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Gorakh Ram and ors. Vs. Dhannu Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSupreme Court Appeal No. 55 of 1960
Judge
Reported inAIR1961All415
ActsCode of Civil Procedure (CPC) , 1908 - Order 45, Rule 7; Supreme Court Rules, 1950 - Order 12, Rule 3
AppellantGorakh Ram and ors.
RespondentDhannu Ram and anr.
Appellant AdvocateH.N. Seth, Adv.
Respondent AdvocateAmbika Prasad and ;G.K. Sahai, Advs.
DispositionApplication dismissed
Excerpt:
.....to follow from the failure is a different matter; the very use of the words 'fails to furnish the security or make the deposit' makes it clear that there has been a failure and that the consequences of the failure are laid down in what follows. there can be no question of failure if the period within which an act can be done at all has not expired; the question of failure will arise only after the expiry of the period which has been allowed. once it is conceded that rule 3 lays down the consequences of the failure, it must necessarily mean that the rule does not confer power upon the court to extend the period. it is evident that extending the period cannot be said to be a consequence of the failure to do the act within the prescribed period. i may at the cost of repetition, emphasize..........extension. the court cannot extend the period by more than 60 days in any circumstance; in other words rule 7 does not permit any extension of the prescribed period by more than 60 days. more than 150 days have expired from the date of the decree complained of and as far as order 45 is concerned, we have no power to extend the time for furnishing the security and depositing the amount.4. coming to order 12, supreme court rules, the rule on which sri h. n. seth relies is rule 3, which reads as follows:'3. where an appellant, having obtained a certificate from the high court, fails to furnish she security or make the deposit required, that court may, on its own motion or on application in that behalf made by the respondent, cancel the certificate and may give such directions as to the.....
Judgment:

Desai, J.

1. On 12-8-1960 this Court granted a certificate-under Article 133(1)(a) of the Constitution to the appellants and under Order 45, Rule 7, C.P.C., they were bound to furnish security and to deposit the amount to defray the expenses of translating, transcribing etc. and transmitting to the Supreme Court a correct copy of the whole record within a certain time. They failed to make the initial deposit and to apply for preparation of the paper book as required by Rules of Court within the prescribed time. Hence the office listed the case before us for orders. Sri H. N. Seth orally asked for time to make the initial deposit and to apply for preparation of the paper book. He contended that cancellation of the certificate is not mandatory and that we have jurisdiction to extend the time. After having heard him at length I am convinced that we have no jurisdiction to extend the time at all.

2. The procedure relating to appeals to the Supreme Court is contained in Order 45, C.P.C., and Order 12 of the Supreme Court Rules. The relevant rule in Order 45 is Rule 7, which lays down that

'Where the certificate is granted, the applicant shall, within ninety days or such further period, not exceeding sixty days, as the court may upon cause shown allow from the date of the decree complained of, or within six weeks fromthe date of the grant of the certificate, whichever is the later date,--

(a) furnish security ........ and

(b) deposit the amount required to defray the expenses of translating, transcribing......''

3. There are two facts, to be noticed; (1) that the rule contains provision for extension of the time and (2), that it does not provide for the failure to furnish the security or deposit the amount. When the rule itself fixes a limit to the period by which the prescribed period of 90 days may be extended, it means that the court has not the power to grant any further extension. The court cannot extend the period by more than 60 days in any circumstance; in other words Rule 7 does not permit any extension of the prescribed period by more than 60 days. More than 150 days have expired from the date of the decree complained of and as far as Order 45 is concerned, we have no power to extend the time for furnishing the security and depositing the amount.

4. Coming to Order 12, Supreme Court Rules, the rule on which Sri H. N. Seth relies is Rule 3, which reads as follows:

'3. Where an appellant, having obtained a certificate from the High Court, fails to furnish she security or make the deposit required, that Court may, on its own motion or on application in that behalf made by the respondent, cancel the certificate and may give such directions as to the costs of the appeal and the security entered into by the appellant as it shall think fit or make such further or other order as the justice of the case requires.'

His contention is two-fold, (1) that cancellation of the certificate is not mandatory and (2) that the words 'such further or other order' include an order granting further time. I am unable to accept either of the two contentions.

5. It is noteworthy that the rule does not expressly confer power upon the Court to extend the time beyond 150 days, the maximum period allowed under Order 45, Rule 7, Civil P. C. It is not understood why, if it was intended to confer this power upon the High Court, it was not conferred in express words and why it was sought to be conferred through the use of the words 'further or other order'. When a power is given for extending the period prescribed for the doing of an act it is always granted in express words and is not left to be implied from the use of such words as 'further or other order'.

Rule 3 must be so interpreted as to harmonize with the provisions of Order 45, because Rule 1 makes the provisions of Order 45 applicable. When by virtue of Rule 1, read with Order 45, Rule 7, as interpreted above, this Court is devoid of any power to extend the period beyond 150 days and Rule 3 does not expressly confer this power, it should not be implied from the words 'such further and other order' if they can reasonably be interpreted otherwise. As I would show presently, the words ought to be interpreted otherwise.

6. The object behind the enactment of Rule 3 was to provide for the consequences of the certificate holder's failure to comply with Rule 7(1) (a) and (b) of Order 45. Order 45 did not provide for the consequences of the failure and they had to beprovided for. What consequences are to follow from the failure is a different matter; what is material at the moment is that Rule 3 was enacted to provide for them. The very use of the words 'fails to furnish the security or make the deposit' makes it clear that there has been a failure and that the consequences of the failure are laid down in what follows.

There can be no question of failure if the period within which an act can be done at all has not expired; the question of failure will arise only after the expiry of the period which has been allowed. Rule 3 does not deal at all with the time to be allowed for furnishing the security or making the deposit; this is natural because this has already been exhaustively provided for in Order 45, Rule 7, which is made applicable by Rule 1 of Order 12. In Rule 1-A it is laid down that 'the security to be furnished under Order 45, Rule 7(1) (a) of the Code shall ..... be in the sum of'.

The security to be furnished under Order 45, Rule 7(1) (a) is the security to be furnished within the period prescribed therein. Any security that is furnished after the expiry of the period prescribed by Rule 7(1) cannot be said to be security to be furnished under it. This means that Rule 1-A contemplates that the maximum period fixed in Rule 7(1) of Order 45 cannot be exceeded. If further time were contemplated to be given under Order 12, Rule 3, the security furnished within this period could not be said to be security furnished under Order 45, Rule 7(1) and there should have been another provision similar to that in Rule 1-A fixing its sum.

Once it is conceded that Rule 3 lays down the consequences of the failure, it must necessarily mean that the rule does not confer power upon the Court to extend the period. It is evident that extending the period cannot be said to be a consequence of the failure to do the act within the prescribed period. I may at the cost of repetition, emphasize that the very idea of laying down consequences of the failure is repugnant to there being no failure at all on account of the period prescribed by Rule 7(1) being liable to be extended. The question of consequences will arise only if the failure is final, i.e., there can be no further extension of the period. Any provision 9 allowing further extension of the period would have been worded differently and not as a consequence of the failure.

7. The consequences laid down in Rule 3 are, (1) cancel the certificate. (2) give suitable directions as to the costs and the security and (3) make further and other order as the justice of the case requires. The first consequence is cancellation of the certificate. The use of the word 'and' after the word 'certificate' means that the second consequence follows the cancellation.

This is also clear from the nature of the directions to be given; on the cancellation of the certificate there will arise the question of the costs of the appeal and of the security if furnished. Unless the certificate is cancelled there will arise no occasion for giving directions as to the costs and the security. Thus giving directions is an act consequential or incidental to the cancellation of the certificate. The word 'or' preceding the words 'make such further' means that the further or other order as the justice of the case requires is an alternative to giving the directions as to the costs of the appeal and the security.

The whole of 'May give such directions.... or make such further or other order' must he read as consequential or incidental to the cancellation. As the sentence stands it is impossible to read 'make such further or other order' as an alternative to cancelling the certificate and giving directions as to the costs of the appeal and the security. The word 'may' occurring first in the rule cannot he read with the words 'make such further or other order' because it is remoter than the word 'may' used before the words 'may give such directions' and unless this is done, the third consequence cannot be held to be an alternative to the first consequence, i.e. cancellation.

It is only the word 'may' occurring before the words 'give such directions' that can be read with the words 'make such further' and when it as so read, the third consequence must be held to be as much consequential or incidental to the cancellation as the second one in respect of the costs of the appeal and the security. The various combinations in which the phrases 'may cancel', 'may give' and 'may make' can be used, the first two being connected by 'and' and the last two by 'or', are (1) may cancel and may give or make, (2) may cancel and give or make, (3) may cancel and give or may make and (4) may cancel and may give or may make.

Form 1 means that there must be cancelling and in addition there may be giving or making; there cannot be giving or making without cancelling. 'May give or make' means that making and giving are the two alternatives. At least without the word 'may' before 'make', making cannot be said to be an alternative to cancelling. The word 'and' connects cancelling with 'may give or make''. In form 3 cancelling and giving are regarded as one act and making is an alternative to it; there may be either cancelling (with or without giving) or making.

It is the word 'may' preceding 'make' that brings out the difference between this form and form 1. Forms 2 and 4 are somewhat ambiguous; the only difference between them is that in the former the word 'may' is used only once whereas in the latter it is used with each verb, but this is immaterial because in form 2 the word 'may' is to be read with the verbs 'give' and 'make''. The ambiguity in these forms arises because it is not certain whether making is an alternative only to giving or to both cancelling and giving, or whether the word 'and' connects both giving and making or only giving with cancelling.

Either of these forms can be interpreted to express the idea expressed by form 1 or that expressed by form 3. Rule 3 is In form 1 and means that there must be cancellation of the certificate and in addition directions may be given or any further or other Order may he made. Further or other order cannot be made without cancellation. In other words, an order granting further time is not contemplated by the phrase 'make such further or other order'. The period cannot be extended after the cancellation of the certificate.

8. The word 'further' in the last clause of Rule 3 indicates that it comes into operation after cancellation; the order to be passed under it must be a 'further order' and the only order that must precede it is that of cancellation. Giving directions may be treated as an order but is not mandatory. Though it is preceded by 'may' it is not mandatory because an alternative is provided for it. If making an order were an alternative to both cancellation and giving directions, the word 'further' would be rendered wholly meaningless.

Unless there was some previous order the order to be passed under this clause could not be described as a 'further order'. The use of the word 'other' in the third clause does not mean that it is an alternative to cancellation. Once the use of the word 'further' makes it clear that the third clause is not an alternative to cancellation, this result is not affected by the use of the words 'other order'. What is meant by these words is that the order to be passed under this clause need not be in the nature of a consequential order. 'Further' is used in the sense of a consequential order, but it may be necessary to pass another order which, though not consequential to cancellation, is in consonance with it.

There are several orders that can be passed after cancellation, for instance orders regarding compensation for delay because of a stay order, staying execution of the decree, granting time for satisfaction of the decree etc. The word 'other' must be interpreted ejusdem generis to mean an order analogous to a further order which is consistent with the cancellation of the certificate. The words 'the justice of the case requires' would not be appropriate with extension of time: they qualify the words 'such further or other order'. They cannot justify the passing of an order which does not come within the meaning of 'such further or other order.'

9. I, therefore, find that Order 12, Rule 3, does not confer any power upon the High Court to extend the period prescribed by Order 45, Rule 7.

10. It follows that cancellation of the certificate is mandatory on the failure; there is no alternative to it. On account of the failure no further action on the certificate can be taken and since the failure cannot be condoned (by permitting the security to be furnished and the amount to be deposited even after the expiry of the period prescribed by Order 45, Rule 7), the certificate must be cancelled. Therefore, the word 'may' used with the words 'cancel the certificate' means 'shall'. It cannot be denied that 'may' is used to mean 'shall'.

It would have been improper to use the word 'shall' in Order 12, Rule 3. 'Shall, on its own motion or on application... .cancel the certificate' would not be correct. The word 'shall' cannot be used both with cancelling on own motion and with cancelling on an application. If it is obligatory to cancel the certificate on own motion, the Court cannot wait for an application to be made and 'shall on application... .cancel the certificate' would be rendered infructuous. What is meant is that the certificate must be cancelled, whether on own motion or on application; as soon as the failure is brought to the notice of the Court, whether by office or by application, the certificate must be cancelled.

11. We were referred to Bishnath Singh v. Court of Wards Estates Sri Ramchandra Naik : AIR1939All299 and Hira Lal v. Kali Nath : AIR1956All349 . The former case dealt with the interpretation of a rule made by the Judicial Committee of the Privy Council, which was in the same language as Rule 3, Order 12. It was held by the Full Bench that the word 'may' allowed discretion to the Court, that it was not bound to cancel the certificate and that the last clause covered extension of the time prescribed by Order 45, Rule 7. With great respect I am unable to accept that interpretation as correct.

It is, however, not necessary to refer the case to a larger Bench because in this case we are concerned with the interpretation of Order 12, Rule 3, Even though this provision is in the same words as the rule made by the Judicial Committee, the Full Bench does not bind us to place the same interpretation on Order 12, Rule 3. The rule interpreted by the Full Bench was made by an authority different from the authority which made the rule in dispute before us. It is not known whether the Judicial Committee had made a rule similar to Rule 1 and 1-A of Order 12 of the Supreme Court Rules.

Moreover it was not considered by the Full Bench to what extent the word 'may' gives discretion to the Court, what Was the meaning of a sentence in the form 'may cancel and may give or make' whether the giving of directions and the making of further orders were meant to be in addition to cancellation and to what clause or clauses the last clause regarding making further orders was an alternative. The Full Bench seems to have assumed that it is an alternative to both the preceding clauses; when it did not discuss the matter at all, its assumption cannot be said to be binding on us.

In the latter case of 1956 only the vires of Order 12, Rule 3, was challenged before us; we were not called upon to, and did not interpret it. The view that I take receives full support from Lala Dharam Mirat Singh v. Man Singh : AIR1956All477 , in which it was held that Order 45, Rule 7, limits the power of the Court to grant extension, that Order 12, Rule 3, does not deal with extension of time and that its last clause has relation only to the earlier part regarding giving directions.

In M. Ramayya v. V. Lakshmayya, AIR 1938 Mad 796, a Full Bench held that extension of the period prescribed by Order 45, Rule 7, is within the scope of the phrase 'make such further or other order'. In the judgment there is, however, no discussion of the meaning to be given to the phrase. The Full Bench was of the view that there is a conflict between the provisions of Order 45, Rule 7, and Rule 9 of the Rules framed by the Judicial Committee and that under Section 112 of the Civil Procedure Code the former has to give way to the latter.

With great respect I do not see that there isany conflict between the two rules. If Order 45, Rule 7 confers jurisdiction to grant certain extension and the Judicial Committee Rule confers jurisdiction to grant further extension, it cannot be said that there is any conflict between the two rules, It is, however, to be noted that the Judicial Committee rule was held to override Order 45, Rule 7, because of Section 112, C.P.C. In the present case Order 12 of the Supreme Court Rules itself makes Order 45 applicable.

In Shankar Dayamangouda v. Puttabai Gurunathgonda, ILR 1939 Bom 556: (AIR 1939 Bom 483) a Bench assumed without any discussion that Rule 9 of the Judicial Committee Rules confers jurisdiction upon the High Court to extend the time; Rule 9 was not quoted at all in the judgment and there is no discussion of the meaning to be attached to its language. This view was taken in Raja Mohan Manucha v. Manzur Ahmad, ILR 14 Luck 335 : (AIR 1939 Oudh 42), Lachmeshwar Prasad v. Girdhari Lal, ILR 19 Pat 123 : (AIR1939 Pat 667), Ismail Piperdi v. Momin Bibi, AIR 1940 Rang 12 and Ghulam Rasul y. Ghulam Qutab-ud-din, ILR 1942 Lah 447: (AIR 1942 Lah 147) (FB). There was some discussion of the meaning of Rule 9 in the case of Ghulam Rasul; Dalip Singh J. observed that the words 'or make such further or other order' are in opposition to the words 'may cancel' because otherwise they would have been preceded by the word 'and' and not 'or'. With great respect I do not agree with this reason; if the word 'and' had been used, the power to make further and other order could have existed only if directions had been given. The word 'and'' can be used to mean 'or' and the word 'or' used serves the purpose of the suggested word 'and'. Thus there is practically nothing in these decisions that adds anything to what was said by the Full Bench of this Court in the case of : AIR1939All299 .

12. I am, therefore, convinced that Order 12, Rule 3 does not confer any jurisdiction upon this court to permit security to be furnished and deposit to be made after the expiry of the time prescribed by Order 45, Rule 7.

13. Sri H. N. Seth has not also been able to satisfy us that there were sufficient reasons for the appellants not furnishing the security and not making the deposit within the time allowed under Order 45, Rule 7. Even if, therefore, we had the jurisdiction we would not be justified in allowing the security to be furnished and the deposit to be made after the expiry of the period. The oral application is, therefore, rejected. The certificate is cancelled.

Kailash Prasad, J.

14. I agree.


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