Shiva Jute Baling Ltd vs Hindley and Co. Ltd

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Special Leave Petition No. 230 of 1953

Decision Date: 5 April 1955

Coram: Mukherjee, Bijan K.R. (CJ), Das, Sudhi Ranjan

In this matter, Shiva Jute Baling Ltd was the petitioner and Hindley & Co. Ltd was the respondent. The judgment was delivered on 5 April 1955 by a bench consisting of Chief Justice Mukherjee, Justice Bijan Kr. Mukherjee and Justice Das, Sudhi Ranjan. The case was cited as 1955 AIR 464 and 1955 SCR (2) 243. The petitioner had filed an appeal to the Supreme Court under special leave granted by Article 136 of the Constitution. The Supreme Court, by an order dated 25 May 1954, granted the petitioners special leave to appeal against the judgment and order of the Calcutta High Court. In accordance with that order, the petitioners deposited the security amounts within the time specified. However, the registrar of the High Court did not issue any notice of “admission of appeal” to be served on the respondents as required by rule 9 of Order XIII of the Supreme Court Rules. The appellant also failed to move the High Court for admission of the appeal until 11 January 1955, following the usual practice of the High Court. The respondents then filed a motion in the High Court alleging that the appellant had defaulted in prosecuting the appeal, and subsequently moved the Supreme Court seeking action under rule 13 of Order XIII of the Supreme Court Rules. Consequently, the application in the High Court remained pending.

The Court held that once special leave under Article 136 is granted, the registrar of the Supreme Court must, in accordance with rule 8 of Order XIII, transmit a certified copy of the Supreme Court’s order to the court or tribunal from which the appeal arises. Rule 9 of Order XIII then obliges that court or tribunal, absent any special directions, to act according to the provisions of Order XLV of the Civil Procedure Code that are applicable. Accordingly, the lower court receives the security deposits for the respondent’s costs, printing costs and any other deposits ordered by the Supreme Court, and proceeds to prepare the appeal record for transmission. Because of this procedure, an application under rule 13 of Order XIII to rescind the special leave cannot be entertained unless the lower court reports that the appellant has failed to act diligently to enable it to fulfill the directions contained in the Supreme Court’s order and to comply with the applicable provisions of Order XLV of the Civil Procedure Code. The Court therefore concluded that the rescission action was not permissible under the circumstances.

The Court explained that an application under rule 13 of Order XIII of the Supreme Court Rules cannot be filed unless the lower court or tribunal states that the appellant has failed to act diligently to enable that court to comply with any directions contained in the Supreme Court’s order and to follow the provisions of Order XLV of the Civil Procedure Code to the extent they apply to appeals filed under Article 136 of the Constitution. Because rule 9 of Order XIII limits the use of Order XLV for Article 136 appeals, the lower court must nevertheless carry out any directions issued in the special-leave order and must receive the security for the respondents’ costs and any other required deposits. However, once the appellant supplies the security and makes the other deposits, the “admission” formalities prescribed by rule 8 of Order XLV become unnecessary, since the special-leave order itself operates as an admission of the appeal once its conditions concerning security and deposits are satisfied. Consequently, appeals under Article 136 rest on a different basis than appeals that arise from a certificate granted by the High Court. In the present case, the High Court retained exclusive jurisdiction over the matter until it formally admitted the appeal under rule 8 of Order XLV, whereas rule 9 of Chapter 32 of the Original Side Rules of the Calcutta High Court provides for the admission of Supreme Court appeals either by a Supreme Court order or by Order XLV. When an appeal arising from a special-leave order is thus “admitted”, the rule requires the Registrar to issue a notice of admission for service on the respondents.

The Court further observed that when special leave is granted, the appellant is not required to petition the High Court for a formal admission because the special-leave order itself sets out the conditions that the appellant must fulfil. Admission becomes final only after those conditions are met, and at that point the Registrar is obligated to issue the notice of admission to the respondents. If such notice is not issued, the appellant cannot be held liable for laches in prosecuting the appeal with respect to the steps that should follow the admission. The judgment was delivered in the civil appellate jurisdiction concerning Petition for Special Leave to Appeal No 230 of 1953. Counsel for the respondents were instructed, and counsel for the petitioners also appeared.

In this case the respondents filed an application in Special Leave Petition No. 230 of 1953, seeking a summons to the appellants to show cause why the special leave that had been obtained by the appellants should be rescinded pursuant to Order XIII, rule 13 of the Supreme Court Rules. The appeal challenged a judgment of a Division Bench of the Calcutta High Court which had affirmed, on appeal, a decision of a single judge sitting on the Original Side of that Court. After the High Court had refused to grant a certificate, the appellants invoked article 136 of the Constitution and obtained special leave to appeal by an order dated 25 May 1954. That order required the appellants to furnish security for costs of Rs 2,500 within six weeks and, as a condition for staying the enforcement of the award that formed the subject-matter of the appeal, to deposit in Court a sum of Rs 28,000 within four weeks of the order. On 15 June 1954 the Registrar of the Supreme Court transmitted to the Original Side of the Calcutta High Court certified copies of both the order granting special leave and the special leave petition, together with a request that those documents be placed in the printed records of the case. It was not disputed that the appellants complied with the directions and deposited both the security for costs and the Rs 28,000 within the time prescribed. On 29 November 1954 the respondents’ solicitors in Calcutta wrote to the Registrar of the Original Side of the Calcutta High Court alleging a delay on the part of the appellants in prosecuting the appeal. The letter stated that, although six months had elapsed since the Supreme Court had granted special leave, the respondents had not been served notice of the admission of the appeal and no steps had been taken by the appellants to have the records printed or transmitted to the Supreme Court. In reply, the Registrar informed the respondents’ solicitors that, according to the practice of the Calcutta High Court, the appellants were required to make a formal application to the appellate bench for a declaration that the appeal was finally admitted. Such an application had to be served on the other parties under Order XLV, rule 8 of the Civil Procedure Code and had to be accompanied by a copy of the Supreme Court order granting special leave and a copy of the petition on which that order was made. The Registrar further explained that until the High Court made an order declaring the appeal admitted, no further action could be taken by the office.

On 11 January 1955 the appellants filed an application in the Calcutta High Court seeking permission to file certified copies of both the petition for special leave and the order granting such leave, and further requesting that the appeal be finally admitted. The application was placed before the learned Chief Justice and Justice Lahiri, and on 20 January 1955 the two judges issued an order stating that special leave to appeal to the Supreme Court had been granted on 25 May 1954, and that the appellant had furnished the necessary security on 21 June 1954. The order further observed that it was the appellant’s duty to take the steps required for final admission of the appeal so that the preparation of the paper book could proceed, and that under the rules and practice of the High Court the appellant must make an application for leave to file a certified copy of the petition for special leave together with a certified copy of the order granting special leave, both of which were to be filed along with the present application.

When the matter was later called for a further hearing, the court asked the appellants to explain the delay that had occurred. The appellants replied that the certified copy of the application for special leave had been obtained only recently. They did not explain why, after obtaining a certified copy of the order, they had not also obtained a certified copy of the petition at the same time. Considering all the circumstances, the judges deemed it appropriate to postpone the disposal of the present application for one month, thereby allowing the respondents the opportunity to take any steps they wished to take before the Supreme Court.

The facts and the High Court’s order were communicated to the Registrar of the Supreme Court by Shri Rajinder Narain, the counsel for the respondents, in letters dated 17 January 1965 and 31 January 1965. In those letters he requested that the Registrar initiate action against the appellants for failure to prosecute the appeal. The Registrar replied that he had not received any report from the Calcutta High Court indicating any laches on the part of the appellants, and that without such a report he could not take any action. He further advised that the counsel was at liberty to make a formal application to the Court in whatever manner he deemed appropriate. The Registrar’s views were subsequently transmitted to the Registrar of the Calcutta High Court, Original Side. On 4 March 1955 Shri Rajinder Narain filed a formal petition addressed to the Supreme Court Registrar, alleging the appellants’ non-prosecution of the appeal.

In the present matter the petition filed by the respondents claimed that the appellants had caused an inordinate delay by failing to file in the High Court, within a reasonable period, certified copies of both the Special Leave petition and the order made by this Court on that petition; the petition therefore prayed that summons be issued to the appellants to show cause why the appeal should be dismissed for non-prosecution. Before the Registrar could take any further step, the appellants had made an application for final admission of the appeal before the Appellate Bench, which consisted of the Chief Justice and Mr Justice Lahiri. On 7 March 1955 that Bench, for reasons set out in its order, adjourned the application for admission sine die, the hearing being stayed pending any orders which this Court might pass on the respondents’ application. The respondents’ application, which alleged a basis under Order XIII, rule 13 of the Supreme Court Rules, was referred by the Registrar to the Court for orders and has now been placed before this Bench for hearing.

Counsel appearing for the respondents contended that the appellants were guilty of serious laches because they had not filed in the High Court, until eight months after the grant of special leave, the required certified copies of the Special Leave petition and of the order passed thereon; further, the appellants had not made an application to the Appellate Bench for admission of the appeal, an application which, according to the respondents, was indispensable for the printing and transmission of the record. Since the appellants were unable to provide any satisfactory explanation for this prolonged delay, the respondents argued that the special leave should be rescinded.

Counsel for the appellants, however, advanced a contrary view. He argued that in a case such as this, where the appeal reaches this Court by the grant of special leave and not by a certificate issued by the High Court, the appellants are under no duty to make a formal application in the High Court for final admission of the appeal, nor are they required to file certified copies of the special leave petition and the order. His argument relied on Order XXXII, rule 9 of the Original Side Rules of the Calcutta High Court, which provides that a Supreme Court appeal is deemed to have been admitted by the very order of this Court granting special leave. Accordingly, once the appellants have complied with the Supreme Court’s directions, such as furnishing security or making any other required deposit, the Registrar is obliged to issue a notice of admission of the appeal for service on the respondents. That notice is to be served by the appellants’ attorney; however, in the present case no such notice was issued by the Registrar, as contemplated by the said rule.

In this case, the Court observed that under rule 9 of Order XXXII of the Original Side Rules of the Calcutta High Court, the appellants could not be held responsible for failing to take any further steps in the proceedings. The Court found the argument presented by counsel to be well founded, noting that occasional doubts have arisen about the exact procedure to be followed when an appeal reaches the Supreme Court by virtue of special leave under article 136 of the Constitution. Accordingly, the Court deemed it necessary to examine the relevant provisions contained in the Supreme Court Rules, the High Court Rules, and the applicable sections of the Civil Procedure Code. The Court explained that, in the ordinary situation where a High Court issues a certificate of leave to appeal to the Supreme Court, the High Court retains full control and jurisdiction over the subsequent steps required for the prosecution of the appeal until such appeal is finally admitted. It is the responsibility of the High Court to ensure that its directions concerning the furnishing of security or the making of a deposit are complied with; once those conditions are satisfied, the High Court must declare the appeal finally admitted under Order XLV, rule 8 of the Civil Procedure Code. The Supreme Court’s jurisdiction commences only after that final admission. By contrast, where an appeal arrives in the Supreme Court on the basis of special leave granted directly by that Court, the order of the Supreme Court itself operates as an admission of the appeal as soon as the conditions specified in the order, such as furnishing security or making a deposit, are fulfilled. The Court pointed out that this position is confirmed by the procedural provisions in both the Supreme Court Rules and the Original Side Rules of the Calcutta High Court. Specifically, Order XIII, rule 8 of the Supreme Court Rules provides that after the grant of special leave, the Registrar shall transmit a certified copy of the order to the court or tribunal from which the appeal is taken. Rule 9 then provides that upon receipt of that order, the lower court or tribunal, unless the order contains special directions, shall act in accordance with the provisions of Order XLV of the Code of Civil Procedure to the extent that they are applicable. The Court noted that although this rule refers to Order XLV, the provisions are to be applied only insofar as they are relevant. Finally, the Court emphasized that it is the duty of the High Court to ensure that security is furnished or a deposit is made in compliance with the Supreme Court’s directions, which are set out in the Supreme Court order that the Registrar is required to transmit under Order XIII, rule 8.

The Court held that the appellants were not required to file a fresh copy of the Supreme Court order or the underlying petition in order for those documents to become part of the record of the appeal before the Supreme Court. According to the procedural rule cited, the documents automatically entered the record as soon as the Registrar transmitted them in accordance with that rule, and they would subsequently be incorporated into the Paper Book when the book was printed. The Registrar of the High Court had, in fact, taken those Supreme Court orders as part of the record without any fresh filing by the appellants, because he accepted the security and the other monetary deposits submitted by the appellants on the basis of those orders. The Court further explained that, had the appellants failed to provide the security or to make the deposit as directed by the Supreme Court order, it would have been the High Court Registrar’s duty to inform the Supreme Court Registrar of that failure. The Supreme Court Registrar, upon receiving such information, could then have taken steps to revoke the special leave, as provided for by Order XIII, rule 12 of the Rules.

The Court also observed that it was unnecessary for the appellants to file a formal application for admission of the appeal when special leave had already been granted by the Supreme Court. This point was supported by Order XXXII, rule 9 of the Original Side Rules of the Calcutta High Court, which provides that, on the admission of an appeal to the Supreme Court—whether by an order of the High Court under Order XLV, rule 8 of the Code of Civil Procedure, or by an order of the Supreme Court granting special leave, subject to compliance with the Supreme Court’s directions regarding security and deposits—notice of such admission shall be issued by the Registrar for service on the respondent. The rule further states that the notice shall be served by the appellant’s attorney and that an affidavit of due service shall be filed by that attorney immediately after service. The introductory words of the rule plainly indicate that admission of an appeal may occur either by a High Court order under Order XLV, rule 8 of the Code, or by a Supreme Court order granting special leave. Since the order granting special leave itself sets out the conditions that the appellants must fulfil, the admission becomes final only after those conditions are satisfied. Once the conditions are met, the Registrar is obligated to issue the notice of admission for service on the respondents, as required by the rule.

In this matter the Court explained that once an appeal is admitted, a formal notice of that admission must be served on the respondents. The notice is to be served by the attorney representing the appellants, and immediately after having effected service the attorney must file an affidavit confirming that service was duly made. The Court observed that, in the present case, the Registrar of the Original Side of the Calcutta High Court ought to have issued the notice of admission for service upon the respondents as soon as the appellants had furnished the required security for costs and the other monetary deposits. That issuance did not occur because the Registrar failed to appreciate correctly the procedural requirements set out in Order XXXII, rule 9 of the Original Side Rules of the Calcutta High Court. The Court acknowledged that after providing the security the appellants remained inactive for a considerable length of time and did not proceed to arrange for printing of the record. Nevertheless, the Court held that the initial failure to issue the notice constituted an irregularity that precluded attributing any blame of laches to the appellants. Consequently, the special leave to appeal could not be rescinded on the ground of delay. Accordingly, the application filed by the respondents was dismissed. The Court directed that the Registrar of the Original Side of the Calcutta High Court now issue the appropriate notice under Order XXXII, rule 9, and that the appellants promptly undertake the necessary steps to have the record printed and transmitted to this Court. No order as to costs of the application was made.