Charles Arnold White, Kt., C.J.
1. The question which has been referred to us in this case is,--'Whether Order XLI, Rule 2 of the Presidency Small Cause Court Rules is ultra vires.'' The rule provides that no application (for a new trial) shall be entertained unless the applicant at the time of presenting the application either deposits in Court the amount due from him under the decree or order or gives security to the satisfaction of the Court or the Registrar, for the performance of the decree or order in respect of which the application is made. The power to grant a new trial in a suit in the Presidency Small Cause Court is regulated by Section 38 which provides ' where a suit is contested, the Small Cause Court may on the application of either party made within eight days from the date of the decree or order in the suit, order a new trial to be held, or alter, set aside or reverse the decree or order upon such terms as it thinks reasonable.'' The Rules of the Presidency Small Cause Court are made under the powers conferred by Section 9 of the Presidency Small Cause Courts Act. of 1882. Under the Act as it originally stood, there was a power in the Small Cause Court itself, with the previous sanction of the High Court, to make rules. In 1895 that Section was repealed and the power to make rules was given to the High Court. The terms of the section which empowers the High Court to make rules in reference to the Small Cause Court are very wide. The general rule is, no doubt, that stated in the case referred in the order of reference, Queen v. Bird : Needles exparte (1898) 2. Q.B. 343 that is, 'where a power to make regulations is given by a statute, no regulations made under the statute can abridge a right conferred by the statute itself.' That is the general rule. But if by statutory enactment a power is given to a rule-making authority to make rules, the rules, as it seems to me if they were within the power given, would be good even if they purported to abridge the rights given by the statute.
2. I think the only question we have to decide is, is this Rule within the powers conferred upon the High Court by the section which was introduced into the Act in 1895 Now whatever may be the true construction of this section, one thing seems clear and that is, it only empowers the High Court to make rules with reference to matters of practice or procedure. It cannot, as it seems to me, be suggested that the terms of the section are wide enough to give this Court power to make rules-with regard to matters of substantive right, or matters which are not practice or procedure. Then the question is,-can it be said that the right to apply for a new trial is a matter of practice or procedure Section 38 which regulates this question of new trials, is, perhaps, somewhat curiously worded. It does not say in so many words that a party has the right to apply for a new trial.' It says that '' the Small Cause Court may, on the application of the party, order a new trial '' But I think on the true construction of the section it gives a right to a party to apply for a new trial.
3. As regards the right of appeal, the right of appeal being a creature of that statute, I think it is well settled that a right of appeal is not a practice or procedure. I may refer to certain observations made by Lord Westbury in a case to which our attention has been called, Attorney General v. Sillen (1864) 11 Eng. Rep. 1200. The Lord Chancellor thus describes the right of appeal he says ' the right of appeal is the right of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. It seems absurd to denominate this paramount right part of the practice of the inferior tribunal.' Our attention has also been called to a decision of the House of Lords, Colonial Sugar Refiing Company v. Irving (1905) A.C. 369 in which there is an observation by Lord Macnaughten: 'To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure.' Now can we draw any distinction between a right of appeal conferred by statute and the right to apply for a new trial I think we cannot. Our attention has not been called to any case in which any such suggested distinction has been drawn, nor to any case in which it has been held that the right to apply for a new trial is a matter of practice or procedure. Of course, there is no objection to the Small Cause Court, if they think fit making it one of the terms which they are entitled to impose when they make on order for a new trial, that the condition imposed by Order XLI, Rule 2 should ba satisfied before they grant the application. But to say that the Small Cause Court has the power to do that is a very different thing from saying that the rule in question is a rule of practice or procedure and within the powers conferred by Section 9. The preamble to the Rules states that they are made ' by virtue of the powers conferred by the Presidency Small Cause Courts Act of 1882...and of all other powers hereunto enabling, the High Coart....';Our attention has not been called to any power in the High Court in this connection outside the powers conferred by Section 9 of the Presidency Small Cause Courts Act.
4. One word with regard to the case of Morgan v. Bowles (1894) 1 Q.B. 236 which was cited in argument in support of the contention that the rule is bad. I do not think that either this case or the case of West Devon Great Consols Mines (1888) 38 Ch.D. 51 affords us any assistance with reference to the question as to whether the rule in question here is ultra vires or not. Morgan v. Bowles (1894) 1 Q.B. 236 had reference to a provision of an Act which imposed an obligation on a party appealing to give security for costs. Then certain rules were passed which did not reproduce this provision and it was held that the obligation to give security for costs under the Act continued. That case was decided upon the question of construction on the ground that the words of the rule did not abrogate the provision of the Act with reference to security for costs.
5. In West Devon Great Consols Mines (1888) 38 Ch.D. 51 Lord Bowen said with regard to this matter: 'The rule 'generalia non specialibus derogant' appliesandhe decided the question purely as one of construction. And Lord Justice Cotton in his judgment says: 'Assuming, without deciding, that the Rule Committee had power to take away this condition with regard to the security for the costs or with regard to the deposit, they had not purported to do so.'
6. It seems to me, for the reasons I have stated, the answer to the question referred to us is that the rule is ultra vires.
Sankaran Nair, J.
7. I agree that the rule is ultra vires.
8. I concur.