Case: Shiva Jute Baling Ltd Vs. Hindley &amp; Co. Ltd

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 Order45. Rule 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 furnishing 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 13, 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 45 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 13, Rule 8 of our Rules. We do not think it is necessary for the appellants to file a fresh 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 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 13; 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 32, 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 required by Rule 5, notice of such admission shall be issued by the Registrar for service on the respondent on the record, whether he shall have appealed 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 appellants and an affidavit of due service shall be filed by him immediately after the service is effected.7. In the present case the Registrar, Original Side of the Calcutta High Court should have issued a notice of 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 32, 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.8.

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

Explanation:
0[ds]His argument is that under Order 32, R. 9 of the Original Side Rules of the Calcutta High Court, a 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 32 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 well-founded 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.6.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 underRule 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 furnishing 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 13, Rule 8 of the Supreme Courtis to be noted here that although this rule does refer to the provisions of the order 45 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 13, Rule 8 of our Rules. We do not think it is necessary for the appellants to file a fresh 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 isour 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 32, Rule 9 of the Original Side Rules of the Calcutta HighIn the present case the Registrar, Original Side of the Calcutta High Court should have issued a notice of 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 32, 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.