KESHAVLAL PARBHUDAS CHOKSHI v. MANUBHAI I. VYAS — 1967 DIGILAW 16 (GUJ)

P. N. BHAGWATI, J. ( 1 ) THE question which arises in this Revision Application is whether Rules 142 to 148a of the Ahmedabad City Civil Court Rules are ultra vires the rule-making power of the High Court. The plaintiff filed a suit being Summary Suit No. 1548 of 1966 against the defendants in the City Civil Court Ahmedabad to recover a sum of Rs. 7 734. 07 ps. alleged to be due by the defendants to the plaintiff as remuneration for services rendered by the plaintiff to the defendants in connection with their income-tax work. The suit was filed as a Summary Suit and on an appearance being filed by the defendants a summons for judgment was taken out by the plaintiff. On the summons for judgment the learned Judge of the City Civil Court made a conditional order granting leave to the defendants to defend the suit on condition that the defendants deposited a sum of Rs. 1 900 two weeks. The defendants were aggrieved by this order and they therefore preferred the present Revision Application. The Revision Application was admitted and a rule was issued by Divan J. and the rule was made returnable on 21st November 1966. The rule ultimately came up for hearing before Sarela J. on 21st January 1967 but before that date a decision was given by Raju J. in Civil Revision Application No. 196 of 1963 declaring in effect and substance Rules 142 to 148a of the Ahmedabad City Civil Court Rules ultra vires the rulemaking power of the High Court and holding that the City Civil Court had no power to refuse leave to defend or to impose any condition for leave to defend. (Vithaldas v. Bombay Garage (Ahmedabad) Ltd. noted at IV G. L. R. 142 ). If this decision were correct the defendants would be entitled to unconditional leave to defend the suit and the rule would be liable to be made absolute; but Sarela J. finding difficulty in agreeing with the view taken in that decision referred the question of vires of Rules 142 to 148a to a Division Bench. That is how the present Revision Application has come up for hearing before us. That is how the present Revision Application has come up for hearing before us. Besides this Revision Application there are also other Revision Applications in which the same question is involved and those Revision Applications are also therefore placed on Board along with the present Revision Application and we have heard the learned Advocates appearing on behalf of the parties in those Revision Applications. ( 2 ) IN order to appreciate the contentions urged in regard to the question before us it is necessary to refer to a few provisions of the Code of Civil Procedure and the Ahmedabad City Civil Court Rules. The Code of Civil Procedure was enacted with a view to consolidating and amending the laws relating to the procedure of the Courts of Civil Judicature. The Code is divided into two parts on the lines of the Judicature Acts in England and the Rules made under those Acts. The first part consists of sections which constitute the main body of the Code and the second part consists of rules set out in the First Schedule which refer merely to matters of machinery for working out the main provisions enacted in the sections. Taking up the sections we may straight go to Part X of the Code which is headed Rules and which consists of secs. 121 to 131. Sec. 121 which is the first in this group of sections enacts:-121 The rules in the First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this Partsection 122 then confers power on the High Court to make rules and by such rules to annul alter or add to all or any of the rules in the First Schedule and that section reads as follows:-122 High Courts not being the Court of a Judicial Commissioner may from time to time after previous publication make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence and may by such rules annul alter or add to all or any of the rules in the First Schedulesecs. 123 and 124 lay down the procedure for making Rules under sec. 122. Sec. 125 confers rule-making power in the same terms as sec. 122 on High Courts other than the Courts specified in sec. 123 and 124 lay down the procedure for making Rules under sec. 122. Sec. 125 confers rule-making power in the same terms as sec. 122 on High Courts other than the Courts specified in sec. 122 but the exercise of this power is made subject to such conditions as the State Government may determine. Sec. 125 provides that the rules made under secs. 122 and 125 shall be subject to the previous approval of the State Government or the Central Government as the case may be and sec. 127 declares that the rules so made and approved shall be published In the Official Gazette and shall from the date of publication or from such other date as may be specified have the same force and effect as if they had been contained in the First Schedule. Sec. 128 is an important provision and omitting portions immaterial it says:-128 (1) Such rules shall be not inconsistent with the provisions In the body of this Code but subject thereto may provide for any matters relating to the procedure of Civil Courts. (2) In particular and without prejudice to the generality of the powers conferred by sub-sec. (1) such rules may provide for all or any of the following matters namely:- xxx xxx xxx xxx xxx (f) summary procedure (i) in suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant with or without interest arising on a contract express or implied; or on an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or on a guarantee where the claim against the principal is in respect of a debt or a liquidated demand only; or on a trust; or (ii) in suits for the recovery of immovable property with or without a claim for rent or mesne profits by a landlord against a tenant whose term has expired or has been duly determined by notice to quit or has become liable to forfeiture for nonpayment of rent. or against persons claiming under such tenant;secs. 129 to 131 are not material and we need not therefore dwell on them. Apart from these sections contained in Part X there is one other section to which we must refer and that is sec. 27. or against persons claiming under such tenant;secs. 129 to 131 are not material and we need not therefore dwell on them. Apart from these sections contained in Part X there is one other section to which we must refer and that is sec. 27. This section formed the main plank of the argument of the petitioner and the decision of Raju J. is principally founded upon it. It provides:-27 Where a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed. The argument which found favour with Raju J. was that Rules 142 to 148 were inconsistent with sec. 27 and they were therefore beyond the rule-making power of the High Court under sec. 122 read with subsec. (1) of sec. 128. We shall deal with this argument a little later. ( 3 ) TURNING to the Rules in the First Schedule we find that the Rules are classified in various Orders. There are as many as 51 Orders but the only Order with which we are concerned is Order 37 which prescribes summary procedure. Rule 1 of that Order provides:-1 This Order shall apply only to (a) the High Courts of Judicature at Fort William Madras and Bombay; (b) any District Court or other Court specially empowered in this behalf by the State Government;xx xx xx xx xx xx then follow Rules 2 to 7 which lay down the actual procedure to be followed when a suit is instituted under the summary procedure. Order 37 as originally enacted was headed Summary Procedure on Negotiable Instruments and the summary procedure provided in that Order was applicable only to suits on negotiable instruments and the essential and basic feature of the summary procedure was that in a suit instituted under the summary procedure the defendant should not be entitled to appear and defend the suit unless he obtained leave from the Judge so to appear and defend. But on 29th September 1936 the existing sub-rules (1) and (2) of Rule 2 of Order 37 were substituted by new sub-rules (1) and (2) by the Bombay High Court in exercise of its powers under sec. But on 29th September 1936 the existing sub-rules (1) and (2) of Rule 2 of Order 37 were substituted by new sub-rules (1) and (2) by the Bombay High Court in exercise of its powers under sec. 122 and under the new sub-rules (1) and (2) the summary procedure which was until then limited in its application only to suits on negotiable instruments was extended to suits of other categories specified in sec. 198 (2) (f) save the last part of clause (i) of that provision and the rigour of the summary procedure was relaxed in that the defendant could thereafter appear without leave of the Judge though he was still precluded from defending the suit unless he entered an appearance and obtained leave from the Judge so to defend. Certain further amendments in the Rules in Order 37 wore also thereafter made by the Bombay High Court in exercise of its powers under sec. 122 but they are not material for the purpose of present discussion and we need not therefore refer to them. This was the state of the rules in Order 37 when the State of Bombay was bifurcated by the Bombay Reorganization Act 1960 ( 4 ) BY the Bombay Reorganization Act 1960 certain territories were carved out from the State of Bombay and were constituted into the State of Gujarat from 1st May 1960 and the State of Bombay with the residuary territories continued as the State of Maharashtra. Now as the aforesaid resume which we have given shows the rules of Order 37 which were in force in the State of Bombay at the date of the bifurcation that is the appointed day were not the rules as originally enacted but the rules as amended by the Bombay High Court and the amended rules were therefore law in force within the territories now forming part of the State of Gujarat on the appointed day and they were continued in force in those territories by virtue of sec. 87 of the Bombay Reorganization Act 1960 On 15th May 1961 the Legislature of the State of Gujarat passed the Ahmedabad City Courts Act 1961 providing inter alia for the constitution of a City Civil Court for the City of Ahmedabad and in accordance with the provisions of this Act the City Civil Court was established by the State Government with effect from 4th November 1961 by a notification issued under sec. 3 of the Act. The State Government also issued a notification dated 4th November 1961 in exercise of its powers under Clause (b) of Rule 1 of Order 37 of the Code specially empowering the City Civil Court for the purpose of Order 37. the result was that the amended Rules of Order 37 became applicable to the City Civil Court with effect from 4th November 1961. But at the same time this High Court also made rules for the City Civil Court called The Ahmedabad City Civil Court Rules in exercise of its powers under Article 227 of the Constitution and sec. 122 of the Code and all other powers enabling it to make such Rules. These Rules contain Chapter XI which is headed Summary suits and this Chapter contains various rules numbering from 142 to 148a prescribing the summary procedure applicable in the City Civil Court. The amended Rules of Order 37 in their application to the City Civil Court have therefore to be read subject to Rules 142 to 148a. Vide Sam v. Samson (1965) VI G. L. R. 934. Rules 142 to 148a do not make any departure so far as the basic and essential feature of the summary procedure provided in the amended Rules of Order 37 is concerned. Even under Rules 142 to 148a the defendant can appear but he is not entitled to defend unless he enters an appearance and obtains leave from the Judge to defend and such leave may be granted unconditionally or subject to conditions if the defendant by affidavit or declaration satisfies the Judge that he has a good defence to the action on the merits or discloses such facts as may be deemed sufficient to entitle him to defend. There is no doubt a slight difference in procedure made by Rules 142 to 148a but that difference is not very material and it is not necessary to refer to the same. There is no doubt a slight difference in procedure made by Rules 142 to 148a but that difference is not very material and it is not necessary to refer to the same. It is against the background of these provisions of the Code and the Rules that we have to consider whether Rules 142 to 148a are ultra vires the rule-making power of the High Court. ( 5 ) THE first question which must arise for consideration is under what provision are Rules 142 to 148a made by the High Court. The preamble of the Ahmedabad City Civil Court Rules refers to two provisions under which those Rules are made namely Article 227 of the Constitution and sec. 122 of the Code. Now obviously so far as Rules 142 to 148a are concerned they cannot be justified under Article 227 of the constitution for though under that Article the High Court has power to make rules regarding the practice and proceedings of the City Civil Court there is a limitation on the exercise of that power imposed by the proviso to that Article namely that the power cannot be exercises to make rules inconsistent with the provisions of any law for the time being in force and since Rules 142 to 148a are admittedly inconsistent with the amended Rules of Order 37 albeit to a limited extent the High Court cannot make those Rules in the exercise of its power under Article 227. Rules 142 to 148 must therefore find their justification in sec. 122 of the Code if they are to be held valid. Raju J. examined the validity of Rules 142 to 148 by reference to sec. 122 of the Code and he came to the conclusion that they were not supportable under that section. There were two grounds on which he reached this conclusion and of the two grounds one was to quote his own words:-IT may also be said that Article 227 of the Constitution which by its proviso provides that the rules made by the High Court must not be inconsistent with any law would prevail over sec. 122 of the Code of Civil Procedure. Raju J. took the view that the proviso to Art. 227 of the Constitution would prevail over sec. 122 of the Code and the High Court could not therefore even while exercising its power under sec. 122 of the Code of Civil Procedure. Raju J. took the view that the proviso to Art. 227 of the Constitution would prevail over sec. 122 of the Code and the High Court could not therefore even while exercising its power under sec. 122 of the Code make rules inconsistent with the provisions of any law for the time being in force. But with the greatest respect to the learned Judge this view does not commend itself to us and we find ourselves unable to accept it. The proviso to Art. 227 being a constitutional provision is undoubtedly paramount and it must prevail against any statutory provision to the extent to which such statutory provision may come into clash with it but we do not find any clash or conflict between the proviso to Art. 227 and sec. 122 of the Code. The proviso to Art. 227 declares that any rules made by the High Court in exercise of its rule-making power under Art. 227 clause (2) shall not be inconsistent with the provisions of any law for the time being in force. This limitation imposed by the proviso to Art. 227 which requires that the rules must not be inconsistent with the provisions of any law for the time being in force is therefore by the clear and specific language of the proviso applicable only where rules are made by the High Court in exercise of its rule-making power under Art. 227 clause (2) and has no application where rules are mate by the High Court in exercise of rule-making power under some other statutory provision. The proviso to Art. 227 also does not operate as a limitation on the exercise of the rule-making power belonging to the High Court under sec. 122 of the Code. Art. 227 clause (2) and sec. 122 of the Code are two distinct and different provisions conferring rule-making power on the High Court and the limitation imposed by the proviso to Art. 227 is applicable only to the exercise of the rule-making power conferred under Art. 227 clause (2) and cannot be imported so as to restrict the scope and ambit of the rule-making power conferred under sec. 122 of the Code. If there is any limitation on the exercise of the rule-making power under sec. 122 of the Code. If there is any limitation on the exercise of the rule-making power under sec. 122 of the Code it must be found in the provisions of Part X of the Code itself. We cannot therefore accede to the argument of the petitioner that by reason of the proviso to Art. 227the High Court was not entitled to make Rules 142 to 148a in exercise of its rule-making power under sec. 122 of the Code. ( 6 ) THE second ground relied on by Raju J. was-and that ground formed the subject matter of the second argument of the petitioner-that Rules 142 to 148a were inconsistent with sec. 27 which was a provision in the body of the Code and therefore offended against the limitation imposed by sec. 128 sub-sec. (1) and they were consequently beyond the rule-making power of the High Court under sec. 122 of the Code. This ground is equally unsustainable and there are three very good reasons why we must reject this ground. In the first place Rules 142 to 148a do no more than make certain minor changes in the summary procedure provided in the amended rules of Order 37. They do not deny to the defendant a right to defend in cases in which he possessed such right prior to their promulgation nor do they provide for imposition of any condition on the right to defend in cases in which it could not be imposed before they were made. We have already pointed out above that the amended Rules of Order 37 became applicable to the City Civil Court as soon as the notification dated 4th November 1961 was issued by the State Government in exercise of its power under Clause (b) of Rule (1) of Order 37 of the Code specially empowering the City Civil Court and under the amended Rules of Order 37 the defendant was entitled to file an appearance but he was precluded from defending the suit unless he entered an appearance and obtained leave of the Judge to defend and such leave could be refused by the Judge or granted unconditionally or subject to conditions in the exercise of judicial discretion. The restriction if any on the right of the defendant to defend a suit falling within any of the categories specified under the amended Rules of Order 37 was therefore already there under the amended Rules of Order 37 and this restriction was not imposed for the first time by Rules 142 to 148a. Rules 142 to 148 merely made certain procedural changes keeping within the basic framework of the amended Rules of Order 37 and it is not possible to say that in so doing Rules 142 to 148a were inconsistent with sec. 27. It is undoubtedly true that Rule 148a provided that Rules 142 to 148a shall be in supersession of the amended Rules 2 and 3 of Order 37 but that does not make any difference for Rules 142 and 143 reproduced Substantially the provisions contained in the amended rules 2 and 3 of Order 37 and the effect of Rules 142 to 148a was not to introduce any restriction on the right to defend which did not exist before those rules were made but merely to embody the provisions restrictive of the right to defend which were already there in the amended rules of Order 37 and to re-arrange them with certain changes of procedure in a proper intelligible form. Rules 142 to 148a cannot therefore be regarded as in any way inconsistent with sec. 27. ( 7 ) FACED with this difficulty the learned advocate appearing on behalf of the defendants contended that the amended rules of Order 37 were also ultra vires the rule-making power of the High Court under sec. 122 of the Code and the rules which continued to prevail were the rules as originally enacted in the code. It was also urged by the learned advocate appearing on behalf of the defendant in one of the other Revision Applications on Board that even the Rules of Order 37 as originally enacted were void and of no effect as they were inconsistent with sec. 27 which was a provision in the body of the Code. We will presently examine the contention whether the amended Rules made by the High Court of Bombay in exercise of its power under sec. 122 were ultra vires on the ground of being inconsistent with sec. 27 which was a provision in the body of the Code. We will presently examine the contention whether the amended Rules made by the High Court of Bombay in exercise of its power under sec. 122 were ultra vires on the ground of being inconsistent with sec. 27 but so far as the contention as to the invalidity of the rules of Order 37 as originally enacted in the Code is concerned it is difficult to understand it much less to accept it. Sec. 121 in terms declares that the Rules in the First Schedule shall have effect as if enacted in the body of the Code until annulled or altered in accordance with the provisions of Part X and therefore the rules of Order 37 as originally enacted in the Code must be given effect as if they were enacted in the body of the Code. No distinction can be made between sec 27 and the original rules of Order 37 so far as force and efficacy of these provisions are concerned. Since these two provisions form part of the same Code they must be construed just as two sections in a statute would be construed and they must be read together and harmonised so as to give effect to both the provisions. There is as we shall presently point out no conflict between sec. 27 and the original rules of Order 37 but even if there were any such conflict it can be resolved by resort to the well-known principle of construction generalia specialibus non derogant. of that more hereafter. ( 8 ) THE argument of the defendants was that sec. 27 confers an absolute right on the defendant to defend a suit instituted against him and therefore any provisions which derogates from such right to defend would be inconsistent with sec. 27. If such a provision occurs in the rules in the First Schedule it would have to give way to sec. 27 and would be void and Ineffective to the extent to which it conflicts with that section and if it occurs in the rules made by the High Court under sec. 122 it would be ultra vires the rule-making power of the High Court under sec. 122. 27 and would be void and Ineffective to the extent to which it conflicts with that section and if it occurs in the rules made by the High Court under sec. 122 it would be ultra vires the rule-making power of the High Court under sec. 122. This was the basis on which it was contended that the original rules in Order 37 were void and ineffective and the amended rules made by the Bombay High Court were ultra vires the rule-making power conferred under sec. 122. It therefore becomes necessary to consider whether any right is conferred on the defendant by sec. 27 and if so what is the nature of that right. Sec. 27 appears to be intended to give effect to the principle audi alteram partem. When it says that on the institution of a suit a summons may be Issued to the defendant to appear and answer the claim it does postulate that the defendant should have an opportunity to appear and answer the claim and provides that a summons may be issued to the defendant for such purpose. We may therefore proceed on the basis that sec. 27 postulates a right in the defendant to appear and answer the claim. But the question is:- what is the content of the expression answer the claim. Now on a plain natural construction this expression cannot connote anything more than an opportunity to meet the claim or to show cause against the claim made in the suit. This right or opportunity the defendant must have but how is this right or opportunity to be exercised ? What is to be the manner in which the defendant can answer the claim ? That is not laid down in the body of the Code but is left to be regulated by the rules of the First Schedule. There is no provision in the body of the Code which says that the defendant shall be entitled to answer the claim by filing a written statement asking the Court to raise issues leading evidence and making submissions at the close of the evidence. The right to any particular procedure for answering the claim is thus not conferred on the defendant by any provision in the body of the Code. The right to any particular procedure for answering the claim is thus not conferred on the defendant by any provision in the body of the Code. When we turn to the rules in the First Schedule we find that a certain procedure for answering the claim is set out and the defendant is entitled to avail himself of that procedure for answering the claim made in the suit. But the Rules in Order 37 provide for a departure from this ordinary procedure and lay down a summary procedure which must be followed in a case falling within those rules. Where the summary procedure is applicable the defendant appears and files an affidavit showing that he has a good defence to the suit on the merits or disclosing such facts as may be deemed sufficient to entitle him to defend and on the strength of such affidavit asks the Judge to grant him leave to defend. The defendant thus gets an opportunity to answer the claim made against him. Of course the opportunity to answer the claim which he gets at this stage is not as elaborate as that which a defendant gets under the ordinary procedure but it is none-the-less an opportunity to answer the claim. If the defendant fails to effectively answer the claim by saying that he has a good defence to the action on merits or that there are facts which are sufficient to entitle him to defend the Judge would procedure to pass a decree against him but if he satisfies the Judge that he has a good defence to the suit on the merits or that there are facts sufficient to entitle him to defend and that the answer to the claim made by him is prima facie good the Judge would grant him leave to defend either unconditionally or subject to conditions and then he would be entitled to avail himself of the ordinary procedure for meeting the claim of the plaintiff. The manner of answering the claim thus follows a different pattern under the summary procedure than what it follows in the ordinary procedure but merely because different patterns of answering the claim are provided in the Rules in the First Schedule it does not mean that in cases where summary procedure is applicable there Is denial of an opportunity to answer the claim. There is therefore no in consistency between sec. There is therefore no in consistency between sec. 27 and the Rules in Order 37. Sec. 27 merely lays down the general principle of audi alteram partem and the rules in the First Schedule regulate the exercise of the right to be heard in answer to the claim by providing how it shall be exercised according as the case falls in one category or the other. This view avoids conflict between sec. 27 on the one hand and sec. 128 (2) (f) and the original Rules of Order 37 on the other and accords with the well-known rule of construction that the provisions of a statute must be so construed as to avoid conflict and make a consistent and harmonious enactment of the whole statute. The provision of summary procedure as contrasted with the ordinary procedure is therefore not Inconsistent with sec. 27 and on that ground neither the original rules of Order 37 nor the amended Rules of Order 37 can be said to transgress the limitation imposed under sec. 128 sub-sec. (1) and equally Rules 142 to 148a cannot be regarded as violative of the inhibition contained in that sub-section. ( 9 ) THE same conclusion must also follow even if we regard sec. 27 as conferring a right on the defendant to defend the suit by following the ordinary procedure of filing a written statement raising issues leading evidence and making submissions. The Rules of Order 37 have by reason of sec. 121 effect as if enacted in the body of the Code and therefore sec. 27 must be read along with the rules of Order 37 for the purpose of determining the scope and ambit of sec. 27. Another provision which must also be read along with sec. 27 and the Rules of Order 37 is sec. 128 The Rules of Order 37 as originally enacted provided for summary procedure in suits on negotiable instruments and sec. 128 (2) (f) read with sec. 122 empowers the High Court to make rules providing for the introduction of summary procedure in other suits of the categories specified in sec. 128 (2) (f ). The expression summary procedure used in sec. 128 (2) (f) read with sec. 122 empowers the High Court to make rules providing for the introduction of summary procedure in other suits of the categories specified in sec. 128 (2) (f ). The expression summary procedure used in sec. 128 (2) (f) is not defined in the body of the Code but it is clear from the provisions of Order 37 that the Legislature used the expression summary procedure to mean the procedure indicated in the rules of Order 37. The position which therefore. emerges on a consideration of sec. 27 sec. 128 (1) (f) and the rules of Order 37 is that the Legislature enacted a general rule in sec. 27 but provided that the summary procedure which precludes the defendant from defending the suit without obtaining the leave of the Judge to defend should be applicable in suits on negotiable instruments and that the High Court should have the power under sec. 122 to introduce this summary procedure In other suits of certain categories specified In sec. 128 When therefore the High Court in the exercise of its power under sec. 122 makes rules extending the summary procedure to suits of the categories specified in sec. 128 (2) (f) the High Court would not be doing anything inconsistent with the provisions in the body of the Code. As a matter of fact sec. 128 (2) (f) which empowers the High Court to extend the summary procedure to suits of the categories specified In that provision being itself a provision in the body of the Code the amended Rules of Order 37 as also Rules 142 to 148a would be rules made in pursuance of the provisions in the body of the Code and would not be inconsistent with such provisions. If the Rules made by the High Court under sec. 122 extending the summary procedure to suits of any of the categories described in sec. 128 (2) (f) were inconsistent with sec. 27 and therefore beyond the rule-making power of the High Court under sec. 122 the result would be that sec. 128 (2) (f) would be rendered nugatory. We must therefore harmonise these provisions and the only way In which they can be harmonised is by reading sec. 27 as enacting a general provision not affecting the special provision for summary procedure In suits on negotiable instruments and suits of other categories described in sec. 128 (2) (f) would be rendered nugatory. We must therefore harmonise these provisions and the only way In which they can be harmonised is by reading sec. 27 as enacting a general provision not affecting the special provision for summary procedure In suits on negotiable instruments and suits of other categories described in sec. 128 on the principle generalia specialibus non derogant. ( 10 ) OUR answer to the question referred to us therefore is that neither the amended rules of Order 37 nor Rules 142 to 148a of the Ahmedabad City Civil Court Rules are ultra vires the rule-making power of the High Court under sec. 122 of the Code. Opinion stated. .