Velu Pillai v. Sevuga Perumal Pillai

(Prayer: Petition (disposed of on 29-1-1958) praying that in the circumstances stated in the affidavit, filed therewith, the High Court will be pleased to excuse the delay in filing the C. R. P. No. of 1957 (S. R. No. 17267 of 1957) sought to be presented to the High Court to revive the order of the Pt. Munsif, Tirumangalam, dated 19-6-1956 in E. A. No. 99 of 1956 in E. P. No. 297 of 1955 in S. C. S. No. 190 of 1952.)

On 19th Jane 1956 the District Munsif of Tirumangalam passed an order holding that E. P. No. 297 of 1955 was barred by limitation and that the defendant was entitled to the refund of a sum of Rs. 7, which he had paid on 13th February 1956. The decree-holder who seeks to canvass the correctness of this order in revision filed a petition which has been numbered as S. R. No. 1726

7. Under R. 41-A (2) of the Appellate Side Rules of this Court, such a petition has to be presented within 90 days from the date of the order complained of. The same rule empowers the Court to excuse the delay where sufficient cause is shown to its satisfaction. In the present case there was a delay of 268 days in filing the petition. The only ground on the basis of which I am invited to excuse the delay is that the petitioner mislaid the bundle in his village. That, in my opinion, is not a sufficient reason for excusing the delay.

When I expressed this view, learned Counsel for the petitioner put forward the contention that R. 41-A (2) is ultra vires the rule making-powers of this Court and that he is entitled to come to this Court regard lees of the 90 days specified in that rule. In support of this contention he referred to the decision in Abdul Ganny v. Mr. Russell A.I.R. 1930 Rang. 229 (F.B.).That case cannot help the petitioner because all that was decided there was that where an Article in the Limitation Act provides a particular period of time, it is not open to the Court in exercise of its rule-making powers to reduce that period of time. The Court ruled:

The High Courts are not entitled by rules to abrogate or vary the period of limitation set out in the Limitation Act, in respect of proceedings to which the provisions of the Limitation Act, apply.

The decision in Narasing Sahai v. Sheo Prasad A.I.R. 1918 All. 389 [LQ/AllHC/1917/201] ., which was next cited does not take the petitioner any further. All that the Court decided was:

we are unanimous in holding that this Court has no power by any rule that it may make to alter the period of limitation prescribed by the Limitation Act.

It may be mentioned that R. 41-A (2) of the Appellate Side Rules of this Court does not in any way touch or alter the period of time prescribed by the Limitation Act.

In Sennimalai v. Palani A.I.R. 1917 Mad. 957., Coutts Trotter. J., remarked:

Whatever may be the case of the Statute prescribing say three years for an action to be brought, I am quite clear that the Article in the Act limiting applications of this nature which are almost entirely interlocutory deal clearly with matters of procedure; and therefore the High Court has jurisdiction under S. 122 to make the addition to O. 9, R. 13.

This matter was examined exhaustively by a Full Bench of this Court in Krishnamachariar v. Srirangammal 47 Mad. 824=20 L.W. 332 (F.B.).There it was held that a rule framed by this Court applying S. 5 of the Limitation Act to applications under O. 9, R. 13 C. P. C., is intra vires . Learned Counsel for the petitioner argued that in effect this decision merely gives a concession to persons who may be able to produce reasons to the satisfaction of the Court as to why the delay in a particular case should be excused. But the principle of the decision cannot be got rid of in this manner. The decision shows that the Court has power by rules framed by it to regulate or enlarge the time relating to procedural matters. The argument that the petitioner has a vested right to come up in revision at any time and that the decision of the Full Bench does not affect that right of his cannot be accepted. The Full Bench decision of this Court was followed in Pandrarinath v. Thakordeas A.I.R. 1929 Bom. 262 [LQ/BomHC/1928/206] .

Now, nobody can dispute that a rule framed by a Court directing that certain kinds of applications shall be presented to certain of its officers is a rule of procedure; it may be a matter of detail; but it is still a matter of procedure. Similarly it cannot be controverted that a rule which directs that certain applications should be presented within certain hours of the day is also a matter of procedure. In like manner a direction that certain applications should be presented before a certain time would also be matter of procedure. This is made clear by Coutts Trotter, J. in the judgment I have already referred to.

Section 122, Civil Procedure Code, empowers the High Courts to make rules regulating their own procedure and the procedure of the civil Courts subject to their superintendence. The Section specifically empowers the High Court by such rules not merely to annul or alter any of the rules in the First Schedule of the Code but also to add to them. This is a comprehensive power and is suffient to empower the High Court to make a rule of the kind embodied in R. 41-A (2). S. 128, Civil Procedure Code, to which the learned Counsel for the petitioner referred, does not in any way cut down the ambit of S. 122. The first Sub-section of 128 specifically states that the rules may provide for any matters relating to the procedure of civil Courts. The enumeration that follows in the second Sub section is made without prejudice to the generality of the powers conferred by Sub-S. (1). I am clearly of the view that R. 41.A (2) of the Appellate Side rules is intra vires of the powers of this Court. This petition is therefore dismissed with costs.