In the matter of Petition for Special Leave to Appeal No 230 of 1953
Rajinder Narain for the Respondents
N C Chatterjee Sukumar Ghose with him for the Appellants
April 5
The Order of the Court was delivered by MUKHERJEA CJ This is an application by the respondents in Special Leave Petition No 230 of 1953 praying for summons to the appellants to show cause why the special leave obtained by the latter should not be rescinded in accordance with the provision of Order XIII rule 13 of the Supreme Court Rules
The appeal is directed against a judgment of a Division Bench of the Calcutta High Court affirming on appeal a decision of a single Judge sitting on the Original Side of that Court
The appellants having been refused certificate by the High Court presented before us an application under article 136 of the Constitution and special leave to appeal was granted to them by an order of this Court dated the 25th May 1954
By that order the appellants were required to furnish security for costs amounting to Rs 2500 within six weeks and the enforcement of the award which was the subject matter of the appeal was stayed on condition that the appellants deposited in Court a sum of Rs 28000 within four weeks from the date of the order
On the 15th of June 1954 the Registrar of this Court transmitted to the Original Side of the Calcutta High Court certified copies of the order granting special leave and also of the special leave petition with a request that these documents might be included in the printed records of the case
It is not disputed that in pursuance of the directions given 246 by this Court the appellants did deposit the amount required as security for costs and also the sum of Rs 28000 within the time mentioned in the order
On the 29th November 1954 the respondents  Solicitors in Calcutta wrote a letter to the Registrar of the Original Side of the Calcutta High Court complaining of delay on the part of the appellants in prosecuting the appeal
It was stated inter alia that although six months had elapsed since special leave was granted by this Court the respondents were not served with notice of the admission of the appeal and no steps were taken by the appellants to get the records printed or transmitted to this Court
In reply to this letter the Registrar informed the respondents  Solicitors that according to the practice of the Calcutta High Court it was incumbent on the appellants to make a formal application to the Appellate Bench of the Court for declaring the appeal finally admitted and this was to be done on notice to the other parties under Order XLV rule 8 of the Civil Procedure Code and on filing in Court a copy of the order of the Supreme Court granting special leave to appeal as well as the application upon which such order was made
Unless and until an order was made by the High Court declaring the appeal to be admitted no action could be taken by the office in the matter
Thereupon on the 11th of January 1955 an application was filed by the appellants praying that leave might be given to them to file the certified copy of the special leave petition and also that of the order passed upon it and that the appeal might be finally admitted
This application came up for hearing before the learned Chief Justice and Lahiri J of the Calcutta High Court and on the 20th of January 1955 the learned Judges made the following order In this matter special leave to appeal to the Supreme Court was granted by that Court on the 25th May 1954
On the 21st June following the Appellant furnished the necessary security
It was then the duty of the Appellant to take the necessary steps for the final admission of the appeal in order that the preparation of the Paper Book might thereafter be 247 undertaken
Under the Rules and practice of this Court the step to be taken is that the Appellant to the Supreme Court should make an application for leave to file the certified copy of the petition for Special Leave and also a certified copy of the order granting Special Leave which have been filed along with the present application     When the matter came up for hearing on the last occasion we enquired whether the Appellants had any explanation to give for the delay which bad occurred
It was said that the certified copy of the application for Special Leave had been obtained only recently
It was however not explained why when an application for a certified copy of the order was made a similar application for a certified copy of the petition also could not be made
In all the circumstances we consider it right that the disposal of the present application should stand over for a month in order that the respondents may take such steps as they desire to take before the Supreme Court
The above facts and order of the High Court were communicated to the Registrar of this Court by Shri Rajinder Narain Advocate for the respondents by his letters dated the 17th and 31st of January 1965 and on the basis of the facts stated above he requested that action should be initiated by the Registrar against the appellants for non prosecution of the appeal
The Registrar told the learned Advocate that he had not received any report from the High Court regarding any laches on the part of the appellants and without any such report it was not possible for him to take any action in the matter
The Advocate himself it was said was quite at liberty to make a formal application to the Court in such way as he considered proper
The views thus expressed by the Registrar of this Court were communicated by him to the Registrar of the High Court Original Side Calcutta
On the 4th March 1955 Shri Rajinder Narain filed a formal petition addressed to the Registrar alleging inordinate delay on the part of the ap pellants in filing in the High Court certified copies of 248 the Special Leave petition and the order made by this Court thereupon and praying that summons might be issued to the appellants to show cause why the appeal should not be dismissed for non prosecution
Before the Registrar could take any further steps in the matter the application of the appellants for final admission of the appeal made in the High Court came up for further consideration before the Appellate Bench consisting of the Chief Justice and Mr Justice Lahiri and on the 7th March 1955 the learned Judges made an order directing for the reasons given therein adjournment of the application for admission of the appeal before them sine die pending orders which this Court might pass on the application of the respondents
The application of the respondents which purports to have been made under Order XIII rule 13 of the Supreme Court Rules was referred by the Registrar for orders to the Court and it has now come up for hearing before us
Shri Rajinder Narain appearing in support of the petition has Contended before us that the appellants were guilty of serious laches inasmuch as they did not file in the High Court till 8 months after the special leave was granted copies of the special leave petition as well as of the order passed upon it nor did they make an application to the Appellate Bench for admission of the appeal without which no further steps could be taken in the matter of printing and transmission of the record
As the appellants could not give any satisfactory explanation for this inordinate delay on their part the special leave it is argued should be rescinded
Mr Chatterjee who appeared for the appellants has contended n the other hand that in a case like the one before us where the appeal has come up to this Court by special leave and not by a certificate granted by the High Court there was no duty cast upon the appellants to make a formal application in the High Court for final admission of the appeal or to file therein certified copies of the special leave petition and the order made thereupon
His argument is that under Order XXXII rule 9 of the Original Side Rules of the Calcutta High Court a 249 Supreme Court appeal must be deemed to have been admitted by the very order of this Court granting special leave and as soon as the appellants have carried out the directions of the Supreme Court regarding furnishing of security or making of other deposits as the case may be it is incumbent upon the Registrar to issue a notice of the admission of the appeal for service upon the respondents
Such notice indeed has got to be served by the appellants  attorney but as no notice was at all issued by the Registrar in the present case as is contemplated by rule 9 of Order XXXII of the Original Side Rules of the Calcutta High Court no blame could attach to the appellants for not taking further steps in the matter
The contention of Mr Chatterjee appears to us to be wellfounded and as it seems to us that doubts have arisen at times regarding the precise procedure to be followed in cases where an appeal comes to this Court by special leave granted under article 136 of the Constitution it is necessary to examine the provisions bearing upon it as are contained in the Rules of the Supreme Court or of the High Court concerned read along with the relevant provisions of the Civil Procedure Code
Ordinarily when a High Court grants a certificate giving leave to a party to appeal to this Court it is that Court which retains full control and jurisdiction over the subsequent proceedings relating to the prosecution of the appeal till the appeal is finally admitted
It is for the High Court to see that its directions are carried out regarding the furnishing of security or the making of deposit and when these conditions are fulfilled it has then to declare the appeal finally admitted under Order XLVrule 8 of the Civil Procedure Code
The jurisdiction of the Supreme Court begins after the appeal is finally admitted
When however the appeal comes to this Court on the strength of a special leave  granted by it the position is different
In such cases the order of the Supreme Court granting special leave by itself operates as an admission of the appeal as soon as the conditions in the order relating to fur 250 nishing of security or making of a deposit are complied with
That this is the true position will be clear from the procedural provisions contained in the Rules of the Supreme Court as well as of the Original Side of the Calcutta High Court
Order XIII rule 8 of the Supreme Court Rules lays down After the grant of special leave to appeal by the Court the Registrar shall transmit a certified copy of the order to the court or tribunal appealed from
Rule 9 then says On receipt of the said order the court or tribunal appealed from shall in the absence of any special directions in the order act in accordance with the provisions contained in Order XLV of the Code so far as applicable
It is to be noted here that although this rule does refer to the provisions of the Order XLV of the Civil Procedure Code these provisions are to be followed only so far as they are applicable
It is surely the duty of the High Court to see that security is furnished or a deposit is made in accordance with the directions of the Supreme Court and these directions are to be found in the order of the Supreme Court which the Registrar is bound to transmit to the High Court under Order XIII rule 8 of our Rules
We do not think it is necessary for the appellants to file afresh a copy of the Supreme Court order or the petition upon which it was made in order that they may form part of the record of the Supreme Court appeal
They would come in the record as soon as they are transmitted by the Registrar in accordance with the rule of our Court mentioned above and would have to be included in the Paper Book when it is printed
The Registrar of the High Court undoubtedly took these orders as part of the record without the appellants  filing them afresh for he accepted the security and deposit of other moneys from the appellants on the basis of these orders
If there was any failure on the part of the appellants to furnish the security or to make the deposit in the way indicated in the order of the Supreme Court it would have been the duty of the Registrar of the High Court to intimate these 251 facts to the Registrar of the Supreme Court and the latter thereupon could take steps for revoking the special leave as is contemplated by Order XIII rule 12 of our Rules
In our opinion it is also not necessary for the appellants to make a formal application for admission of the appeal in cases where special leave has been granted by the Supreme Court and this appears clear from the provision of Order XXXII rule 9 of the Original Side Rules of the Calcutta High Court which runs as follows 9
On the admission of an appeal to the Supreme Court whether by the order of this Court under Order XLV rule 8 of the Code or by an order of the Supreme Court giving the appellant Special Leave to Appeal but subject in the latter case to the carrying out of the directions of the Supreme Court as to the security and the deposit of the amount re quired by rule 5 notice of such admission shall be issued by the Registrar for service on the respondent on the record whether be shall have appeared on the hearing of the application for a certificate under Order XLV rule 3 of the Code or not
Such notice shall be served by the attorney for the appellant and an affidavit of due service thereof shall be filed by such attorney immediately after such service
The opening words of this rule plainly indicate that there could be admission of appeal either by order of the High Court under Order XLV rule 8 of the Civil Procedure Code or by the order of the Supreme Court itself giving special leave to appeal
As the order granting special leave itself lays down the conditions to be fulfilled by the appellants the admission will be regarded as final only when the directions are complied with and as soon as this is done it would be the duty of the Registrar to issue a notice of the admission of the appeal for service upon the respondents
This notice is to be served by the attorney for the appel lants and an affidavit of due service shall be filed by him immediately after the service is effected
In the present case the Registrar Original Side of the Calcutta High Court should have issued a notice of 252
the admission of the appeal to be served upon the respondents as soon as the security for costs and other deposits of money were made by the appellants
This was not done as the procedure to be followed was not correctly appreciated
It is true that the appellants remained idle for a considerable period of time even after they furnished security and did not take any steps towards printing of the record
But as there was an initial irregularity in the matter of issuing a notice under
Order XXXII rule 9 of the Original Side Rules of the Calcutta High Court we are unable to hold that the appellants were guilty of any laches for which the special leave deserves to be rescinded
The result is that the application of the respondents is dismissed
The Registrar Original Side of the Calcutta High Court will now issue a notice under Order XXXII rule 9 of the Original Side Rules and prompt steps should be taken by the appellants towards printing and transmission of the record to this Court
We make no order as to costs of this application


Summary:
By an order dated May 25 1954 the Supreme Court granted the petitioners in the case special leave to appeal against the judgment and order of the High Court at Calcutta
In accordance with the order the petitioners furnished the security amounts directed to be deposited within the time specified in the order
The Registrar of the High Court did not issue any notice of admission of appeal to be served by the Appellant s Solicitor on the Respondents as envisaged in rule 9 of Order XIII SCR Nor did the Appellant following the practice of the High Court move that Court for It admission of the appeal until January 11 1955
The Respondents first moved the High Court complaining of default on the part of the appellants in due prosecution of the appeal and latter moved the Supreme Court for action under rule 13 of Order XIII of the Supreme Court Rules
The application in the High Court was therefore kept pending
Held After the grant of special leave under article 136 the Registrar of the Supreme Court transmits in accordance with the 244 provisions of rule 8 of Order XIII of the Supreme Court Rules a certified copy of the Supreme Court s order to the Court or tribunal appealed from Rule 9 of Order XIII of the Supreme Court Rules enjoins upon the Court or tribunal appealed from to act in the absence of any special directions in the order in accordance with the provisions contained in Order XLV of the Civil Procedure Code so far as they are applicable
Accordingly the Court or Tribunal to which the order is transmitted receives deposits on account of security for the Respondents  costs printing costs and any other deposits if so ordered by the Supreme Court and sets about preparing the record of the appeal for transmission to the Supreme Court
Therefore action under rule 13 of Order XIII SCR for rescinding the order granting special leave cannot be initiated unless the Court or tribunal appealed from reports to the Supreme Court that the appellant has not been diligent in taking steps to enable that Court to carry out the directions if any contained in the order of the Supreme Court and to act in accordance with the provisions of Order XLV of the Civil Procedure Code so far as applicable to appeals under Article 136 of the Constitution
In view of rule 9 of Order XIII of the Supreme Court Rules the application of Order XLV of the Code of Civil Procedure to appeals under Article 136 of the Constitution is restricted
The Court or tribunal appealed from no doubt has to carry out the directions contained in the order granting special leave and to receive the security for the Respondents  costs and other necessary deposits but once the security is furnished and the other deposits are made the formality of admission envisaged by rule 8 of Order XLV of the Civil Procedure Code is unnecessary because in such cases the order granting special leave by itself operates as an admission of the appeal as soon as the conditions in the order relating to the furnishing of security or making of deposits are complied with
Appeals under Article 136 thus stand on a different footing from appeals on grant of certificate by the High Court itself
In the letter case the High Court has exclusive jurisdiction over the matter until it admits the appeal under rule 8 of Order XLV of the Civil Procedure Code
Rule 9 of Chapter 32 of the Original Side Rules of the Calcutta High Court envisages admission of appeals to the Supreme Court whether by an order of the Supreme Court or under Order XLV of the Civil Procedure Code
And when an appeal arising from an order made by the Supreme Court under Article 136 of the Constitution has been so admitted the said rule enjoins upon the Registrar to issue notice of such admission for service by the appellant on the Respondents
In cases where special leave has been granted by the Supreme Court it is not necessary for the appellant to move the High Court appealed from for the formal admission of his appeal
As the order granting special leave itself lays down the conditions to be fulfilled by the appellants the admission will be regarded as final only when the directions are complied with and as 245 soon as this is done it would be the duty of the Registrar to issue a notice of the admission of the appeal for service upon the respondents
In default of the issue of such notice the appellant cannot be held responsible for laches in the prosecution of his appeal with regard to the steps required to be taken after the admission of his appeal