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

2. The relevant facts leading to the present controversy are not in dispute. The appellants had instituted a suit (No. 73 of 1944) in the First Additional Court of the Subordinate Judge of 24 Parganas against the six respondents. In this suit they claimed a declaration of title to the immovable property in question and prayed for recovery of possession of the said property together with mesne profits. The learned trial judge decreed the suit on March 20, 1948. Two appeals were then filed against the said decree by two sets of respondents (Appeals Nos. 111 of 1948 and 135 of 1948). Of these two appeals Appeal No. 135 of 1948 was dismissed but Appeal No. 111 of 1948 was partly allowed and the decree passed in favour of the appellants granting possession and mesne profits to the appellants against respondent 3 was set aside. Thereupon the appellants applied for and obtained a certificate from the Calcutta High Court to enable them to appeal to this Court. The decree under appeal was one of reversal and the valuation of the subject-matter of the dispute both in the trial court and in the intended appeal before this Court exceeded the statutory limit prescribed in that behalf and so the appellants were in fact entitled to a certificate under Art. 133 (1) (a) of the Constitution. Accordingly a certificate was issued on May 18, 1956. The last date for the deposit of the security amount of Rs. 2,500/- and the printing cost of Rs. 1,184/- was June 29, 1956. According to the appellants owing to circumstances over which they had no control they could not deposit the said two amounts on the due date. Consequently on July 4, 1956, they filed an application before the High Court praying that the requisite amounts tendered by them be accepted after condoning the delay made by them in the payment of the said amounts. This application was rejected on the ground that according to the uniform current of decisions in the said Court it had no jurisdiction to extend the time for depositing the amount of security. It is against this order that the appellants have come to this Court by special leave.

Reasoning: 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.