. There was also the possibility of inconsistency between the rules framed by the various High Courts amending the rules in the First Schedule as originally enacted in the Act of 1908 and the rules that were amended by the Amending Act of 1976. Instead of launching into an exhaustive analysis of the various provision which were in force before the Amending Act of 1976, came into force and the provisions introduced by the Amending Act of 1976 and finding out the different inconsistencies and resolving the same, the Parliament in its legislative wisdom provided in S. 97 of the 1976 Act as follows :-

'Repeal and savings

97. (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act amended by this Act, stand repealed.

7. Certain words contained in the above provision need to be carefully understood. The words 'the principal Act' necessarily mean the Civil P.C. which included not only the body of the Code meaning the section part but also the Schedules accompanying that body as they stood prior to the Amending Act of 1976. The words 'principal Act' have acquired a connotation in legislative and judicial history and they mean the Act before an amendment. The words 'the principal Act' must necessarily be understood in contradistinction with the words 'Amending Act'. The words 'principal Act' cannot stand without reference to the Amending Act the Parliament uses the words 'principal Act', it was using them in opposition to the Amending Act which contained S. 97. The words 'principal Act' by themselves do not make any sense unless they are used in the context of an amending Act. In my view, the words 'the principal Act' mentioned in S. 97 necessarily mean the entire Civil P.C. 1908, which included not only the sections but also the Schedules including the First Schedule.

8. As a result of S. 97 of the Amending Act, certain consequence necessarily follow. In the first place, all the amendments that had been made in the Civil P.C. including the sections and the rules by a State Legislature, which were inconsistent with the provisions of the principal Act as amended by the 1976 Act, were rendered ineffective. That is, in my opinion, the clear purpose of S. 97 says, any amendment made or any provisions inserted in the principal Act by a High Court before the commencement of the Amending Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by the Amending Act, stand repealed. No High Court, in exercise of the powers conferred upon it by S. 122 of the Code empowered the High Courts. S. 122 of the Code empowered the High Court only to amend the First Schedule of the Code namely, that part containing the rules. When, therefore the Parliament provided by S. 97 that any amendment made or any provision inserted in the principal Act by High Court shall stand repealed to the extend of the inconsistency with the principal Act as amended, it necessarily meant, as far as the High Court is concerned, only the First Schedule which alone could have been amended by the High Court in exercise of power contained in S. 122 of the Code. Despite the use of the words, therefore, 'the principal Act' contained in S. 97, in so far as the High Courts are concerned the words 'the principal Act' necessarily meant only the First Schedule to the Code and not the sections part of the Code.

9. If this is the correct interpretation, then the rules framed by the Bombay High Court in the year 1966 in so far as they were inconsistent with the rules as enacted by the Parliament by the Act of 1976 would be rendered ineffective with effect from 1st Feb. 1977. It cannot be said that by virtue of the provisions contained in Ss. 127 and 128 of the Code and despite the provisions contained in S.97 of the Amending Act of 1976, those rules of the Bombay High Court, which were inconsistent with the Act as amended by the Act of 1976, could continue to survive after 1st Feb. 1977.

10. The point has become debatable because the petitioners have raised a contention that R. 98 of O.21 as it was framed by the Bombay High Court in the year 1966 is not consistent with the body of the Code though it may be inconsistent with R. 98 as enacted by the Central Parliament by the Amending Act of 1976. It has been urged on behalf of the petitioners that R. 98 of O. 21 as framed by the High Court in 1966 continued to exist despite S. 97 of the Amending Act and despite the fact that it was inconsistent with R. 98 of O. 21 as enacted by the Parliament by the Amending Act of 1976. I have already mentioned earlier that this cannot be the result of a proper analysis and understanding of S. 97 of the Amending Act. If the contention of the petitioners is accepted, then certain words contained in S. 97 of the Amending Act would be rendered superfluous. The argument of the petitioners is based upon an interpretation of the words 'the principal Act' which , according to them, mean only the body of the Code and not the rules contained in the First Schedule of the Code. This interpretation cannot be accepted because it would render as mentioned above, certain words used in S. 97 redundant - a possibility which cannot be countenanced in the interpretation of any Act of a legislature. Section 97 of the Amending Act speaks of any amendment made or any provision inserted in the principal Act by a State Legislature. The State Legislature could conceivably make amendment not only in the body of the Code but also in the First Schedule of the Code. Is it possible to accept that only those amendments made by the State Legislature in the body of the Code were covered by S. 97? The answer must be in the negative. If the intention of the Legislature was to provide of the Code, then it could have used those words and not the plenary words 'the principal Act'. I have already indicated earlier that the words 'principal Act' have particular connotation and that connotation is to be understood in the context of an Amending Act. There cannot be a principal Act except in the context of an amending Act. The words 'principal Act' therefore, in S. 97 must necessarily mean the entire Code and not merely the body of the Code which includes the sections.

11. The interpretation which has been canvassed by Mr. Jaisinghani, the learned Advocate appearing in support of the petition, is no doubt supported by the judgment in Devendra Kumar v. Jaidayal, : AIR1981MP160 . Noticing that the phrase 'principal Act' has not been defined and that the phrase had to be constructed in the context and referring to certain authorities on the interpretation of the statutes, the Division Bench held :-

'it is therefore clear that the phrase 'principal Act' occurring in the last sentence of S. 97(1) refers to sections of the Code and not to the schedule .....'

The above conclusion has been placed at the termination of the discussion on the rules of interpretation of statutes wherein certain authorities have been cited. Those authorities did not refer either to the phrase 'the principal Act' or to any provision of the Code because they were not concerned with the interpretation of any part of the Civil P.C. However, in para 10 of the judgment, the Division Bench has stated as follows :-

'It is therefore clear that the amendment or an insertion of any provision is only possible by the High Court in the First Schedule and not in the sections and therefore it is clear that the words 'principal Act' in the first sentence in this provision mean the whole Act i.e. the 'Code' which means including rules whereas in the last sentence 'except so far as such amendment or provision is consistent with the provision of the principal Act as amended by this Act' and it is very clear that the provisions of the principal Act which have been amended by this Act could only refer to the sections part of it as the schedule part is separate'.

12. I am unable to agree with this reasoning because the phrase 'principal Act' must necessarily be understood in the context of an amending Act, Section 97 of the Amending Act while referring to the principal Act did not intend two different things depending upon whether the amendments made were made by the State Legislatures or whether the amendments were made by the High Courts. On a proper understanding and interpretation of the clear words contained in S. 97 of the Act, it is not possible for me, with great respect, to agree with the view expressed by the Division Bench of the Madhya Pradesh High Court. In my opinion, the amendments made, whether by State Legislature either in the body of the Code contained in sections or in the Schedule to the Code or any amendments made by any High Court in those provisions in which alone it could make the amendments, namely, the Schedule to the Code, were all covered by the provisions of S. 97 of the Amending Act. By the said provision the Parliament necessarily intended that the amendments which were already made to the extent of the inconsistency with the amended (not merely the amending Act) Act as on 1st Feb. 1977,were to be repealed and were to be of no effect at all after that date. The unambiguous and clear language contained in S. 97 of the Act does not admit of any other interpretation. The Parliament had to make provision for the amendments that were existing prior to 1st Feb. 1977. Those amendments could have been made by two authorities which had the power to amend, namely, the State Legislature, pursuant to the legislative power and the High Courts pursuant to the power conferred upon them by S. 122 of the Code. One authority could amend the sections as well as the rules while the other authority could amend the rules only. The Parliament had to make provision for the amendments that were existing prior to 1st Feb. 1977. Those amendments could have been made by two authorities which had the power to amend, namely, the State Legislatures, pursuant to the legislative power and the High Courts pursuant to the power conferred upon them by S. 122 of the Code. One authority could amend the sections as well as the rules while the other authority could amend the rules only. The Parliament was aware of this position. Therefore the Parliament must be understood to have the intention of deleting the inconsistent amendments that had been made by the High Courts in that part of the Code in which it could then validly make the amendments. Admittedly the Amending Act of 1976 itself amended that part of the Code which had been amended earlier by the High Court. The phrase 'the principal Act' occurring in the first part of S. 97 cannot have a different meaning than the same phrase occurring in the latter part of S. 97. In my opinion, therefore, even those rules of the High Courts contained in the First Schedule to the Code, which were inconsistent with the amended provisions of the First Schedule to the Code, were to stand repealed to the extent of their inconsistency with the latter provision.

13. It is undoubtedly true that after 1st Feb. 1977 the High Court again could, if they so desired, amend the amended provisions of the First Schedule or re-enact all the rules which they had framed prior to 1st Feb, 1977 and the amendments so made or the rules so re-enacted could prevail over the rules as amended by the Parliament. This is so because the Parliament left intact the power given to High Courts under S. 122. That power did not mention that if after the Parliament had amended the Code including the First Schedule, the High Courts could not further amend the rules contained in the First Schedule. In my opinion, an attempt was made by the Parliament to bring some uniformity with reference to a particular date. If thereafter the High Courts still felt that looking to the situation prevailing in the area subject to the High Courts Jurisdiction, amendments were called for in the First Schedule to the Code, they could make such amendments. But as far as the situation prevailing on 1st Feb, 1977 was concerned, any rules which had been made by the High Courts prior to that date and which were inconsistent with the rules in Parliament by the Amending Act of 1976 were to stand repealed.

14. Issue No. 4 framed by the learned trial judge has been rightly answered by him.

15. In order to complete the legislative history, it may be mentioned that the Bombay High Court has, after 1st Feb, 1977, in exercise of the powers conferred upon it by S. 122 of the Code, framed certain rules published in the Notifications dt. 28th Sept. 1979 and 23rd June 1980. Subsequently by a Notification dt. 5th Sept. 1983 the High Court has superseded all the Notifications issued till that date and has made amendments to the First Schedule of the Civil P.C., which amendments came in force with effect from 1st day of Oct. 1983. In these amendments it has been noted that there is sub-rule (2) existing in R. 98 of O.21 of the Code. In the rules as amended by the Bombay High Court in 1966 there was no sub-rule (2) in R. 98 of O. 21. When, therefore, the High Court referred to existing sub-rule of R. 98, it necessarily meant sub-rule 92) of R. 98 of O. 21 as enacted by the Parliament. A reading of the other amendments made by the High Court by the aforesaid Notification shows that the High Court by the aforesaid Notification intended to amend not the rules which were already framed in the year 1966 but the rules as were enacted by the Parliament by the Amending Act of 1976. One may in this connection usefully refer to the amendments brought out in O. 6 R. 14A and O. 7 R. 17. O.13 R.4 had already been amended by the Bombay High Court in the year 1966 but by the aforesaid Notification the Bombay High Court has only re-enacted the said rule which it had framed in the year 1966. This necessarily shows that the High Court had in mind while framing the amendments published by the aforesaid Notification the rules in the First Scheduled of the Code after the Amending Act of 1976.

16. The aforesaid discussion may, to some extent, became academic in view of the amendments which have been made by the High Court and which have come into effect from 1st Oct, 1983. After interpreting S. 97 of the Amending Act of 1976 I have already held that R. 98 of R. 21 as framed by the Bombay High Court in the year 1966 could not prevail over R. 98 of O. 21 as amended by the Central Parliament by the Amending Act of 1976. But as far as the petitioners are concerned, today irrespective of the manner in which issue No. 4 can be answered, in view of the amendment that has been made by the High Court in O. 21 R. 98 of the Code with effect from 1st Oct, 1983, their case will have to be decided in the light of the new rule which has come into force. The obstruction proceedings are still pending. The rights and liabilities of the parties are yet to be decided. A change in the procedural law has taken place with effect from 1st Oct, 1983.

'No person has a vested right in any course of procedure, but only the right of prosecution of defence in the manner prescribed for the time being, by or for the Court in which he sues, and if an Act of Parliament alters that mode of procedure, he can only proceed according to the altered mode. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be'.

(See Maxwell on the Interpretation of Statutes, 12th edition, page 222)

17. Rule 98 of O. 21 of the Code as enacted by the Parliament in the amended Act is almost the same as R. 98 of O. 21 contained in the amendments issued by this Court except that the rule as framed by this Court provides also for the payment of compensation to the decree-holder by a person or persons held to be responsible for resistance or obstruction to the execution of a decree. In this view of the matter, the complaint made by Mr. Jaisinghani that a right of appeal which was available under the provision of R. 98 of O. 21 as framed by the High Court in the year 1966 has been taken away by the Central in the year 1966 has been taken away by the Central rule as enacted in the year 1976 is not justified. It is not justified because the provision that will now govern the proceedings in the Court below will be the provision as framed by the High Court which has come into effect on 1st Oct, 1983 and this provision specifically provides for a right of appeal. Even otherwise, any order passed under R. 98 of O. 21 as enacted by the Parliament by the Amending Act of 1976 was subject to an appeal as mentioned in R. 103 of O. 21 of the Code. This latter provision has also been inserted by the Parliament by its Amending Act of 1976. I do not, therefore, see that any right which was vested in any litigant has been taken away by the amendment made either by the Parliament or the rule amended by the High Court with effect from 1st Oct. 1983.

18. In the result, I find that this petition has no substance. Rule is accordingly discharged with costs.

19. Rule discharged.


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