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The Mahalaxmi Tent Factory, Jodhpur Vs. Kamla Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 99 to 103 of 1974
Judge
Reported inAIR1975Raj13; 1974(7)WLN295
ActsCode of Civil Procedure (CPC) , 1908 - Sections 121, 122 and 128(1) - Order 18, Rules 5 and 19
AppellantThe Mahalaxmi Tent Factory, Jodhpur
RespondentKamla Devi and ors.
Advocates: M.M. Vyas, Adv.
DispositionPetitions dismissed
Cases ReferredChandra Bhushan Misra. v. Smt. Jayatri Devi.
Excerpt:
.....think it necessary to record their statements under rule 5 of order xviii. the provisions of order xviii, rule 19 are therefore quite consistent with those of rule 5 of that order and, on a harmonious construction, both the rules can co-exist and operate within their respective spheres.;(c) civil procedure code - sections 122 and 128(1)--sub-section (1) does not apply to the rules in the first schedule.; it only provides that the rules made by the high courts under the aforesaid section 122 shall not be inconsistent with the provisions in the 'body' of the code. this provision of the sub-section does not therefore apply to the rules in the first schedule of the code and any reference to the sub-section is beside the point.;(d) civil procedure code - order 26 rule 4a--order issuing..........it necessary to record their statements tinder rule 5 of order xviii. the provisions of order xviii rule 19 are therefore quite consistent with those of rule 5 of that order and, on a harmonious construction, both the rules can co-exist and operate within their respective spheres. 7. it has next been argued that the impugned orders of the trial court, for the examination of witnesses on commission, are illegal because it was not permissible for it, under the newly added rule 4-a of order xxvi, to order the issue of commission for the recording of the statements of those witnesses who were not residing within the local limits of its jurisdiction. the learned counselfor the petitioners has, in this connection, invited my attention only to the trial court's order in s. b. civil.....
Judgment:
ORDER

P.N. Shinghal, J.

1. These revision petitions relate to the validity of the amendments which have been made in Orders XVIII and XXVI of the Code of Civil Procedure, hereinafter referred to as 'the Code', by Notification No. 3/S. R. O./S. O. 119 dated November 29, 1973, published in the State Gazette, extraordinary, dated December 1, 1973. The learned counsel for the petitioners has advanced his arguments in all these petitions together, and I shall dispose them of bv a common Judgment as suggested by him.

2. It has been argued by the learned counsel that Rule 5 of Order XVIII of the Code forms a part of the body of the Code, and that the new Rule 19 of that Order, which has been inserted by the aforesaid notification, is invalid as it is inconsistent with that rule. The argument has been based on the provisions of Section 128(1).

3. Section 121 deals with the effect of the rules in the First Schedule of the Code. It provides that 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 other provisions of Part X. That, by itself, is sufficient to show that the rules in the 1st Sch. of the Code have not been enacted in the body of the Code but have been given that 'effect' until they are 'annulled or altered'. The question whether the rules made under that Part constitute the 'body of the Code' in fact specifically arose for consideration in Chandra Bhushan Misra. v. Smt. Jayatri Devi. AIR 1969 All 142 (FB). and it was held by a Full Bench of their Lordships of the Allahabad High Court that the expression 'the body of the Code' refersonly to the sections of the Code and not to the First Schedule, and that the sections alone comprise the body of the Code. I am in respectful agreement with that view. The Rules in the First Schedule are not therefore a part of the body of the Code.

4. Moreover, Section 122 empowers the High Courts to make rules regulating, inter alia, the procedure of the Civil Courts subject to their superintendence. And the section expressly states that the High Courts may by such rules 'annul, alter or add to all or any of the rules in the First Schedule.' It is therefore futile to argue that the new Rule 19 of Order XVIII should be struck down because of its so-called inconsistency with Rule 5 of that Order.

5. I have gone through Sub-section (1) of Section 128 of the Code on which considerable reliance has been placed by the learned Counsel for the petitioners. But it only provides that the rules made by the High Courts under the aforesaid Section 122 shall not be inconsistent with the provisions in the 'body' of the Code. This provision of the sub-section does not therefore apply to the rules in the First Schedule of the Code and any reference to the sub-section is beside the point.

6. An ancillary argument has been made that the new Rule 19 of Order XVIII of the Code is invalid it is, at any rate, inconsistent with Rule 5 of that Order so that the two inconsistent provisions cannot stand side by side. I have examined the two rules, but I am unable to find any inconsistency. Rule 19 merely enables the Court to get the statements recorded on commission in accordance with the provisions of Rule 4-A of Order XXVI. It is an enabling provision which serves the purpose of making it permissible for the Court to examine those witnesses on commission who are resident within the local limits of its jurisdiction. It thus provides the facility of examining the witnesses on commission in all those cases where the Court does not think it necessary to record their statements tinder Rule 5 of Order XVIII. The provisions of Order XVIII Rule 19 are therefore quite consistent with those of Rule 5 of that Order and, on a harmonious construction, both the rules can co-exist and operate within their respective spheres.

7. It has next been argued that the impugned orders of the trial Court, for the examination of witnesses on commission, are illegal because it was not permissible for it, under the newly added Rule 4-A of Order XXVI, to order the issue of commission for the recording of the statements of those witnesses who were not residing within the local limits of its jurisdiction. The learned Counselfor the petitioners has, in this connection, invited my attention only to the trial Court's Order in S. B. Civil Revision No. 99 of 1974 as, according to him the other orders are similar and are not based on any other consideration. The point, it appears, engaged the attention of the trial Court, and it has rightly observed that it was permissible for it to issue the commission in accordance with the provisions of Sub-rule (1) of Rule 4 of Order XXVI. That sub-rule clearly provides that any Court may in any suit issue a commission for the examination of any person, residing beyond the local limits of its jurisdiction. The trial Court's order for the recording of the statements of the non-resident witnesses, is therefore quite unexceptionable.

8. It has lastly been argued that instruction No. 4 in this Court's circular letter No. 17/PI dated December 10. 1973, Is invalid as it violates the provisions of Rule 5 of Order XVIII of the Code. The argument is futile for, as has been stated, Rule 4-A of Order XXVI is a valid provision and there is no reason why it should not be applicable where necessary. Instruction No. 4 is to the effect that if the Court is satisfied that the defendant is delaying the trial of the case, it may, at the request of the plaintiff, and on payment of the expenses, get the defendant's witnesses examined on commission. The instruction only serves the purpose of making it clear that if the Court is satisfied that the defendant is delaying the trial of the case, it has the discretion of having the defendant's witnesses examined on commission if the other two conditions (mentioned in the paragraph) are fulfilled. Such an instruction cannot be said to infringe any provision of the law and I am unable to hold that it is invalid.

9. No other point has been argued and as I find no force in these revision petitions, they are dismissed summarily.


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