Akash Gupta vs Frankfinn Institute Of Air ...
2006 Latest Caselaw 78 Del

JUDGMENT

Sanjiv Khanna, J.

Page 0459

1. Learned single Judge of this Court vide order dated 9th November, 2004 has referred the following questions of law to be answered by a larger bench:-

1. Whether an appeal would lie under Rule 4 of the Rules against any order made by the Registrar under Rule 3 on an application/matter against which no appeal is provided under the Code of Civil Procedure, Delhi High Court Act, 1966 or the Letters Patent of this Court', and

2. If the answer to above question is in negative, whether Rule 4 needs to be retained in the Rules or needs to be suitably amended so as to bring the said rule in confirmity with the Code and Act

2. Learned counsel for the petitioner had drawn our attention to the recent judgment of the Supreme Court in the case of Iridium India Telecom Ltd v. Motorola Inc. . It was submitted that in view of the said decision, appeal under Rule 4 of the Delhi High Court Rules (Original Side), 1967 was maintainable even if no appeal has been provided under the Code of Civil Procedure, 1908 (hereinafter referred to as the `Code', for short).Page 0460 Learned counsel appearing for the respondent on the other hand submitted that Rule 4 of the Delhi High Court Rules (Original Side), 1967 only provides a forum to which an appeal may lie against an order of a Registrar but it does not provide for and confer any right to appeal. It was accordingly submitted that Rule 4, therefore, has to be read along with Order XLIII of the Code. An appeal would only lie against the order passed by the Registrar if permitted and allowed under Order XLIII of the Code. To support his contention the learned counsel relied upon decision of five Judges of this Court in the case of Union of India v. A.S. Dhupia and Anr. , wherein provisions of Code and Section 10 of the Delhi High Court Act, 1966 have been examined and it was held that Section 10 of the said Act does not confer a right of appeal but merely provides for a forum against to which an appeal may lie. Reference was also made to decision of this Court in the case of The East India Hotels Pvt. Ltd v. Jyoti Pvt. Ltd. reported in 1996 III AD (Delhi) 242 and Vidyawati Construction Company v. Rail India Technical and Economic Services Ltd. . Lastly, reference was made to the judgment of Supreme Court in the case of Shah Babu Lal Khimji v. Jayaben D. Kania and Anr. wherein the meaning scope and purport of the word 'judgment' as appearing in clause 15 of the Letters Patent was examined and it was held that whenever a trial judge decides a controversy that affects valuable rights of one of the parties, it must be treated and regarded as a judgment within the meaning of the said clause.

3. In order to decide the questions referred and arising for our consideration, we are required to examine some of the provisions of the Delhi High Court Act, 1966(hereinafter referred to as the Act, for short) as well as the Delhi High Court (Original side) Rules, 1967(hereinafter referred to the Rules, for short). Section 7 and 10 of the Act read as under:-

7. Practice and Procedure in the High Court of Delhi- Subject to the provisions of the Act, the law in force immediately before the appointed day with respect of practice and procedure in the High Court of Delhi and accordingly the High Court shall have all such powers to make rules and others with respect to practice and procedure as are immediately before the appointed day exercisable by the High Court of Punjab and shall also have powers to make rules and orders with respect to practice and procedure for the exercise of its ordinary original civil jurisdiction:

Provided that any rules or orders which are in force immediately before the appointed day with respect to practice and procedure in the High Court of Punjab shall, until varied or revoked by rules or orders made by the High Court of Delhi, apply with the necessary modification in relation to practice and procedure in the High Court of Delhi as if made by that High Court.

10. Powers of Judge-(1) Where a single Judge of the High Court of Delhi exercises ordinary original civil jurisdiction conferred by Sub-section(2) of Page 0461Section 5 on that Court, an appeal shall lie from the judgment of the single Judge to a Division Court of that High Court.

(2) Subject to the provisions of Sub-section (1), the law in force immediately before the appointed day relating to the powers of the Chief Justice, single Judges and Division Courts of the High Court of Punjab and with respect to all matters ancillary to the exercise of those powers shall, with the necessary modifications, apply in relation to the High Court of Delhi.'

4. Similarly Rules 3 and 4 of Chapter II of the Rules read as under:-

3.Power of the Registrar- The powers of the Court including the power to impose costs in relation to the following matters may be exercised by the Registrar:

(1) Admission of plaints and applications and issue of summons and notices;

(2) Applications to amend the plaint, petition or subsequent proceedings where the amendment s ought is formal;

(3) Applications for issuance of commissions to examine witness;

(4) Attachment of property of absconding witness;

(5) Inquiries directed by the Court as to the fitness of the persons to act as trustees and receivers;

(6) Applications for leave of the Court to file a plaint when such leave is necessary;

(7) Application under O.1rule (8) for leave to sue or defend on behalf of or for the benefit of all having the same interest;

(8) Application for the admission or appointment of a next friend or guardian ad litem of a minor or a person of unsound mind or new next friends or guardians ad litem;

(9) Applications for fresh summons or notices and regarding services thereof;

(10) Applications for fresh summons or notice and for short date summons and notices;

(11) Applications for orders for substituted service of summons or notice;

(12) Application for transmission of process for service to another Court;

(13) Applications for permission to withdraw any suit or application by consent or where the other side has not appeared;

(14) Applications for leave to file further or additional written statements;

(15) Applications for return of documents under Order XIII, Rule 9(i) of the Code; and applications for return of exhibits;

(16) Applications for orders for discovery and for orders concerning the admission, production and inspection of documents;

(17) Applications for leave to deliver interrogatories;

(18) Applications for orders for the transmission of a decree with the prescribed certificates, etc.

(19) Application for the execution of a document or for the endorsement of negotiable instrument under Order XXI, Rule 34 of the Code;

(20) Applications for examination of judgment-debtor as to his property under Order XXI, Rule 41 of the Code;

Page 0462

(21) Applications for discharge from custody for the non-payment of subsistence money;

(22) Applications falling under Section 52 of the Code;

(23) Applications for leave under Order XXI, Rule 50, Sub-rule (2) of the Code except where liability is disputed;

(24) Applications for the issue of proclamations of sale under Rule 66, and for direction as to the publication thereof under Rule 67 of Order XXI of the Code;

(25)xxx xxxx xxx

(26) Applications for special directions to the Office concerned as to the service or execution of any process of the Court;

(27) Applications for orders for withdrawal of attachment or for return of a warrant;

(28) Application for orders for payment of money realised in execution or otherwise deposited in Court including uncontested applications to share the assess realised under Section 73

(29) Summoning witnesses and taking proceedings against them for failure to comply therewith as provided in Order 16 of the Code;

(30) Applications for extension of time under Order XXVII, Rule 7 of the Code, or by a party in default for further time to file written statement or affidavit of documents;

(31) Applications for statement of names, and disclosure of partners address and residence under Order XXX, Rules 1 and 2 of the Code;

(32) Applications for orders requiring a party to suit or matter to produce and leave with the Registrar any document not in the English language in his possession for the purpose of being officially translated;

(33) Applications for orders for the production of records or documents, or accounts filed in such records before any other Courts;

(34) Applications for the issue of a precept to another 'Court for the production of a record of such Court or of notice or summons to a Public Officer for the production of public records or Registers;

(35) Applications for the taxation and delivery of bills of costs;

(36) Applications under Order XXII of the Code for bringing on record the Legal Representatives of a deceased party; Provided that no order of substitution or revivor shall be made by the Registrar-

(i) where a question arises as to whether any person is or is not a legal representative of the deceased party; or

(ii) where a question of setting aside the abatement of the cause is involved. In such case the Registrar shall after making an inquiry place the matter with his report and the findings before the Judge in Chambers;

(38) Applications for enlargement or abridgement of time. However, time shall not be enlarged beyond the date of hearing already fixed before the Court;

(39) Applications for confirmation of sale and certificate of sale to purchaser of immovable property;

Page 0463

(40) Other interlocutory applications directed by the Judge hearing the case to be place for disposal before the Registrar; and such other applications as by these rules are directed to be so disposed of but not included in this rule;

(41) Applications for particulars;

(42) Applications for further and better statement of particulars under Rule 5 of Order VI of the Code;

(43) Applications for better statement of claim or defense;

(44) Examine the serving officer on oath, under Order V, Rule 19 of the Code whereas summons is returned under Order V, Rule 17 of the Code and after making necessary enquiry declare that the summons has been duly served or order such service as may be considered fit;

(45)(a) Issue summons in the manner provided in Order V, Rule 19A of the Code;

(b) Declare that the summons had been duly served on the defendant, when an acknowledgement purporting to be signed by the defendant or his agent is received; Provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgement due, the declaration referred to in this clause shall be made notwithstanding the fact that the acknowledgement having been lost or mislaid, or for any other reason, has not been received within thirty days from the date of the issue of the summons;

(46) Substitute for a summons a letter signed by the Registrar, where the defendant is of a rank entitling him to such mark of consideration and send it in such a mode or manner as he thinks fit (Order V, Rule 30);

(47) To give notice of the deposit by the defendant to the plaintiff under the Code;

(48) Mark the documents produced by the plaintiff under Order VII, rule 17 of the Code for the purpose of identification and after comparing the copy with the original, if it is found correct, certify it to be so and return the book to the plaintiff and cause a copy to be filed;

(49) Applications under Order XXXIII, except under Rule 9;

(50) Receive decree transferred to this Court for execution under Order XXI, Rule 7 of the Code;

(51) Direct the application to file certified copy of the decree under Order XXI, Rule 11 (3) of the Code;

(52) Application under Order XXI, Rule 14 of the Code requirintg the applicant to produce a certified copy from Registrar kept in the Office of the Collector;

(53) Deal with the execution application under Order XXI, Rule 17 of the Code;

(54) Issue process for execution under Order XXI, Rule 24 of the Code and examine the officer entrusted with execution of the process if he was unable to execute the process (Order XXI, Rule 25);

(55) All uncontested applications except such as may result in final Page 0464disposal of the suit or exceeding in whole or in part in respect of all or any of the parties.

(56) Any matter which in accordance with orders of directions issued by the Court is required to deal with by the Registrar.

3-A. All applications except those in which urgent ex parte orders are sought will be placed before the Registrar in the first instance. He will dispose of such of them as he is empowered to do, and as regards the rest may call for replies an rejoinders and take such other steps as are necessary to make them ready for hearing, before listing them before the Court.

4. Appeal against the Registrar's orders- Any person aggrieved by any order made by the Registrar under Rule 3 may, within fifteen days of the making of such order, appeal against it to the Judge in Chambers. The appeal shall be in the form of a petition bearing Court fee stamp of the value of Rs.2.65 P.

5. Section 10 of the Act was interpreted by a Full Bench of this Court in University of Delhi and another v. Hafiz Mohd. Saed and Ors., and the word 'judgment' was interpreted to mean only those orders passed by a single Judge mentioned in Section 104 read with Order XLIII Rule 1 of the Code. It was accordingly held that an appeal would lie against a decision of a single Judge under Section 10 of the Act only against orders specifically referred in Order XLIII Rule 1 read with Section 104 of the Code and that against other orders, no appeal would lie. However, the Full Bench decision of this Court was overruled by the Supreme Court in the case of Shah Babu Lal Khimji (supra) and it was, inter alia, held that appeal under Section 10 of the Act is not confined merely to the orders specifically mentioned under Order XLIII Rule 1 of the Code, but it will also include the other interlocutory orders, provided they decide a controversy that affects the valuable rights of the parties and/or would cause serious injustice. Thus, right to appeal to a Division Bench under Section 10 of the Act includes all orders that are appealable under Order XLIII Rule 1 of the Code and also other orders which affect valuable rights of the parties or cause injustice.

6. The decision of the Delhi High Court in the case of A.S. Dhupia (supra) and the other decisions cited by the learned counsel for the respondent in the case of the East India Hotel Ltd. and Vidyawati Construction Company (Supra) all relate to cases under Arbitration Act, 1940 or Arbitration and Conciliation Act, 1996. Both these Arbitration Acts are comprehensive enactments relating to Arbitration and also specifically provide and regulate the right to file appeal. Under Section 39 of the Arbitration Act, 1940 right to appeal is confined to certain specified orders or judgments and no appeal is competent against other orders passed under the said Arbitration Act. The Full Bench of this Court in A.S. Dhupia's case (supra) relied upon an earlier Page 0465decision of the Supreme Court in the case of Union of India v. Mahindera Supply Co. , wherein clause 10 of the Letters Patent of the Lahore High Court was examined and it was held that Section 39 of the Arbitration Act, 1940 was a special provision that expressly restricts the right to appeal and will override clause 10 of the Letters Patent of the Lahore High Court. The aforesaid reasoning and ratio of the Supreme Court clarifies that if by an express provision, like Section 39 of the Arbitration Act, 1940, right to appeal has been restricted or curtailed then the appeal cannot be entertained by relying upon clause 10 of the Letters Patent of the Lahore High Court. Similar view has been taken in the case of East India Hotels Ltd.(supra). Vidhyawati Constructions Company's case(Supra) relates to Arbitration and Conciliation Act, 1996 wherein following the earlier decisions it has been held that an order passed dismissing the petition under Section 11(6) of the aforesaid Act is not appealable in view of Section 37 and, therefore, a reference to Section 10 of the Act was of no relevance and no appeal was maintainable by relying upon Section 10.

7. The said judgments cited by the learned counsel for the respondent, therefore, relate to special enactments, i.e., Arbitration Act, 1940 and the Arbitration and Conciliation Act, 1996 in which the right to appeal is restricted and confined to specified certain orders passed under the enactments. The Arbitration Act, 1940 was enacted to consolidate and amend the law relating to arbitration in India. The Arbitration and Conciliation Act, 1996 was enacted to consolidate and amend the law of arbitration in India relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards and certain other matters. Both the enactments are virtually a complete code in themselves and regulate both substantive law as well as procedural law relating to Arbitration. The provisions of the entire Code have not been expressly made applicable to the Arbitration Act, 1940 and the Arbitration and Conciliation Act, 1996. The right to appeal under the two enactments is specifically limited to certain orders/judgments as distinguished from 'judgment' as mentioned in Section 10 of the Act. We need not dwell further on this aspect as the five Judges decision of this Court in the case of the University of Delhi(Supra) has been overruled by the Supreme Court in the case of Shah Babu Lal Khimji(Supra).

8. The Supreme Court in the case of Iridion India Telecom Ltd.(Supra) has traced the history of the charter establishing High Courts in the country and after exhaustive consideration of various aspects has, inter alia, held that the rules framed by High Courts would prevail over the provisions of the Code, even if the said rules are inconsistent with the Code. The contention that the Letters Patent and other rules framed by High Courts to regulate its own procedure are in nature of subordinate or delegated legislation and, therefore, cannot override the legislative mandate and substantive provisions of Code was rejected. The Supreme Court in this regard referred to Section 129 of the Code and the object and purpose of the enactment of the said Page 0466Code and distinction as drawn between proceedings before civil courts and proceedings on the original side of the chartered High Courts. It was further held subsequent amendments and even the last amendment of the Code in the year 2002 does not affect this principle and the rules will override and are binding even if they are contrary or inconsistent with the Code.

9. The Delhi High Court in the case of Printpak Machinery v. Jay Kay Paper Congeters reported in AIR, 1979 Delhi 271 has also held that the non- obstente clause in Section 129 of the Code left untouched the original side rules of High Court whenever framed and the said rules would prevail over the Code.

10. It is not disputed that Rules 3 and 4 of the Rules have been made under Section 7 of the Act. The said rules have been framed under Sections 122 and 129 of the Code and under Rule 19 of Chapter-I of the Rules. Original Side proceedings of the High Court are to be conducted as per the Rules and the Code is applicable when the rules are silent. Rule 19 of Chapter I of the Rules reads as under:-

19.Miscellaneous - Except to the extent otherwise provided in these rules, the provisions of the Civil Procedure Code shall apply to all proceedings on original side.

11. Rule 3 as quoted above gives certain powers to a Registrar to pass orders on specified applications/questions. A Registrar is competent to pass orders in respect of the matters specified in Rule 3 and not others. Rule 4 provides for appeal by a person aggrieved by the order made by the Registrar under Rule 3. If both the Rules are read harmoniously it will be incorrect to state that Rule 4 merely provides for a forum of appeal and does not provide for a right to appeal. Right to appeal is also specifically provided for and mentioned in Rule 4. All orders made under Rule 3 by a Registrar can be made subject matter of appeal under Rule 4. We, therefore, need not refer to Order XLIII Rule 1 of the Code for deciding whether an appeal is maintainable under Rule 4 of the Rules. It may also be stated here that the Registrar is not competent to decide any dispute or applications that have been specified in Order XLIII Rule 1 of the Code, under Rule 3 of the Rules.

12. Section 10 of the Act provides for an appeal against a 'judgment' to a Division Bench but this in no manner curtails or prevents the High Court to frame Rules under Section 7 in respect of matters pertaining to all proceedings of original side and also provide for an appeal against an order passed by a Registrar of this Court to a Judge in Chamber. It cannot be held that Rules 3 and 4 framed under Section 7 of the Act are in any manner contrary to the appellate jurisdiction as provided in Section 10 of the Act. Sections 7 and 10 of the Act have to be read harmoniously. Statute has to be read as a whole and every provision of the statute must be construed to make a consistent enactment. No provision should be left meaningless or otiose. Section 10 only deals with appeals against orders of a single Judge to a Division Bench in the High Court. It does not deal with or states that no appeal will lie against Page 0467an order passed by a Registrar before a Judge in Chamber. Rule 4 of the Rules is not contrary to or inconsistent with Section 10 of the Act.

13. Section 7 empowers Delhi High Court to make rules in respect of practice and procedure before it for the exercise of its ordinary original civil jurisdiction. The words 'practice and procedure' are very wide and will include the power to regulate and specify the method by which the Court will conduct its proceedings, while dealing with and disposing of various applications. 'Practice and procedure' will also include providing for an appeal against an order passed by a Registrar under Rule 3 as provided in Rule 4. In any case, vires of Rule 4 has not been questioned and challenged.

14. It may also be mentioned here that in case it is held that an order passed by the Registrar under Rule 3 is not appealable under Rule 4 to a Judge in Chamber, an aggrieved person may be required to file a Special Leave Petition, if it is not a 'judgment'. Such interpretation in our opinion should be avoided.

15. In view of the above findings, we are of the view that question No. 1 as framed and extracted above has to be answered in affirmative and it has to be held that appeal would lie under Rule 4 of the Rules against any order made by the Registrar under Rule 3, irrespective of fact whether any appeal has been provided under Code or the Act. Accordingly, we hold that the appeal is maintainable against all orders passed by the Registrar under Section 3 of the Delhi High Court (Original Side) Rules, 1967 under Rule 4 to a Judge in Chamber. In view of the above conclusion and answer to question No.1, we need not answer question No.2. The above reference is disposed of.