Judgment Soumen Sen, J. The authority, power and jurisdiction of the High Court in the Original Side in accepting and deciding an application under Chapter XIIIA of the Original Side Rules in respect of a transferred proceeding from a Subordinate Court under Clause 13 of the Letters Patent is the only issue to be decided in this appeal. 2. The appellant before this Court has categorically submitted that the appeal may be heard and disposed of on this limited issue. 3. The plaintiff instituted the suit in the City Civil Court on November 30, 2007 which has since been transferred to the Original Side of this Hon’ble Court pursuant to an order dated 28th July, 2008 passed on the basis of an application filed by the appellant under Clause 13 of the Letters Patent. 4. On 8th January, 2008, the appellant filed a suit in this Hon’ble Court praying, inter alia, for a declaration that the notice of eviction dated 8th August, 2007 is bad in law and other consequential reliefs. 5. The respondent filed a suit for eviction of the appellant in the City Civil Court being Title Suit No.3165 of 2007. Thereafter, the appellant filed a suit in this Hon’ble Court on 8th January, 2008 praying, inter alia, for a declaration that the notice of eviction is bad in law and other consequential reliefs. Consequent upon an application being made by the appellant under Clause 13 of the Letters Patent for transferring the suit filed by the respondent in the City Civil Court to the High Court, an order was passed on 28th July, 2008 recording that the parties have agreed that the City Civil Court Suit being Title Suit No.3165 of 2007 be brought before this Court at the cost of the plaintiff/appellant. The application was disposed of by observing that in view of such agreement between the parties, the two suits would be taken up one after another and no further order required to be passed in the application filed by the respondent under Section 10 of the Code of Civil Procedure for stay of the appellant’s suit in the High Court. 6. 6. The learned Judge answered the said objection in the manner following:- “As to the technical ground that the substance of Chapter XII-A of the Rules in the Original Side of this Court cannot be applied to a suit that is transferred from a subordinate Court, the plaintiff refers to a judgment reported at 2007(1) CHN 237 (Shree Shree Gopal Jew & Ors. vs. Jumbo Traders Private Ltd.). In view of the Division Bench judgment and the principle of law recognized therein, the defendant does not urge the ground any further.” 7. It appears from the aforesaid observation that the defendant/appellant did not really urge the said point and proceeded to make submissions on merits. 8. However, before us it is argued that the said point, in fact, was not really considered by the Division Bench, although, it would appear that some arguments were made, the Division Bench did not really decide the matter. 9. The said argument is not very convincing and on a reading of the said judgment, we are unable to persuade ourselves to accept such submissions. However, since it is a question of law, we thought, in the interest of justice, an opportunity may be given to the appellant to argue on this issue. 10. In order to appreciate the argument made on behalf of the appellants, it is necessary at this stage to consider the various clauses of the Letters Patent, on which reliance was placed by the appellant namely, Clauses 12, 13, 19, 20 and 37 which are reproduced herein-below:- “12. Original Jurisdiction as to suits. 10. In order to appreciate the argument made on behalf of the appellants, it is necessary at this stage to consider the various clauses of the Letters Patent, on which reliance was placed by the appellant namely, Clauses 12, 13, 19, 20 and 37 which are reproduced herein-below:- “12. Original Jurisdiction as to suits. – And we do further ordain, that the said High Court of Judicature at Fort William in Bengal, in the exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try, and determine suits of every description, if, in the case of suits for land or other immoveable property, such land or property shall be situated, or in all other cases if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court, of if the Defendant at the time of the commencement of the suit shall dwell, or carry on business, or personally work for gain within such limits; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Calcutta, in which the debt or damage, or value of the property sued for, does not exceed one hundred rupee. 13. Extraordinary original civil jurisdiction. – And we do further ordain, that the said High Court of Judicature at Fort William in Bengal shall have power to remove, and to try and determine, as a Court of extraordinary original jurisdiction, any suit being or falling within the jurisdiction of any Court, whether within or without the Bengal Division of the Presidency of Fort William, subject to its superintendence, when the said High Court shall think proper to do so, either on the agreement of the parties to that effect, or for purposes of justice, the reasons for so doing being recorded on the proceedings of the said High Court. 19. By the High Court in the exercise of ordinary original civil jurisdiction. 19. By the High Court in the exercise of ordinary original civil jurisdiction. – And we further ordain that, with respect to the law or equity to be applied to each case coming before the said High Court of Judicature at Fort William in Bengal, in the exercise of its ordinary original civil jurisdiction, such law or equity shall be the law or equity which would have been applied by the said High Court to such case if these Letters Patent had not issued. 20. In the exercise of extraordinary original civil jurisdiction. – And we do further ordain that, with respect to the law or equity and the rule of good conscience to be applied to each case coming before the said High Court in Judicature at Fort William in Bengal, in the exercise of its extraordinary original civil jurisdiction, such law or equity and rule of good conscience shall be the law or equity and rule of good conscience which would have been applied to such case by any local Court having jurisdiction therein. 37. Regulation of proceedings. – And we do further ordain, that it shall be lawful for the said High Court of Judicature at Fort William in Bengal from time to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty, Testamentary, Intestate, and Matrimonial jurisdictions respectively: Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure, being an Act passed by the Governor-General in Council, are being Act No. VIII of 1859, and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.” 11. The plaintiff in the City Civil Court upon transfer of the suit since renumbered as E.O.S. No.7 of 2008 took out a Master Summons on or about June 8, 2009 for a final judgment and decree for khas possession of the suit premises under Chapter XIIIA of the Original Side Rules. 12. The appellant contested the said proceeding by filing an affidavit. 13. 12. The appellant contested the said proceeding by filing an affidavit. 13. One of the grounds in resisting such application under Chapter XIIIA of the Original Side Rules was that the suit was instituted in the City Civil Court on November 30, 2007 and has been transferred pursuant to an order dated 28th July, 2008. In respect of such transferred proceedings from a Subordinate Court Chapter 13-A of the High Court Original Side Rules would not apply. 14. It is argued that the learned Judge in allowing the said application has failed to appreciate that the said decision of the Hon’ble Division Bench had been passed without considering the provisions of the Letters Patent, 1865 or duly considering the other judgments on which the same decision was based, and was as such per incuriam. The learned Counsel referred to the decision of the Hon’ble Supreme Court in the case of Bhagawan Pillai (dead) by LRS Vs. State of Kerala reported in AIR 2004 SC 2317 (para 14) where it has been held that a view expressed without analyzing the statutory provision cannot be treated as a binding precedent. Further reference made to the decision of this Hon’ble Court in the matter of Texmaco Ltd. Vs. Tirupati Buildestates Pvt. Ltd. reported in AIR 2011 Cal 158 where it has been held that a judgment can be said to have been rendered in ignorance of law and, therefore, having no binding value, if such judgment is contrary to any statute. The Division Bench decision of this Hon’ble Court reported in 2007 (1) CHN 237 (Shree Shree Gopal Jew & Ors. Vs. Jumbo Traders Private Ltd.) has failed to notice that while clause 12 of the Letters Patent provides for the original jurisdiction of this Hon’ble Court as to suits, clause 13 of the Letters Patent provides for the power of this Hon’ble Court to remove, and to try and determine, as a Court of extraordinary original jurisdiction, suits falling within the jurisdiction of any Court that is subject to its superintendence. While clause 19 of the Letters Patent provides that the law or equity to be applied to each case coming before this Hon’ble Court in exercise of its ordinary original civil jurisdiction will be the law or equity which would have been applied by this Hon’ble Court to such case if the Letters Patent had not been issued, clause 20 of the Letters Patent provides that the law and equity and the rule of good conscience to be applied to each case coming before this Hon'’le Court in the exercise of its extraordinary original civil jurisdiction will be such law or equity and rule of good conscience which would have been applied to such case by any local Court having jurisdiction therein. The Hon’ble Division Bench has further failed to notice that clause 37 of the Letters Patent only provides for the power of this Hon’ble Court to make rules and orders for the purpose of regulating proceedings in civil cases which may be brought before this Hon’ble Court, and not for the purpose of regulating proceedings removed to this Hon’ble Court. Consequently Chapter XIIIA of the Original Side Rules of this Hon’ble Court could not have been made applicable to a transferred suit, which could not have been and had not been brought before this Hon’ble Court at the first instance. Without examining the aforementioned and other provisions of the Letters Patent, in the judgment reported in 2007(1) CHN 237 the Hon’ble Division Bench has simply proceeded to hold that – “learned Senior Counsel appearing on behalf of the Refugee Handicrafts has also admitted the applicability of the Original Side Rules to a transfer suit when he submitted that entering of appearance has to be made by a memorandum in writing in accordance with Form 4 or 5 of Appendix B of the Original Side Rules. 15. We however, are in respectful disagreement with the submissions made by the learned Counsel for the appellant since on a reading of the said judgment, it appears to us that it was argued on behalf of the respondents in the said proceeding that since the said suit is a transferred suit, the Hon’ble Court has no power to pass a final judgment under Chapter XIIIA of the Original Side Rules. This aspect of the matter has been elaborately argued in Paragraphs 9, 15 and 16 of the said judgment and after considering the said decision, the Hon’ble Division Bench held that after examining the provisions of Chapter XIIIA, it can be concluded that Chapter XIIIA applies to transfer suits and by way of illustration, reference was made to Form 4 or 5 of Appendix B of the Original Side Rules relating to entering of appearance after service of summons. The said paragraphs 9, 15 and 16 are reproduced herein-below:- “9. He further contended that there is a distinction in procedure and practice between the High Court, Calcutta and the Alipore Court. He further submitted that the heading of Chapter XIIIA says it is procedural rule. The principle that the law, equity and rule of good conscience applicable in the lower Court should be applicable in a transferred suit necessarily means that the substantive law should be applied in a transferred suit from the lower Court. In this connection, he relied on Ormond’s Original Side Rules Notes under Clause 13 of the Letters Patent at page 146 where it is stated “the substantive law applicable is that of the lower Court”. He submitted that the distinction between what is procedural and what is substantive law, is formulated in the cases reported in 1880-81(7) QB 329, Poyser vs. Minors at page 333 and 1938(2) KB 637, In re: Shoesmith at page 648.” 15. It is further submitted that before the Hon’ble First Court learned Counsel appearing for the Refugee Handicrafts relied on a decision of the Privy Council reported in 41 Indian Appeal 314, Besant vs. G. Narayaniah & Ors. Before the Hon’ble First Court it is submitted, “power of the District Court referred to must necessarily mean substantive power”. The meaning of the said extract is that in a transferred suit, the High Court can only pass a decree if such a decree could have been passed by the lower Court, otherwise, the decree cannot be passed by the High Court. The said decision cannot be read as laying down the rule, the High Court must follow the procedure of the lower Court in passing such decree. The said decision cannot be read as laying down the rule, the High Court must follow the procedure of the lower Court in passing such decree. He submitted that if a suit is being transferred before this Hon’ble Court automatically the Rules of the Original Side would apply, when the suit is being specifically marked as ‘Extraordinary Suit’ under the list of suits under Chapter X of the Original Side Rules. Hence, he submitted that Hon’ble First Court wrongly held that the decree is a nullity and, therefore, it is submitted that appeal should be allowed and the order should be passed as prayed for in the Master’s Summons taken out before the Hon’ble First Court. 16. Mr. Ashok Banerjee learned senior Advocate, submitted on behalf of the Refugee Handicrafts that the suit in the instant appeal being a transferred suit and, therefore, the power to pass a final judgment in a summary proceeding under Chapter XIIIA of the Original Side Rules is not applicable. He further submitted that under Order 37 Rule 2 of the CPC the Court has no power to pass any summary decree where the suit is for recovery of immoveable property. It is further submitted that Chapter X Rule 1 of the Original Side Rules of this Court could not be construed as the sole and basic test for applicability of Chapter XIIIA of the Original Side Rules. It is further submitted that mere transfer of suit under Clause 13 of the Letters Patent and after applying Chapter X of the Rules of this Court could not ipso facto grant powers upon the Hon’ble Court to invoke jurisdiction of summary proceedings in a suit for recovery of immoveable property or can pass a final judgment. It is further submitted that the Original Court at Alipore has no power to pass a final judgment. Hence, the High Court is exercise of its extraordinary civil jurisdiction under Chapter XIIIA of the Original Side Rules cannot exercise the said power. It is further submitted that the Original Court at Alipore has no power to pass a final judgment. Hence, the High Court is exercise of its extraordinary civil jurisdiction under Chapter XIIIA of the Original Side Rules cannot exercise the said power. It is further submitted that in a suit for recovery of immoveable property in the absence of notice to quit from the landlord in terms of section 111(h) of the Transfer of Property Act, 1882 and on the contrary, on the basis of the tenant’s purported notice to quit under Section 13(1)(j) of the West Bengal Premises Tenancy Act, 1956 is not covered by Chapter XIIIA of the Original Side Rules.” 16. However, since our attention has been drawn to some of the clauses of the Letters Patent and it is being argued that relevant clauses of the Letters Patent were not considered by the earlier Division Bench while dealing with the matter and the said judgment has been rendered in ignorance of law and is a judgment per incuriam, we propose to deal with this mater in our own way. 17. The learned Counsel for the petitioner submits that unlike Chapter XIIIA of the Original Side Rules, there is no corresponding provision in the Code of Civil Procedure and civil rules and orders which give such and/or same and similar right to a plaintiff to such identical reliefs had it been tried by such Civil Court. It is submitted that the Letters Patent is a statute and on a proper and meaningful reading of Clauses 12, 13, 19, 20 and 37 of the Letters Patent, it would unhesitatingly show and establish that in respect of transferred suits, the High Court would be required to follow the same law or equity as it would have been applicable to such transfer proceedings if there had been no order of transfer. In other words, the law or equity to be applied in such a case would be such law or equity which would have been applied if this Letters Patent had not been issued. In other words, the law or equity to be applied in such a case would be such law or equity which would have been applied if this Letters Patent had not been issued. Similarly, in case of exercising extraordinary civil jurisdiction with respect to the law or equity and the rule of good conscience, the High Court in extraordinary original jurisdiction would be required to apply such law or equity and rule of good conscience which would have been applied to such case by any local Court having jurisdiction therein but for the transfer. In short, it was argued that since such remedy was not available to the plaintiff if the said suit had languished and remained in the City Civil Court, the plaintiff cannot get the advantage of a summary procedure only by reason of an order of transfer under Clause 13 of the Letters Patent. 18. It was further submitted that Clause 20 of the Letters Patent 1865 provides that the law which has to be applied by this Hon’ble Court in a particular case in exercise of its extraordinary original civil jurisdiction will be the law which would have been applied in such case by any local court having jurisdiction therein. Therefore, the law to be applied is the law of the local court i.e. in this case the law of the learned City Civil Court at Calcutta. Inasmuch as the provisions of the Original Side Rules of this Hon’ble Court do not apply to the learned City Civil Court at Calcutta, no application under Chapter XIIIA of the Original Side Rules of this Hon’ble Court can be filed in a suit transferred from the learned City Civil Court at Calcutta to this Hon’ble Court. 19. Clause 37 of Letters Patent, 1865 provides, inter alia, that this Hon’ble Court may make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before this Hon’ble Court in its various jurisdictions. However, extraordinary original civil jurisdiction is not specifically mentioned in Clause 37 of the Letters Patent 1865 and, therefore, this Hon’ble Court could not make rules for regulating the proceedings in civil cases brought before this Hon’ble Court in its extraordinary original civil jurisdiction. Thus, in other words, the Original Side Rules can be made applicable only to Admiralty, Vice Admiralty, Testamentary, Intestate and Matrimonial jurisdiction and not to transferred suits. Thus, in other words, the Original Side Rules can be made applicable only to Admiralty, Vice Admiralty, Testamentary, Intestate and Matrimonial jurisdiction and not to transferred suits. 20. It is submitted that the Phrase ‘which may be brought before the said High Court’ in Clause 37 of the Letters Patent, 1865 includes suits brought before this Hon’ble Court both under Clauses 12 and 13 of the Letters Patent, 1865 and as such the provisions of the Original Side Rules would apply to all suits transferred to this Hon’ble Court under Clause 13 of the Letters Patent as argued by the respondent is fallacious. 21. Such contentions of the respondent are clearly without any basis as under Clause 13 of the Letters Patent, 1865 this Hon’ble Court has the power to remove and to try and determine, as a Court of extraordinary original jurisdiction, only suits being or falling within the jurisdiction of any Court that is subject to its superintendence. As the substantial law applicable to all Courts that are subject to the superintendence of this Hon’ble Court is the same, it is clearly only the different procedural law of the original Court that is subject to the superintendence of this Hon’ble Court that is sought to be made applicable to a suit transferred to this Hon’ble Court under Clause 13 of the Letters Patent, 1865. 22. It is in any event the clear intention of Clause 20 of the Letters Patent, 1865 that the procedural law of the original Court must govern a suit that is transferred to this Hon’ble Court in exercise of its extraordinary original jurisdiction as a party to a suit acquires a vested right in the procedure of the original Court where the suit is instituted. In this context reference has been made to the decision of the Hon’ble Supreme Court in the case of CIT v. Dhadi Sahu reported in 1994 Supp (1) SCC 257, at page 262 where the Hon’ble Supreme Court has held that: “21. It is also true that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum. It is also true that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the tribunal or the court of first instance and unless the legislature has by express words or by necessary implication clearly so indicated, that vested right will continue in spite of the change of jurisdiction of the different tribunals or forums”. 23. It was argued that the decision reported in AIR 1953 SC 357 (National Sewing Thread Co. Ltd. Vs. James Chadwick & Bros, Ltd.) relied on by the respondent has no application to the instant case as the same merely provides for the procedure for appeals by providing that “when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court.” 24. It was contended that the decision reported in AIR 1963 Cal 380 (R. Ray Vs. V.G. Dalvi & Ors.) relied upon by the respondent is not a decision on what law must be administered by this Hon’ble Court in respect of suits transferred to it in exercise of its extraordinary original jurisdiction. The said case really decides that Clause 12 of the Letters Patent of this Hon’ble Court does not apply to the City Civil Court. Even while observing that “the object of Clause 19 of the Letters Patent of 1865 was to preserve the substantive laws hitherto administered in that jurisdiction” the said decision makes no comment on whether the object of the said clause was not to preserve its procedural laws. Even while observing that “the object of Clause 19 of the Letters Patent of 1865 was to preserve the substantive laws hitherto administered in that jurisdiction” the said decision makes no comment on whether the object of the said clause was not to preserve its procedural laws. The said decision further makes no comment at all on Clause 20 of the Letters Patent, particularly in the light of the fact that it is the same substantive law that is enforced by this Hon’ble Court and by all Courts over which it exercises its power of superintendence, or in light of Clause 37 of the Letters Patent, 1865 which provides for the power of this Hon’ble Court to make rules and orders only for regulating proceedings in civil cases which may be brought before this Hon’ble Court and are not removed to it. 25. In this context it was submitted that the respondent’s contention that the phrase ‘which may be brought before the said High Court’ in Clause 37 of the Letters Patent, 1865 includes suits brought before this Hon’ble Court both under Clauses 12 and 13 of the Letters Patent, 1865 cannot be accepted in view – (a) the clear difference in the dictionary meaning of the word ‘brought’ and the words ‘removed’ or ‘transferred’ and (b) the clear difference in the meaning of the expressions “receive, try and determine” as used in clause 12 and “remove, and to try and determine” as used in Clause 13. 26. It is accordingly submitted that the instant appeal deserves to be and should be allowed by setting aside the impugned judgment and decree passed under Chapter XIIIA of the Original Side Rules of this Hon’ble Court. 27. The learned Counsel for the petitioner relied upon the following decisions in support of his contention that Chapter XIIIA of the High Court Original Side Rules would not apply to the transferred proceedings:- 1) AIR 1955 Cal 258 (Tarachand Ghanshyamdas Vs. State of West Bengal); 2) AIR 1979 Cal 14 (Kalidas Pal Vs. Sripati M. Roychowdhury & Ors.); 3) AIR 1984 Cal 162 (Krishna Kumar Damani Vs. Ramnarain Agarwal & Anr.); 4) AIR 1914 PC 141: 41 IA 314 (Mrs. Annie Besant Vs. G. Narayaniah & Anr.) 28. State of West Bengal); 2) AIR 1979 Cal 14 (Kalidas Pal Vs. Sripati M. Roychowdhury & Ors.); 3) AIR 1984 Cal 162 (Krishna Kumar Damani Vs. Ramnarain Agarwal & Anr.); 4) AIR 1914 PC 141: 41 IA 314 (Mrs. Annie Besant Vs. G. Narayaniah & Anr.) 28. In Tarachand (supra) on consideration of Clause 20 of the Letters Patent it was held:- “The suit remains a suit of the Court where the plaint was filed and Clause 20, Letters Patent expressly provides that the law or equity and rule of good conscience which would have been applicable to the suit in the local Court shall continue to apply. It therefore follows that the fee paid on the plaint in the Court of institution, in accordance with the provisions of the Court-fees Act, must continue to remain paid.” 29. In Kalidas Pal (supra) it will appear from the provisions contained in Rule 1 of Chapter XIIIA of the Original Side Rules of this Hon’ble Court that specific provisions have been made regarding suit concerning immoveable property. Under Rule 3 the right is given to the plaintiff to make an application for final judgment only in a suit to which the provisions of Chapter XIIIA are applicable. Chapter XIIIA provides for the passing of a final decree in a summary manner in any suit to which the said Chapter applies. In a mortgage suit there has to be two decrees, a preliminary decree followed by a final decree. A final judgment resulting in a final decree cannot be passed in a mortgage suit under Chapter XIIIA of the Rules and Chapter XIIIA can have no application to a mortgage suit. The plaintiff in a mortgage suit does not have any right to make any application for final judgment or decree under the provisions of Chapter XIIIA in a mortgage suit. Unless the provisions of Chapter XIIIA apply the Court does not acquire any jurisdiction or power to entertain the application and to pass any decree and any decree which the Court may pass will clearly be without jurisdiction. Merely because Rule 5 of Chapter 7 provides that a mortgage suit may be marked as a liquidated claim for the purpose of classification of suits, it does not follow that it becomes a suit to which the provisions of Chapter XIIIA are applicable. 30. Merely because Rule 5 of Chapter 7 provides that a mortgage suit may be marked as a liquidated claim for the purpose of classification of suits, it does not follow that it becomes a suit to which the provisions of Chapter XIIIA are applicable. 30. In Krishna Kumar (supra) following the Privy Council decision in Besant (supra) case and the Division Bench judgment of this Court in Tarachand (supra) it was held that the institution of a suit in the original Court on transfer under Clause 13 of the Letters Patent nevertheless remains a suit of the Court where plaint is filed, and the same on transfer does not cease to be a suit attracting the jurisdiction of the court where suit was instituted. 31. In Besant (supra) the first respondent instituted a suit against the appellant in a District Court by a plaint claiming a declaration that he was entitled to the guardianship and custody of his two minor sons (the added respondents) and for an order that they should be handed over to him. The suit having been transferred to the High Court under the Letters Patent, 1865 the Court declared that the minors should be wards of the Court, that the first respondent was guardian of their persons, and ordered the appellant to hand them over to him. The minors were in England both when the suit was instituted and when the order was made; they were not made parties to the proceedings, nor were they represented before the Court. On such facts it was held:- “That the District Court had no jurisdiction, since the minors were not ordinarily resident in the district, as required by S. 9 of the Guardians and Wards Act, 1890, and since the suit was not instituted by petition, as required by S.10 of that Act; (2) that, even if the High Court had any jurisdiction with regard to minors beyond that which might have been exercised by the District Court (which was not determined), the mandatory order ought not to have been made, since an attempt to enforce it would expose the appellant to habeas corpus proceedings in England, and since the minors were not represented before the Court, nor adequate steps taken to ascertain their wishes and interests.” 32. The Lord Parker of Waddington speaking for the Bench dealing with the facts, made the observation that the powers of the High Court in dealing with suits so transferred would seem to be confined to powers which but for the transfer might have been exercised by the District Court. Such observation was made on a finding being arrived at that the District Court in which the suit was instituted had no jurisdiction over the infants except such jurisdiction as was conferred by the Guardians and Wards Act, 1890. The relevant observations of His Lordship is reproduced herein-below:- “The real question was whether he was still entitled to exercise the functions of guardian and resume the custody of his sons and alter the scheme which had been formulated for their education. Again, it was not and could not be disputed that the letter of March 6, 1910, was in the nature of a revocable authority. The real question was whether in the events which had happened the plaintiff was at liberty to revoke it. Both questions fell to be determined having regard to the interests and welfare of the infants, bearing in mind, of course, their parentage and religion, and could only be decided by a Court exercising the jurisdiction of the Crown over infants, and in their presence. The District Court in which the suit was instituted had no jurisdiction over the infants except such jurisdiction as was conferred by the Guardians and Wards Act, 1890. By the 9th section of that Act the jurisdiction of the Court is confined to infants ordinarily resident in the district. It is in their Lordships’ opinion impossible to hold that infants who had months previously left India with a view to being educated in England and going to the University of Oxford were ordinarily resident in the district of Chingleput. Further a suit inter parties is not the form of procedure prescribed by the Act for proceedings in a District Court touching the guardianship of infants. It is true that the suit was subsequently transferred to the High Court under Clause 13 of the Letters Patent, 1865, but the powers of the High Court in dealing with suits so transferred would seem to be confined to powers which but for the transfer might have been exercised by the District Court. It is true that the suit was subsequently transferred to the High Court under Clause 13 of the Letters Patent, 1865, but the powers of the High Court in dealing with suits so transferred would seem to be confined to powers which but for the transfer might have been exercised by the District Court. Again, the relief asked for was a mandatory order directing the defendant to take possession of the persons of the infants in England, bring them to India, and hand them over to their father. Considering the age of the infants any attempt on the part of the defendant to comply with this order would, if the infants had refused to return to India, have been contrary to the law of this country, and would have at once exposed the defendant to proceedings in this country on writ of habeas corpus. No Court ought to make an order which might lead to these consequences. The most which a Court of competent jurisdiction in India could do under circumstances such as existed in the present case was to order the defendant to concur with the plaintiff as the infants’ guardian in taking proceedings in this country to regain the custody and control of his sons. The difficulties and anomalies of the procedure adopted by the plaintiff are well illustrated by the history of the proceedings. After the transfer to the High Court, issues were settled in the ordinary manner. There was no issue as to whether it was or was not desirable in the interests of the infants that they should give up all idea of a Western university education and return to India. It was urged that the High Court did in fact consider their interests. If it did so, it must have been upon evidence admitted as relevant on other issues, and it is by no means apparent that, had a proper issue on the point been directed, further evidence would not have been available. At any rate, on such an issue, the necessity of the infants being properly represented before the Court, and of ascertaining what they themselves desired, could hardly have been overlooked.” 33. The learned Counsel for the respondent traced the history of the Letters Patent and the Constitution of the High Court at Calcutta. 34. At any rate, on such an issue, the necessity of the infants being properly represented before the Court, and of ascertaining what they themselves desired, could hardly have been overlooked.” 33. The learned Counsel for the respondent traced the history of the Letters Patent and the Constitution of the High Court at Calcutta. 34. In August 1861, the British Parliament passed the Indian High Courts Act which empowered the Crown to establish, by Letters Patent, High Courts of Judicature at Calcutta, Madras and Bombay. Consequent to such authority, the Letters Patent dated 14th May, 1862 was issued establishing the High Court of Judicature at Calcutta. By subsequent Letters Patent dated 26th June, 1862, the High Court at Bombay and Madras were also established. 35. The Letters Patent empowered the High Court of Calcutta to exercise Ordinary Original Civil Jurisdiction within the local limits of the Presidency town of Calcutta as might be prescribed by a competent Legislative Authority for India. Within such local limits, the High Court was authorized to try and determine suits of every description, except those falling within the jurisdiction of the Small Causes Court at Calcutta. Apart from its Original Jurisdiction, the Letters Patent vested the High Court with wide powers including appellate powers from the Courts of Original Jurisdiction and in procedural matters, the High Court was given the power to make rules and orders in order to regulate all proceedings, civil and criminal, which were brought before it. The Letters Patent 1862 was later replaced by the Letters Patent 1865 which is still in force. As will be seen from Clause 37 of the Letters Patent, vests in the High Court the power to make rules and orders for the purpose of regulating all proceedings in civil cases, which may be brought before it. It was, however, also provided that in making such rules and orders, the High Court should be guided, as far as possible, by the provisions of the Code of Civil Procedure, (hereinafter referred to as ‘the Code’) which had been enacted for courts in India not established by the Royal Charter. 36. By virtue of the issuance of the Letters Patent, the High Courts of Calcutta, Bombay and Madras came to be known as the Chartered High Courts empowered to regulate their own procedure, inter alia, in respect of their Original Civil Jurisdiction. 37. 36. By virtue of the issuance of the Letters Patent, the High Courts of Calcutta, Bombay and Madras came to be known as the Chartered High Courts empowered to regulate their own procedure, inter alia, in respect of their Original Civil Jurisdiction. 37. The Original Side Rules of the Calcutta High Court (for short ‘the Original Side Rules’), which are still in force, have been framed by the High Court under Clause 37 of the Letters Patent which has to be read with Section 129 of the Code which also confers on the High Courts powers to make rules as to their own original civil procedure and reads as follows:- “129. Power of High Courts to make rules as to their original civil procedure:- Notwithstanding anything in this Code, any High Court not being the Court of a Judicial Commissioner may make such rules not inconsistent with the Letters Patent or order other law establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.” 38. Apart from Section 129 of the Code, Order XLIX of the Code specifically excludes the application of certain rules and orders of the aforesaid Code to any of the Chartered High Courts. At the same time, Chapter XL of the Original Side Rules indicates that the provisions of Section 2 of the Code and of the General Clauses Act, 1897 would apply to the Original Side Rules, but where no other provision is made by the Code or by the said Rules, the procedure and practice in existence would continue to remain in force. 39. From the aforesaid, it is clear that the Original Side Rules have been framed by this Hon’ble Court for making rules to regulate its procedure in the exercise own original civil procedure of its. Therefore, the provisions of Chapter XIIIA of the Original Side Rules are rules of procedure or procedural law. As there is no provision for a summary decree in an eviction suit in the Code, the provision of Chapter XIIIA shall remain in force and can be made applicable to eviction suits. 40. Mr. Therefore, the provisions of Chapter XIIIA of the Original Side Rules are rules of procedure or procedural law. As there is no provision for a summary decree in an eviction suit in the Code, the provision of Chapter XIIIA shall remain in force and can be made applicable to eviction suits. 40. Mr. Talukdar, the learned Counsel for the respondent submitted that the word law in the phrase “such law or equity and rule of good conscience” in Clause 20 of the Letters Patent 1865 signifies substantive law and not procedural law. This is more so in view of the fact that under Clause 37 of the Letters Patent 1865. It is the Hon’ble High Court which shall make rules for the purpose of regulating all proceedings in civil cases which may be brought before it. The phrase “which may be brought before the said High Court” in Clause 37 of the Letters Patent 1865 includes suits brought before this Hon’ble Court both under Clauses 12 and 13 of the Letters Patent 1865. It is for this reason the word “brought” is not used in either Clause 12 or Clause 13; whereas clause 12 uses the word “receive”, the word used in Clause 13 is “remove”. A suit brought before the Hon’ble Court includes both a suit received by this Hon’ble Court under Clause 12 of the Letters Patent 1865 and removed to this Hon’ble Court under Clause 13 of the Letters Patent 1865. Therefore, the provisions of the Original Side Rules will apply to all suits transferred to this Hon’ble Court under Clause 13 of the Letters Patent 1865. Further, the provisions of the Letters Patent 1865 have to be harmoniously construed. In the event of the phrase “such law or equity and rule of good conscience” in Clause 20 of the letters Patent 1865 is interpreted to mean procedural law, the same would result in a conflict within the provisions of Clause 37 of the Letters Patent 1865 which ordains that this Hon’ble Court shall make rules and orders for the purpose of regulating all proceedings in civil cases brought before this Hon’ble Court. It is, therefore, amply clear that in the phrase “such law or equity and rule of good conscience” in Clause 20 of the Letters Patent 1865 the word “law” means substantive law only. 41. It is, therefore, amply clear that in the phrase “such law or equity and rule of good conscience” in Clause 20 of the Letters Patent 1865 the word “law” means substantive law only. 41. The Letters Patent 1865 and earlier Letters Patent were enacted at a time when there were various native states or princely states in India. In principle, the princely states had internal autonomy, while by treaty the British Crown had suzerainty and was responsible for the states’ external affairs. In practice, while the states were indeed ruled by potentates with a variety of titles, such as Raja, maharaja, Nawab, Khan or Nizam, the British had considerable influence. Only 21 princely states had actual state governments. They acceded to one or other of the two new independent nations of India and Pakistan between 1947 and 1949. All the princes were eventually pensioned off. The erstwhile Princely Rulers represented the authority of the State; they were competent to issue Firmans. They combined in themselves the legislature, the Judiciary and the Executive – all three rolled into one. That the various princely states have their own unique local laws have also been taken into account by the various courts of the country while deciding various cases. In order to ensure that the cases transferred from these princely states to this Hon’ble Court are heard and tried in accordance with their own special local laws, provisions have been made in Clause 20 of the Letters Patent 1865 which provides that the law applicable will be that of the transferor court. The word “law” in clause 20 of the Letters Patent 1865 thus undoubtedly means substantive law and not procedural law. 42. In the event any other interpretation is given to the word “law” in clause 20 of the Letters Patent 1865, the same will lead to difficulties and confusion. It is hardly possible that it was intended that the High Court, while deciding suits transferred from the princely states, would follow the individual nuances of proceeding of each of the princely states. It is hardly possible that it was intended that the High Court, while deciding suits transferred from the princely states, would follow the individual nuances of proceeding of each of the princely states. Similarly, in the present context, when the various district courts and lower courts all over West Bengal have their own unique procedure, it is hardly possible that while dealing with suits transferred to this Hon’ble Court from several district courts, this Hon’ble Court would follow one procedure in the case of the first suit transferred from District X, another procedure the case of the second suit transferred from District Y and yet another procedure in the case of a third suit transferred from District Z. What is logical, reasonable and practical is that if there is any substantive law peculiar to any territory under the jurisdiction of any particular court, the same has to be followed while deciding a suit transferred from such particular court; whereas the procedural law to be followed in deciding the suit would be the procedural law applicable to the High Court i.e. the Original Side Rules. 43. Even today, various Central Acts have no application in the State of Jammu & Kashmir. Even a few days back, the Income Tax Act 1961 had no application in the State of Sikkim. In the event, any case is transferred from the State of Jammu & Kashmir to any other State and/or if any revenue matter is transferred from the State of Sikkim to any other State, the transferee state cannot apply, in such cases, the law applicable in the transferee state but only the law applicable in the transferor state. Therefore, Clause XX of the Letters Patent 1865 means a substantive law and not procedural law. 44. “Law” in Clause XX of the Letters Patent cannot mean procedural law. Various courts in India have their own procedural law for dispensing with justice. The procedural laws applicable in different High Courts are not identical. Therefore, it will not be possible for the transferee court to be aware of the procedural law of the transferor state. It is not possible for the transferee court to apply the procedural law of the transferor court and the word “law” in Clause XX of the Letters Patent means substantive law and not procedural law. 45. Therefore, it will not be possible for the transferee court to be aware of the procedural law of the transferor state. It is not possible for the transferee court to apply the procedural law of the transferor court and the word “law” in Clause XX of the Letters Patent means substantive law and not procedural law. 45. Chapter X Rule 1 of the Original Side Rules provide that a General Cause List shall be kept in Registrar’s Office in which all Suits shall be entered under various heads. One of such heads is Extraordinary Suits under Item-2 Rule-2 provides as follows:- (a) All suits instituted in the Court in its Admiralty Jurisdiction after return and filing of the writ of summons or of the warrant of arrest; (b) Every special case under Section 90 and O.XXXVI of the Code, after return and filing of the notice provided for in rule 3(2) of that order; (c) All suits transferred to this Court under clause 13 of the Letters Patent, or sections 24 and 25 of the Code, or section 39 of the Presidency Small Cause Courts Act after they are numbered and registered as suits in this Court; (d) All suits arising out of proceedings instituted in this Court in its Testamentary Intestate Jurisdiction, after the filing of the order directing the proceedings to be treated as a contentious cause; (e) All suits under Chapter XIII, after the return and filing of the originating summons; (f) All other suits after the return and filing of the writ of summons. 46. From Rule 2(C) of Chapter X of O.S. Rules, it becomes amply clear that Suits transferred to this Hon’ble Court under Article 13 of the LP 1865, after transfer to this Hon’ble Court take the form of “Suits in this Court” and are accordingly to be conducted in accordance with the procedure prevalent in this Hon’ble Court i.e. the O.S. Rules will apply to such Suits. 47. 47. Several instances of incongruity which inter alia would arise, in the event the procedural law of the District Court is followed in deciding transferred suits would be:- “(a) From various orders passed by the lower courts which are nonappealable (like orders passed in an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure 1908), a revision application is filed under Article 227 of the Constitution of India before this Hon’ble Court. From an interlocutory order passed by this Hon’ble Court, an appeal lies before the Hon’ble Division Bench of this Hon’ble Court under clause 15 of the Letters Patent 1865. In case a suit is transferred from a lower court to this Hon’ble Court and this Hon’ble Court passes an interlocutory order therein which is non appealable under the Code, it is highly unlikely that a revision application is to be filed impugning the said order under Article 227 of the Constitution of India. The same would result in impugning an order of a Hon’ble Single Judge of this Hon’ble Court before another Hon’ble Single Judge of the same Court. (b) Rule 1 of Chapter 14 of the Original Side Rules provides that upon the hearing of any suit or matter in Court or before a Judge, the evidence of each witness shall be taken down by or in the presence and under the superintendence of the Judge or one of the Judges. Such evidence shall be taken down in a narrative form when in long-hand and in the form of question and answer, when in short-hand, by such officers of the Court as may be appointed for the purpose and shall form part of the record. The transcript, of the short-hand note so taken shall be signed by the officer recording the note and be deemed the deposition of the witness and shall also from the part of the record. Order XVIII Rule 4 of the Code which is applicable to suits heard in the Learned City Civil Court at Calcutta provides for examination-in-chief by way of filing an affidavit. Therefore, undue difficulty would arise regarding the mode of recording of evidence in case of suits transferred to this Hon’ble Court from the Learned City Civil Court at Calcutta in the event it is held that the procedure under the Original Side Rules do not apply to such suits. Therefore, undue difficulty would arise regarding the mode of recording of evidence in case of suits transferred to this Hon’ble Court from the Learned City Civil Court at Calcutta in the event it is held that the procedure under the Original Side Rules do not apply to such suits. (c) There are various other procedural formalities which apply to the learned City Civil Court at Calcutta but do not apply to this Hon’ble Court. This, inter alia, include filing of a hazira so as to record the presence of both the parties on a particular date, a time petition for getting an adjournment etc. which are not followed in this Hon’ble Court.” 48. On the basis of the aforesaid, it is argued that it is absolutely clear that in the event it is held that the Original Side Rules do not apply to suits transferred to this Hon’ble Court from the Learned City Civil Court at Calcutta the same would result in undue hardship and absurdity. It is a well recognized rule of construction that a statutory provision must be so construed, if possible that absurdity and mischief may be avoided. There are may situations where the construction suggested by the appellant in the instant case would lead to a wholly unreasonable result which could never have been intended by the legislature. Procedural laws regulating proceedings in court are to be construed as to render justice wherever reasonably possible and to avoid hardship, injustice or absurdity. Therefore, the word “law” in Clause 20 of the Letters Patent 1865 must be integrated to mean substantive law only and not procedural law inasmuch as if the same is interpreted to mean what substantive and procedural law, such integration would lead to absurdity and undue hardship. 49. From the stay petition filed by the appellant, it is clear that the appellant has followed the Original Side Rules of this Hon’ble Court. The suit was transferred to this Court at the instance of the appellant under Chapter XIIIA of the Original Side Rules. Having accepted the Original Side Rules, the appellant, in order to deprive the respondent of the fruits of the decree, cannot now contend that Chapter XIIIA of the Original Side Rules would not be applicable. The instant appeal, in fact, has been filed under Clause 15 of the Letters Patent following the Original Side Rules. 50. Having accepted the Original Side Rules, the appellant, in order to deprive the respondent of the fruits of the decree, cannot now contend that Chapter XIIIA of the Original Side Rules would not be applicable. The instant appeal, in fact, has been filed under Clause 15 of the Letters Patent following the Original Side Rules. 50. In National Sewing (supra) it was held that the appellants preferred an appeal against the order of the Registrar to the High Court of Bombay as permitted by the provisions of Section 76 of the Trade Marks Act. The Hon’ble Mr. Justice Shah of the Hon’ble High Court of Bombay allowed the appeal, set aside the order of the Registrar and directed the Registrar to register the mark of the appellants as a trade mark. From the judgment of Mr. Judge Shah an appeal was preferred by the respondents under Clause 15 of the Letters Patent of the Bombay High Court. The appeal was allowed and the order of the Registrar was restored with costs throughout. From the said order, an appeal was filed before the Hon’ble Supreme Court of India. While holding that the appeal under Clause 15 of the Letters Patent of the Bombay High Court was maintainable, the Hon’ble Supreme Court of India held as follows:- “………The Trade Marks Act does not provide or lay down an procedure for the future conduct or career of that appeal in the High Court, indeed Section 77 of the Act provides that the High Court can if it likes make rules in the matter. Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the charter under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court…….” 51. In R. Ray (Supra) it has been held that the expression “law to be administered” by the High Court under Clause 19 refers to substantive law. Clause 19 and Clause 20 are identical and pari materia. In R. Ray (Supra) it has been held that the expression “law to be administered” by the High Court under Clause 19 refers to substantive law. Clause 19 and Clause 20 are identical and pari materia. Hence “law to be administered” by the High Court under Clause 20 also means substantive law. 52. Mr. Samit Talukdar, the learned Counsel relied upon the following decisions for the proposition that nobody has a vested right in procedure:- (a) AIR 1964 SC 907 (Ittyavira mathai Vs. Varkey Varkey & Anr.); (b) AIR 1952 SC 235 (Lachman Das Kewalram & Anr. Vs. State of Bombay); (c) 2003(6) SCC 659 (Shiv Shakti Co-op. Housing Society, Nagpur Vs. Swaraj Developers & Ors.) (d) 2010 (3) SCC 765 (Securities and Exchange Board of India Vs. Ajay Agarwal) 53. The learned Counsel also relied upon the following decisions for the proposition that an interpretation which avoids absurdity should be preferred:- (a) 1988 (1) SCC 440 (Paradise Printers 7 Ors. Vs. Union Territory of Chandigarh & Ors.); (b) AIR 1967 SC 276 (State of Madhya Pradesh Vs. M/s. Azad Bharat Finance Company & Ors.); (c) AIR 1977 SC 2328 (Union of India Vs. Shankalp Chand Himatlal Sheth & Anr.); (d) 1979 (2) SCC 34 (Chief Justice, Andhra Pradesh & Ors. Vs. L.V.A. Disitulu & Ors.); (e) 2009(10) SCC 601 (Rishab Chand Bhandari & Anr. Vs. National Engineers Industry Ltd.); (f) 2001(2) SCC 721 (Executive Engineer, Dhenkanal, Minor Irrigation Division, Orissa & Ors. Vs. N.C. Budharaj & Ors.) 54. The power of the Chartered High Court under the Letters Patent were recognized and saved by Section 108 of the Government of India At, 1915, Section 223 of the Government of India Act, 1935 and finally, by Article 225 of the Constitution of India. A Letters Patent is the Charter under which the High Court is established. The powers given to a High Court under the Letters Patent are akin to the constitutional powers of a High Court. (Fuerst Day Lawson Limited Vs. Jindal Exports Ltd.; 2011(8) SCC 333 ) 55. The High Court in exercise of its powers conferred upon it under Section 122 CPC can frame rules. After coming into force of the Constitution, such rules can also be framed by the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 56. In Vidyawati Gupta & Ors. Vs. The High Court in exercise of its powers conferred upon it under Section 122 CPC can frame rules. After coming into force of the Constitution, such rules can also be framed by the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 56. In Vidyawati Gupta & Ors. Vs. Bhakti Hari Nayak & Ors. reported in 2006(2) SCC 777 (Paras 6, 7, 9, 38), in which the Hon’ble Supreme Court held as follows:- “6. By virtue of the issuance of the Letters Patent, the High Courts of Calcutta, Bombay and Madras came to be known as the Chartered High Courts empowered to regulate their own procedure, inter alia, in respect of its ordinary original civil jurisdiction. 7. The Original Side Rules of the Calcutta High Court (for short “the Original Side Rules”), which are still in force, came to be framed by the High Court under Clause 37 of the Letters Patent which has to be read along with Section 129 of the Code which also confers on the High Courts powers to make rules as to their own original civil procedure and reads as follows:- “129. Power of High Courts to make rules as to their original civil procedure. – Notwithstanding anything in this Code, any High Court not being the Court of a Judicial Commissioner may make such rules not inconsistent with the Letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.” 9. Chapter 7 of the Original Side Rules framed by the Calcutta High Court to regulate its own procedure in original civil matters deals with the institution of suits. Inasmuch as, a good deal of submission has been made with regard to the provisions of Rule 1 of Chapter 7 which will have a significant bearing with regard to a decision in this case, the same is reproduced herein-below: “1. The plaint to be written or printed: manner of contents. Inasmuch as, a good deal of submission has been made with regard to the provisions of Rule 1 of Chapter 7 which will have a significant bearing with regard to a decision in this case, the same is reproduced herein-below: “1. The plaint to be written or printed: manner of contents. – The plaint shall be legibly written, or printed, in the English language, on durable foolscap paper or other paper similar to it in size and quality, book wise, and on both sides of the paper, with not more than 25 or less than 18 lines, of about 10 words in each line in each page, and with an inner margin of about an inch and a quarter wide. It shall be stitched book wise in the following order: (1) warrant to sue, where the plaintiff appears by an advocate acting on the original side; (2) concise statement; (3) the plaint; (4) list of documents upon which the plaintiff relies; (5) list of documents produced with the plaint; (6) exhibits or copies of exhibits filed. Dates, sums and numbers occurring in the plaint shall be expressed in figures as well as in words stated in rupees, annas and pies, and the corresponding English dates being added, where the dates are not according to the English calendar. The plaint shall comply with Order 6 of the Code, and shall contain the particulars required by Order 7 Rule 1 to 8 of the Code. Every alteration in the plaint shall be marked and authenticated by the initials of the persons verifying the plaint, or with leave of the Judge or officer, by the advocate acting on the original side.” 38. Although various decisions were cited by Mr. Ranjit Kumar on the question of legislation by reference, we are not really required to dwell on such submission since it is the common case of the parties that the provisions of Order 6 and select portions of Order 7 would have application to plaints filed on the Original Side of the Calcutta High Court and it is also the settled position that the rules of the original side as framed under the letters patent, unless excluded and/or modified, would continue to have primacy over the Code and matters not provided for. What we are really required to consider is the effect of the amended provisions of the Code in relation to Chapter 7 Rule 1 of the Original Side Rules. We need not, therefore, advert to the various decisions cited by Mr. Ranjit Kumar on this aspect of the matter.” 57. In Iridium India Telecom Ltd. Vs. Motorola Inc. ( 2005(2) SCC 145 ) (Paragraphs-15-25, 48) it has been held:- “15. Prior to the establishing of the chartered High Courts by the British Government in 1862, the civil courts in the Presidency of Bombay were governed by the Code of Civil Procedure, 1859 (Act of 8 of 1859, which received the assent of the Governor General on 22-3-1859). This Act, as its preamble suggests, was “an Act for simplifying the procedure of the courts of civil judicature not established by Royal Charter” and was not intended to apply to High Courts established by Royal Charter. 16. The First Letters Patent or Charter establishing High Courts was accompanied by a dispatch from the Secretary of State on 14-5-1862, and was in force till revoked by a further Letters Patent on 28-12-1865. The learned counsel drew our attention to para 36 of the dispatch, which explains the purpose of clause 37 in the First Letters Patent. The said para 36 of the dispatch reads as under: “36. Clause 37 is a very important one, and there is little doubt, will prove a very salutary provision. It has, therefore, been inserted, although the change introduced is somewhat greater and more substantial than is generally aimed at in this Charter. It extends to the High Court the Code of Civil Procedure enacted by the legislature of India for the court, not established by Royal Charter, and thus accomplishes the object so long contemplated of substituting one simple Code of Procedure for the various systems (corresponding to its common law, equity and admiralty jurisdiction) which have been in operation in the Supreme Court since the date of its establishment.” 17. It is, therefore, seen that clause 37 of the Letters Patent was intended to extend to the High Courts the Code of Civil Procedure enacted by the legislature of India for the courts other than the courts established by Royal Charter. It is, therefore, seen that clause 37 of the Letters Patent was intended to extend to the High Courts the Code of Civil Procedure enacted by the legislature of India for the courts other than the courts established by Royal Charter. The intention was to substitute one simple Code of Procedure for the various systems which had been in operation in the Supreme Court since the date of its establishment. 18. Clause 37 of the Letters Patent of 1865, which deals with “civil procedure and regulation of proceedings”, reads as follows: “37. And we do further ordain that it shall be lawful for the said High Court of Judicature at Fort William in Bengal, from time to time, to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its admiralty, vice-admiralty, testamentary, intestate and matrimonial jurisdictions, respectively: Provided that the said High Court shall be guided in making such rules and orders as far as possible, by the provisions of the Code of Civil Procedure, being an Act passed by the Governor-General-in-Council, and being Act of 8 of 1859, and the provisions of any law which has been made amending or altering the same, by competent legislative authority for India.” (Letters Patents of the three High Courts, namely, Calcutta, Bombay and Madras are identically worded.) 19. The Code of Civil Procedure, 1877 (Act 10 of 1877), which received the assent of the Governor General on 30-3-1877, and was thereafter brought into force with effect from 1-10-1877, was “an Act to consolidate and amend the laws relating tot he procedure of the court of civil judicature”. Part IX of this Act contained special rules relating to the chartered High Courts. Chapter XLVIII of the Act applied only to the chartered High Courts. Section 632 of the Civil Procedure Code of 1877, in express words, provided “except as provided in this chapter the provisions of this Code apply to such High Courts”. Part IX of this Act contained special rules relating to the chartered High Courts. Chapter XLVIII of the Act applied only to the chartered High Courts. Section 632 of the Civil Procedure Code of 1877, in express words, provided “except as provided in this chapter the provisions of this Code apply to such High Courts”. Section 638 was the exception to the general rule and provided as under: “The following portions of this Code shall not apply to the High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, namely, Sections 16 and 17, Sections 54, clauses (a) and (b), 57, 119, 160, 182 to 185 (both inclusive), 187, 189, 190, 191, 192 (so far as relates to the manner of taking evidence), 198 to 206 (both inclusive), 261, and so much of Section 409 as relates to the making of a memorandum; and Section 579 shall not apply to the High Court in the exercise of its appellate jurisdiction. Nothing in this Code shall extend or apply to any High Court in the exercise of its jurisdiction as an Insolvency Court.” 20. The legislature recognized the special role assigned to the chartered High Courts and exempted them from the application of several provisions of the Code in the exercise of their ordinary or extraordinary civil jurisdiction for the simple reason that those jurisdictions were governed by the procedure prescribed by the rules made in exercise of the powers of the chartered High Courts under clause 37 of the Letters Patent. Interestingly, Section 652 of this Act itself empowered the High Courts to make rules “consistent with this Code to regulate any matter connected with the procedure of the courts of civil judicature subject to its superintendence”, suggesting that consistency with the Code was a sine qua non only when making rules for the subordinate courts. 21. The Code of Civil Procedure, 1882 (Act 14 of 1882) received the assent of the Governor General on 17-3-1882. It also contained Part IX dealing with special rules relating to the chartered High Courts. Section 638 of this Code also exempted the chartered High Courts in the exercise of their ordinary or extraordinary original civil jurisdiction from the application of the Code. It also contained Part IX dealing with special rules relating to the chartered High Courts. Section 638 of this Code also exempted the chartered High Courts in the exercise of their ordinary or extraordinary original civil jurisdiction from the application of the Code. Section 652 invested the High Courts with power to make rules “consistent with this Code to regulate any matter connected with its own procedure or the procedure of the courts of civil judicature subject to its superintendence”. (emphasis ours) 22. By an amendment made by Act 13 of 1895, Section 632 and 652 of the Code of Civil Procedure, 1882 were amended. Section 632, as amended by this Act, reads as under: “Except as provided in this chapter and in Section 652 the provisions of this Code apply to such High Courts.” The amendment made in Section 652 provides an apercu to the controversy. Section 652 was amended by adding the following: “Notwithstanding anything in this Code contained, any High Court established under the said Act for establishing High Courts of Judicature in India may make such rules consistent with the Letters Patent establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit. All such rules shall be published in the local Official Gazette, and shall thereupon have the force of law.” 23. The reason for making this amendment is clarified in the Statement of Objects and Reasons accompanying the relevant Bill 13 of 1895 in the following words: “Section 652 of the Code of Civil Procedure, as it now stands, purports to require that any rules to regulate its own procedure made by a High Court, even although it be established by Royal Charter, shall be consistent with that Code. The Letters Patents of the High Courts at Fort William, Madras and Bombay, appear, however, to recognize the practical expediency of leaving such High Courts some latitude in the direction of adapting the provisions of the ordinary law to meet their requirements. The Letters Patents of the High Courts at Fort William, Madras and Bombay, appear, however, to recognize the practical expediency of leaving such High Courts some latitude in the direction of adapting the provisions of the ordinary law to meet their requirements. It has been found by experience that these provisions are not in all respects convenient in the case of original proceedings in those courts, and the object of this Bill is, by an amendment of Section 652 and, an ancillary amendment of Section 632, to bring the Code into perfect harmony with the provisions of those Letters Patents and to enable the High Courts referred to, do regulate the exercise of this original civil jurisdiction accordingly.” 24. Then we come to the 1908 Act, which made a drastic departure from the hitherto pattern of the Code. The Code was now divided into a fascicle of substantive sections and a schedule containing rules, which by force of Section 121 were declared to have effect as if enacted in the body of the Code until annulled or altered in accordance with the provisions of Part X CPC. 25. Despite the sweeping charge made by the 1908 Act, interestingly, the amendment introduced in the Code of Civil Procedure, 1882 by Act 13 of 1895, which we have quoted above, was retained in a slightly modified form in Section 129. 48. Finally, it was argued by Mr Jethmalani that the Letters Patent, and the rules made thereunder by the High Court for regulating its procedure on the original side, were subordinate legislation and, therefore, must give way to the superior legislation, namely, the substantive provisions of the Code of Civil Procedure. There are two difficulties in accepting this argument. In the first place, Section 2(18) CPC defines “rules” to mean “rules and forms contained in the First Schedule or made under Section 122 or Section 125”. The conspicuous absence of reference to the rules regulating the procedure to be followed on the original side of a chartered High Court makes it clear that those rules are not “rules” as defined the Code of Civil Procedure, 1908. Secondly, it is not possible to accept the contention that the Letters Patent and rules made thereunder, which are recognized and specifically protected by Section 129, are relegated to a subordinate status, as contended by the learned counsel. Secondly, it is not possible to accept the contention that the Letters Patent and rules made thereunder, which are recognized and specifically protected by Section 129, are relegated to a subordinate status, as contended by the learned counsel. We might usefully refer to the observations of the Constitutional Bench of this Court in P.S. Sathappan v. Andhra Bank Ltd. With reference to Letters Patent, this is what the Constitution Bench said: “32 (148). It was next submitted that clause 44 of the Letters Patent showed that Letters Patent were subject to amendment and alteration. It was submitted that this showed that a Letters Patent was a subordinate or subservient piece of law. Undoubtedly, clause 44 permits amendment or alteration of Letters Patent, but then which legislation is not subject to amendment or alteration? CPC is also subject to amendments and alterations. In fact it has been amended on a number of occasions. The only unalterable provisions are the basic structure of our Constitution. Merely because there is a provision for amendment does not mean that, in the absence of an amendment or a contrary provision, the Letters Patent is to be ignored. To submit that a Letters is a subordinate piece of legislation is to not understand the true nature of a Letters Patent. As has been held in Vinita Khanolkar case (1998(1)SCC 500) and Sharda Devi case ( 2002(3) SCC 705 ) a Letters Patent is the charter of the High Court. As held in Shah Babulal Khimji case ( 1981(4) SCC 8 ) a Letters Patent is the specific law under which a High Court derives its powers. It is not any subordinate piece of legislation. As set out in aforementioned two cases a Letters Patent cannot be excluded by implication. Further it is settled law that between a special law and a general law the special law will always prevail. A Letters Patent is a special law for the High Court concerned. The Civil Procedure Code is a general law applicable to all courts. It is well-settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail. A Letters Patent is a special law for the High Court concerned. The Civil Procedure Code is a general law applicable to all courts. It is well-settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail. We see no conflict between the Letters Patent and Section 104 but if there was any conflict between a Letters Patent and the Civil Procedure Code then the provisions of the Letters Patent would always prevail unless there was a specific exclusion. This is also clear from Section 4 of the Civil Procedure Code which provides that nothing in the Code shall limit or affect any special law. As set out in Section 4 CPC only a specific provision to the contrary can exclude the special law. The specific provision would be a provision like Section 100-A.” 58. There is a distinction between the substantive law and the procedural law. The procedure under Chapter XIIIA is a fair procedure and it cannot be said that such procedure is not in consonance with equity justice and good conscience or it is unfair. The heading of Chapter XIIIA says it is a procedural rule. The principle that the law, equity and rule of good conscience applicable in the lower Court should be applicable in a transferred suit necessarily means that the substantive law should be applied in a transferred suit from the lower Court. 59. The distinction between the substantive law and the procedural law is well-settled. Once the suit is transferred from the Subordinate Court to the High Court under Clause 13 of the Letters Patent, it is marked as an extraordinary suit and is required to be governed by Original Side Rules of the High Court. Once the suit is transferred, the service of summons and other procedural matters are required to be governed by the provisions of the High Court Original Side Rules and not by of Code of Civil Procedure or civil rules and orders. On transfer the entire Original Side Rules including Chapter XIIIA shall apply to such transferred suits. 60. In deciding the said matter, it has to be seen whether Chapter XIIIA of the Original Side Rules is a substantive law or a procedural law. On transfer the entire Original Side Rules including Chapter XIIIA shall apply to such transferred suits. 60. In deciding the said matter, it has to be seen whether Chapter XIIIA of the Original Side Rules is a substantive law or a procedural law. The part of law which creates and defines rights are know as substantive law unlike adjective law which defines method of enforcing rights. The part of the law that creates, defines and regulates the rights, duties and powers of the parties are substantive law. It defines the remedy and the right. The law procedure defines the modes and conditions of the application of the one to the other. 61. Salmond on Jurisprudence (12th Edition), defined the true nature of the distinction between the substantive law and the law of procedure in the following words:- “What, then, is the true nature of the distinction? The law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions – jus quod ad actiones pertinet – using the term action in a wide sense to include all legal proceedings, civil or criminal. All the residue is substantive law, and relates, not to the process of litigation, but to its purposes and subject-matter. Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated. A glance at the actual contents of the law of procedure will enable us to judge of the accuracy of this explanation. Whether I have a right to recover certain property is a question of substantive law, for the determination and the protection of such rights are among the ends of the administration of justice; but in what courts and within what time I must institute proceedings are questions of procedural law, for they relate merely to the modes in which the courts fulfil their functions. What facts constitute a wrong is determined by the substantive law; what facts constitute proof of a wrong is a question of procedure. For the first relates to the subject-matter of litigation, the second to the process merely. What facts constitute a wrong is determined by the substantive law; what facts constitute proof of a wrong is a question of procedure. For the first relates to the subject-matter of litigation, the second to the process merely. Whether an offence is punishable by fine or by imprisonment is a question of substantive law, for the existence and measure of criminal liability are matters pertaining to the end and purpose of the administration of justice. But whether an offence is punishable summarily or only on indictment is a question of procedure. Finally, it may be observed that, whereas the abolition of capital punishment would be an alteration of the substantive law, the abolition of imprisonment for debt was merely an alteration in the law of procedure. For punishment is one of the ends of the administration of justice, while imprisonment for debt was merely an instrument for enforcing payment. So far as the administration of justice is concerned with the application of remedies to violated rights, we may say that the substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other.” 62. We may refer to some of the decisions of the Hon’ble Supreme Court in order to find out the real meaning and scope of the substantive law and adjective law. 63. In Thirumalai Chemicals Ltd. Vs. Union of India & Ors. reported in 2011 (6) SCC 739 , it has been held:- “23. Substantive law refers to a body of rules that creates, defines and regulates rights and liabilities. Right conferred on a party to prefer an appeal against an order is a substantive right conferred by a statute which remains unaffected by subsequent changes in law, unless modified expressly or by necessary implication. Procedural law establishes a mechanism for determining those rights and liabilities and a machinery for enforcing them. Right of appeal being a substantive right always acts prospectively. It is trite law that every statute is prospective unless it is expressly or by necessary implication made to have retrospective operation. 24. Procedural law establishes a mechanism for determining those rights and liabilities and a machinery for enforcing them. Right of appeal being a substantive right always acts prospectively. It is trite law that every statute is prospective unless it is expressly or by necessary implication made to have retrospective operation. 24. Right of appeal may be a substantive right but the procedure for filing the appeal including the period of limitation cannot be called a substantive right, and an aggrieved person cannot claim any vested right claiming that he should be governed by the old provision pertaining to period of limitation. Procedural law is retrospective meaning thereby that it will apply even to acts or transactions under the repealed Act. 25. Law on the subject has also been elaborately dealt with by this Court in various decisions and reference may be made to a few of those decisions. This Court in Garikapati Veeraya v. N. Subbiah Choudhry ( AIR 1957 SC 540 ), New India Insurance Co. Ltd. v. Shanti Misra ( 1975(2) SCC 840 ), Hitendra Vishnu Thakur v. State of Maharashtra ( 1994 (4) SCC 602 ), Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar ( 1999(8) SCC 16 ) and Shyam Sunder v. Ram Kumar ( 2001(8) SCC 24 ), has elaborately discussed the scope and ambit of an amending legislation and its retrospectivity and held that every litigant has a vested right in substantive law but no such right exists in procedural law. This Court has held that the law relating to forum and limitation is procedural in nature whereas law relating to right of appeal even though remedial is substantive in nature. 26. Therefore, unless the language used plainly manifests in express terms or by necessary implication a contrary intention a statute divesting vested rights is to be construed as prospective, a statute merely procedural is to be construed as retrospective and a statute which while procedural in its character, affects vested rights adversely is to be construed as prospective. 27. Right of appeal conferred under Section 19(1) of FEMA is therefore a substantive right. The procedure for filing an appeal under sub-section (2) of Section 19 as also the proviso to sub-section (2) of Section 19 conferring power on the Tribunal to condone delay in filing the appeal if sufficient cause is show, are procedural rights. 29. 27. Right of appeal conferred under Section 19(1) of FEMA is therefore a substantive right. The procedure for filing an appeal under sub-section (2) of Section 19 as also the proviso to sub-section (2) of Section 19 conferring power on the Tribunal to condone delay in filing the appeal if sufficient cause is show, are procedural rights. 29. Law of limitation is generally regarded as procedural and its object is not to create any right but to prescribe periods within which legal proceedings be instituted for enforcement of rights which exist under substantive law. On expiry of the period of limitation, the right to sue comes to an end and if a particular right of action had become time-barred under the earlier statute of limitation the right is not revived by the provision of the latest statute. Statutes of limitation are thus retrospective insofar as they apply to all legal proceedings brought after their operation for enforcing cause of action accrued earlier, but they are prospective in the sense that they neither have the effect of reviving the right of action which is already barred on the date of their coming into operation, nor do they have the effect of extinguishing a right of action subsisting on that date. Bennion on Statutory Interpretation, 5th Edn. (2008) p. 321 while dealing with retrospective operation of procedural provisions has stated that provisions laying down limitation periods fall into a special category and opined that although prima facie procedural, they are capable of effectively depriving persons of accrued rights and therefore they need be approached with caution. 30. The learned author in order to establish the above proposition referred to the decision of the Court of Appeal in Ydun Case (1899 P 236 (CA) where the Court held that the amending legislation dealt with procedure only and, therefore, applied to all actions whether commenced before or after the passing of the Act and even in respect of previously accrued rights. The principle laid down in Ydun was applied in R. v. Chandra Dharma (1905 (2) KB 335) and it was held that if a statute shortening the time within which proceedings can be taken is retrospective then it is impossible to give good reason, why a statute extending the time within which proceedings be taken, should not be held to be retrospective. 31. 31. The Judicial Committee of the Privy Council in Yew Bon Tew v. Kenderaan Bas Mara (1983(1) AC 553) opined that whether the statute has retrospective effect, cannot in all cases safely be applied by classifying statute as procedural or substantive and pointed out in certain situation the Court would rule against a retrospective operation. 32. Limitation provisions therefore can be procedural in the context of one set of facts but substantive in the context of different set of facts because rights can accrue to both the parties. In such a situation, test is to see whether the statute, if applied retrospectively to a particular type of case, would impair existing rights and obligations. An accrued right to plead a time bar, which is acquired after the lapse of the statutory period, is nevertheless a right, even though it arises under an Act which is procedural and a right which is not to be taken away pleading retrospective operation unless a contrary intention is discernible from the statute. Therefore, unless the language clearly manifests in express terms or by necessary implication, a contrary intention a statute divesting vested rights is to be construed as prospective.” 64. The scheme of Order 1 and Order 2 clearly shows that the prescriptions therein are in the realm of procedure and not in the realm of substantive law or rights. CPC considers objections regarding the frame of suit or joinder of parties only as procedural. It is further clear from Section 99 CPC. This is on the same principle as of Section 21 CPC which shows that even an objection to territorial jurisdiction of the court in which the suit is instituted, could not be raised successfully for the first time in an appeal against the decree unless the appellant is also able to show consequent failure of justice. The Suits Valuation Act, 1887 (in Section 11) similarly indicates that absence of pecuniary jurisdiction in the court that tried the cause without objection also stands on the same footing. The amendment to Section 24 CPC in the year 1976 confers power on the court even to transfer a suit filed in a court having no jurisdiction, to a court having jurisdiction to try it. The amendment to Section 24 CPC in the year 1976 confers power on the court even to transfer a suit filed in a court having no jurisdiction, to a court having jurisdiction to try it. In the context of these provisions with particular reference to the rules in Order 1 and Order 2 CPC, it is clear that an objection of misjoinder of parties or misjoinder of causes of action, is a procedural objection and it is not a bar to the entertaining of the suit or the trial and final disposal of the suit. (Prem Lala Nahata & Anr. Vs. Chandi Prasad Sikaria; 2007(2) SCC 551 ) 65. Order 1, Order 2 and Order 8 Rule 1 of the Code of Civil Procedure are accordingly held to be procedural. 66. In view of the aforesaid, we are of the opinion that Chapter XIIIA is a procedural law and it would apply to a suit transferred under Clause 13 of the Letters Patent. 67. In view thereof, the appeal fails. However, there shall be no order as to costs. 68. Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking. J.N. Patel, C.J., I agree.