T.P.S. Chawla, J.
(1) A very fundamental point regarding the procedure to be followed on the original side has been raised in this case. The plaintiff has instituted a suit under Order 37 of the Civil Procedure Code on the basis of a cheque given by the defendant. After summons had been served, and no application for leave to defend the suit was moved though the period prescribed had expired, counsel for the plaintiff prayed that a decree be passed forthwith. On the other hand, counsel for the defendant maintained that the stage for filing an application for leave to defend had not yet arrived, and time had not even begun to run because a 'summons for judgment:' had not so far been served on the defendant.
(2) To understood the respective contentions a little background is necessary. The Civil Procedure Code was enacted in 1908. In Order 37 it provided a 'Summary Procedure' applicable to suits based 'on Negotiable Instruments'. The defendant could not 'appear or defend the suit' unless he obtained leave from the court. Under the Limitation Act of 1908 an application for leave had to be made within 10 days from service of summons : Article 159. The position under the Limitation Act 1963 is the same : Article 118.
(3) In 1966, this High Court was constituted by the Delhi High Court Act. Apart from other jurisdictions, the Court was vested with original jurisdiction. Section 7 of the Act, amongst other things, confers on the Court 'powers to make rules and orders with respect to practice and procedure for the exercise of its ordinary original civil jurisdiction'. The Delhi High Court (Original Side) Rules were framed and brought into force in 1967. It is stated in the Preamble that these Rules are made In exercise of the powers conferred by sections 122 and 129 of the Code of Civil Procedure 1908 and section 7 of the Delhi High Court Act 1966'.
(4) Chapter Xv of the Original Side Rules deals with 'Summary suits'. It applies to 'all suits upon bills of exchange, hundis or promissory notes' : Rule 1. The procedure it prescribes is substantially the same as that which was contained in Order 37 of the Civil Procedure Code. The defendant cannot 'appear or defend the suit' unless he obtains leave from the Court : Rule 3. There are, of course, small differences. For example. Rule 2 permits the application for leave to be made within 20 days from service of summons, as against the 10 days allowed under the Code read with the Limitation Act., Divergencies, such as this, are resolved by Rule 12 which says :
'THE provisions of Order 37 of the Civil Procedure Code so far as they are not inconsistent with the provisions contained in this Chapter shall apply to suits to which this Chapter applies.'
Thus, in the event of conflict, the Rules in Chapter Xv override Order 37. But since, until 1976, the procedures in both were largely akin, there was hardly ever need to invoke Rule 12. At least, I do not know of any case in which that Rule was called in aid.
(5) However, this state of things was disturbed by the Code of Civil Procedure (Amendment) Act 1976. It made many drastic changes in the Code. The scheme of Order 37 was re-modelled. Now, all that the defendant is required to do on being served with summons is merely to 'enter an appearance' within 10 days : Rule 2(3) and 3(1). Thereafter the plaintiff must serve a 'summons for judgment' on the defendant, and it is only then that the defendant has to apply for leave to defend within 10 days 'from the service of such summons' : Rules 4 and 5.
(6) There appears to be no time fixed within which the plaintiff must take out a summons for judgment. In the present case, the plaintiff has not yet done so, because, it is maintained, that the new procedure is not applicable and the Original Side Rules continue to prevail. According to those Rules, time for making an application for leave to defend having expired, a decree must follow. The opposite view is urged on behalf of the defendant. These are the rival contentions.
(7) Although, in the present case, the question has arisen solely in regard to Order 37 of the Code, it could well arise at every point where the Original Side Rules and the amended Code are at variance. Especially, when a generalised version of Rule 12 in Chapter Xv is found in Rule 19 of Chapter I of the Original side Rules. Rule 19 says that 'Except to the extent otherwise provided in these rules, the provisions of the Civil Procedure Code shall apply to all proceedings on original side'. So, it is essential to decide once and for all, whether, in the event of inconsistency, the Original Side Rules are to govern the original side or the Civil Procedure Code. Because of the great importance of the question and its far-reaching consequences for the original side, I referred it for a mere authoritative ruling by a Full Bench. At the hearing by the Full Bench we invited Mr. S. N. Chopra, Advocate, to assist the court as amices curiae, and he was good enough to oblige.
(8) I think, the question is really concluded by section 129 of the Code. It reads :
'NOT With STANDINGanything 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.'
No doubt the closing words will not save the Original Side Rules of this Court, as they were not 'in force at the commencement' of the Code. But, the opening words 'Notwithstanding anything in this Code' are self-effacing, and subordinate the Code to rules made by a High Court for its original side at any time. The cumulative effect of those two parts of the section is to leave untouched the original side rules of a High Court whether framed before or after 1908. Since section 2(1) says that the ' 'Code' includes rules', the original side rules will prevail both over the body of the Code and the First Schedule. thereforee, the statement in Order 37 rule I (a) that This order shall apply to............. High Courts' must be read subject to section 129.
(9) These propositions are old and well-established. In Newab Behram Jung v. Haji Sultan Ali Shustry, I.L.R. 37 Bom 572 it was held that, in view of section 129, a rule in the Code did not apply as it was inconsistent with a rule in the Bombay High Court Rules. Similarly, in Virupaksha Rao Naidu v. M. Ranganayaki Ammal, Air 1925 Mad 1132, it was said :
'SECTION 129 of the Code gives the High Court the power to make rules, regulating the procedure of the Original Side and nothing in the Code will affect such rules. The effect is that if the rules of the High Court, Original Side, and the Code are inconsistent, the rules prevail.' In re : Ram Dayal De : AIR1932Cal1 ; Shaw & Co. v. B. Shamaldas & Co., : AIR1954Cal369 and Manikchand Durgaprasad v. Pratabrnull Rameswar and another, : AIR1961Cal483 . And, so does the High Court of Allahabad : Mool Chand and another v. Karnta Prasad and others, : AIR1961All595 .
(10) No case indicating a contrary opinion was cited or could be found. Counsel for the defendant referred to Bademian Saheb and another v. P. M. Jankan Saheb, Air 1938 Madras 438(9), and Arunachala Reddiar v. Muthusadasiva Mudaliar and others, : AIR1950Mad261 . Those cases turn on section 157 of the Code, which is concerned with the continuance in force of rules etc. made under earlier Civil Procedure Codes repealed by the Code of 1908. They have no bearing whatsoever on the point under consideration.
(11) The conclusion thus drawn from section 129 can also be reached from section 4(1) of the Code, though not in the manner that was suggested in argument. Section 4(1) of the Code provides that :
In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.'
It has been held that rules made by a High Court or the Supreme Court to regulate their procedure and practice are a 'special law' as they deal with a particular subject : The Union of India and another v. Ram Kanwar and others, : [1962]3SCR313 , Punjab Cooperative Bank Ltd., Lahore v. Official Liquidators. Punjab Cotton Press Co. Ltd. (in Liquidation) and others, Air 1941 Lah 257 and The Deities of Sri Audinarayana Swamy and Anjenayaswami Temples of Donepudi v. R. Hanumacharyulu and others, : AIR1962AP245 . Nevertheless, the Original Side Rules of Delhi High Court would not be protected by section 4(1) of the Code. Only those 'special laws' are saved which are 'now in force', which means 1908. But, they are a 'special form of procedure pres- cribed' by or under a law 'for the time being in force', and would be covered on that account. There is no 'specific provision to the Contrary', and the result is that nothing in the Code 'shall be deemed to limit or otherwise affect' anything in the Original Side Rules.
(12) In Shevaram Thadharam Jaisinghani v. Indian Oil Corporation Ltd., : AIR1969Bom117 , the view has been expressed that section 122 of the Code overlaps with section 129, and rules for the original side can be framed in exercise of the power conferred by either of those sections. Considering that the power under section 129 is much wider, in that, rules can be framed which may even be inconsistent with the body of the Code, whereas under section 122 only the First Schedule can be amended, where is the need to resort to section 122 Moreover, section 129 gives the High Court specific power to make rules of procedure respecting 'the exercise of its original civil jurisdiction', and, on principle, the general provision should be disregarded.
(13) In that case the question was whether sub-rule (2) added to Order 6 rule 5 by the High Court of Bombay, in exercise of the power under section 122 of the Code, applied to the original side. It is not clear from the judgment whether the original side rules in Bombay contain a rule like Rule 19 of Chapter I in Delhi making the Civil Procedure Code applicable 'Except to the extent otherwise provided'. If there be such a rule, then the sub-rule added to Order 6 rule 5 would apply to the original side by virtue thereof. However, section 117 of the Code produces the same result. It makes the provisions of the Code applicable to High Courts save as provided in 'Part Ix or X or in rules'. thereforee, the sub-rule added to Order 6 rule 5 would apply to the original side because of this section, and not because section 122 made it directly applicable to the original side. Of course, if there were a contrary rule in the original side rules, that would prevail. For these reasons, I do not agree with all that was said about section 122 in that authority. This also means that the reference to section 122 in the Preamble to the Original Side Rules in force in Delhi is wrong and unnecessary.
(14) Lastly, it was urged that section 97(1) of the Civil Procedure Code (Amendment) Act 1976 itself repealed the Original Side Rules. This submission is utterly misconceived. The sub-section says : .
'ANY amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.'
THEoriginal Side Rules were not an 'amendment made' or a provision inserted in the code. They always existed as a separate body of rules. It is patent from section 2(18) that they are beyond the purview of the Code. That sub-section defines 'rules' to mean those 'contained in the First Schedule or made under section 122 or section 125'. Significantly, any reference to section 129 is omitted. Thus, there is no question of the Original Side Rules being repealed.
(15) Section 97 of the amending Act was intended to disencumber the Code of accretions gathered over the years due to amendments made by State Legislatures an,d High Courts, except to the extent that they were consistent with the Code as amended by the Act. In other words, the purpose of the amending Act was to present a renovated Code as the new starting point, as had also been done in 1908. It was not the purpose to repeal all other and independent laws pertaining to procedure. Historically, the original side of a High Court has always been treated on a special footing. As section 129 shows, it has always been governed by its own rules in preference to those in the Code. The amending Act contains no indication that it was intended to depart from that position. Had there been any such intention, the obvious course was to amend section 129. But it has remained fully intact. So has section 4 of the Code, and even section 122.
(16) Accordingly, I would hold that, in the event of inconsistency, the Original Side Rules prevail on the original side of this Court and not the Civil Procedure Code; and, the amending Act of 1976 has made no difference in this respect.
V. D. Misra, J.
(17) Agree with the judgment delivered by Chawla, J.
Yogeshwar Dayal, J.
(18) I have had the advantage of going through the judgment prepared by my learned brother Chawla, J. I am in complete agreement with the conclusion of the learned Judge that in the event of any inconsistency between the Civil Procedure Code and the Original Side Rules of this Court, the Rules will prevail and oot the Code and the Amending Act of 1976 has made no difference in this respect in relation to Chapter Xv of the Original Side Rules dealing with summary suits.
(19) The learned Judge has noticed a decision of Vimadalal, J. in Shevaram Thadharam Jaisinghani v. Indian Oil Corporation Ltd : : AIR1969Bom117 wherein Vimadalal, J. took the view that the amendment to Order 6 rule 5 of the Code by addition of sub-rule (2) thereof in exercise of power under section 122 of the Code was applicable to the Original Side of the Bombay High Court and thereby holding that the High Court has power to frame rules for its procedure on the Original Side of the High Court under section 122 of the Code as well as under section 129 of the Code. My learned brother Chawla, J. has dissented from the view of Vimadalal, J. and has taken the view that section 122 of the Code cannot be resorted to for framing a rule for the purpose of Original side of the High Court in view of the special provision for framing such rules under section 129 of the Code.
(20) For purposes of this case, I do not, however, find it necessary to express any opinion on the correctness or otherwise of the said decision of the Bombay High Court since the Original Side Rules of this Court are, in any case, framed under section 129 of the Code as well.