Shew Bux Mohata And Another vs Sm. Tulsimanjari Dasi And Another

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 34 of 1958

Decision Date: 29 March, 1961

Coram: P.B. Gajendragadkar, K.N. Wanchoo

In the matter styled Shew Bux Mohata and Another versus Sm. Tulsimanjari Dasi and Another, the Supreme Court of India delivered its judgment on 29 March 1961. The opinion was authored by Justice P B Gajendragadkar, who sat on the bench together with Justice K N Wanchoo. The petitioners were identified as Shew Bux Mohata and another individual, while the respondents were listed as Sm. Tulsimanjari Dasi and another party. The case is reported in the All India Reporter at volume 1453 of the 1961 series and also in the Supreme Court Reports at volume 1 of the 1962 series on page 643. The matters before the Court involved the practice relating to security for costs in an appeal to the Supreme Court, the issuance of a certificate by the High Court permitting such an appeal, and the question of whether the High Court possessed the power to extend the time fixed for furnishing that security. The relevant statutory framework cited included Order 45, rules 7, 10 and 11 of the Code of Civil Procedure, 1908, as well as Order XII, rule 3 of the Supreme Court Rules, 1950.

The Court noted that the Calcutta High Court, on 18 May 1956, had granted a certificate enabling the appellant to prosecute an appeal to this Court against the decree and judgment of the High Court itself. Under Order 45, rule 7(1)(a) of the 1908 Code, the appellant was required to deposit a security amount covering the respondent’s costs within ninety days from the decree, or, if a longer period was shown, within a further period not exceeding sixty days, or within six weeks from the date the certificate was granted, whichever was later. The appellant failed to meet the deadline and consequently filed an application on 4 July 1956 before the High Court, seeking that his security deposit be accepted despite the delay. The High Court rejected the application, holding that, according to the prevailing line of decisions of that Court, it had no jurisdiction to extend the prescribed time for payment of security. The Supreme Court held that a proper reading of Order 45, rule 7 together with the other applicable provisions demonstrates that a High Court does have the authority to extend the time for furnishing security where appropriate. The Court therefore concluded that the earlier decisions of the Calcutta High Court to the contrary were erroneous. In reaching this conclusion, the Court cited and disapproved several earlier authorities, including Raja Kumar Govind Narayan Singh and others v. Shamlal Singh and others (1934) 39 C.W.N. 65, Akimuddin Chowdhury v. Fateh Chand Mahesri and others (1939) 44 C.W.N. 920, Roy Jyotindranath Chowdhury and others v. Rai Prasanna Kumar Banerjee Bahadur (1906) 11 C.W.N. I 104, Harendra Lal Choudhry v. Sm. Hari Dasi Debei (1909) 14 C.W.N. 420, Nilkanth Balwant Natu and others v. Shri Satchidanand Vidya Narsinha Bharati and others (1927) I.L.R. 51 Bom. 430, Bishnath Singh and others v. Balwant Rao Naik Kalia and others [1939] All 549, Ismail Piperdi v. Momin BiBi and others [1939] Rangoon L.R. 668, Lachmeshway Prasad Shukul v. Girdhari Lal Choudhuri (1940) I.L.R. 19 Pat. 123, Ghulam Rasul v. Ghulam and similar authorities, all of which the Court found to be inconsistent with the correct construction of the procedural rules.

The judgment references earlier authorities such as Qutabud‑din, (1942) I.L.R.23 Lah.447, Gulam Hussain v. Mansurbeg and Ors., I.L.R. [1952] Nag.406 and Thota Pitchaiah, which were approved. The matter before the Supreme Court fell under the civil appellate jurisdiction, being Civil Appeal No. 34 of 1958. The appeal was taken by special leave from an order dated 6 July 1956 issued by the Calcutta High Court in appeal number S. C. No. 32 of 1955. Counsel for the appellants were N. C. Chatterjee and D. N. Mukherjee, while the respondents were represented by Syamdas Bhattacharya and S. N. Mukherjee. The judgment was delivered on 29 March 1961 by Justice Gajendragadkar.

The core legal issue presented to the Court was whether the Calcutta High Court possessed the authority to extend the period for furnishing security for costs of the respondents under Order 45, rule 7 of the Code of Civil Procedure. The Calcutta High Court had held that it lacked such jurisdiction and consequently cancelled the certificate it had previously granted to the appellants, which would have allowed them to appeal its own decree to this Court. That cancellation gave rise to the present appeal by special leave, and therefore the Supreme Court was called upon to interpret the meaning of Order 45, rule 7 of the Code alongside Order XII, rule 3 of the Supreme Court Rules. The factual background leading to the dispute was not contested. The appellants had instituted suit number 73 of 1944 in the First Additional Court of the Subordinate Judge of 24 Parganas against six respondents, seeking a declaration of title to the immovable property in question as well as possession of that property together with mesne profits. The trial judge decreed the suit on 20 March 1948. Subsequently, two separate appeals were filed against that decree by two groups of respondents, identified as Appeals 111 of 1948 and 135 of 1948. Appeal 135 of 1948 was dismissed, whereas Appeal 111 of 1948 was partly allowed, resulting in the decree being set aside insofar as it granted possession and mesne profits to the appellants against respondent 3. Following that, the appellants applied to the Calcutta High Court for a certificate enabling them to appeal to this Court. Because the decree under appeal involved a reversal and because the valuation of the subject matter in both the trial court and the intended appeal exceeded the statutory limit prescribed for such matters, the appellants were deemed entitled to a certificate under Article 133(1)(a) of the Constitution. Accordingly, a certificate was issued on 18 May 1956. The certificate required the appellants to deposit security of Rs 2,500 and a printing cost of Rs 1,184, with the final date for payment fixed as 29 June 1956. The appellants later claimed that circumstances beyond their control prevented them from depositing the two amounts by the stipulated deadline.

Because the two amounts could not be paid on the stipulated date, the appellants filed, on 4 July 1956, an application before the High Court requesting that the amounts they had tendered be accepted despite the delay in payment. The High Court dismissed the application, holding that prevailing jurisprudence uniformly indicated that the Court did not possess jurisdiction to extend the period allowed for depositing the security. The appellants subsequently approached this Court by way of special leave against the order of the High Court. Order 45, rule 7 of the Code of Civil Procedure lies in the chapter dealing with appeals to the Supreme Court and prescribes the security and deposit that must be furnished when a certificate is granted to a party intending to prefer an appeal to this Court. Rule 45, rule 7(l)(a) states that once a certificate is granted, the applicant must, within ninety days or, if cause is shown, a further period not exceeding sixty days, either from the date of the decree appealed against or within six weeks from the date the certificate is granted, whichever is later, furnish security in cash or in Government securities for the respondent’s costs. The phrase “within ninety days or such further period not exceeding sixty days” was inserted by Act 26 of 1920, replacing the original wording “six months.” It is admitted and undisputed that before the 1920 amendment, High Courts possessed jurisdiction to extend the time for furnishing security when there were cogent and satisfactory reasons. In Burjore and Bhawani Pershad v. Mussumat Bhagana (1) the Privy Council, agreeing with the view of the Full Bench of the Calcutta High Court, held that the wording of section 602 of the Code of 1877 (Act X of 1877) concerning extensions of time for giving security in appeal was merely directive, and that the High Court retained the power to grant extensions for cogent reasons. In other words, the six‑month period prescribed by the statute could not be departed from without a valid reason. Consequently, under the provisions of Order 45, rule 7 as they existed prior to the amendment by Act 26 of 1920, all High Courts consistently exercised their jurisdiction to extend the period for furnishing securities whenever they were satisfied that a proper and valid cause existed. The issue before this Court is whether the 1920 amendment altered that position. There is no doubt that the object of the amendment was to expedite the final determination of appeals that were then taken to the Privy Council, and consequently the restrictive wording was introduced.

In this case the amendment introduced language that limited the period fixed by the first part of the rule so that it could not be extended beyond one hundred and fifty days. The question that arose was whether the insertion of those restrictive words meant that the High Courts no longer possessed jurisdiction to extend the period when a sufficient cause existed. When the Court considered the fact that, prior to the amendment, the period of six months had been expressly indicated, it found it difficult to conclude that the legislature, by reducing the period to one hundred and fifty days, intended to abolish the pre‑existing power of the High Courts to grant an extension for a reasonable cause. The Court reasoned that the power to enlarge the period for a good cause could not be taken away merely by implication through the restrictive clause introduced in the amendment. Moreover, the Court observed that even after the amendment there was no specific provision that addressed the consequences of a failure to comply with Order 45, rule 7. Rule 8, which deals with situations where security has been furnished and a deposit made, merely requires the Court to declare the appeal admitted, to give notice to the respondent, to transmit the record to the Supreme Court as provided, and to supply either party with one or more authenticated copies as specified. No rule, however, prescribed the result of non‑compliance with the order made under rule 7. The absence of such a provision was not insignificant, because rule 11 expressly set out the effect of a failure to obey an order made under rule 10. In other words, when the legislature intended that non‑compliance with a particular order should lead to a defined consequence, it inserted an appropriate provision. Consequently, the failure to provide any provision dealing with the consequence of non‑compliance with the order under rule 7 suggested that the jurisdiction of the Court to extend time was not intended to be removed. Since the Court retained the ability to extend time, the legislature may have presumed that it should be left to the Court’s discretion to decide whether to condone a failure to comply with its order under rule 7 and to extend the period for furnishing security, or to refuse such condonation.

In the Court’s view, when the amended rule 0.45 r. 7 is read together with the other operative provisions of the Order, it cannot be concluded that the High Court lacks jurisdiction to extend the time allowed for furnishing security. The High Courts possessed such jurisdiction before the 1920 amendment, and the amendment did not alter that position. Moreover, another statutory rule leads to the same result. Rule 3 of O. XII of the Supreme Court Rules, framed by this Court under Article 145 of the Constitution, provides: “Where an appellant, having obtained a certificate from the High Court, fails to furnish the security or make the deposit required, that Court may, on its own motion or on application in that behalf made by the respondent, cancel the certificate, and may give such directions as to the costs of the’ appeal and the security entered into by the appellant as it shall think fit or make such further or other order as the justice of the case requires.” This rule mirrors rule 9 of the Privy Council Rules. A proper construction of rule 3 leaves no doubt that if a party who has obtained a certificate fails to provide the security or make the required deposit, the High Court may either cancel the certificate and set cost directions, or may pass any further or other order that the justice of the case demands.

The phrase “further or other order as the justice of the case requires” necessarily denotes an order that is different from, and not limited to, the cancellation of the certificate. Although the intention behind the rule might have been expressed in another manner, its object is clear and its meaning is unambiguous. Failure to furnish security or make the deposit does not inevitably compel cancellation of the certificate in every case. Even after such a failure, the Court may, in its discretion, pass a further order that condones the default and grants additional time for furnishing the security or making the deposit. Thus, the High Court retains the authority to consider the circumstances of the case and, if justice so requires, to extend the time for compliance rather than automatically cancelling the certificate.

The Court observed that if O. XII, rule 3 of the Supreme Court Rules indeed provides that a High Court may extend the time for furnishing security or for making a required deposit, then that provision would remain effective even though rule 7 of O. 45, as amended in 1920, appears to withdraw such jurisdiction. Section 112 of the Code of Civil Procedure explicitly states that nothing contained in the Code shall be deemed to interfere with any rules then in force made by the Supreme Court for the presentation or conduct of appeals before that Court. Consequently, the Court held that the express recognition by O. XII, rule 3 of a High Court’s power to grant additional time would not be overridden by rule 7 of O. 45. In this manner, disregarding rule 7 of O. 45, the Court concluded that the Calcutta High Court possessed the authority to extend the time for furnishing security in the case before it. Moreover, the Court reiterated its earlier finding that the amendment of rule 7 of O. 45 did not extinguish the pre‑existing jurisdiction of High Courts to extend time, and therefore a harmonious relationship exists between that rule and O. XII, rule 3 of the Supreme Court Rules.

The Court further noted that the view expressed by the Calcutta High Court was contrary to the prevailing judicial opinion of other High Courts across India, which had reached a consensus that High Courts did have such jurisdiction. It was unnecessary to recount in detail every decision cited by counsel, but the Court listed a number of authorities wherein Full Benches of various High Courts had rejected the proposition that the High Court lacked power to extend time. These authorities included Nilkanth Balwant Natu & Ors. v. Shri Satchidanand Vidya Narsinha Bharati & Ors. (Full Bench), Bishnath Singh & Ors. v. Balwant Rao Naik Kalia & Ors. (Full Bench), Gulam Hussain v. Mansurbeg & Ors. (Full Bench), Lachmeshwar Prasad Shukul v. Girdhari Lal Chaudhuri (Full Bench), Ghulam Rasul v. Ghulam Qutabuddin (Full Bench), Thota Pitchaiah (1927) I.L.R. 51 Bom. 430, I.L.R. (1952) Nag. 406, I.L.R. [1939] All. 549, I.L.R. 1040 Pat. 123, I.L.R. (1942) Lah. 447, V. M. Vedanta Narasimhacharyulu & Ors. (Full Bench) and Ismail Piperdi v. Momin Bi Bi & Ors. (Full Bench). Even the Calcutta High Court, by a Full Bench in Roy Jotindranath Chowdhury & Ors. v. Rai Prasanna Kumar Banerjee Bahadur & Ors., ultimately held that the High Court had the power to extend time, thereby aligning its position with the majority view.

The Court noted that section 602 of the Code authorised the deposit of an estimated amount for translating, transcribing, indexing and transmitting the records of the case to the Privy Council, but it added that the Court should not extend any time limit unless there was a cogent reason to do so. In reaching this conclusion, the High Court relied on the Privy Council’s decision in the case of Burjore and Bhawani Pershad (4). A similar view was expressed by the same High Court in Harendra Lal Choudhry v. Sm. Hari Dasi Debei (5), where it was held that the High Court possessed the power to extend the time for depositing costs in Court, but that it ought not to exercise that power without some cogent reasons. In arriving at that position, the Court followed its earlier decision in the case of Roy Jyotindranath Chowdhury (3).

However, the Court observed that in the case of Raj Kumar Govind Narayan Singh & Ors. v. Shamlal Singh & Ors. (6), Chief Justice Rankin and Justice Ghose took a contrary view, holding that there was no jurisdiction to extend the time for furnishing the security required under Order 45, rule 7, as amended in 1920. With due respect, the Court remarked that this question had not been fully argued before the High Court, because the judgment did not discuss the construction of the relevant provisions of Order 45, rule 7 or rule 9 of the Privy Council Rules, and the earlier decisions of the Court on that point were not cited. Nevertheless, that decision was subsequently followed, resulting in a consistent practice in the Calcutta High Court, on which the learned judges relied when rejecting the appellant’s application for an extension of time in the present case.

The Court further noted that when the same question was raised before the Calcutta High Court in Akimuddin Chowdhury v. Fateh Chand Mahatma & Ors., Chief Justice Derbyshire was referred to the Full Bench decision of the Bombay High Court in Nilkanth Balwant Natu (2) in support of the argument that there was jurisdiction to extend time for furnishing security. Chief Justice Derbyshire, however, observed that although he held the Bombay Full Bench decision in great respect, there existed a contrary decision of the Calcutta High Court in the case of Raj Kumar Govind Narayan Singh, and therefore he was bound to follow that decision and conform to the prevailing practice of the Calcutta High Court.

In the Court’s opinion, the practice prevailing in the Calcutta High Court since the decision of Chief Justice Rankin in Raj Kumar Govind Narayan Singh is not justified by either the provisions of Order 45, rule 7 of the Code or Order XII, rule 3 of the Supreme Court Rules. Consequently, the Court concluded that it must accordingly hold that

In this appeal the Court held that the High Court was mistaken in concluding that it lacked authority to entertain the petition filed by the appellants, which sought an extension of time for furnishing the security that had been required. Because the High Court adopted that view, it consequently did not proceed to examine the substantive merits of the appellants’ submission, namely whether the facts and explanations set out by them demonstrated sufficient and persuasive reasons to justify condoning the delay. The Court therefore set aside the order of the High Court, allowed the present appeal and directed that the matter be remitted back to the High Court for a fresh disposal of the appellants’ application in accordance with the law. The direction to remit required the lower court to reopen the file, consider any evidence or explanations offered by the appellants, and decide whether the delay could be lawfully excused. The Court further observed that, given the circumstances of this case, no order as to costs would be made against either party, because the facts did not warrant shifting the expense of litigation to one side. Accordingly, the appeal was allowed. The judgment cited the earlier authorities (1) [1939] 44 C.W.N. 920; (2) [1927] I.L.R. 51 Bom. 430; and (3) [1934] 39 C.W.N. 651.