PETITIONER:
SHIVA JUTE BALING LTD.
Vs.
RESPONDENT:
HINDLEY & CO. LTD.
DATE OF JUDGMENT:
05/04/1955
BENCH:
MUKHERJEE, BIJAN KR. (CJ)
DAS, SUDHI RANJAN
CITATION:
1955 AIR 464 1955 SCR (2) 243
ACT
Appeal by Special Leave under Article 136 of the
Constitution Procedure to be followed on grant of such
leave-Supreme Court Rules, rules 8, 9, 12 and 13 of Order
XIII-Circumstances warranting action against an Appellant
for rescinding special leave-Civil Procedure Code, Order
XLV, rule 8-"Admission " Of appeal to Supreme Court-
Applicability to appeals under article 136 of Constitution-
Extent of Rule 9, Order XIII, of Supreme Court Rules-Rules
and Practice of High Courts-Formal motion in High Court for
"admission" of appeal when special leave was granted under
article 136-Whether necessary-Calcutta High Court (original
Side) Rules, rule 9 of Chapter 32-Scope of.
HEADNOTE
By an order dated May 25, 1954, the Supreme Court granted
the petitioners in the case special leave to appeal against
the judgment and order of the High Court at Calcutta. In
accordance with the order, the petitioners furnished the
security amounts directed to be deposited within the time
specified in the order. The Registrar of the High Court did
not issue any notice of admission of ’appeal to be served by
the Appellant’s Solicitor on the Respondents as envisaged in
rule 9 of Order XIII, S.C.R. Nor did the Appellant following
the practice of the High Court, move that Court for It
admission" of the appeal until January 11, 1955. The
Respondents first moved the High Court complaining of
default on the part of the appellants in due prosecution of
the appeal and latter moved the Supreme Court for action
under rule 13 of Order XIII of the Supreme Court Rules. The
application in the High Court was therefore kept pending.
Held: After the grant of special leave under article
136, the Registrar of the Supreme Court transmits, in
accordance with the
244
provisions of rule 8 of Order XIII of the Supreme Court
Rules, a certified copy of the Supreme Court’s order to the
Court or tribunal appealed from,
Rule 9 of Order XIII of the Supreme Court Rules enjoins upon
the Court or tribunal appealed from to act, in the absence
of any special directions in the order, in accordance with
the provisions contained in Order XLV of the Civil Procedure
Code, so far as they are applicable. Accordingly the Court
or Tribunal to which the order is transmitted receives
deposits on account of security for the Respondents’ costs,
printing costs, and any other deposits if so ordered by the
Supreme Court, and sets about preparing the record of the
appeal for transmission to the Supreme Court. Therefore,
action under rule 13 of Order XIII, S.C.R., for rescinding
the order granting special leave cannot be initiated unless
the Court or tribunal appealed from reports to the Supreme
Court that the appellant has not been diligent in taking
steps to enable that Court to carry out the directions, if
any, contained in the order of the Supreme Court and to act
in accordance with the provisions of Order XLV of the Civil
Procedure Code so far as applicable to appeals under Article
136 of the Constitution.
In view of rule 9 of Order XIII of the Supreme Court Rules,
the application of Order XLV of the Code of Civil Procedure
to appeals under Article 136 of the Constitution is
restricted. The Court or tribunal appealed from, no doubt,
has to carry out the directions contained in the order
granting special leave, and to receive the security for the
Respondents’ costs and other necessary deposits, but once
the security is furnished and the other deposits are made,
the formality of "admission" envisaged by rule 8 of Order
XLV of the Civil Procedure Code is unnecessary, because in
such cases the order .granting special leave by itself
operates as an admission of the appeal as soon as the
conditions in the order relating to the furnishing of
security or making of deposits are complied with. Appeals
under Article 136 thus stand on a different footing from
appeals on grant of certificate by the High Court itself.
In the letter case, the High Court has exclusive
jurisdiction over the matter until it admits the appeal
under rule 8 of Order XLV of the Civil Procedure Code.
Rule 9 of Chapter 32 of the Original Side Rules of the
Calcutta High Court envisages "admission" of appeals to the
Supreme Court whether by an order of the Supreme Court or
under Order XLV of the Civil Procedure Code. And when an
appeal arising from an order made by the Supreme Court under
Article 136 of the Constitution, has been so "admitted", the
said rule enjoins upon the Registrar to issue notice of such
admission for service by the appellant on the Respondents.
In cases where special leave has been granted by the Supreme
Court, it is not necessary for the appellant to move the
High Court appealed from for the formal admission of his
appeal. As the order granting special leave itself lays
down the conditions to be fulfilled by the appellants, the
admission will be regarded as final only when the directions
are complied with and as
245
soon as this is done it would be the duty of the Registrar
to issue a notice of the admission of the appeal for service
upon the respondents. In default of the issue of such
notice, the appellant cannot be held responsible for laches
in the prosecution of his appeal with regard to the steps
required to be taken after the admission of his appeal.
JUDGMENT
CIVIL APPELLATE JURISDICTION: In the matter of Petition for
Special Leave to Appeal No. 230 of 1953.
Rajinder Narain for the Respondents.
N. C. Chatterjee (Sukumar Ghose with him) for the
Appellants.
1955. April 5. The Order of the Court was delivered by
MUKHERJEA C.J.-This is an application by the respondents in
Special Leave Petition No. 230 of 1953, praying for summons
to the appellants to show cause why the special leave
obtained by the latter should not be rescinded in accordance
with the provision of Order XIII, rule 13 of the Supreme
Court Rules.
The appeal is directed against a judgment of a Division
Bench of the Calcutta High Court affirming, on appeal, a
decision of a single Judge sitting on the Original Side of
that Court. The appellants, having been refused certificate
by the High Court, presented before us an application under
article 136 of the Constitution and special leave to appeal
was granted to them by an order of this Court dated the 25th
May 1954. By that order the appellants were required to
furnish security for costs amounting to Rs. 2,500 within six
weeks and the enforcement of the award, which was the
subject-matter of the appeal, was stayed on condition that
the appellants deposited in Court a sum of Rs. 28,000 within
four weeks from the date of the order. On the 15th of June
1954 the Registrar of this Court transmitted to the Original
Side of the Calcutta High Court certified copies of the
order granting special leave and also of the special leave
petition with a request that these documents might be
included in the printed records of the case. It is not
disputed that in pursuance of the directions given
246
by this Court the appellants did deposit the amount required
as security for costs and also the sum of Rs. 28,000 within
the time mentioned in the order. On the 29th November 1954
the respondents’ Solicitors in Calcutta wrote a letter to
the Registrar of the Original Side of the Calcutta High
Court complaining of delay on the part of the appellants in
prosecuting the appeal. It was stated inter alia that
although six months had elapsed since special leave was
granted by this Court, the respondents were not served with
notice of the admission of the appeal and no steps were
taken by the appellants to get the records printed or
transmitted to this Court. In reply to this letter the
Registrar informed the respondents’ Solicitors that
according to the practice of the Calcutta High Court it was
incumbent on the appellants to make a formal application to
the Appellate Bench of the Court for declaring the appeal
finally admitted, and this was to be done on notice to the
other parties under Order XLV, rule 8 of the Civil Procedure
Code and on filing in Court a copy of the order of the
Supreme Court granting special leave to appeal as well as
the application upon which such order was made. Unless and
until an order was made by the High Court declaring the
appeal to be admitted, no action could be taken by the
office in the matter.
Thereupon on the 11th of January 1955 an application was
filed by the appellants praying that leave might be given to
them to file the certified copy of the special leave
petition and also that of the order passed upon it and that
the appeal might be finally admitted. This application came
up for hearing before the learned Chief Justice and Lahiri,
J. of the Calcutta High Court and on the 20th of January
1955 the learned Judges made the following order:
"In this matter special leave to appeal to the Supreme Court
was granted by that Court on the 25th May 1954. On the 21st
June following, the Appellant furnished the necessary
security. It was then the duty of the Appellant to take the
necessary steps for the final admission of the appeal in
order that the preparation of the Paper Book might
thereafter be
247
undertaken. Under the Rules and practice of this Court the
step to be taken is that the Appellant to the Supreme Court
should make an application for leave to file the certified
copy of the petition for Special Leave and also a certified
copy of the order granting Special Leave which have been
filed along with the present
application......................."
When the matter came up for hearing on the last occasion we
enquired whether the Appellantshad any explanation to give
for the delay which bad occurred. It was said that the
certified copy of the application for Special Leave had been
obtained only recently. It was however not explained why
when an application for a certified copy of the order was
made a similar application for a certified copy of the
petition also could not be made.
In all the circumstances we consider it right that the
disposal of the present application should stand over for a
month in order that the respondents may take such steps as
they desire to take before the Supreme Court".
The above facts and order of the High Court were
communicated to the Registrar of this Court by Shri Rajinder
Narain, Advocate for the respondents, by his letters dated
the 17th and 31st of January 1965 and on the basis of the
facts stated above, he requested that action should be
initiated by the Registrar against the appellants for non-
prosecution of the appeal. The Registrar told the learned
Advocate that he had not received any report from the High
Court regarding any laches on the part of the appellants and
without any such report, it was not possible for him to take
any action in the matter. The Advocate himself, it was
said, was quite at liberty to make a formal application to
the Court in such way as he considered proper. The views
thus expressed by the Registrar of this Court were
communicated by him to the Registrar of the High Court,
Original Side, Calcutta. On the 4th March 1955 Shri
Rajinder Narain filed a formal petition addressed to the
Registrar alleging inordinate delay on the part of the ap-
pellants in filing in the High Court certified copies of
248
the Special Leave petition and the order made by this Court
thereupon and praying that summons might be issued to the
appellants to show cause why the appeal should not be
dismissed for non-prosecution. Before the Registrar could
take any further steps in the matter, the application of the
appellants for final admission of the appeal made in the
High Court came up for further consideration before the
Appellate Bench consisting of the Chief Justice and Mr.
Justice Lahiri and on the 7th March, 1955 the learned Judges
made an order directing, for the reasons given therein,
adjournment of the application for admission of the appeal
before them, sine die pending orders which this Court might
pass on the application of the respondents. The application
of the respondents which purports to have been made under
Order XIII, rule 13 of the Supreme Court Rules was referred
by the Registrar for orders to the Court and it has now come
up for hearing before us.
Shri Rajinder Narain appearing in support of the petition
has Contended before us that the appellants were guilty of
serious laches inasmuch as they did not file in the High
Court, till 8 months after the special leave was granted,
copies of the special leave petition as well as of the order
passed upon it; nor did they make an application to the
Appellate Bench for admission of the appeal without which no
further steps could be taken in the matter of printing and
transmission of the record. As the appellants could not
give any satisfactory explanation for this inordinate delay
on their part, the special leave, it is argued, should be
rescinded. Mr. Chatterjee, who appeared for the appellants,
has contended @n the other hand that in a case like the one
before us where the appeal has come up to this Court by
special leave and not by a certificate granted by the High
Court, there was no duty cast upon the appellants to make a
formal application in the High Court for final admission of
the appeal or to file therein certified copies of the
special leave petition and the order made thereupon. His
argument is that under Order XXXII, rule 9 of the Original
Side Rules of the Calcutta High Court, a
249
Supreme Court appeal must be deemed to havebeen admitted
by the very order of this Court granting special leave and
as soon as the appellants have carried out the directions of
the Supreme Court regarding furnishing of security or making
of other deposits as the case may be, it is incumbent upon
the Registrar to issue a notice of the admission of the
appeal for service upon the respondents. Such notice indeed
has got to be served by the appellants’ attorney; but as no
notice was at all issued by the Registrar in the present
case as is contemplated by rule 9 of Order XXXII of the
Original Side Rules of the Calcutta High Court, no blame
could attach to the appellants for not taking further steps
in the matter. The contention of Mr. Chatterjee appears to
us to be wellfounded and as it seems to us that doubts have
arisen at times regarding the precise procedure to be
followed in cases where an appeal comes to this Court by
special leave granted under article 136 of the Constitution,
it is necessary to examine the provisions bearing upon it as
are contained in the Rules of the Supreme Court or of the
High Court concerned read along with the relevant provisions
of the Civil Procedure Code.
Ordinarily when a High Court grants a certificate giving
leave to a party to appeal to this Court, it is ,that Court
which retains full control and jurisdiction over the
subsequent proceedings relating to the prosecution of the
appeal till the appeal is finally admitted. It is for the
High Court to see that its directions are carried out
regarding the furnishing of security or the making of
deposit and when these conditions are fulfilled, it has then
to declare the appeal finally admitted under Order XLV,rule
8 of the Civil Procedure Code. The jurisdiction of the
Supreme Court begins after the appeal is finally admitted.
When however the appeal comes to this Court on the strength
of a special leave-’ granted by it, the position is
different. In such cases the order of the Supreme Court
granting special leave by itself operates as an admission of
the appeal as soon as the conditions in the order relating
to fur-
250
nishing of security or making of a deposit are complied
with. That this is the true position will be clear from the
procedural provisions contained in the Rules of the Supreme
Court as well as of the Original Side of the Calcutta High
Court. Order XIII, rule 8 of the Supreme Court Rules lays
down:
"After the grant of special leave to appeal by the Court,
the Registrar shall transmit a certified copy of the order
to the court or tribunal appealed from".
Rule 9 then says:
"On receipt of the said order, the court or tribunal
appealed from shall, in the absence of any special
directions in the order, act in accordance with the
provisions contained in Order XLV of the Code, so far as
applicable".
It is to be noted here that although this rule does refer to
the provisions of the Order XLV of the Civil Procedure Code,
these provisions are to be followed only so far as they are
applicable. It is surely the duty of the High Court to see
that security is furnished or a deposit is made in
accordance with the directions of the Supreme Court and
these directions are to be found in the order of the Supreme
Court which the Registrar is bound to transmit to the High
Court under Order XIII, rule 8 of our Rules. We do not
think it is necessary for the appellants to file afresh a
copy of the Supreme Court order or the petition upon which
it was made in order that they may form part of the record
of the Supreme Court appeal. They would come in the record
as soon as they are transmitted by the Registrar in
accordance with the rule of our Court mentioned above and
would have to be included in the Paper Book when it is
printed. The Registrar of the High Court undoubtedly took
these orders as part of the record without the appellants’
filing them afresh, for he accepted the security and deposit
of other moneys from the appellants on the basis of these
orders. If there was any failure on the part of the
appellants to furnish the security or to make the deposit in
the way indicated in the order of the Supreme Court, it
would have been the duty of the Registrar of the High Court
to intimate these
251
facts to the Registrar of the Supreme Court and the latter
thereupon could take steps for revoking the special leave as
is contemplated by Order XIII, rule 12 of our Rules. In our
opinion, it is also not necessary for the appellants to make
a formal application for admission of the appeal in cases
where special leave has been granted by the Supreme Court;
-and this appears clear from the provision of Order XXXII,
rule 9 of the Original Side Rules of the Calcutta High Court
which runs as follows:
"9. On the admission of an appeal to the Supreme Court
whether by the order of this Court under Order XLV, rule 8
of the Code, or by an order of the Supreme Court giving the
appellant Special Leave to Appeal, but subject in the latter
case to the carrying out of the directions of the Supreme
Court as to the security and the deposit of the amount re-
quired by rule 5, notice of such admission shall be issued
by the Registrar for service on the respondent on the
record, whether be shall have appeared on the hearing of the
application for a certificate under Order XLV, rule 3 of the
Code, or not. Such notice shall be served by the attorney
for the appellant and an affidavit of due service thereof
shall be filed by such attorney immediately after such
service".
The opening words of this rule plainly indicate that there
could be admission of appeal either by order of the High
Court under Order XLV, rule 8 of the Civil Procedure Code or
by the order of the Supreme Court itself giving special
leave to appeal. (As the order granting special leave itself
lays down the conditions to be fulfilled by the appellants,
the admission will be regarded as final only when the
directions are complied with and as soon as this is done it
would be the duty of the Registrar to issue a notice of the
admission of the appeal for service upon the respondents).
This notice is to be served by the attorney for the appel-
lants and an affidavit of due service shall be filed by him
immediately after the service is effected.
In the present case the Registrar, Original Side of the,
Calcutta High Court should have issued a notice of
252.
the admission of the appeal to be served upon the
respondents as soon as the security for costs and other
deposits of money were made by the appellants. This was not
done as the procedure to be followed was not correctly
appreciated. It is true that the appellants remained idle
for a considerable period of time even after they furnished
security and did not take any steps towards printing of the
record. But as there was an initial irregularity in the
matter of issuing a notice under.Order XXXII, rule 9 of the
Original Side Rules of the Calcutta High Court, we are
unable to hold that the appellants were guilty of any laches
for which the special leave deserves to be rescinded. The
result is that the application of the respondents is
dismissed. The Registrar, Original Side of the Calcutta
High Court, will now issue a notice under Order XXXII, rule
9 of the Original Side Rules and prompt steps should be
taken by the appellants towards printing and transmission of
the record to this Court. We make no order as to costs of
this application.