Paloor Rajam Chetti vs C. Seshiah and Others

Collins, C.J.—This is a case stated for the opinion of the High Court u/s 69 of the Presidency Small Cause Courts Act, 1882, by the Chief

Judge of that Court.

On the 23rd November 1885, the High Court declared that u/s 33 of the Presidency Small, Cause Courts Act XV. of 1882 the granting of

leave to sue a defendant out of the jurisdiction u/s 18, Clauses (a) and (6) of the Presidency Small Cause Courts Act XV of 1882 was a non-

judicial or quasi-judicial Act within the meaning of that section which might be done by the Rgistrar of the Court of Small Causes, Madras.

The question the High Court has to decide is--Has the High Court power to make such a rule, or is the rule, ultra vires?

The 33rd section of the Presidency Small Cause Courts Act XV of 1882 enacts that, ""any non-judicial or quasi-judicial Act which the CPC as

applied by this Act requires to be done by a judge...may be done by the Registrar of the Small Couse Court or by such other officer of that court

as that court may from time to time appoint in this behalf."" ""The High Court may from time to time by rule declare what shall be deemed to be non-

judicial and quasi-judicial acts within the meaning of this section.

Chapter II of the CPC Sections 15 to 19. regulates the place of saing and those sections are not applied to the Smail Cause Court by the Act

XV of 1882 and the reason is obvious, as, by the 18th section of Act XV of 1882, the Small Cause Court has jurisdiction to try suits of a civil

nature, where the cause of action has arisen either wholly or in part within the local limits of the jurisdiction of the Small Cause Court or if any of

the defendants at the time of the institution of the suit actually and voluntarily resides or carries on business or personally works for gain within such

local limits provided the leave of the court has been given, or the defendants acquiesce in such institution.

Section 6 of Act XV of 1882 enacts that the Small Cause Court shall be deemed to be a court subject to the superintendence of the High Court,

and the High Court shall have in respect of it the same powers as it has under the 24 and 25 Vic, Ch 104, Section 15. That Act gives power to the

High Court to make and issue general rules for regulating the practice and proceedings of such courts, provided that such rules be not inconsistent

with the provisions of any law. Section 652 of the CPC gives the High Court power to make rules consistent with the. Code to regulate any matter

connected with the procedure of Civil Courts subject to its superintendence. It is argued by counsel for the plaintiff that either under the 24 and 25

Vic, Ch. 104, or u/s 652 Civil Procedure Code, the High Court has power to make the rule in question. It would be enough to say that the rule

does not purport to be made Under the Act or u/s 652, but under the powers conferred by Section 33 of Act XV of 1882--but I am of opinion

that neither under the Act nor u/s 652 has the High Court the power contended for. u/s 18 of Act XV of 1882 it is enacted that the leave of the

court must be given--the High Court by the rule has set aside that provision of law and has said that the leave of the Registrar is sufficient; it is

impossible to say that a Registrar is a court for such a purpose as this--the duties and powers of a Registrar are strictly defined and limited.

It is also impossible in my opinion to say that granting of leave to sue a defendant out of the jurisdiction u/s 18, Clauses (a) and (b) was a non-

judicial or quasi-judicial act which the CPC as applied by this Act requires to be done by a judge.

For these reasons, therefore, I hold that the Registrar''s order granting leave to sue is not a valid leave within the meaning of Section 18 of Act

XV of 1882 and that the rule of the High Court of the 23rd November 1885 is ultra vires''.

Shephard, J.

The question raised by this reference is whether leave given by the Registrar in case in which the leave of the court is required by the 18th

section of the Act of 1882 is a valid and lawful leave within the mening of that section. In 1885, a rule was passed by the High Court purporting to

declare under the 33rd section of the Act certain acts to be non-judicial or quasi-judicial. Among such acts is that of ""granting leave to sue a

defendant out of the jurisdiction u/s 18, Clauses (a) and (b) of the Act."" If the particular act of granting leave had been one which the CPC as

adopted by the Presidency Small Cause Courts Act required to be done by a judge, then there is no doubt that such act being declared by the

High Court to be a quasi-judicial act, might be done by the Registrar of the Small Cause Court. But the section of the Code requiring leave to be

given before institution of suit is not of the sections made applicable to the Presidency Small Cause Court by the 33rd section of the Act. It was

unnecessary to make it applicable, because the matter is provided for in the 18th section of the Act itself.

The 33rd section makes no reference to matters regulated by the Act itself and therefore any declaration or rule made under "" it cannot affect

the provisions of the 18th section. The rule of the High Court must be ultra vires, unless justification for it can be found in some other enactment.

The power to make rules for regulating the procedure of courts subject to the appellate jurisdiction or under the superintendence of the High Court

is vested in the High Court by the Statute 24 and 25, Vic, Ch. 104, Section 15 and also by the 652nd section of the Code of Civil Procedure. By

of the Presidency Small Cause Courts Act the Small Cause Court is declared to be a court subject to the superintendence of the High Court within

the meaning of the Civil Procedure Code. It is further declared that the High Court may exercise in respect of the Small Cause Court the same

powers as it has u/s 15 of the Statute in respect of courts subject to its appellate jurisdiction. Either under this section of the Statute or u/s 652 of

the Code the High Court has power to make rules regulating the procedure of the Small Cause Court. I do not agree with the opinion which has

been expressed that the exclusion of Section 652 from the second schedule annexed to Act XV of 1882 shows that it was not intended that the

powers of the High Court under that section should be exercised in respect of the Presidency Small Cause Courts. That opinion, as it appears to

me, ignores the plain words of of the Act which makes the latter court subordinate to the High Court within the meaning of the Civil Procedure

Code. It has to be seen whether this particular rule of November 1885 is a rule, which it was competent to the High Court to pass under either of

the above enactments, either under the Statute or under the Code. The power given in the former enactment is ""to make and issue general rules for

regulating the practice and procedure of such courts;"" in the latter enactment ""to make rules consistent with the Code to regulate any matter

connected with the procedure of the courts subject to its superintendence."" Now it is a recognised principle of law that the rules made in pursuance

of a delegated authority to that effect must be consistent with the Statute under which they came to be made. The authority is given to the end that

the provisions of the Statute may be the better carried into effect and not with the view of neutralising or contradicting those provisions. The case of

Whetherfield v. Nelson illustrates the manner in which the principle is applied. In the present case, there is a distinct provision of the Act requiring

in certain cases, that leave of the court shall be given befere the institution of a suit. Under Clause (a) of Section 18 ""the leave of the court for

reasons recorded in writing"" has to be given. The effect of the rule is to dispense with the leave of the court and substitute the leave of the

Registrar. In my opinion, the rule is manifestly inconsistent with the section. It is a rule which has the effect of neutralising the section, not of carrying

it into effect. It is impossible to say that the court and the Registrar are one and the same person.

Any doubt which might otherwise exist seems to me to be removed by a consideration of 3. That section and the similar section in chapter

XLVIII of the CPC would be superfluous, if the matter provided for in these sections were one with which the High Court could deal under its

general powers of making rules. It was precisely because it was desired to give the High Court a dispensing power, a power to delegate to the

Registrar acts which according to the law needed to be done by the court, that a special section Section (537 was required. It may be by oversight

that Section 33 was not extended to acts regulated by the Act itself; but as the section stands it appears to me strongly to indicate that in cases not

within the scope of the section the High Court has no power to make such rules as under the section it may make.

For these reasons, I have come to the conclusion that the rule is ultra vires and I must therefore hold that the leave given by the Registrar is not

a valid leave within the meaning of the 18th section of the Act.

Best, J.

I concur.

Subrahmania Aiyar, J.

The question for determination is whether u/s 33 Act XV of 1882, or u/s 652 of the CPC or under the Statute 24 and 25 Vic, Ch., 1045, it

was competent to the High Court to declare that the power which a Judge of the Court of Small Causes under Clauses (a) and (b) of Section 18

of Act XV of 1882, to grant leave to sue a defendant out of the jurisdiction is one which the Registrar also of the Small Cause Court may exercise.

I am of opinion that the High Court had no authority to make such a declaration under any of the said provisions of law.

Now, it is quite clear, that the first of these provisions viz., Section 33, has no application to the present case. For that section only provides

(1) that the Registrar of the Small Cause Court may do any non-judicial or quasi-judicial act which the Court itself is empowered to do under any

of the sections of the CPC extended to the Small Cause Court by Act XV of 1882, (2) that the High Court may by rule declare what shall be

deemed ,to be non-judicial and quasi-judicial acts within the meaning of Section 33. The portions of the CPC extended by Act XVof 1882 to the

Presidency Small Cause Courts are specified in the second schedule of the Act. But none of those portions relates to the granting of leave to sue

defendants out of the jurisdiction. It follows, therefore, that u/s 33 the Registrar has no power to grant leave to sue a defendant out of the

jurisdiction and consequently the High Court has no authority to make the declaration under the latter part of the said section. ""Whether the

omission to include the power to grant leave to the defendant out of the jurisdiction among those powers which the Registrar may exercise u/s 30

was due to a mere oversight on the part of the legislature or not, it is unnecessary to consider. It is sufficient to say that as Section 33 stands, the

High Court is not empowered under it to make the declaration in question.

It is next contended that since of Act XV of 1882 makes the Presidency Small Cause Court subject to the superintendence of the High Court

within the meaning of Section 652 of the Civil Procedure Code, and the Statute 2,4 and 25 Vic, Ch. 104,5, the declaration in question is valid. No

doubt under the former Section 652 the High Court may from time to time make rules consistent with the Code to ""regulate any matter connected

with the procedure"" of the Courts of Civil Judicature subject to its superintendence and under the latter, viz., the statute 24 and.25 Vic, Ch., 104,5,

the High Court may make and issue general rules ""for regulating the practice and proceedings"" of such courts. But in my opinion, the High Court is

not entitled under either of the last mentioned sections to make a declaration by rule on the matter of granting leave to sue defendants out of the

jurisdiction. I arrive at this conclusion notwithstanding the wide construction put upon the words "" practice"" and ""procedure"" by the Court of

Appeal in Poyser v. Minors where Lush, L. J., explains that those words in their larger sense denote ""the mode of proceeding by which a legal

right is enforced as distinguished from the law which gives or defines the right and which by means of the proceeding the court is to administer, the

machinery as distinguished from its product. "" It seems to me that the declaration made'' by the High Court is altogether outside the scope of the

regulation of ""practice "" and "" procedure "" contemplated by Section 652 of the CPC and the Statute 24 and 25 Vic, Ch., 104, Section 15. The

declaration is in my view a clear delegation of what is undoubtedly judicial power, exercisable by the court itself, to the Registrar who is not

constituted a judge as to the matter of granting leave under Clauses (a) and (b),8 of Act XV of 1882, while he is in regard to some others (see1 of

the Act). Such a delegation of Judicial authority, I should think, cannot take place except under express and specific statutory provisions such as

are contained in Section 33 of Act XV of 1882. But, as has been already shown, that section does not cover the case under consideration.

For the reasons stated above, I hold that the declaration made by the High Court in 1885 that granting leave to sue a defendant out of the

jurisdiction under Clauses (a) and (b) of Section 18 of the Presidency Small Cause Courts Act, 1882, is one of the acts which may be done by the

Registrar of the Small Cause Court u/s 33 of the Act is ultra vires and the leave given by the Registrar in the case under reference is not a valid

leave within the meaning of the said Act.