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2001 DIGILAW 26 (CAL)

Ira Mukherjee v. Hirendranath Bhattacharjee

2001-01-18

D.K.Seth

body2001
JUDGMENT D. K. Sath, J. By means of this application, in respect of a report or certificate that has been furnished by the Special Referee appointed by this court pursuant to an order made under clause (h) of Rule 2 of Chapter XXVI, it is contended that by efflux of time the said report has become final and conclusive in view of Rule 90 of Chapter XXVI. Elaborating his submission the learned counsel for the applicant points out to Rule 89 and submits that any application to discharge or vary a certificate or report shall be made within 14 days from the date of filing thereof or within such further time as may be obtained for the purpose with leave of the court. In the present case no such application has been filed within the period referred to in Rule 89 and that no leave has since been obtained from the court. Therefore, this application has been made for the purpose of acceptance of the report as conclusive. Though, however, he has pointed out that the same would be conclusive in respect of the question of fact but so far as the question of law is concerned, the same will still be open because of Rule 91 of Chapter XXVI. Relying on the provisions contained in Chapter XXVI particularly Section 129 of the CPC read with clause 37 of the Letters Patent, he submits that in view of specific provision contained in the Original Side Rules the application of Order 26 of the Code of Civil Procedure hereinafter referred to as CPC is excluded. He further contends that the observation in the case of Jaiswal Coal Company vs. Fataganj Cooperative Marketing Society Ltd. in paragraph 42, is an obiter since it has not entered into the question and did not deal with the same in its proper perspective. Having regard to the provisions contained in Chapter 4 read with the definitions of Public Officer provided in section 2(17) of the CPC which is otherwise applicable in view of Rule 3 of Chapter XL and Rule 2 of Chapter XXVI, he has further contended that the word "Officer" used in Rule 20 included all officers who are appointed to undertake a reference under Chapter XXVI. It does not exclude an Officer appointed by the court and does not confine only to the registrar or any officers subordinate to him in rank as provided in Rule 2A of Chapter XXVI or in other words the law and the practice being clear and the same having not taken care of the observations made in paragraph 42 of the said decision in the case of Jaiswal Coal Company (supra) can also be termed as per incurium. 2. Mr. Bhattacharjee, learned counsel for the defendant on the other hand contends that in view of the provisions contained in Rule 2, Chapter XXVI is' applicable only in respect of a report by an Officer defined in Rule 2A of Chapter XXVI. He also refers to Chapter 4 and contends that an officer as defined therein is the officer to which reference has been made in Rule 90 in Chapter XXVI. He also relies on the decision in the case of Jaiswal Coal Company (supra) to sustain in that the learned single Judge has taken the view that Rules 89 and 90 are not applicable in respect of a report on a reference by an officer appointed by the court other than an officer referred to in Rule 2A of Chapter XXVI. Therefore, Rules 89 and 90 having no manner of application, Order 26 of CPC would be applicable and, as such, there could be no limitation in the absence of any such provision provided in Order 26 of the CPC. He then contends that the limitation of 14 days is in respect of the notice of motion. The phrase 'filing thereof relates to the motion for which notice is to be given within 14 days. The phrase 'filing thereof does not relate to the report or the certificate as contended by the counsel for the applicant. 3. In reply the learned counsel for the applicants contends that the phrase 'filing thereof relates to the filing of the report or the certificate and not of the Notice of Motion. I have heard both the Counsel at length. 3. In reply the learned counsel for the applicants contends that the phrase 'filing thereof relates to the filing of the report or the certificate and not of the Notice of Motion. I have heard both the Counsel at length. Rule 89 of Chapter XXVI provides as follows: "The procedure to discharge or vary a certificate or report:- An application to discharge or vary a certificate or report shall be made by motion, upon notice to be given within fourteen days from the date of filing thereof, or within such further time as may be obtained for that purpose but in that case, the notice shall mention that it has been given with the leave of the court. An application for further time may be made by petition in chambers without notice." 4. A plain reading of Rule 89 shows that an application has to be made in the form of a motion for which notice is to be given within 14 days from the date of filing of the certificate or the report, or within such further time as may be obtained for that purpose and with the leave of the court an application for further time may be made in Chamber without notice. Save as above no other construction could be possible. The language is clear, unambiguous and simple. If a different intention was intended, in that event it would not have been necessary to incorporate Rules 90 and 91. In fact, every provision has to be construed harmoniously. One part of the statute cannot be read out of context. The entire scheme of the provision has to be borne in mind. While providing 14 days limitation for giving of notice of motion for discharging and/or varying the certificate or the report, it provides that it should become conclusive unless it is discharged or varied while keeping the question of law, still to be decided, open. Therefore, the distinction that has been sought to be made by the learned counsel for the applicant appears to be justified to the extent that it makes a distinction between the statement of facts and the question of law. The factual part will become conclusive unless discharged or varied by reason of Rule 90, if no step is taken under Rule 89. The factual part will become conclusive unless discharged or varied by reason of Rule 90, if no step is taken under Rule 89. But, so far as the question of law is concerned, that will remain open even after the factual part becomes conclusive by reason of Rule 90 in absence of any step being taken under Rule 89. 5. The Rule for moving a motion in Chapter XX Rule 1 prescribes that it is to be made in court. 6. Rule 3 prescribes that motion can be made after notice to the parties affected. It can be made ex parte where the court is satisfied that delay may defeat the purpose. There is no scope for any ex parte order under Rule 89. But then when Rule 89 provides that such objection is to made as motion upon notice, it postulate that it can be made after notice to the parties affected. Under Rule 7 there must be four clear days between the service of notice of motion and the day named for bringing on the motion. Thus for making or bringing on a motion in court does not entail filing of motion. At the same time service of notice of motion is a condition precedent for making for bringing of motion. There can not be any question of notice of 14 days when Rule 7 requires only 4 days notice. Special leave for short notice however be obtained from court under Rule 8. When reference is made in Rule 89 that objection to report is to be made as motion it refers to Chapter XX. As soon reference is made to motion all the provisions of Chapter XX becomes applicable. Thus the period 14 days from filing there of referred to in Rule 89 relates to the filing of the report. Inasmuch as rule 88 requires filing of the report. Whereas Chapter XX does not postulate making of or bringing on motion after notice of 14 days and not filing. At the same time Rule 89 prescribes that objection to a report is to be made by motion upon notice to be given within 14 days of filing of the report. It is the notice of motion for varying or discharge of the report which is to be given within 14 days from filing of the report. 7. At the same time Rule 89 prescribes that objection to a report is to be made by motion upon notice to be given within 14 days of filing of the report. It is the notice of motion for varying or discharge of the report which is to be given within 14 days from filing of the report. 7. Thus there cannot be any question of filing of a motion. Then again, the time for giving notice moving a motion is also extendable. Since no ex parte order would be necessary notice can not follow motion, nor can motion precede notice. It is the time to move the motion which can be extended and, therefore, it has been made necessary to include in the notice that the motion is being moved with the leave of the Court within the extended time and that subsequent notice is not necessary for getting further extension of such time. The 14 days time factor relates to the notice of moving of the motion. The limitation of 14 days is giving the notice for moving the motion which is subject to extension by the Court as provided in the Rule 89 and it is only when steps are not taken i.e. no notice of motion is given within the said time of 14 days from filing the report or within the extended time then Rule 90 will come into force subject to Rule 89. 8. The expression, "Officer" used in Rule 90, in my view, cannot be confined only to the officer mentioned in Rule 2A of Chapter XXVI. Chapter IV has nothing to do with the question for defining or interpreting the expression, "Officer" used in Rule 90. Chapter IV deals with the officer of the court, whereas Chapter XXVI deals with the References which can be undertaken in terms of Rule 2A by the Officers not below the rank of Assistant Registrars to be allocated by the Registrar in respect of clauses (d) to (h) of Rule 2 of Chapter XXVI, whereas so far as clauses (a), (b) and (c) of Chapter XXVI are concerned, those are not included in Rule 2A. Therefore, in respect of References under clauses (a), (b) and (c) the Registrar has no right to appoint a Referee. It is the court which appoints a referee. Therefore, in respect of References under clauses (a), (b) and (c) the Registrar has no right to appoint a Referee. It is the court which appoints a referee. There is nothing in Chapter XXVI to preclude the application of Chapter XXVI in respect of a reference made under clauses (a), (b) and (c) by the Court. If the court appoints a Referee under clauses (a), (b) and (c) who is not an officer as contemplated in Rule 2A, in that event the application under Chapter XXVI is excluded. If Chapter XXVI applies in respect of a Reference made by the court under clauses (a), (b) and (c) of Rule 2 to an officer who is appointed by the court and who may not be an officer contemplated in Rule 2A, then it is very difficult to exclude the application of Chapter XXVI in respect of a Reference under clauses (d) to (h) made by the court appointing an officer other than the officer contemplated in Rule 2A. There cannot be a classification which is not intelligible or rational. A classification that has been sought to be made by Mr. Bhattacharya does not appear to me as intelligible. If Chapter XXVI can be applicable in respect of an officer appointed by the Court being an officer other then those contemplated in Rule 2A, in that event the application under Chapter XXVI cannot be excluded in respect of References under clauses (d) to (h), if made by a Court to an officer other than those contemplated in Rule 2A. Such a distinction would be wholly unintelligible and irrational. 9. Rule 3 of Chapter XI prescribes that if there is no definition' available under these Rules, in that event the definitions under section 2 of the CPC or those in the General Clauses Act would be applicable. General Clauses Act does not define an officer. Section 2 (17) CPC defines 'public officer'. 'Public officer' under clause (d) of section 2 (17) CPC includes an officer appointed by the court to do any of the acts referred to therein. Therefore, if an officer appointed by a court is a Public Officer, in that event in the absence of any definition of any officer the court can borrow guidance from the definition of the "Public Officer" as defined in section 2(17) (d) CPC. Therefore, if an officer appointed by a court is a Public Officer, in that event in the absence of any definition of any officer the court can borrow guidance from the definition of the "Public Officer" as defined in section 2(17) (d) CPC. Clause 37 of the Letters Patent provides that the Original Side Rules are to be framed by the High Court in respect of Civil Cases brought before it. It also provides that such Rules are to be framed. In the matter of framing such Rules the High Court is to be guided as far as possible by the Code of Civil Procedure. Therefore, in the absence of any provision contained in the Original Side Rules I may fall back for guidance on the Code of Civil Procedure. 10. But Rule 4(0) of Chapter XL of the Original Side Rules defined "Proper Officer" to mean" an Officer to be ascertained as follows: "Where any duty to be discharged under the Code or these rules is a duty which has heretofore been discharged by any officer, such officer shall continue to be the proper officer to discharge the same. Where any new duty is under the Code or these rules to be discharged, the proper officer to discharge the same shall be such officer as may from time to time be directed to discharge the same." 11. Therefore the meaning word 'Officer' occuring in Rules 88, 90 of Chapter XXVI has to be ascertained according to Rule 4 (9) Chapter XL. The officer referred to in the said rules would include an officer appointed by court as well. By reason of Rule 4 (9) Chapter XL of the rules there can not be any distinction between an officer contemplated in Rule 2A of Chapter XXVI and an officer appointed by court. Thus the application of Chapter XXVI can not be excluded when an officer, other than those contemplated under Rule 2A, is appointed by Court. Since there is a definition of officer in Rule 4(9) Chapter XL of the Rules we may not need any external aid. It is not needed to seek guidance of CPC. Thus the application of Chapter XXVI can not be excluded when an officer, other than those contemplated under Rule 2A, is appointed by Court. Since there is a definition of officer in Rule 4(9) Chapter XL of the Rules we may not need any external aid. It is not needed to seek guidance of CPC. But then there appear no inconsistency in between the definition of 'Proper Officer' in Rule 4(9) Chapter XXVI and 'Public Officer' in section 2(17) (d) CPC for the purpose of interpreting the meaning of the word officer occuring in Rules 88 and 90 of Chapter XXVI of the Rules. It is contended alternatively by the counsel for the applicant that under Rule 3 in the absence of any rule either in the Code or in the rules the practice will prevail. This rule however has no manner of application here. Inasmuch as both CPC and the Rule contain provisions though different. 12. In view of the provisions contained in Rule 129 of the Code of Civil Procedure the High Court is empowered to regulate its proceedings in respect of Civil Cases and by framing its own Rules not inconsistent with the Letters Patent. It has never pointed out that it is not to be inconsistent with the Code of Civil Procedure. Therefore, in case of any conflict between the Code of Civil Procedure and the Original Side Rules, the Code of Civil Procedure has to yield and it is the Original Side Rules which will prevail. Therefore, the contention of Mr. Bhattacharyya that Order 26 has to yield to Chapter XXVI, if there is any conflict between the two, can not be sustained. Order 26 does not contain any limitation with regard to taking up such objection, whereas, Rule 89 Chapter XXVI contains such a provision. Therefore, in view of such inconsistency between the two, Rule 89 would prevail. 13. In the case of Jaiswal Coal Co. (supra) the learned Single Judge of this Court has observed as follows; "38. Mr. Biswas then argued that the provisions contained in Order 26 of the Code of Civil Procedure will apply in the instant case. His submission is that there is no provision in the Code of Civil Procedure about limitation of time for taking objection to the report. (supra) the learned Single Judge of this Court has observed as follows; "38. Mr. Biswas then argued that the provisions contained in Order 26 of the Code of Civil Procedure will apply in the instant case. His submission is that there is no provision in the Code of Civil Procedure about limitation of time for taking objection to the report. Under the provision of the Code of Civil Procedure, the report does not become binding upon the court or the party. He contended that in the instant case when the report is before the Court, he is entitled to raise objections to the report and there is no question of limitation. The report shall be evidence in the suit and where the court is dissatisfied with the report the court will direct further enquiry. He referred to Order 26, Rule 12 of the Code of Civil Procedure. I accept the argument of Mr. Biswas on this point. I am of opinion that Order 26 Rule 11 of the Code of Civil Procedure is the material provision of the Code under which the reference has been made. Order 26, Rule 11 reads as follows: ‘In any suit in which an examination or adjustment of accounts is necessary, the court may issue a commission to such person as it thinks fit directing him to make such examination or adjustment.' 39. I will quote here the observation of Shah, J. in the case of Biharilal Ramcharan Cotton Mills Ltd. vs. China Cotton Exporters a firm, report in AIR 1963 Born. 59 (at page 60) which is as follows:, Where, therefore, an order for issue of a commission and appointment of a Commissioner for the purpose of taking accounts in any suit is directed to be made, the High Court has to be guided by the provisions of the Code of Civil Procedure in that behalf as enacted by clause 37 of the Letters Patent and Order 26, Rule 11 is the only provision in the Code under which a Commissioner for taking accounts can be appointed.' 40. I agree with the said observation of the learned Judge. 41. I think I shall note here the Calcutta case Kashiram Budhia vs. Chajuram Budhia, ILR 61 CAL 488 : AIR 1934 Cal 737, decided by Panckridge, J. which is referred to in the said Bombay decision (AIR 1963 Born. 59). I agree with the said observation of the learned Judge. 41. I think I shall note here the Calcutta case Kashiram Budhia vs. Chajuram Budhia, ILR 61 CAL 488 : AIR 1934 Cal 737, decided by Panckridge, J. which is referred to in the said Bombay decision (AIR 1963 Born. 59). The head note of the report ILR 61 Cal488 : AIR 1934 Cal 737 runs thus: 'In proceedings conducted by a Commissioner of Partition and Special Referee appointed by the Original Side of the High Court, the provisions of Rules 5 and 6 Order XVIII of the Code of Civil Procedure apply and the deposition of a witness should be read over and explained to him after it is completed and, if necessary, translated into language which he understands.' 42. In the premises, I am not inclined to accept the preliminary point that the report of Mr. R.P. Sanyal as Special Referee has become binding automatically by efflux of time. If I accept the contention of Mrs. Pal I shall have to hold that although the various provisions of Chapter XXVI are inapplicable to references directed to persons who are not officers of the Court, only Rules 90, 91 and 92 are so applicable. I am unable to do so. In my view, Chapter XXVI, Rules 89 and 90 will not apply in the instant case. 43. Assuming however, that the said rules apply, even then under Chapter XXVI, Rule 91, question of law may be raised at the hearing of the suit on further consideration and an application to discharge or vary the certificate or report as to such question need not be made. Under Chapter XXVI, Rule 92, again an application to reopen certificate or report after it has become binding can be made by motion on the ground of fraud, suppression or mistake or such other grounds as may be allowed by the Court. Therefore, it may be necessary to consider whether there are other grounds on which the certificate or report may be reopened." 14. In fact, it appears that this decision in the case of Jaiswal Coal Co.(supra) has not laid down any ratio. It is, in fact, an obiter and has made a passing remark without going into the exact proposition. Then again, it has not dealt with the relevant provisions as discussed above. In fact, it appears that this decision in the case of Jaiswal Coal Co.(supra) has not laid down any ratio. It is, in fact, an obiter and has made a passing remark without going into the exact proposition. Then again, it has not dealt with the relevant provisions as discussed above. Therefore, the said decision is distinguishable in the facts and circumstances of this case and the said decision did not lay down any absolute proposition with regard to the question of applicability of Chapter XXVI on an Officer other than those contemplated in Rule 2A of Chapter XXVI since it did not, in fact, decide the said question and it appears to be an obiter, inasmuch as it had, in fact, proceeded on the basis that Rules 89 and 90 did not apply in the said case and had proceeded on the basis of Rule 91 as is apparent from paragraphs 42 and 59 of the said decision. Therefore, I do not feel that I am bound by the said decision or it is necessary to differ with the said decision. 15. At this stage Mr. Bhattacharyya prays that he may be given time to file his objection to the report. Though the same is opposed by the learned Counsel for the applicant, but in view of the express provision in Rule 89 the Court has power to extend such time. However, in the present case since both the parties are appearing, so service of notice may be dispensed with. 16. Leave is granted to Mr. Bhattacharyya to move a Motion upon notice to the learned Counsel for the applicant within 3 weeks from date. 17. In case of default, Rule 90 will be applicable as discussed above unless Rule 89 is resorted to by the client of Mr. Bhattacharyya. 18. The application is, thus, disposed of. 19. Costs cost in the suit. 20. All parties concerned are to act on a xeroxed signed copy of the operative portion of this judgment and order on the usual undertaking. Appeal disposed of.