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Ramakrishna Pillai Vs. Muthuperumal Pillai and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1916Mad1165; 31Ind.Cas.924
AppellantRamakrishna Pillai
RespondentMuthuperumal Pillai and ors.
Cases ReferredIn Madurai Pillai v. Muthu Chetty
Excerpt:
civil procedure code (act v of 1908), section 157, order xli, rule 1 - 'rules made,' meaning of--interpretation of statute--rule abridging substantive right, if ultra vires--civil rules of practice, rule 49, effect of--printed copy of judgment not filed with memorandum of appeal--appeal, whether time-barred. - .....right in question in the present case, is clearly no less a substantive right.2. rule 49 of the civil rules of practice was passed in pursuance of the powers given to the high court by the old civil procedure code. though that rule does not expressly state that the production of a printed copy with the memorandum of appeal is compulsory where the judgment of the lower court is more than 700 words in length, the sentence occurring therein that 'in cases where the length of the judgment or order does not exceed 700 words, the production of a printed copy is not compulsory,' seems to me to enact by an implication that such production is compulsory in the case of a judgment or order exceeding 700 words.3. taking it then that rule 49, when it was passed, was ultra vires, we have to.....
Judgment:

Sadasiva Aiyar, J.

1. Under the old Civil Procedure Code, Section 652, the High Court had power to make rules to regulate the procedure in the mufussil Courts only so far as such rules were consistent with that Code. Section 541 of the old Code made it compulsory on the appellant to produce a copy of the decree and a copy of the judgment (the latter unless dispensed with by the Appellate Court) along with the memorandum of appeal, I am inclined to hold that it is not consistent with that section to make any rule imposing a further obligation on the appellant that the copy which he produces, should be a printed copy. In Madurai Pillai v. Muthu Chetty 22 Ind. Cas. 775 a Full Bench of this Court held that where a rule abridges a substantive right granted by the Statute, such a rule is ultra vires, unless the Statute itself empowers the rule-making authority to alter the provisions in the Statute. In that case, the substantive right in question was a right to have a trial by a Full Bench of the Presidency Small Cause Court. The right to appeal, which is the right in question in the present case, is clearly no less a substantive right.

2. Rule 49 of the Civil Rules of Practice was passed in pursuance of the powers given to the High Court by the old Civil Procedure Code. Though that rule does not expressly state that the production of a printed copy with the memorandum of appeal is compulsory where the judgment of the lower Court is more than 700 words in length, the sentence occurring therein that 'in cases where the length of the judgment or order does not exceed 700 words, the production of a printed copy is not compulsory,' seems to me to enact by an implication that such production is compulsory in the case of a judgment or order exceeding 700 words.

3. Taking it then that Rule 49, when it was passed, was ultra vires, we have to consider the effect of Section 157 of the present Civil Procedure Code which enacts, among other things, that rules made under the former Code of Civil Procedure shall, so far as they are consistent with the present Code of 1908, have the same force and effect as if they had been made under the present Code. Under the new Code, the power of the High Court to make rules is governed by Sections 122 and 128. The difference between the old Section 652 and the new Sections 122 and 128, so far as this question is concerned, is that while under Section 652, the rules had to be consistent with all the provisions of the old Code, the new Sections 122 and 128 empower the High Court to annul, alter or add to all or any of the rules framed in the First Schedule attached to the new Code. Section 541 of the old Code relating to the presentation of the appeal corresponds to Order XLI, Rule 1, in the First Schedule of the new Code and hence the provision in Order XLI, Rule 1, about producing a copy of the judgment might (according to Sections 122 and 128) be validly changed by a rule of the High Court requiring a printed copy instead of an ordinary certified copy. Thus Rule 42 of the Civil Rules of Practice, if it can be treated by virtue of Section 157 to be a rule passed under the new Code, would be a valid rule. But does Section 157 continue the rules passed under the repealed enactment, even though those rules were beyond the, powers given to the High Court by the repealed enactment? In other words, are the rules, purporting to be framed under the old Code but beyond the powers given thereby, within the meaning of the expression rules made under any Code of Civil Procedure occurring in Section 157 of the new Code Does not the word made mean 'validly made'? In Re reference under Stamp Act; District Munsif of Tiruvallur 20 Ind. Cas. 775 : 37 M.P 17 : 24 M.L.J. 637 the converse proposition was upheld, namely, that rules made under the old Civil Procedure Code, though inconsistent with an order of the new Civil Procedure Code, remained in force until new rules were framed under the new Civil Procedure Code. But I do not think that that ruling helps us much in the decision of the question whether rules which were invalidly framed under the old Code become valid if consistent with the new Code. I am inclined to hold that rules which, though purporting to be made under the old Code, were beyond the powers given by the oil Code, do not become valid by reason of the fact that, if they had been made under the new Code, they would be valid. I think the expression rules made in Section 157 must mean rules properly and validly made, in other words, made with jurisdiction by the proper authority.

4. In the result and for the reasons above given I would allow the appeal and direct the District Judge to hear the appeal, preferred to his Court, the appeal having been properly presented within the limitation period along with a certified copy of the judgment of the Court of first instance, though that copy was not a printed copy. Costs hitherto will abide.

Napier, J.

5. The District Judge has dismissed this appeal, holding that it is out of time and declining to extend the period under Section 5 of the Limitation Act. It is common ground that if the manuscript copy of the judgment of the lower Court supplied by the Court and certified as correct and filed in the Appellate Court can be used, the appeal would be in time. The District Judge has held that the judgment being over 700 words and not being printed, it cannot be used, as its use is forbidden by the Civil Rules of Practice, 1905, Rule 49, and this view is upheld by the learned Judge of this Court before whom the second appeal came on for hearing under Order XLI, Rule 11. The appeal is filed under Order XLI, Rule 1, which requires that the memorandum shall be accompanied by a copy of the decree and (unless dispensed with by the Court) of the judgment on which it is founded. If I thought that Rule 49 of the Civil Rules of Practice had the effect contended for, I should think it necessary to consider whether so long as Order XLI(1) remains in its present form, the rule was not ultra vires; but I am of opinion that the rule has not that effect. It is true that the rule says in cases where the length of the judgment does not exceed 700 words, the production of a printed copy is not compulsory. The word 'produced' is not to be found in the Code in this connection and, though it may be taken to mean produced for the purpose of an appeal, the rule does not make clear whether the production refers to the work of the copying department or the work of the appellant. Still less does it say that only a printed copy can be filed with the memorandum of appeal. The rule itself is a direction to the copying department. and there is no rule that requires an intending appellant to apply specially for a copy for appeal purposes or forbids him to use a copy obtained for perusal for his appeal. Such a rule would properly appear in rules for procedure on appeal, not among rules for copies of records. It may be that the Court might refuse to take up an appeal until the appellant supplied it with a printed copy (I express no definite opinion on that point), but I am satisfied that filing a certified copy with the memorandum is a compliance with Order XLI(1) and is not forbidden by the Civil Rules of Practice. I would, therefore, allow this appeal and direct the District Judge to take the case on his file under Order XLI, Rule 9.


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