TaxTMI 
TaxTMI 
2004 (6) TMI 645
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....eeks from date. The defendants were also restrained from interfering, in any manner, with the plaintiffs' properties in the suit premises including the properties, conditions whereof were directed to be restored in terms of the injunction order. The learned Judge also directed that the said interim order shall remain in force till the disposal of the suit. 2. The dispute arose between the parties in respect of the various portions of the multi-storeyed building situated at 33, Jawaharlal Nehru Road, Calcutta - 71. 3. Before this Court the matter was initially argued on merits by the learned Counsel for the appellants and on the second day of argument the learned Counsel for the appellants raised a preliminary objection on the valid institution of the suit in view of the amended provision of Civil Procedure Code (hereinafter referred to as Code). The learned Counsel submitted that the Court may decide that question as the same goes to the root of the matter. 4. In that view of the matter, this Court heard the learned Counsel of both the parties on that aspect in full. This Court is of the view that the points which have been urged on the valid institution of the suit ha....
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....) and (2)." 9. Of the three Rules in Order 4, Rule 3 has come by way of amendment. 10. Rule 2 of Order 4 provides that a plaint shall comply with the Rules contained in Orders 6 and 7 so far as they are applicable. Now under Order 6 some amendments have also been made to Order 6 Rule 15. The amended Order 6 Rule 15 is as follows:-- "15. Verification of pleadings.--(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (2) The person verifying shall specify, by reference of the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed. (4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings." 11. Of the Rules in Order 6 Rule 15, Sub-rule (4) has come by way of amendme....
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....nd under the Original Side Rules institution of suit is dealt with in Chapter VII, Rule 1. The relevant part of Chapter VII, Rule 1 dealing with the plaint and its compliance with Order 6 of the Code is as follows:-- "The plaint shall comply with Order 6 of the Code, and shall contain the particulars required by Order 7, Rules 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 the leave of the Judge or Officer, by the attorney." 15. He further submitted that the requirement of affidavit is only provided in Rule 8 of Chapter VII of Original Side Rules. The said Rule 8 is set out below:-- "Where any person other than a party pleading, verifies a pleading under Order 6 Rule 15 of the Code his fitness to so verify shall be proved by his affidavit, at the time the pleading is presented. Pleadings shall include plaints, written statements, petitions, statements of facts and counter-statements of facts." 16. The learned Counsel submitted that apart from that Rule 8 of Chapter VII there is no other requirement of filing an affidavit. The learned Counsel also submitted that....
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....the claim of the plaintiff and of the document on which plaintiff relies, while in some High Courts no such affidavit is required under the rules. Therefore, legislature wanted to introduce uniformity and lay down a simple procedure. That is why the amendment of Section 26 was brought about. (See Notes of Clauses quoted in Sarkar's The Law of Civil Procedure, 10th Edn. page 220). 21. The said amendment is also based on the report of the Law Commission, which has also been quoted in Sarkar's book at page 220 and the relevant excerpts from the report of the Law Commission, quoted in Sarkar's book, are extracted below:-- "Affidavit for proof of facts.--The amended section prescribes a new procedure for institution of suits in the Civil Courts of original jurisdiction. Hitherto a plaint was required among other things to state only the facts of the case. Now an affidavit in support of the factual base of the case would have to be filed alongwith the plaint. A plaint will not be entertained without an affidavit in proof of facts stated in the plaint. A party becomes bound by the contents of his affidavit. He would not be able to go back upon facts stated in the a....
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....epealed. 25. In other words, the clear mandate of Section 32 is that the amendment, which has been introduced to the principal Act by the amendment Act, shall have primacy over any other inconsistent provision in State amendment or amendment, if any, is inserted by the High Court. Section 32(2)(a) of the said amendment Act further makes it clear that the amendment in question, viz. amendment to Section 26 of the principal Act and also to Order 4 shall not apply or affect any suit, which is pending immediately before the commencement of sections incorporating the amendments. In the instant case, the suit in question was not a pending suit on the date of commencement of the amendment. The claim of the respondent is that the suit was filed on 24.07.2002 (even though the same is disputed) and the amendment commenced from 01.07.2002. Therefore, on 01.07.2002, the instant suit cannot be called a pending suit. 26. Apart from the aforesaid clear statutory intention which is manifest from the Statements of Objects and Reasons, and notes on clauses, it is also clear that one of the objects is that every effort should be made to expedite the disposal of the civil suit and proceeding so ....
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....elied upon by the learned Counsel for the respondent and the said clause is set out below:-- "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, and 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." 32. It is clear from the text of Clause 37 that in making the rules under Letters Patent, the High Courts shall be guided by the Code and by any law which has been made amending or altering the same, by competent legislative authority for India. 33. A perusal of Clause 37 of the Letters Pa....
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....is difficult for this Court to hold that the provisions of amendment cannot be given effect to in view of the Original Side Rules, framed under Letters Patent. The amendments are admittedly procedural in nature. It is well-settled that no one has a vested right in procedure and it can always change prospectively. 39. Reference, in this connection, may also be made to Order 49 Rule 3 of the Code which deals with Chartered High Courts. It has been made clear in Order 49 that certain rules shall not apply to Chartered High Courts in its Ordinary or Extraordinary Original Civil Jurisdiction and the rules, which have been enumerated therein do not contain any of the rules under Order 4 and Order 6 of the Code. This shows that Order 4 and Order 6 as amended will apply and any contrary provision of the Original Side Rules cannot stand in the way. 40. In this connection, reference may be made to the judgment of the Calcutta High Court in the case of Shaw & Co. v. B. Shamaldas & Co., reported in AIR1954Cal369 . The question which arose in that case was that whether Order 9 Rule 5 of the Code will apply to the Original Side of the Calcutta High Court. The learned Judge found that since....
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....Act, the adjudicating authority was called the Tribunal instead of Court as in the L.A. Act. Under the C.I.T. Act, the award of the Tribunal was initially made final and then the Act was amended to the effect that an appeal will lie from the award of the Tribunal to High Court in certain specified cases. 45. But by amendment of Section 54 to L. A. Act, a new sub-section was added under which every award of the Court was deemed to be a decree and statement of the grounds of award was deemed to be a judgment under the Civil Procedure Code and the amending Act added a new section which in terms gave a right of appeal to His Majesty in Council from any decree passed by the High Court (page 151). 46. Even though there was no such right of appeal under the C.I.T. Act but such a right was claimed on the basis of the amendment of the L.A. Act. It was urged that an amendment of L.A. Act would also operate on the local Act i.e. C.I.T. Act. The Privy Council repelled that contention primarily for two reasons: Firstly, the learned Judges found that under Section 71 of C.I.T. Act, the Tribunal is not deemed to be a Court for the purpose of Section 54 of L.A. Act. So an award of t....
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....aid statutory dispensation the ratio in Hindusthan does not apply to the controversy in the present case and which must be resolved in the light of statutory provisions which are vastly different from those which were considered in Hindusthan. 49. In the other decision of Ram Sarup and Ors. v. Munshi and Ors., reported in [1963]3SCR858 , the Court was considering the effect of repeal of Punjab Alienation of Land Act on the continued operation of Punjab Pre-emption Act. The learned Judges followed to the dictum of Lord Justice Brett in Clarke v. Bradlugh 1881(3) QBD 63 and held that when a statute is incorporated by reference into a second statute, "the repeal of the first statute by a third one does not affect the second". There can be no dispute about this proposition but this has no connection with the present controversy. 50. The present controversy can be better addressed by following the decision of the Supreme Court in the case of State of M.P. v. M.B. Narashimhan, reported in 1975CriLJ1639 . 51. In M.B. Narasimhan the question which fell for consideration was whether amendment of the definition of "Public Servant" under Section 21 of the Penal Code would also effect....
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....subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases: a) where the subsequent Act and the previous Act are supplemental to each other; b) where the two Acts are in pari materia; c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act," 54. In the instant case it can be said without any doubt that the Original Side Rules and the Civil Procedure Code are supplemental to each other and even though the two are not in pari materia but unless the amendments in Civil Procedure Code are imported into the Original Side Rules, the same would render to the legislative intent totally ineffectual and the scheme of the legislation would be unworkable. It cannot be also disputed that the amendment of the Civil Procedure Code which is the previous Act compared to the Original Side Rules expressly applies to all rules and ....
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....o be dismissed by the Appellate Court or the decree which has been passed by the lower Court ought not to be interfered with merely because the plaint has not been signed. 58. The next decision was rendered in the case of Hirabai Gendalal v. Bhagirath Ramchandra and Co., reported in AIR1946Bom174 . In that case the plaint was filed by an Advocate without any Vakalatnama. The question was whether the presentation of such a plaint is a mere irregularity. The Court held it to be so and the Court further held that in such a case the Court have a discretion to permit the illegality to be cured with if the plaintiff has acted in good faith and without any gross negligence and the Court should allow the defect to be cured and then the suit must be deemed to have been filed when it was first instituted in view of Section 99 of the Code. 59. Another old Calcutta decision was cited in the case of Ramgopal Ghose v. Dhirendra Nath Sen and Ors., reported in AIR1927Cal376 . The question in that case was that the pleading does not confirm to the provisions of Order 6 Rule 15 that defect therein is a mere irregularity and the same can be cured by the amendment. Consequently when the verifica....
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....ect that the plaint shall not be deemed to be duly instituted unless it complied with the requirement specified in Sub-rules (1) and (2) and Sub-rule (2) requires compliance with Order 4 and Order 6 which contain the requirement of supporting the plaint by an affidavit. Therefore, a conjoint reading of these provisions makes it clear that the plaint which has been filed without compliance with the requirement of Order 6 shall not be deemed to be duly instituted a suit. 64. For interpretation of a deeming clause, this Court feels inclined to rely on the decision of the House of Lords in the case of East End Dwellings Co. Ltd. v. Finsbury Borough Council, reported in 1951(2) All ER 587. That judgment of the House of Lords has been approved by the Supreme Court in a number of decisions. Commenting on the construction of a deeming clause, which creates a legal fiction, Lord Asquith explained the effect of such a fiction inimitably in the following words:-- "If one is bidden to treat an imaginary state of affairs as real, one must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact e....
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.... done then the Court will have the liberty or the right to reject the plaint. (Paragraph 16, page 193 of the report) 70. Those provisions for filing of the plaint in duplicate and filing sufficient copies of the plaint are not comparable with the provisions with which this Court is concerned in this case. Here the question involved is of pleading and the due institution of the plaint. 71. However, in the instant case, this Court is not rejecting the plaint since the defects have been removed by filing an affidavit by the respondent-plaintiff when the hearing was going on before this Court. The Court hereby grants leave to the respondent to file the affidavit. In view of the filing of the affidavit, the defect now stands removed but in view of the provisions of Order 4 Rule 3 the moment the defect stands removed and the rules are complied with, the plaint must be deemed to have been filed from that time but not before that. 72. The Full Bench judgment of Calcutta High Court in Ratanlal Nahata v. Nandita Bose, was given in a totally different context. The controversy in Full Bench arose out of the procedure to be followed in entertaining a review proceeding on orders passed ....