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B, an Advocate of Benares Vs. Judges of High Court at Allahabad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All241; 145Ind.Cas.367
AppellantB, an Advocate of Benares
RespondentJudges of High Court at Allahabad
Excerpt:
- - the applicant applied for leave to appeal to his majesty in council and on 10th june 1932 a certificate was granted that the case was a fit one for appeal to his majesty in council under order 45, rule 7 the applicant was bound to furnish security, and to deposit the amount required for translation and printing, within six weeks from the date of the grant of the certificate or within 90 days from the date of the order complained of or within such further period not exceeding 60 days as the court might upon cause shown allow. as order 45, rule 7 now stands (after the amendment introduced by act 26 of 1920) the applicant is bound to furnish the security and make the deposit within 90 days or such further period, not exceeding 60 days, as the court may upon cause shown allow from the.....king, j.1. this reference arises out of an application for leave to appeal to his majesty in council. the applicant b is an advocate practising at benares. on 26th may 1932 a bench of this court passed an order suspending the applicant from practice for a term of three months. the applicant applied for leave to appeal to his majesty in council and on 10th june 1932 a certificate was granted that the case was a fit one for appeal to his majesty in council under order 45, rule 7 the applicant was bound to furnish security, and to deposit the amount required for translation and printing, within six weeks from the date of the grant of the certificate or within 90 days from the date of the order complained of or within such further period not exceeding 60 days as the court might upon cause.....
Judgment:

King, J.

1. This reference arises out of an application for leave to appeal to His Majesty in Council. The applicant B is an advocate practising at Benares. On 26th May 1932 a Bench of this Court passed an order suspending the applicant from practice for a term of three months. The applicant applied for leave to appeal to His Majesty in Council and on 10th June 1932 a certificate was granted that the case was a fit one for appeal to His Majesty in Council Under Order 45, Rule 7 the applicant was bound to furnish security, and to deposit the amount required for translation and printing, within six weeks from the date of the grant of the certificate or within 90 days from the date of the order complained of or within such further period not exceeding 60 days as the Court might upon cause shown allow. The term of six weeks from the grant of the certificate expired on 22nd July 1932 and no application was made for any extension of that term. By an order dated 27th July 1932, a Bench of this Court passed an order extending the time for furnishing security to 150 days from the date of the order to be appealed against. This period expired on 24th October 1932.

2. On 24th October 1932 the applicant filed a petition stating that he had been ordered to furnish cash security to the amount of Rs. 4,000 and had. got the money ready. He stated that if he deposited the money in Court he would lose interest and therefore he asked permission to purchase postal cash certificates to the value of Rupees-4,000 and to deposit the certificates in lieu of cash. The learned Judge, before whom the application was presented, passed an order that the tender might be accepted and that the office should submit a report. The office submitted a report on 26th October 1932 stating that as the security of Rupees. 4,000 and the costs of translation and printing had not yet been deposited and the period for deposit had expired, no deposit could be received. The learned application Judge then passed an order on 27th October that the post office cash certificates might be received instead of cash and that the sum of Rs. 393-13-0 for translation and printing charge's might be accepted if deposited in cash on that day. The applicant accordingly deposited the post office cash certificates and the sum of Rs. 393-13-0 on 27th October. The first question is whether the security has been furnished and. the cash deposited within time.

3. The answer depends upon whether the applicant made a valid tender of the amount which he was required to-deposit on 24th October 1932. This is mainly a question of pure fact. On the date in question he did not actually deposit any cash or post office cash certificates but he stated that he had the money for the security of Rupees 4,000 ready and asked permission to deposit that amount in the form of post office cash certificates instead of in cash. As his tender was accepted, it may be held to be valid tender of Rs. 4,000 as security within time. The applicant however did not even refer to the sum of Rs. 393-13-0 which also had to be deposited in cash on 24th October. There was no question of depositing this sum in the form of post-office cash certificates. He did not deposit this sum in cash on 24th October and did not even stated that he had the cash ready and was willing to deposit it on that date. Under Order 45., Rule 7 the applicant was bound not merely to furnish security for the respondents' costs but also to deposit the translation and printing charges. As he did not deposit or offer to deposit, the translation and printing charges on 24th October, I think it is clear that his tender was not valid and that he cannot be held to have complied with the requirements of Order 45, Rule 7 within time.

4. The next question is whether this Court is empowered under Order 45, Rule 7 to extend time for furnishing security and for depositing translation and printing charges beyond the term of 150 days from the order to be appealed against. If the language of Order 45, Rule 7 is to be construed without reference to the rules made by His Majesty in Council I think it is clear that the Court has no power to grant any further extension. As Order 45, Rule 7 now stands (after the amendment introduced by Act 26 of 1920) the applicant is bound to furnish the security and make the deposit

within 90 days or such further period, not exceeding 60 days, as the Court may upon cause shown allow from the date of the decree complained of.

5. Considering that the legislature has expressly laid down that the Court can grant a further period not exceeding 60 days it seems to me clear that the Court has no discretion to grant any extension beyond 60 days. This view has almost uniformly been accepted by the High Courts in India. So far as this Court is concerned I would refer to the decision in Ram Dhan v. Prag Narain AIR 1922 All 43 which was followed in Joti Prasad v. Harkesh Singh (1928) 119 IC 574. To my mind, it is perfectly clear that under the provisions of Order 45, Rule 7 the High Court has no discretion to grant extension of time exceeding 150 days from the date of the decree or order to be appealed against. The last question is whether the provisions of Order 45, Rule 7 in so far as they limit the discretion, of the Court to grant an extension exceeding 150 days from the date of the decree, have been overridden by a rule contained in an order of His Majesty in Council. The order referred to was made on 9th February 1920 and was published for, information in the Gazette on 17th April 1920 and was declared to come into operation on 1st January 1921. This order contained certain rules for regulating the practice in appeals to His Majesty in Council, and we are concerned with Rule 9 which runs as follows:

Where an appellant, having obtained a certificate for the admission of an appeal, fails to furnish the security or make the deposit required (or apply with due diligence to the Court for an order admitting the appeal), the Court may, on its own motion or on an application in that behalf made by the respondent, cancel the certificate for the admission of the appeal, and may give such directions as to the costs of the appeal and the security entered into by the appellant as the Court shall think fit, or make such further or other order in the premises as, in the opinion of the Court, the justice of the case requires.

6. It is argued for the applicant that under this rule the High Court is given unlimited discretion to extend time for furnishing the security and making the necessary deposit, notwithstanding anything contained in Order 45, Rule 7. The language of Rule 9 is certainly very wide. It does not expressly state that the Court may extend time if the appellant fails to furnish security and to make the deposit, but it empowers the Court in case of such failure:

to make such further or other order in the premises as in the opinion of the Court, the justice of the case requires.

7. The main question is whether this wide and general power conferred by Rule 9 should be interpreted as conflicting with a clear statutory provision which regulates the same subject. If the provisions of Order 45, Rule 7 are interpreted as irreconcilable with the provisions of Rule 9, which was made by His Majesty in Council, then I think it is clear that, under Section 112, Civil P.C., the latter rule must prevail. In my opinion however there is, no real conflict between these two rules. It is a well recognized maxim of interpretation that when there are two provisions having the force of law and regulating the same subject, they should if possible be so construed as to be consistent with each other. The Indian legislature in passing Act 26 of 1920 obviously must have borne in mind the provisions of the order of His Majesty in Council dated 9th February 1920. That order came into force on 1st January 1921 and Act 26 of 1920 also came into force on the very same day. Obviously the Indian legislature could not have intended any provision of Act 26 of 1920 to conflict with any rule made by His Majesty in Council and we should be very reluctant to hold that any provision of Act 26 was invalid as being inconsistent with the Privy Council rule. The Privy Council rules, and Act 26, must be taken to be parts of the same legislative sheme and construed accordingly. I think it is possible to construe Rule 9 so as to avoid any inconsistency. That rule gives the Court discretion to pass certain orders in case of default made by the appellant in furnishing security and making the deposit. The orders are to be passed when the appellant 'fails to furnish the security or make the deposit required.' I think this contemplates the stage when there has been a final failure, i.e., when the appellant has failed to do the necessary acts before the expiration of the final statutory period, together with such further period (if any) as the Court may have granted according to law. In other words, I think the stage at which Rule 9 becomes applicable is not reached until the expiration of both statutory periods and until the Court either cannot or will not grant any further period. If this is the correct interpretation, it seems to me that Rule 9 does not even contemplate the allowance of any further period.

8. It only contemplates the passing of such other orders as may be necessary in consequence of the appellant's final failure to do the necessary acts within the statutory period together with such further period (if any) as the Court has allowed according to law. If Rule 9 is held to be applicable as soon as the appellant fails to do the necessary acts within the statutory period, then the Court may in some cases (as in the present case) be empowered under Order 45, Rule 7 to allow a further period, and it is unnecessary to invoke Rule 9 as authorizing such allowance. In my opinion therefore Rule 9 was never intended to sanction the allowance of any further period. It refers to such other orders as may be necessary when there has been a final failure and when no question arises of granting more time. It must however be conceded that the powers given by Rule 9, to

make such further or other order...as, in the opinion of the Court the justice of the cases requires.

are wide enough to cover an order granting a further period. The question then arises whether the legislature intended by such general words to give the Courts absolute discretion to ignore or override a clear statutory provision in the matter of granting a further period. Supposing the Court has (as in this case) already allowed the maximum further period permitted by law. Has the Court discretion under Rule 9 to allow a further unlawful period? I. think not. When a Court is given discretion to do something, it must be understood that a judicial discretion is given, to be exercised according to law, not an absolute discretion which may be exercised in defiance of law. It seems hardly necessary to quote authority for this proposition. The Indian Legislature has by statute limited the discretion of the Court in the matter of allowing time. I doubt whether Rule 9 even contemplated an order allowing more time. But even if such an order was intended to be included among the orders to be passed under that rule, then I think that it was intended that time could be allowed only in accordance with law. Statutory provisions cannot, in my opinion, be overridden without clear words to that effect. The meaning of the wide and general language empowering the Court to make such further order as the justice of the case requires should, I think, be restricted so as to authorise only a lawful order, and not an unlawful order. On this view the suggested conflict between Rule 9 and Order 45 Rule 7 can be reconciled. An alternative justificable method of reconciling the; two provisions is to apply the maxim 'generalia specialibus non derogant.' If Privy Council Rule 9 gives power to enlarge time it is only because its language is so general and sweeping that it would include orders of every description. The limitation of the Court's discretion to enlarge time (introduced by Act 26 of 1920 into Order 45 Rule 7,) is, on the other hand, a very special provision. Now the relevant rule of interpretation is stated in Maxwell's Interpretation of Statutes (Eden. 7, p. 146) as follows:

Where a general intention is expressed, and also a particular intention which is incompatible with the general one, the particular intention is considered an exception to the general one.

9. Cases are cited in which inconsistent Acts, or inconsistent provisions of the same Act, have been treated as reconcilable in this manner. Adopting this method we may treat the special provision enacted by Act 26 of 1920, not as repealed by the sweeping terms of Privy Council Rule 9, but as being an exception to the latter. In view of the fact that the Privy Council rules were expressly made for the purpose of 'preventing delays' in the making of appeals, I think it would be unreasonable to interpret Rule 9 as defeating an attempt on the part of the Indian Legislature to prevent delays by limiting the discretion of the Courts in allowing time for furnishing security and making deposits. It seems to me that a similar method of interpretation is required to avoid a conflict between Order 45 Rule 7 and Section 148, Civil P.C.

10. When the statutory period of 90 days fixed by Order 45, Rule 7 has expired, no extension of that period is given by statute. If any extension is given, it is given by the Court 'upon cause shown.' Supposing the Court extends the time by 50 days and the appellant subsequently applies for a further extension of 20 days. Under Section 148 the Court could grant the application, being expressly permitted to enlarge the period, from time to time 'in its discretion.' No limits are fixed to the number or length of the enlargements. Now, if we turn to Order 45, Rule 7 we find that the Court could not grant further extension exceeding 10 days. Clearly there is a conflict between the two provisions. Which of them is to prevail I think it is clear that Order 45, Rule 7 must prevail, both on the principle 'generalia specialibus non derogant' and on the principle that the general discretion given by Section 148 is a judicial discretion which can only be exercised according to law and not in contravention of law.

11. The applicant relics strongly upon the Full Bench decision of the Bombay High Court in Nilkanth v. Satchidanand AIR 1927 Bom 217. In that case it was held by the Full Bench that Rule 9 of the Privy Council rules of 1920 emqowers the Court to enlarge the time for furnishing security and making the deposit beyond the period prescribed by Order 45, Rule 7. This view has been expressly dissented from by the Madras High Court in Poornananthachi v. T.S. Gopalaswami AIR 1932 Mad 484. The whole question and the conflicting authorities have been fully discussed in that ruling and I need only say that I agree to the view taken by the learned Judges in that case and respectfully dissent from the view expressed by the Bombay High Court. In an unreported decision of this Court in Hansnath v. Raghu Prasad Singh All PC Appeal No. 25 of 1927, decided on 21-10-1927 a Bench of this Court also took the view that Rule 9 of the Privy Council Rules does not override the provisions of Order 45, Rule 7. The view taken by the Bombay High Court was expressly dissented from. In my opinion, the view taken in this unreported case by a Bench of this Court, and the view taken by the Madras High Court, is correct and I would hold that the Court has no discretion to extend time exceeding 150 days from the date of the order to be appealed against.

Mukerji, Ag. C.J.

12. I am entirely of the same opinion as my brother, King, J. I may add that I took the same view in the unreported case referred to by my brother. In that case, the effect of Clause 9 of the Privy Council Rules, is not discussed at length. But I have had the advantage of fuller arguments on the point and also the advantage of reading the judgments of the Bombay and Madras Courts. I am of opinion that the Privy Council rule was never framed with the idea of extending time beyond the limit fixed by the Indian Legislature and the two sets of rules, one contained in Order 45, Civil P.C, and the other contained in the Code of Civil Procedure. Rules were meant only to supplement one another. The Legislature knew that if they framed any rules, by amending Order 45, they could not override the rules framed by His Majesty in Council and they had the rules framed by His Majesty in Council before them when they amended the Order 45. Then as the two sets of rules came into force on one and the same day, it may be fairly assumed that the draft bill of the Indian Legislature was submitted to His Majesty in Council for approval. It is open to us to read the rules of both the authorities so as to harmonize them, and we ought to read them as harmonizing. I would therefore revoke the certificate already granted to B on the ground that he has failed to deposit the translation and printing charges within the time allowed by Rule 7, Order 45, Civil P.C.

Niamatullah, J.

13. I am in agreement with my brother, King, J., on questions of facts arising in this case. The applicant B was suspended for three months by a Bench of this Court on 26th May 1932. The period of limitation for an application for leave to appeal to Privy Council is 90 days; but as the applicant had to obtain an order of stay in respect of the suspension order passed against him, he had to apply for leave to appeal much earlier than is usual. Leave was granted on 10th June 1932, and under Order 45, Rule 7, Civil P.C., he had to furnish security for costs of the respondent and to deposit the amount required to defray the expenses of translating etc., within 90 days or such fur-further time not exceeding 60 days as the Court may allow from the date of the order appealed from ( in this case 26th May 1932) or within six weeks from the day of the granting the certificate (in this case 10th June 1932.) The applicant was allowed the maximum period of 60 days by which the period of 90 days counted from the date of the order appealed from could be extended. I agree in holding that in the circumstances of the case, the applicant should be considered to have made a valid tender of security within time but that he failed to deposit the sum of Rs. 393-13-0 required for expenses of translating, transcribing etc. This sum should have been deposited by 24th October 1932, but was not deposited till 27th October 1932. The question is whether the delay of three days in depositing the estimated costs of translating etc., required by Order 45, Rule 7(1)(b), Civil P.C., can be condoned.

14. A Division Bench of this Court held in Ram Dhan v. Prag Narain AIR 1922 All 43 and in Joti Prasad v. Harkesh Singh (1928) 119 IC 574 that the Court had no power to extend the time provided for by Order 45, Rule 7. It has since been held by a Full Bench of the Bombay High Court in Nilkanth v. Shri Satchidanand AIR 1927 Bom 217, that in view of Rule 9 of the Privy Council Rules of 1920, the Court had power to grant extension of time beyond what is laid down in Order 45, Rule 7. A Division Bench of the Madras High Court has taken a contrary view in Poornananthachi v. T.S. Gopalaswamy AIR 1932 Mad 484. The present reference to a Full Bench has been made in view of the conflicting authorities above referred to. I may say at once that the question is not free from difficulty; but on a consideration of the language of Order 45, Rules 7 to 11 and Rule 9, of the Privy, Council Rules I have arrived at the conclusion that the Court has power to grant further extension than what is provided for by Order 45, Rule 7, Civil P.C.

15. Great stress is laid on the circumstance that the Privy Council Rules and Act 26 of 1920, by which a rnaximum limit of extension was introduced in Order 45, Rule 7, Civil, P.C, came into force on the same day. Though the two were enacted at different places and by different authorities, yet they may be taken to be part of the same scheme, as was held lay the learned Chief Justice of the Madras High Court in Poornananthachi v. T.S. Gopalaswamy AIR 1932 Mad 484. I am quoting below relevant portions of the various provisions, including Rule 9 of the Privy Council Rules, in the order in which, in my opinion, they should be read in order to understand the extent to which Order 45, Rule 7, really limits the power of the Court in extending time:

Order 45, Rule 7: Where the certificate is granted, the applicant shall, within 90 days or such further period, not exceeding 60 days, as the Court may upon cause shown allow, from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever is the later date (a) furnish security in cash or in Government securities for the costs of the respondent, and (b) deposit the amount required to defray the expenses of translating, transcribing, indexing and transmitting to His Majesty in Council a correct copy of the whole record of the suit?

Order 45, Rule 8: Where such security has bean furnished and deposit made to the satisfaction of the Court, the Court shall (a) declare the appeal admitted (b) give notice thereof to the respondent (c) transmit to His Majesty in Council...a copy of the said record...(d) give to either party one or more authenticated copies of any of the papers in the suit on his applying therefor.' Rule 9, Privy Council Rules: Where an appellant, having obtained a certificate for the admission of an appeal, fails to furnish the security or make the deposit required (or apply with due diligence to the Court for an order admitting the appeal), the Court may, on its own motion or on any application in that behalf made by the respondent, cancel the certificate for the admission of the appeal, and may give such directions as to costs of the appeal and the security entered into by the appellant as the Court shall think fit, or make such further or other order in the premises, as in the opinion of the Court, the justice of the case requires.

Order 45, Rule 10: Where at any time after the admission of an appeal, but before the transmission of the copy of the record, except as aforesaid, to His Majesty in Council, such security appears inadequate, or further payment is required for the purpose of translating, transcribing, printing, indexing or transmitting the copy of the record, except as aforesaid, the Court may order the appellant to furnish within a time to be fixed by the Court, other and sufficient security, or to make, within like time, the required payment.

Order 45, Rule 11: Where the appellant fails to comply with such order, the proceedings shall be stayed, and the appeal shall not proceed without an order in this behalf of His Majesty in Council and in the meantime execution of the decree appealed from shall not be stayed.

16. Rule 9 of the Privy Council Rules is so worded that it is impossible to construe it as excluding the power to condone delay in furnishing security or depositing the expenses of translation etc., as an alternative to cancelling the certificate. The words 'or make such further or other order' as the justice of the case requires are comprehensive enough to include a power to condone delay or extend time as an alternative to the certificates being cancelled. There is in my opinion, no justification for restricting the ordinary and natural meaning of the words referred to above. It is however clear to me that though the rule does not place any limit on the power of the Court in granting extension as an alternative to cancelling the certificates, yet the rule contemplates extension in rare and exceptional cases.

17. The scheme of the provisions quoted above, is to my mind, as follows: Order 45, Rule 7, is not intended to provide exhaustively what power the Court can exercise in the matter of granting time. As the rule clearly indicates, it contains an injunction addressed to the applicant who is directed to furnish security or to make deposit within 90 days or such further period not exceeding 60 days from the date of the decree, or within six weeks of the grant of the certificate. The rule which follows (Rule 8) lays down what is to happen if he does furnish the security and make the deposit. In that case his appeal 'shall' be admitted and certain other things therein mentioned must follow. If the security is furnished and the deposit is made within the time referred to in Rule 7, no discretion has been given to the Court, which must declare the appeal admitted and do certain other matters. The Civil Procedure Code does not mention the consequence of the applicant's failure to furnish security or to deposit expenses. This is the province of Rule 9 of the Privy Council Rules, which provides that, in case the applicant fails to furnish the security or make the deposit, the Court has discretion (which it would not have had if the deposit had been made) to cancel the certificate, or if the justice of the case requires, to condone the delay or grant further time. In my opinion Order 45, Rule 7 and Rule 9 can be so read as to avoid inconsistency between them. As already stated, Rule 7 does not say expressly or by necessary implication that the Court has no power to grant an extension for more than 60 days. As regards the first period therein mentioned, the period of 90 days or the extended period is laid down for the applicant who if he is to retain the absolute right of having his appeal admitted, must furnish security and make the deposit within that time.

18. Assuming that Rule 7 does limit the power of the Court in granting extension, that limit operates for a given purpose. The Court may not extend the period of 90 days from the date of the decree by more than 60 days for the purpose of enabling the applicant to have an absolute right of the appeal being admitted and of excluding its own discretion in cancelling the certificate or condoning delay. Once the stage when Rule 9 can be applied is reached, the applicant loses that absolute right and runs the risk of the Court's discretion being exercised against him. According to the rule or Order 45, Rule 7 the Court is not compelled to cancel the certificates on the applicant failing to furnish security or (make the deposit. It may be that, on security being furnished and the deposit made, the Court must admit the appeal; but the converse does not necessarily follow that, if the security is not furnished or the deposit is not made, the Court must cancel the certificate. The rule is clear that in such a contingency the Court is not bound to cancel the certificate and may pass any order which the justice of the case may require. I cannot imagine that the law in this respect has been deliberately made so stringent as to give no power to the Court in condoning delay where the deposit within time, for costs of translating and printing, was through inadvertence, short by a trifling amount which however was deposited beyond time, or where the applicant furnished security one day after the last date in circumstances beyond human control.

19. It is, to my mind, impossible to accept the hypothesis that the legislature has deliberately excluded the power of the Court to condone delay in extreme cases of the kind referred to above. Rules 10 and 11, Order 45, indirectly throw some light on the intention of the legislature as to what should happen in case security for costs is not furnished or deposit: is not made within the time limited by Rule 7. It is significant that the consequences of the appellant's failure to furnish additional security or to make the additional deposit for costs of translating and printing is expressly stated in Rule 11. In that case the appeal 'shall not proceed without an order in this behalf of His Majesty in Council.' If it was the intention of the legislature that the period provided by Rule 7 should be taken to be so rigid that the applicant's failure to furnish security or to make the deposit within the period referred to in Rule 7 should have the consequences of the certificate being cancelled, the Civil Procedure Code should have provided that the certificate shall be cancelled or that, like Rule 11, the proceedings shall not proceed without an order in this behalf of His Majesty in Council. On the contrary we find that Rule 9 expressly provides that in such an eventuality the Court is not bound to cancel the certificate but may pass any other order, including, of course, the order condoning delay or extending time if the justice of the case may so require.

20. I may refer, by way of analogy, to what has been held by several High Courts in reference to Order 9, Rule 9, Civil P.C., which provides that, where a suit is dismissed in default of plaintiff's appearance, the Court 'shall make an order setting aside the dismissal' if the plaintiff satisfies the Court that there was sufficient cause for non-appearance when the suit was called on for hearing. A Division Bench of this Court in Lalta Prasad v. Ram Karan (1912) 34 All 426, held that:

Order 9, Rule 9, makes it compulsory on a Court to set aside a dismissal under Order 9, Rule 8, where the plaintiff satisfies the Court that there was sufficient cause for non-appearance. It, however, cannot take away the Court's power to restore the case for any other valid reason.

21. The Bombay High Court has taken the same view in Bilasirai v. Cursondas AIR 1920 Bom 337. To my mind the same reasoning is applicable in the present case. If the applicant furnishes security and makes the deposit within the time laid down by Rule 7, Order 45, it is compulsory on the Court to admit his appeal. If however he fails to do so, the power of the Court given by Rule 9 of the Privy Council. Rules may yet be exercised in his favour, if the ends of justice so require. It should be noticed that, in cases in which sufficient cause for nonappearance was not shown and therefore the Court was not bound to restore under Order 9, Rule 9, it had to resort to its inherent power. Other High Courts held that there was no inherent power where express provision was made: see. Gauri Neelaveni v. Narayana Reddi AIR 1920 Mad 640. A case of the kind before us is tree from this complication, as it is not necessary to have recourse to inherent power, but to powers expressly given to it by Rule 9.

22. As regards the case law, the only cases in which Rule 9 has been considered are: Nilknath v. Shri Satchidanand AIR 1927 Bom 217, Poornananthachi v. T.S. Gopalaswamy AIR 1932 Mad 484 and Hukum Chand Kaliwal v. Radha Kissen Moti Lal A.I.R. 1932 Oudh 249. All other cases, including those decided by this Court, are cases in which Rule 9 of the Privy Council. Rules was overlooked. They are therefore no authority for the determination of the question which we are called upon to decide. The decision of the Full Bench in Nilknath v. Shri Satchidanand AIR 1927 Bom 217, is in favour of the view which I am inclined to take, though I do not think with the learned judges who decided that case that there is necessarily an inconsistency between Order 45, Rule 7, Civil P.C. and Rule 9 of the Privy Council Rules. The learned judges in that case held that if there is an inconsistency, Rule 9 of the Privy Council Rules should prevail. I would accept this view if the two be taken to be irreconcilable. Poornananthachi v. T.S. Gopalaswamy AIR 1932 Mad 484, p. 835 is a definite pronouncement against the view that the Court has power to extend time beyond that which is prescribed by Order 45, Rule 7. Beasley, C.J., who delivered the leading judgment in the case, conceded that Rule 9 does confer power on the Court to extend time, but he expressed the opinion that the extension must be within the limits laid down by Order 45, Rule 7, Civil P.C. He observed as follows:

I do not think Rule 9, Privy Council Rules, is in conflict with Order 45, Rule 7, because the latter rule does provide for a further extended period not exceeding 60 days upon cause being shown to the Court. Suppose, therefore, the 90 days from the date of the decree have passed without security being furnished; Rule 9, Privy Council Rules, it seems to me, gives nothing more than the right to cancel the certificate or, if it can he read as giving the Court any power to extend the time, then, if good cause is shown, to extend the time for furnishing the security, provided the extended time does not exceed 60 days.

23. With respect, I wish to point out that the application of Rule 9 is not necessarily reached when the 90 days from the date of the decree have passed and the applicant has failed to furnish security and make the deposit required by Rule 7. It should be borne in mind that the period of limitation for an application for leave to appeal to the Privy Council is 90 days from the date of the decree to be appealed from. In a large majority of cases the period of six weeks from the date of the certificate expires long after the ninety days from the date of the decree and also the maximum period of sixty days by which the Court may extend the aforesaid 90 days. It is therefore not correct to say that Rule 9 becomes applicable when the 90 days from the date of decree have expired, and unless the Court grants an extension up to the period of 60 days, it should cancel the certificate, because, in a majority of cases the six weeks from the date of the certificate is yet to run, and the Court has no discretion to cancel the certificate in terms of Rule 9. It seems to me clear that a case for cancellation of certificates cannot arise, except when not only the 90 days from the date of the decree but also six weeks from the date of the certificate have expired. If therefore six weeks from the date of the certificate expired long after the expiry of 90 days plus 60 days (by which that period could be. extended,) and the Court has to take action under Rule 9 of the Privy Council Rules, its powers are, as the rule stands, to cancel the certificate or make such other order as the justice of the case requires, including the power to condone delay for cogent reasons. It the same words imply the power to extend time when it is reached after the expiry of the 90 days from the dale of the decree, I fail to understand why the meaning of the same words should be different when it is reached after the expiry of six weeks from the date of the certificate. I do not think clear meaning of words employed in any rule of law can be controlled by conclusions as to the intention of the Legislature drawn from speculative theories.

24. As regards the Oudh ruling, to which reference has. already been made, it is enough to point out that it does not discuss the question and dissents from Nilkanth v. Shri Satchidanand AIR 1927 Bom 217 on the solitary ground that it is inconsistent with the established practice of that Court; a practice based on cases which did not consider Rule 9 of the Privy Council Rules. For the reasons given above, I am of opinion that Order 45, Rule 7, Civil P.C., and Rule 9 of the Privy Council Rules can be so read as to make them consistent with each other and that a reading thereof which makes them consistent should be preferred to the one which makes them inconsistent. If however the two are irreconcilible, Rule 9 should, in my opinion, prevail, especially since it confers a power which is indispensable for doing justice in certain cases of an exceptional nature. I am not impressed by the suggestion that once the existence of such a power is conceded, a flood gate will be opened for applications for extension of time, which it was the intention of the Legislature to avoid in enacting Act 26 of 1920. The Judges of the High Court can be trusted to discriminate between cases in which ends of justice demand an extension of time and those in which they do not. As the majority of the Judges constituting the Full Bench held that the Court cannot condone the delay in depositing costs of translating. and printing, it is not necessary for me to consider whether in the circumstances of this case delay ought to be condoned.


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