Aravindakshan and Another vs K. Sukumaran and Another

A.R. Lakshmanan, J.—Heard Mr. B.N. Shiv Shankar and Mr. O. Bala Narayanan for the respective Petitioners, Smt. V.P. Seemandini and Mr. M.S. Unnikrishnan for 1st Respondent in O.P. 19891/1998 and the Government Pleader for the Respondents in O.P. 19892/1998, In view of the great public importance of the matter, we requested Mr. T.P. Kelu Nambiar, Senior Advocate to assist the Court on the legal issue raised in these writ petitions, Accordingly, he was also heard.

O.P. 19891/1998 was filed by one P.P. Aravindakshan and one O. Bala Narayanan, Advocate, who are the Plaintiffs in the suit (un-numbered) for recovery of a liquidated demand in money, amounting to Rs. 20,000, with future interest arising from a written contract against one K. Sukumaran as the Defendant. The suit was filed invoking the summary procedure under Order XXXVII of the Code of Civil Procedure, which provisions were introduced so far as the State of Kerala is concerned by the substitution of Order XXXVII by the CPC Amendment Act, 1976, which came into effect on 1st February 1977. The suit was filed in the Court of the Principal Munsiff, Ernakulam. The Office of the Principal Munsiff refused to number the plaint and returned the same for curing certain defects. The defects pointed out are:

(1) Inasmuch as Kerala is concerned Order XXXVII of CPC stands omitted as per notification in K.G. No. 23, dated 9th June 1959; and

(2) No petition is filed to receive the photocopy of documents produced.

The plaint was re-presented with clarification. In regard to the objections, the clarification was not accepted. The clarification was given in the following manner:

The notification deleting Order 37 is dated 9th June 1959. Thereafter the CPC Amendment Act, 1976 was passed became law which substituted a new Order 37. Therefore since it extends to the whole of India Order 37 became law in force in Kerala also on the date the 1976 Amendment Act came into force. The notification dated 9th June 1959 cannot prevent the Parliament from enacting Amendment Act, 1976 nor can the 1959 notification repeal or annul the 1976 Amendment made years later. As a matter of fact, the position has been noticed by the Rule Committee of the High Court which has recently recommended deletion of Order 37 by exercise of power u/s 122 CPC and it has not been decided by the High Court nor notified. The suit of summary nature is perfectly and correctly filed.

According to the Petitioners, the plaint has complied with all the relevant provisions of Order XXXVII, Rules 1 and 2 and summons as prescribed in Rule 3 have also been filed. When the matter was posted before the Munsiff, it was argued by the counsel. However, the learned Munsiff rejected the plaint by passing Exhibit P-1 order dated August 24, 1998. The order reads thus:

The plaint is seen preferred under Order XXXVII of the Code of Civil Procedure, which as per notification in K.G. dated 9th June 1959 has been omitted in as much as the State of Kerala is concerned. It''s true that notification is prior to the CPC (Amendment) Act, 1976.

However in my view of this matter the notification vis-ia-vis the CPC (Amendment) Act, 1976 has to stand, for the omission cannot be said to have brought to being an inconsistency with respect to the provisions of the Principal Act, as amended, within the comprehension of Section 97(1) of the Amendment Act.

The plaint is thus rejected under Order VII, Rule 11(d) of the Code of Civil Procedure.

(Sd.) Principal Munsiff.

Aggrieved against the rejection of the plaint, O.P. 19891/1998 was filed for the following reliefs:

A. Call for the records of the case and peruse them.

B. Issue an appropriate order declaring that Order 37 of the CPC as substituted by the CPC Amendment Act, 1976 is in force in Kerala with effect from 1st February 1977 and continues in force.

C. Issue an appropriate order or writ quashing or setting aside the judgment and Decree or Order dated 24th August 1998 rejecting the plaint in the un-numbered Original Suit filed by P.P. Aravindakshan and another as Plaintiffs against K. Sukumaran as Defendant on the file of the Principal Munsiff, Ernakulam the 2nd Respondent herein the contents of which are marked as Exhibit P-1 and consequently directed the 2nd Respondent to restore the plaint and number it and issue summons to the Defendant under Order 37 and proceed with the suit under Order 37 of the CPC as introduced by the CPC Amendment Act, 1976.

O.P. 19892/1998 was filed by one B.N. Shiv Sankar, Advocate, for the following reliefs:

A. Issue an appropriate order or direction declaring that Order 37 and Rules therein substituted in the CPC by CPC Amendment Act, 1976 is in force in Kerala and has to be given effect to until it is validly amended.

B. Issue directions to Registrar, High Court of Kerala to issue circular intimating grant of relief A to all Courts and Judicial Officers in Kerala for compliance and guidance.

In this case also, the learned Munsiff passed a similar order as in Exhibit P-1 in the other case.

In view of the great public importance to the litigant public, members of the legal fraternity, Presiding Officers and ministerial staff of Civil Courts in Kerala, the matter was referred to a Division Bench by Koshy, J.

The question to be decided in these two Original Petitions is whether at present Order XXXVII and Rules thereunder of the CPC as amended by the CPC (Amendment) Act of 1976 is in force in Kerala?

The question to be decided in O.P. 19891/1998 is whether after the deletion of Order XXXVII of the CPC by notification 23 dated 9th June 1959 and after the amendment to the CPC substituting new Order XXXVII with effect from 1st February 1977 the latter is in force in Kerala and whether rejection of an un-numbered plaint by the Principal Munsiff is proper.

We have already narrated the short facts of the case. We shall now analyse the provisions of Order XXXVII before amendment and after amendment by Amending Act 104 of 1976, which came into force with effect from 1st February 1977:

ORDER XXXVII Summary Procedure on Negotiable Instruments

Application of Order-Rule 1.- This order shall apply only to-

(a) the High Courts of Judicature at Fort William, Madras and Bombay;

(b) any District Court or other Court specially empowered in this behalf by the State Government;

(c)( * * * ) and (d) any other Court to which Sections 532 to 537 of the Code of Civil Procedure, 1882, have been already applied.

HIGH COURT AMENDMENTS

** ** ** Kerala: (Laccadive, Minicoy and Amindivi Islands)*

Order 37 shall be omitted. (9-6-1959)

*See Act 37 of 1956, Section 60 and Reg. 8 of 1965, Section 3(2).

The Kerala High Court by notification No. B1-3312/58 dated 7th April 1959, published in the Kerala Gazette No. 23 dated 9th June 1959 (Part III), omitted the provision contained in Order XXXVII. The relevant portion of the notification is extracted, below:

Kerala Gazette No. 23, dated 9th June, 1959.

Part III.

THE HIGH COURT OF KERALA NOTIFICATION

No. B1-3312/58. Dated, Ernakulam 7th April 1959. In exercise of the powers vested in it u/s 122 of the Code of Civil Procedure, (Act V of 1908) the High Court of Kerala, after previous publication and with the previous approval of the State Government makes the following amendments to the First Schedule of the said Cede in place of the amendments now in force, for regulating its own procedure and the procedure of all Civil Courts subject to its superintendence.

In the First Schedule to the Principal Act, (Code of Civil Procedure, 1908):

* * * 25. Order XXXVII shall be omitted.

This Order deals with summary procedure for suits and its object is certainly abridgment of the proceedings and rapidity of disposal.

The provisions contained in Order XXXVII were amended as per the CPC Amendment Act 104 of 1976. which came into force on 1st February 1977.

As per section 84 of the CPC (Amendment) Act 1976, drastic changes were made to the provisions contained in Order XXXVII, which is extracted hereunder:

ORDER XXXVII Summary Procedure

Courts and classes of suits to which the Order is to apply.- (1) This, Order shall apply to the following Courts, namely:

(a) High Court, City Civil Courts and Courts of Small Causes; and

(b) other Courts;

Provided that in respect of the Courts referred to in Clause (b), the High Court may, by notification in the Official Gazette, restrict the operation of this Order only to such categories of suite as it deems proper, and may also, from time to time as the circumstances of the case may require, by subsequent notification in the Official Gazette, further restrict, enlarge or vary, the categories of suits to be brought under the operation of this Order as it deems proper.

(2) Subject to the provisions of Sub-rule (1), the Order applies to the following classes of suits, namely:

(a) suits upon bills of exchange, hundies and promissory notes;

(b) suits in which the Plaintiff seeks only to recover a debt, or liquidated demand in money payable by the Defendant, with or without interest, arising.-

(i) on a written contract, or

(ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or

(iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.

Chapter V Section 97 of the CPC (Amendment) Act, 1976 dea''s with repeal and savings, which reads thus:

Repeal and savings.- (1) 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 pricipal Act as amended by this Act, stand repealed.

The effect of all local amendments made to any of the provisions of the Code either by State legislature or High Court which were inconsistent with the Code as amended by the Amending Act stood repealed irrespective of the fact whether the corresponding provision in the Code has been amended or modified by the Amending Act and that was subject only to what was found in Sub-section (2) of Section 97.

In the light of the above Amendment Act 104/1976, we have to now decide the two questions posed for consideration in both the writ petitions.

The CPC prior to its amendment by the Amending Act of 1976 contained a Chapter Order XXXVII in the First Schedule to it. It enables Summary Suits to be filed. In exercise of the power conferred by Section 122 and other enabling provisions in the Code, this Order XXXVII was omitted prospectively by notification in the Kerala Gazette No. 23 dated 9th June 1959. Thereafter so far as the Courts in Kerala were concerned, the procedure in Summary Suits was not available. Thereafter the Parliament in its wisdom passed and brought into force the CPC (Amendment) Act, 1976, which, amongst other things, substituted an entire and new Order XXXVII and Rules therein having force throughout India. The statement of objects and reasons for this substitution by a new Order XXXVII is suited in Clause 87(i). Citing the order now passed by the learned Munsiff of Ernakulam, the learned Counsel for the Petitioners apprehends that some of them are still under the impression and belief that the Order XXXVII brought in by the CPC (Amendment) Act, which came into force with effect from 1st February 1977, is still not in force in Kerala and, therefore, it is possible that the judicial officers and ministerial officers in Civil Courts may either refuse to rccognise the availability of Summary procedure after the 1976 amendment or they may refuse to recognise its existence until there is a pronouncement by this Court.

In view of the present order passed by the Principal Munsiff of Emakulam, we are of the opinion that this misapprehension by the Petitioners have to be cleared by this Court declaring that the provisions of Order XXXVII and the Rules therein substituted by the Amendment Act of 1976 is in force in Kerala and have not been annulled so far. The Rules Committee is also impleaded as Respondent in O.P. 19892/1998 because it is the contention of the Petitioner that there is no notification u/s 122 Code of Civil Procedure, which annuls the Amendment to Order XXXVII introduced by the 1976 amendment to the Code of Civil Procedure.

It is stated by the counsel for the Petitioners that the plaint has complied with all the relevant provisions of Order XXXVII, Rules 1 and 2 and summons as prescribed in Rule 3 have also been filed. It is for the Court to verify the same and then proceed further. It is true that the order of the Munsiff purports to be under Order VII, Rule 11(d) of CPC is a decree within the meaning of Sub-section (2) of Section 2 and, therefore, only an appeal lies. However, we are of the opinion that since the remedy available to the Petitioners is time consuming and; in view of the general public importance of this matter, this Court entertained the Original Petitions and ordered notice to the Respondents. In our opinion, the proposal to delete Order XXXVII ought not to deter this Court m granting the reliefs because at present there is no notification deleting Order XXXVII. It is also argued that" it may not be permissible or valid for this Court to omit Order XXXVII in exercise of the power u/s 122 of the CPC in view of the wordings in Order XXXVII, which itself enunciates a legislative policy which a delegate cannot repeal and Order XXXVII itself prescribes the limited power which the High Court can exercise and this special clause prevails and limit the general power u/s 122 of the Code of Civil Procedure. In any case, this question does not arise at present and, therefore, the same is not determined in these writ petitions at this juncture.

As already seen, the Amendment Act, 1976 extends to the whole of India, which includes Kerala also. Therefore, the new Order XXXVII is also in force in Kerala after the Amendment Act of 1976 came into force on 1st February 1977. As pointed out by the counsel, the essence of a Code is to be exhaustive on the matters in respect to which it declares the law and it is not the province of a subordinate Court to disregard or go outside the letter of enactment. The law on matters specifically dealt by the Code must be ascertainable only wit A reference lo the provisions of the Code.

The old Order XXXVII is different from the new Order XXXVII in scope and content and the policy is to extend it to larger number of Courts and classes of suits in which there is no real or reasonable defence and to shorten vexatious and dilatory defences.

The introduction of the new Order XXXVII by the 1976 Amendment Act is to pervade over a notification made in 1959. To hold that the 1959 notification deleting the old Order XXXVII is consistent with provisions of Principal Act is totally illegal. The view taken by the learned Munsiff is not sound. After the Amendment Act came into force any view that there is no inconsistency between the 1959 notification and new Order XXXVII is totally erroneous and unsustainable and contrary to the legal principle. Therefore, the order passed by the learned Munsiff and impunged in these two writ petitions are liable to beset aside.

In fact the reference to Section 97(1)(g) of the Amendment Act is itself irrelevant because prior to the 1976 Act ever since 1959 notification there was no Order XXXVII in Kerala and, therefore, no question of inconsistency with the provisions of the Amendment Act of 1976 can really arise.

The rejection of the plaint by the Munsiff under Order VII, Rule 11(d) of CPC is, in our opinion, wholly without jurisdiction. As held by the apex Court, the grounds must be such as to fall within the categories specified in Order VII, Rule 11. Order VII, Rule 11(d) applies only where the suit appears from the statement in the plaint to be barred by any law. There is no bar to the filing of the suit. The dispute is as to whether it should be tried as summary suit or ordinary suit, which can as well be adjudicated later after issuing summons. The rejection of the plaint without even numbering is totally illegal. The learned Munsiff, in the facts and circumstances of this case, acted illegally and with material irregularity in not numbering the plaint and issuing summons under Order XXXVII and in rejecting the plaint under Order VII, Rule 11(d) of the Code of Civil Procedure. If the order of the learned Munsiff is allowed to stand, certainly it would occasion failure of justice and denial of benefits conferred on the people of this country by the Parliamentary legislation. The learned Munsiff had a satutory duty to number the plaint and issue summons under Order XXXVII, Rules 2 and 3 of the CPC if the plaint is otherwise in order.

In the decision reported in Ganpat Giri Vs. Second Additional District Judge, Ballia and Others, the Supreme Court held as follows:

The principal Act referred to in Section 97 is the Code. By the Amending Act several amendments were carried out to the Code on the basis of the recommendations of the Indian Law Commission, which had considered extensively the provisions of the Code before it submitted its 54th Report in 1973. By the time the Law Commission took up for consideration the revision of the Code, there were in force in different parts of India several amendments to the Code which had been effected by the State Legislatures or by the High Courts. The subject of civil procedure being in Entry 13 of List III of the Seventh Schedule to the Constitution, it is open to a State Legislature to amend the Code in so far as its State is concerned in the same way in which it can make a law which is in the Concurrent List. Section 122 of the Code empowers the High Courts to make rules regulating the procedure of civil courts subject to their superintendence as well as rules regulating their own procedure. These rules no doubt must not be inconsistent with the body of the Code. But they can amend or add to rules in the First Schedule to the Code. Section 129 of the Code which is overlapping on Section 122 of the Code to some extent confers power on the Chartered High Courts to make rules as to their original civil procedure. As mentioned earlier, before the Amending Act came into force on February 1, 1977 many of the provisions of the Code and the First Schedule had been amended by the State Legislatures or the High Courts as the case may be and such amended previsions had been brought into force in the areas over which they had jurisdiction. When the Amending Act was enacted making several changes in the Code Parliament also enacted Section 97 providing for repeals and savings and the effect of the changes on pending proceedings.

There are three Sub-sections in Section 97 of the Amending Act. A reading of Section 97 of the Amending Act shows that it deals with the effect of the Amending Act on the entire Code both the main part of the Code consisting of sections and the First Schedule to the Code, which contains Orders and Rules. Section 97(1) of the Amending Act takes note of the several local amendments made by a State Legislature and by a High Court before the commencement of the Amending Act and states that any such amendment shall except in so far as such amendment or provision is consistent with the provisions of the Code as amended by the Amending Act stands repealed. It means that any local amendment of the Code which is inconsistent with the Code as amended by the Amending Act would cease to be operative on the commencement of the Amending Act, i.e. on February 1, 1977. The repealing provision in Section 97(1) is not confined in its operation to provisions of the Code including the Orders and Rules in the First Schedule which are actually amended by the Amending Act. The object of Section 97 of the Amending Act appears to be that on and after February 1, 1977 throughout India wherever the Code was in force there should be same procedural law in operation in all the civil courts subject of course to any future local Amendment that may be made either by the State Legislature or by the High Court, as the case may be, in accordance with law. Until such Amendment is made the Code as amended by the Amending Act alone should govern the procedure in civil courts which are governed by the Cede. We are emphasising this in view of the decision of the Allahabad High Court which is now under appeal before us.

* * * * * * * * Now reverting to Section 97(1) of the Amending Act, the High Court was in error in holding that because no amendment had been made to Rule 72 by the Amending Act, Section 97(1) had no effect on the Rule as it was in force in the State of Uttar Pradesh before the commencement of the Amending Act. As observed earlier, the effect of Section 97(1) is that all local amendments made to any of the provisions of the Code either by a State Legislature or by a High Court which were inconsistent with the Code as amended by the Amending Act stood repealed irrespective of the fact whether the corresponding provision in the Code had been amended or modified by the Amending Act and that was subject only to what was found in Sub-section (2) of Section 97. Subjection (3) of Section 97 provides that save as otherwise provided in Sub-section (2) the provisions of the Code as amended by the Amending Act shall apply to every suit, proceeding, appeal or application pending at the commencement of the Amending Act or instituted or filed after such commencement notwithstanding the fact that the right or cause of action in pursuance of which such suit, proceeding, appeal or application is instituted or filed had been acquired had accrued before such commencement. Sub-section (3) of Section 97 sets at rest doubts, if any, by making the Code as amended by the Amending Act applicable to all proceedings referred to therein subject to Sub-section (2) of Section 97.

In State Bank of Travancore v. Balakrishnan 1990 (1) KLT 391, Radhakrishna Menon, J. while dealing with the introduction of the new Order XXXIV of the Code by Act 104 of 1976 has observed as follows:

On the introduction of the new Order 34 by Act 104 of 1976, the old one, whether in its original form or as amended by the State Legislature or the High Court would not be available to be pressed into service by a party to the litigation. In other words, the Code as amended by Act 104 of 1976, subject to some future amendment that may be made either by the State Legislature or the High Court would govern the proceedings before civil courts. Rule 3 of Order 34 as amended by the High Court indisputably enables the passing of a composite decree. The effect of the provisions contained in the present Rules 4 and 5 of Order 34 is that, without passing a separate final decree, a mortgagor cannot enjoy the fruits of the decree directing sale of the hypotheca. The provisions contained in Rule 3 of Order 34 as amended by the High Court cannot hold the field as the same is now occupied by rules 4 and 5 of Order 34 as amended by Act 104 of 1976. There is thus inconsistency between these two provisions. A decree for sale of the property after the enactment of the new Order 34 therefore cannot be passed under Order 34 as amended by the High Court. Order 34 as amended by the High Court, in other words stands repealed.

The Supreme Court in the decision reported in Pt. Rishikesh and Another Vs. Salma Begum (Smt), , held as follows:

If law made by the State Legislature is reserved for consideration and receives assent of the President though the State law is inconsistent with the Central Act, the law made by the Legislature of the State prevails over the Central law and operates in that State as valid law. If Parliament amends the law, after the amendment made by the State Legislature his received the assent of the President, the earlier amendment made by the State Legislature, if found inconsistent with the Central amended law, both Central law and the State ''aw cannot coexist without colliding with each other. Repugnancy thereby arises and to the extent of the repugnancy the State law becomes void under Article 254(1) unless the State Legislature again makes law reserved for the consideration of the President and receives the assent of the President.

For the foregoing reasons, we declare that Order XXXVII of the CPC as substituted by the CPC (Amendment) Act, 1976 is in force in Kerala with effect from 1st February 1977 and continues in force. The order of the learned Munsiff, Ernakulam, marked as Exhibit P-1, dated 24th August 1998 is quashed and the learned Munsiff is directed to restore the plaint and number it, if it is otherwise in order, and issue summons to the Defendant under Order XXXVII and proceed with the suit in accordance with law, as introduced by the CPC (Amendment) Act 104/1976.

Both the writ petitions are allowed.

We place on record our appreciation for the valuable assistance rendered by Sri T.P. Kelu Nambiar, Senior Advocate in this matter.