Case: Shew Bux Mohata And Another Vs. Sm. Tulsimanjari Dasi And Another

R. 7 of O. 45 after its amendment in 1920 had taken away the said jurisdiction. Section 112 of the Code expressly provides that nothing contained in the Code shall be deemed, inter alia, to interfere with any rules made by the S. C., and for the time being in force, for the presentation of appeals to that Court or their conduct before that Court. Therefore, if O. XII, R. 3 expressly recognises and gives jurisdiction to the High Courts to extend the time for furnishing the security or to make the deposit in a proper case that provision would not be interfered with by R. 7 of O. 45. That is how, apart from the provisions of R. 7 of O. 45, we reach the conclusion that the Calcutta High Court had jurisdiction to extend time for furnishing the security in the present case. However, as we have already held the amendment of R. 7 of O. 45 does not really take away the pre-existing jurisdiction of the High Courts to extend time, and so there is complete harmony between the said rule and O. XII, R. 3 of the Supreme Court Rules. 7. On this question there appears to be consensus of judicial opinion in the decisions of all the High Courts in India except the Calcutta High Court which for some years past has struck a note of dissent. It is unnecessary to deal with a catena of decisions on which Mr. Chatterjee relied in support of his contentions. It would be enough merely to mention them. It appears that in some High Courts the preset question was referred to a Full Bench and the decisions of the Full Bench have negatived the view which appears to have been taken by the Division Benches in the said High Courts on the earlier occasions that the High Courts had no jurisdiction to extend time (Vide: Nilkant Balwant v. Sachidanand Vidya Narsimha, ILR 51 Bom 430: (AIR 1927 Bom 217 ) (FB): Bishnath Singh v. Court of Wards Estate Sri Ram Chandra Naik, ILR (1939) All 549: (AIR 1939 All 299 ) (FB); Gulam Hussain v. Mansurbeg, ILR 1952 Nag 406: (AIR 1952 Nag 302) (FB); Lachmeshwar Prasad v. Girdhari Lal, ILR 19 Pat 123: (AIR 1939 Pat 667 ) (FB); Ghulam Rasul v. Ghulam Qutabud-din, ILR (1942) 23 Lah 447: (AIR 1942 Lah 147) (FB); Thota Pichaiah v. Narasimhacharyulu, ILR 1956 Andhra 55: ( (S) AIR 1956 Andhra 120) (FB); and Ismail Piperdi v. Momin Bi Bi, 1939 Rang LR 668: (AIR 1940 Rang 12) (FB). 8. Even in Calcutta it was held by the Calcutta High Court by a Full Bench in Roy Jotindranath v. Rai Prasanna Kumar, 11Cal WN 1104, that the High Court had power to extend time as provided by S. 602 of the code for depositing the estimate cost of translating, transcribing, indexing and transmitting to the Privy Council the records of the case under appeal, but it was added that the Court should not extend time without some cogent reason. In support of this conclusion the High Court relied upon the decision of the Privy Council in the case of 11 Ind App 7. The same view was expressed by the said Court in Harendra Lal v. Sm. Hari Dasi Debi, 14 Cal WN 420, where it was held that High Court had power to extend the time for depositing costs in Court but it ought not to do so without some cogent reasons. In reaching this conclusion the Court followed its earlier decision in the case of Roy Jyotindranath, 11 Cal WN 1104. It, however, appears that in Raj Kumar Govind Narayan v. Shamlal Singh, 39 Cal WN 651, Chief Justice Rankin and Ghose, J., took a contrary view and held that there was no jurisdiction to extend time for furnishing the security under O. 45, R. 7 as amended in 1920. With respect, the question does not appear to have been fully argued before the Court, for the judgment does not discuss the question of construing the relevant provisions of O. 45, R. 7 or of R. 9 of the Privy Council Rules, and indeed the earlier decisions of the Court on that point do not appear to have been cited either. Even so, this decision was subsequently followed and that led to a consistent practice in the said High Court on which the learned judges have relied in rejected the appellants application for extension of time in the present case. In this connection it may be relevant to note that when this question was raised before the Calcutta High Court again in Akimuddin v. Fateh Chand, 44 |Cal WN 920, Chief Justice Derbyshire was referred to the Full Bench decision of the Bombay High Court in Nilkanth Balwant ILR 51 Bom 430: (AIR 1927 Bom 217 ) in support of the argument that there was a jurisdiction to extend time for furnishing security, but he observed that though he had great respect for the said Full Bench decision there was a contrary decision of the Calcutta High Court in the case of Raj Kumar Govind Narayan, 39 Cal WN 651, and so he was bound to follow the said decision and conform to the practice prevailing in the Calcutta High Court. In our opinion, the practice prevailing in the Calcutta High Court since the decision of Chief Justice Rankin in the case of Raj Kumar Govind Narayan, 39 Cal WN 651, is not justified either by the provisions of O. 45, R. 7 of the Code or O. XII, R. 3 of the Supreme Court Rules. We must accordingly hold that the High Court was in error in holding that it had no jurisdiction to entertain the application made by the appellants to extend time for furnishing the security. On the view which it took the High Court naturally did not examine the merits of the appellants, case that there were sufficient and cogent reasons for condoning the delay.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]4. There can be no doubt that the object of the amendment was to expedite the final decision of the appeals which were taken before the Privy Council, and so the restrictive words have now been introduced whereby the period prescribed by the first part of the rule cannot be extended beyond 150 days;Having regard to the fact that even before the amendment the period of six months had been indicated it seems somewhat difficult to hold that by restricting the period to 150 days by the use of the restrictive words the Legislature had intended to takeaway the pre-existing jurisdiction of the High Courts to extend the period for a reasonable cause. The jurisdiction to enlarge the period for a good cause shown could not have been intended to be taken away by implication merely by the use of the restrictive clause introduced in the amendmentIn our opinion, therefore, reading O. 45, R. 7 as amended along with the other relevant provisions of the said Order it would be difficult to hold that the High Court has no jurisdiction to extend time for furnishing security under the said rule. High Courts had jurisdiction to extend time prior to the amendment of 1920 and the amendment of 1920 has made no difference in that behalfThis rule corresponds exactly to R. 9 of the Privy Council Rules. On a fair construction of this rule there appears to be no doubt that if a party having obtained a certificate from the High Court fails to furnish security or to make the required deposit it is open to the Court to adopt either of two courses; it may cancel the certificate and may give directions as to the costs of the appeal and the security entered into by the appellant or it may make such further or other order as the justice of the case may require; and that clearly suggests that the High Court has jurisdiction to consider the question as to whether the justice of the case requires that the certificate already granted should not be cancelled and further time should be given to the party to furnish the security or to make the required deposit. The last clause of R. 3 refers to such further or other order as the justice of the case requires, and that must necessarily mean an order other than, and different from, the order cancelling the certificate. It is true that the intention behind this rule might have been differently and better expressed but the object of the rule is plain and unambiguous and its construction presents no difficult whatever. Failure to furnish the security or to make the deposit in time does not inevitably and in every case lead to the cancellation of the certificate. Despite the said failure some further or other order according to the justice of the case may still be passed by the Court in its discretion, and that, in our opinion, must mean an order condoning the default and granting further time to furnish the security or to make the required deposit. If this be the true position about the effect of O. XII, r 3 of the Supreme Court Rules it would follow that the High Courts would have jurisdiction to extend time for furnishing security even if R. 7 of O. 45 after its amendment in 1920 had taken away the said jurisdiction. Section 112 of the Code expressly provides that nothing contained in the Code shall be deemed, inter alia, to interfere with any rules made by the S. C., and for the time being in force, for the presentation of appeals to that Court or their conduct before that Court. Therefore, if O. XII, R. 3 expressly recognises and gives jurisdiction to the High Courts to extend the time for furnishing the security or to make the deposit in a proper case that provision would not be interfered with by R. 7 of O. 45. That is how, apart from the provisions of R. 7 of O. 45, we reach the conclusion that the Calcutta High Court had jurisdiction to extend time for furnishing the security in the present case. However, as we have already held the amendment of R. 7 of O. 45 does not really take away the pre-existing jurisdiction of the High Courts to extend time, and so there is complete harmony between the said rule and O. XII, R. 3 of the Supreme Court RulesIt is unnecessary to deal with a catena of decisions on which Mr. Chatterjee relied in support of his contentions. It would be enough merely to mention them. In our opinion, the practice prevailing in the Calcutta High Court since the decision of Chief Justice Rankin in the case of Raj Kumar Govind Narayan, 39 Cal WN 651, is not justified either by the provisions of O. 45, R. 7 of the Code or O. XII, R. 3 of the Supreme Court Rules. We must accordingly hold that the High Court was in error in holding that it had no jurisdiction to entertain the application made by the appellants to extend time for furnishing the security. On the view which it took the High Court naturally did not examine the merits of the appellants, case that there were sufficient and cogent reasons for condoning the delay.