Asok Kumar Ganguly, J.
1. This appeal has been filed from an order dated 2nd April, 2004 passed by the learned Judge of the First Court whereby the learned Judge disposed of all the three interlocutory applications being G.A. No. 4512 of 2002 dated 25th July, 2002, G.A. No. 3462 of 2002 dated 28th August, 2002 and G.A. No. 4513 of 2002 dated 8th October, 2002. While disposing of those applications, the learned Judge ultimately directed the respondents to restore the condition of plaintiffs' roof-top cooling towers and the western side ground floor of the suit premises as was existing on the date of institution of the suit within three weeks 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 have some important bearing on the present proceeding on this interlocutory petition. This Court is further of the opinion if the points raised by the learned Counsel for the appellants succeed in that case the order passed on the interlocutory petition does not survive and the interlocutory appeal can also be decided on the basis of Court's finding on the points which are discussed below.
5. The learned Counsel for the appellants submitted that in the order under appeal there is a finding that the suit, C. S. No. 352 of 2002, was filed on 24th July, 2002. There is some dispute with regard to the exact date of the filing of the suit and the learned Counsel submitted that the suit was filed not on 24th July, 2002 but on a subsequent date in July, 2002. Be that as it may, assuming the suit was filed on 24th July, 2002 that was much later than the date when the amended provisions of the Code had came into effect. The amended provisions admittedly came into force on 1st of July, 2002. Therefore, for the purpose of deciding the preliminary objection, the aforesaid dispute namely whether the suit was filed on 24th July, 2002 or a few days thereafter, has no relevance.
6. The learned Counsel for the appellants urged that as a result of amendment to Section 26 of the Code, a new Sub-section (2) has been added to Section 26 of the Code to the following effect:--
'26(2). In every plaint, facts shall be proved by an affidavit.'
7. Section 26 of the Code deals with institution of suit and prior to amendment it was provided that the suit shall be instituted by the presentation of a plaint or in such a manner as may be prescribed. The word 'prescribed' means as prescribed by rules [see Section 2 Sub-section (16) of the Code].
8. There has also been an amendment of Order 4 of the Code and by amendment the following Rule 3 has been added. Order 4 of the Code as amended is set out below:--
'Order 4
Institution of Suits.
1. Suit to be commenced by plaint.--(1) Every suit shall be instituted by presenting a plaint in duplicate to the Court or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders 6 and 7, so far as they are applicable.
(3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in Sub-rules (1) 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 amendment.
12. The learned Counsel submitted that on a conjoint reading of the amendments which have been introduced to Section 26, Order 4 and Order 6, as pointed out above, it is clear that the intention of the Legislature is that there cannot be a valid institution of a suit unless the plaint which has been filed is supported by an affidavit of the pleadings contained in the plaint. The previous mode of mere verification of plaint is not sufficient. In other words, it has been submitted that filing of a verified plaint, does not amount to a valid institution of a suit. The learned Counsel drew the attention of this Court to the verification of the plaint in this case which was signed by one Harshabardhan Gupta and submitted that in view of the amendment to the Code, institution of suit on the basis of such plaint, is not a valid institution.
13. The learned Counsel for the respondent submitted that this point was not taken before the First Court and has not been taken in the Memorandum of Appeal either. Therefore, this Court should not allow this point to be urged. But this Court feels that since the point is taken on the basis of amendment of the Code this is a point of law. This Court also finds that for considering the point, no factual controversy is involved inasmuch as the point has been raised on the basis of the plaint itself. It is not in dispute that the plaint was just verified and there was no affidavit. In fact, when the matter was being heard on this point, the learned Counsel for the plaintiff-respondents admitted that there has been an error on the plaintiffs part in not complying with the provisions of law and it was submitted before this Court that an affidavit dated 28th April, 2004 in respect of the averments of plaint was affirmed and leave of the Court was prayed to file the same and it was filed. Therefore, the fact that affidavit was not filed along with the presentation of the plaint, has been admitted by the respondent. Thus, no factual controversy is required to be decided for considering the objection raised by the appellant. The Court for these reasons decides to consider the objection at this stage.
14. The learned Counsel for the respondent submitted that the provisions of the Code are subject to Rules framed by Chartered High Courts. The learned Counsel submitted that under the provisions of Code, Rules have been framed and 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 the Original Side Rules have been framed under Clause 37 of the Letters Patent and unless the Original Side Rules are amended, the amended provisions of the Code will not govern the institution of suit on the Original Side of the Calcutta High Court.
17. It was submitted by the respondents that in the instant case, the appellants have proceeded on the basis that the suit was instituted on 30th July, 2003 and the same has been stated in paragraph 13 of the stay petition. It was also submitted that similar statement has been made in paragraph 1 of the application filed by the appellant under Section 8 of the Arbitration and Conciliation Act. There may be some dispute about the date of institution but the validity of institution was never challenged. The department of Original Side of this Court also accepted the plaint and treated the suit to have been duly instituted and thereafter writ of summons was also issued. It was submitted that for the fault of Court, respondents cannot suffer. It was also submitted that non-compliance with the requirement of the Rules as amended is merely procedural and a defect in procedure in the matter of institution of the suit does not affect the maintainability and the suit cannot be dismissed for non-compliance with such procedural aspect. The learned Counsel also submitted that after the defect has been pointed out, the respondents have rectified the defect by filing an affidavit on 28th of April, 2004 and this rectification will relate back to the date of the institution of the suit as otherwise there will be some difficulty in the matter of limitation and the order which have already been passed in this suit.
18. These are the respective submissions by the parties. Both sides have cited a number of decisions in support of their contention.
19. Before considering the various decisions cited at the Bar, the Court proposes to consider the nature of the amendment to the Code sought to be introduced by the amending Act of 1999 and particularly the amendments in question.
20. It appears from various clauses of the amendment Act that the legislature, in this case, the Parliament, was aware that under rules of different High Courts, the requirements for the institution of the suits are not uniform. In some High Courts, there are rules that require that the plaint be supported by an affidavit stating the genuineness of 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 affidavit. To that extent neither any evidence, nor any witnesses would be needed. The delaying process of taking evidence would be cut short to that extent. [Report of the Law Commission dated Nov 27, 1978, Chap. 6, pp. 20-21].
22. It is clear from the aforesaid legislative intent, which is also expressed in the Notes of Clauses that despite different rules of different High Courts about the institution of the suit, the Parliament wanted to introduce a uniform pattern. That is why Sub-section (2) has been introduced by way of amendment in Section 26 and the language in the said Sub-section has been used in mandatory form. The importance of that amendment is further clear from the fact that correspondingly Order 4 and Order 6 of the Code have also been amended and in Order 4, the amendment, which has come into existence, makes it very clear that the plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in Rules 1 and 2 of Order 4. Rule 2 of Order 4 says that every plaint shall comply with the rules contained in Order 6 or 7 as far as they are applicable. Order 6 Rule 15(4), which deals with verification of pleadings, makes it very clear under Sub-rule (4) that a person verifying the plaint shall also furnish an affidavit in support of his pleadings. Therefore, the legislative intent, which has been introduced in Section 26, is further carried into effect by a chain of amendments in the First Schedule, viz. under Order 4 and Order 6. Thus, the legislative intent is unmistakable and the effect of such amendment cannot be diluted and/or ignored by this Court.
23. Section 32(1) of the Code of Civil Procedure (Amendment) Act, 1999 (hereinafter called the amended Act) runs as under:--
'Section 32. Repeal and savings.-- (1) Any amendment made or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except insofar as such amendment or provisions is consistent with the provisions of the principal Act as amended by this Act, stand repealed.'
24. It is clear from the aforesaid provision that in case of any inconsistency between any amendment or provision inserted in the principal Act by the State Legislature or the High Court, unless such amendment or provision is consistent with the principal Act, as amended by the amendment Act, stand repealed.
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 that justice may not be delayed and one of the important changes introduced to achieve such object is to have the plaint and documents relied in support to be supported by affidavit. Clause 3(a) of such Statements of Objects and Reasons is as follows:--
'3. Some of the more important changes proposed to be made are as follows:--
(a) any plaint to be filed shall be in duplicate and shall be accompanied by all the documents on which the plaintiff relies upon in support of his claim. It is also to be supported by an affidavit stating the genuineness of the claim of the plaintiff and of the documents on which he relies upon;'
27. In the back ground of such clear intention of the legislature, it is difficult for this Court to uphold the argument made by the learned Counsel for the respondent that despite such clear amendment in law, the same cannot apply to suits filed on the Original Side of the High Court just because the Original Side Rules have not been amended and the Original Side Rules, according to the learned Counsel, show a contrary position.
28. Such an argument is not acceptable for various reasons. First of all there is no apparent inconsistency between the Original Side Rules and the amendments to the Code.
29. Apart from that the Original Side Rules, which have been framed under the Code and in accordance with the powers of the Letters Patent, cannot defy a sovereign legislative body with plenary powers to amend the Code and when it is specifically made clear that the amendment has been introduced in order to bring about uniformity in the procedure, which, under rules of different High Courts, is not similar and amendments have been introduced for expediting disposal of civil suits.
30. The Original Side Rules of the High Court are framed in exercise of power under Section 129 of the Code. Section 129 of the Code is set out below:--
'Section 129. 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.'
31. Clause 37 of the Letters Patent has been relied 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 Patent makes it clear that in making rules on the Original Side, High Court shall be guided by (a) the provisions of the Code of Civil Procedure and (b) the provision of law which has amended the Code by competent legislative authority for India.
34. The obvious interpretation is therefore that rules made by High Court under Letters Patent cannot defy the provisions of the Code or its amendment made by a competent legislative body.
35. Clause 44 of the Letters Patent reinforces this interpretation and the said clause is set out below:--
'44. Powers of Indian Legislature preserved.--And we do further ordain and declare, that all the provisions of these Our Letters Patent are subject to the legislative powers of the Governor-General in Legislative Council and also of the Governor-General in Council under Section 71 of the Government of India Act, 1915 and also of the Governor-General in cases of emergency under Section 72 of that Act, and may be in all respects amended and altered thereby.'
36. A somewhat identical question arose in Union of India v. Mahindra Supply Co., reported in : [1962]3SCR497 . By Clause 10 of the Letters Patent of the Punjab High Court, a right of appeal, except in the cases specified, from one Judge to another Judge, was expressly granted.
37. But, under Section 39(1) of the Arbitration Act, 1940, an appeal lies only from the orders specified in that sub-section and from no other order. Thus the right of appeal given under Letters Patent was sought to be restricted under Arbitration Act. This restriction on right of appeal given under the Letters Patent by the Arbitration Act was upheld by the Hon'ble Supreme Court in view of Section 37 of the Letters Patent of the Punjab High Court. Insofar as the Calcutta High Court is concerned, clause 44 quoted above is identical with Clause 37 of the Letters Patent of the Punjab High Court. Construing clause 37, the Hon'ble Supreme Court held that the provisions of right of appeal given under the Letters Patent are open to amendment by the competent legislature. Following the same ratio, this Court also holds that rights under the Letters Patent can be amended by the competent legislature.
38. The recent amendments to CPC have been upheld by the Hon'ble Supreme Court (See Salem Advocate Bar Association v. Union of India : AIR2003SC189 as Constitutionally valid. So it 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 the Order 9 Rule 5 of the Code has not been excluded from its application to the Original Side of the Calcutta High Court under Order 49 Rule 3, the same will apply. In that case, as in the present case, the question of waiver was argued and the learned Judge found that no written statement was filed by the defendant after entering appearance. In this case also no such written statement has been filed and this point, which is taken before this Court, is a pure question of law as pointed out above. Therefore, there is no question of waiver. Waiver is an intentional relinquishment of a known right. In the instant case, there is no intentional relinquishment of its right by the appellant.
41. Reference, in this case, may be made to the judgment of the Calcutta High Court in the case of Snow White Food Product Pvt. Ltd. v. Sohanlal Bagla and Ors., reported in : AIR1964Cal209 . The question, which cropped up in that case, was whether Order 14 Rule 3 of the Code applies to in the Original Side Rules of the Calcutta High Court. The learned Judge held that Order 14 Rule 3 will apply since the same has not been excluded from its application to Original Side of the Calcutta High Court under Order 49 of the Code. (Paras 9, 10, 11).
42. Now if the Original Side Rules and amended provisions of the Code are properly interpreted no conflict between the two will appear. Chapter VII, Rule 1 of the Original Side Rules provide that plaint shall comply with Order 6 of the Code. But the learned Counsel for the respondent submits that the present amendment to Order 6 will not apply to the institution of the present suit and Order 6 as it stood when the Original Side Rules were framed will apply. It was also submitted that Original Side Rules incorporated by reference Order 6 of the Code. A few decisions were cited by the learned Counsel for the respondent on the interpretation of rules incorporated by reference.
43. The first decision which was cited on this point was of the Privy Council rendered in the case of Secretary of State v. Hindusthan Co-operative Insurance Society Ltd. AIR 1931 Privy Council 49.
44. The question which fell for decision in Hindusthan was whether from the award of the Tribunal set up under Calcutta Improvement Trust Act an appeal lay to His Majesty in Council in view of the amendment to Section 54 of the Land Acquisition Act. Under the C.I.T. 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 the Tribunal could not be included within Section 54 of the L.A. Act.
The second reason, on which reliance was placed by the learned Counsel for the respondent, was that the amendment Act was not part of the L.A. Act when C.I.T. Act was passed by incorporating part of L. A. Act into C.I.T. Act and Their Lordship laid down:
'In this country it is accepted that where a statute is incorporated by reference into a second statute, the repeal of the first statute does not affect the second; see the cases collected in 'Craies on Statute Law,' Edn.3, pp. 349-50.'
Their Lordship further held--
'It seems to be no less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition.'
47. Here the position is totally different. First of all what was in issue in Hindusthan was that whether an appeal from the decision of the High Court was maintainable. A right of appeal, it is well-settled, is always a creature of statute and unless such a right is specifically conferred by law, it cannot be granted by Courts either by implication on the basis of a strained interpretative exercise. Apart from that in Hindusthan, the independent existence of both the Act was recognised. But here the legislative scheme is totally different. The Original Side Rules of High Court are nothing but instances of subordinate legislation and having been made under the Code in a manner which has to be consistent with the Letters Patent (Section 129 of the Code) Clause 37 of the Letters Patent further provide that in making such rules, High Court shall be guided as far as possible by the Code and the provision of any law made by competent legislative authority amending or altering the Code (Clause 37). Letters Patent are also amenable to amendment by competent legislative authority (Clause 44). Apart from that the primacy given to the amendment Act of 1999 by Section 32(1) thereof makes it also clear that if any contrary provision in the Code is incorporated by amendment either by the State or by the High Court, such provision shall stand repealed.
48. In the context of the aforesaid 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-emptiom 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 the said expression of 'Public Servant' which was incorporated by reference in the Prevention of Corruption Act, 1947. The bare facts were that the respondent Narashimhan was an employee in Heavy Electrical (India) Ltd., Bhopal which was a Government company. The short point involved was that Prevention of Corruption Act, 1947 incorporated by reference the definition of the word 'Public Servant' from Section 21 of the Indian Penal Code and as such it was urged by the respondent that the expression 'Public Servant' as it stood on the date of its incorporation in the Prevention of Corruption Act does not cover him, an employee of a Government company. So it was contended by him that his trial under the Prevention of Corruption Act, is without jurisdiction. This contention of the respondent was accepted by the High Court. In view of the fact when the incorporation of the expression of 'Public Servant' from the Penal Code was made in the Prevention of Corruption Act, the definition of 'Public Servant' as it stood then did not include a Government servant. Subsequently the said definition of 'Public Servant' under the Penal Code was amended by virtue of Criminal Law (Amendment) Act, 1958 in which twelfth clause was added to Section 21 of the Penal Code and thereafter there was another amendment namely Anti Corruption Laws (Amendment) Act, 1964 and that also widened the scope of definition of 'Public Servant'.
52. Now the question before the Supreme Court was whether the definition of the word 'Public Servant' in the Prevention of Corruption Act should accordingly be widened in view of these amendments which were made subsequent to incorporation. The Supreme Court answered affirmatively and reversed the findings of the High Court and came to its conclusions in paragraph 16.
53. Before doing so the Supreme Court considered the decision of the Privy Council in Hindusthan (supra) as also the decision of the Supreme Court in Ram Sarup (supra). The Supreme Court also considered various other judgments and authorities and laid down the principle of interpretation in paragraph 16 in the following terms:--
'On a consideration of these authorities, therefore, it seems that the following proposition emerges:--
Where a subsequent Act incorporates provisions of a previous Act then the borrowed provisions become an integral and independent part of the 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 amendment made to the Code either by the State Government or by the High Court and the said amendments do apply to the present suit which was filed about more than three weeks after the amendments had come into effect.
55. The aforesaid ratio in M.B. Narashimhan has also been followed with approval subsequently by the Supreme Court in the case of State of Kerala v. Attesee, reported in : 1988(38)ELT720(SC) .
56. Therefore, from the aforesaid discussion it is clear that the ratio in Hindusthan (supra) and Ram Sarup (supra) about interpretation to a legislation by reference must be understood in the context of the interrelationship between the two statutes as has been laid down in Narashimhan and following the said ratio this Court is of the opinion that there is no conflict between Chapter VII Rule 1 of the Original Side Rules and the amendment made to Order 6 of the Code by the amending Act. The Original Side Rules, as quoted above, says that the plaint shall comply with Order 6 of the Code. This would obviously mean that the plaint should comply with Order 6 of the Code as amended from time to time. The contrary interpretation suggested by the learned Counsel for the respondent that all amendments to the Code by a sovereign legislative body with plenary power shall stand frozen unless the Original Side Rules are amended, cannot be accepted by this Court for the reasons indicated above. This Court, therefore, does not discern any conflict between the Original Side Rules and the amendment brought about by the amendment Act in question.
57. The learned Counsel for the respondent has cited a number of old decisions and one recent decision of the Supreme Court in order to contend that matter relating to presentation of plaint or the signing of the same are the matters of mere procedural details and any error or defect in the same does not entail the dismissal of the suit. In support of such contention, the learned Counsel cited the decision in the case of Subbiah Pillai v. Shankarapandiam Pillai, reported in AIR 1948 Madras 369. In that case the plaint was not signed but the same was filed with the knowledge and consent of the plaintiff. The learned Judges held that the same was merely an irregularity and its amendment should be allowed even by the Appellate Court and on that ground alone the jurisdiction of the Court is not affected and the suit ought not to 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 verification in the plaint was amended, the plaint was deemed to have been presented not on the date of amendment but on the date when it was first presented.
60. Another decision was also cited by the learned Counsel for the respondent which was a Special Bench judgment of the Allahabad High Court in the case of Wali Mohammad Khan v. Ishak Ali Khan and Ors., reported in AIR 1931 Allahabad 507. In that case also the Court held that omission to comply with the provisions regarding presentation of a plaint is a mere irregularity and does not effect the jurisdiction of the Court. The Court, therefore held that if a person presenting the plaint is not properly authorised, the presentation would be irregular and the Court will have the discretion to allow the irregularity to be cured if the plaintiff has acted in good faith and without gross negligence.
61. The learned Counsel also cited a Division Bench judgment of Calcutta High Court in the case of Prasar Bharati Broadcasting Corporation v. Dibyojyoti Bose, reported in AIR 2000 Cal 43. That was a decision rendered by the Division Bench of this Court dealing with the writ petition and from paragraph 20 of the judgment which is relevant in this connection, it appears that the learned Counsel for the respondent raised the question of improper verification of the writ petition and the Court found that for an improper verification of the writ petition, the petition cannot be dismissed and the objection was merely technical in nature.
62. The principles decided in the aforesaid judgments are strictly speaking not applicable to the present case. It may be true that for an improper verification or an improper presentation of a plaint, the plaint cannot be rejected. The further principle that the plaint must be deemed to have been validly presented not from the date of correction of the mistake but from the date of actual presentation when it contained the mistake, cannot be accepted in the present case in view of the provisions of Order 4 Rule 3 of the Civil Procedure Code as amended. None of these cases had occasion to consider the provisions of Order 4 Rule 3 for the simple reason that such a provision was not there in the body of the Code previously.
63. This provision, namely Order 4 Rule 3 incorporated by way of amendment has come into effect from 1st July, 2002 and, as quoted above, Order 4 Rule 3 uses a deeming clause to the effect 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 existed, must inevitably have flowed from or accompanied it.'
The learned Judge clarified it further by observing as follows:--
'The statute says that one must imagine a certain state of affairs. It does not say that, having done so, one must cause or permit one's imagination to boggle when it comes to the inevitable corollaries of that state of affairs.'
65. Following the aforesaid classical observation of the deeming clause, it has to be held that unless the plaint complies with the requirement of the amended provision there will be no due institution of the plaint. In other words, if a plaint has been filed without compliance with the requirement of the amended provision in the eye of law no plaint can be said to have been filed and the same is non est in the eye of law. So from the moment the error is rectified, the plaint is deemed to be properly instituted and the rectification cannot relate back to a period when, in view of the deeming clause, there was no due institution of the plaint. Any other construction will be plainly contrary to the express provisions of Order 4 Rule 3 of the Code as amended.
66. In the content in which the word 'due' has been used in Order 4 Rule 3, it would mean in accordance with law [See LIC v. D.J. Bahadur : (1981)ILLJ1SC .
67. Such a meaning can be attributed to the word 'due' in view of the legislative intent which is conveyed by the expression 'due' in the amended provision of CPC.
68. In the teeth of this deeming clause in Order 4 Rule 3 of the Code, this Court cannot accept the ratio of the cases cited by the learned Counsel for the respondents that the compliance of the plaint with the law will relate back to the time when the plaint without complying with the requirement of law was filed.
69. In so far as the recent decision of the Supreme Court in the case of Salem Advocate Bar Association, Tamilnadu v. Union of India, reported in : AIR2003SC189 , is concerned this Court finds that in paragraph 16, the learned Judges have observed that for non-compliance with the provisions of Order 7 and Clauses (e) and (f) of Rule 11 and Rule 9 there should not be an automatic rejection of the plaint at the first instance. The learned Judges held that in cases of such non-compliance, the Court should ordinarily give an opportunity for rectifying the defects and if the same is not 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 AIR 1999 Calcutta 29, 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 on a writ petition and the question was whether Order 47 Rule 5 of the Code should be strictly followed.
73. Reliance was placed by the respondent on paragraph 52 of the judgment in which it was stated that a Chartered High Court can frame rules to regulate its procedure. Such rules may not be consistent with the Code but must be consistent with the Letters Patent, establishing the High Court. The Full Bench had no occasion to consider the scope of an amending Act like the present one. Apart from that in this case it has been pointed out that, on a proper interpretation of legislation by reference, there is no conflict between the amendment introduced by the amending Act and Chapter VII, Rule 1 of the Original Side Rules.
74. The Original Side Rules of this Hon'ble Court does not show any intention which is contrary to the Code. This becomes clear from Rule 3 of Chapter XL of the Original Side Rules which deals with general application of the Rules. Rule 3 is as follows:
'3. Where no other provision is made by the Code or by these rules the present procedure and practice shall remain in force.'
75. Thus, it is clear that practice and procedure of the Original Side Rules is subject to any 'other provision' 'made by the Code'.
76. So the ratio in Full Bench judgment does not apply to this case.
77. For the reasons aforesaid, this Court holds that the suit cannot be dismissed nor can the plaint be rejected because of non-compliance with the amended provisions since the same has been removed by filing an affidavit by the respondent-plaintiff. Therefore, now there is a due institution of suit. But this due institution can only be counted from 28th April, 2004 and not before that. Therefore, the interlocutory order, which was passed by the learned Judge of the First Court at a point of time when there has been no institution of suit, cannot survive.
78. The interlocutory order dated 2nd April, 2004 is set aside. This Court makes it clear that the interlocutory order is not set aside on merits but is set aside for the reasons discussed above and this will not prevent the plaintiff, if so advised, from approaching the First Court with another prayer for injunction and if the Court is so approached, the application for interlocutory order may be dealt with in accordance with law. With these observations, this Court allows this appeal and the order dated 2nd April, 2004 is set aside for the reasons discussed above.
79. There will, however, be no order as to cost.
80. Urgent xerox certified copy of this judgment, if applied for, may be given to the parties expeditiously.
Soumitra Sen, J.
81. I agree.