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Judgment
Nainar Simdaram, J.—In this writ petition the challenge is of the circular R.O.C. 2548/78 F.I. dated 10.9.1982 issued by the first
respondent. The impugned circular as T find from the copy disclosed in the typed set of papers filed along with the writ petition reads as follows:
R.O.C. 2548/78. F.I. CIRCULAR.
Sub: COURTS-CIVIL-Compulsory printing of judgments-Doing away with-filing of typewritten cyclostyled/mechanically reproduced copies of
judgments for purposes of Appeal-Acceptance of-Regarding.
Sub R.(1) R. 1 of O.41 C.P.C. is proposed to be amended so as to enable the filing of typewritten or cyclostyted or mechanically reproduced or
printed copies of the judgments appealed against. The amendment seeks to do away with the compulsory printing of judgments and make the
printing of judgments optional and filing of printed copies thereof also optional.
Order 52 rule 1 of the First Schedule to C.P.C. is also sought to be amended on the like terms, enabling the filing of typewritten or cyclostyled or
mechanically reproduced copies of judgments appealed against and making printing of judgments and filing of printed copies of judgments optional.
Consequential amendments to Rr. 135 and 136 in the Civil Rules of Practice and Circular Orders, Vol. 1 (1941 Edition), relating to compulsory
printing of judgments and orders have also been proposed.
The amendment to Civil Rules of Practice and Circular Orders seeks to delete the existing Rr. 135 and 136.
The issue of the amendments proposed to the CPC and the Civil Rules of Practice and Circular Orders, is pending approval of the Government. It
is likely to take sometime for securing the approval of the Government in this regard. Pending the final approval by the Government of the aforesaid
amendments and issue thereof, the High Court directs that on and from 15.9.1982, the printing of judgments and orders need not be insisted upon
and the filing of such printed copies for purposes of appeal need not so be insisted upon.
In Appeals against original decrees, such number of typewritten/cyclostyled/mechanically reproduced or printed copies of judgments and orders,
as are necessary for service on the respondents to the Appeal and four additional copies, apart from the certified copy of the judgment/order, are
to be filed along with the memorandum of appeal. The copies so filed shall be neatly and legibly prepared on thick paper and be free from errors.
In case the judgment is typed or cyclostyled, it must be typed or cyclostyled on one side of the paper only.
In appeals against Appellate decrees, the memorandum of appeal is to be accompanied by one certified copy of the decree of the Court of First
instance and of the Appellate Court and such number of typerwritten/cyclostyled/mechanically reproduced or printed copies of the judgments of
each of the said Courts, as provided for in O.41, R. 1 of the First Schedule to the C.P.C. 1908.
These instructions may be adhered to strictly on and from 15.9.1982, after putting the Bar and the litigant public on notice.
The receipt hereof may be acknowledged. High Court, Madras 600104, Dated: 10th Sept., 1982. Sd. S. Janarthanam, Registrar.
On a reading of the impugned Circular, the effect of it appears to be that filing of printed copies of judgments and orders is made optional. Earlier
to the impugned Circular, dated 10.9.1982, there was a Notification on 1.2.1979 proposing amendments to Order 41, 41-A, 42 and 43 of the
Code of Civil Procedure, hereinafter referred to as the Code, as well as Rr. 135 and 136 of the Civil Rules of Practice and Circular Orders, Vol.
1, Part I, The Notification covered other provisions also about which we are not concerned. On the date when the writ petition was filed, the
amendments had not been implemented and come into effect. Even on the date of the impugned Circular the amendments had not come into effect
and implemented. As a result the position was the unamended provisions of the Code and the Civil Rules of Practice and Circular Orders held the
field. As per the said provisions, the filing of printed copies of judgments and orders is obligatory. Order 41, Rule 1 of the Code (unamended)
contemplated that the copy of the judgment shall be a printed copy in every case in which the High Court has prescribed that the judgment shall be
printed when a copy is applied for, for the purpose of appeal. R.135 of the Civil Rules of Practice lays down that when a copy of judgment or
order passed by a Civil Court is applied for by a party to the suit, the copy shall be printed subject to the limitation that the length of the judgment
or order exceeds 700 words. Order 41-A, Rule 2 of the Code speaks about the memorandum of appeal to be accompanied by twelve printed
copies of the judgment. O.42, R. 2 of the Code (Madras Amendment) says that a memorandum of appeal shall be printed or typewritten and shall
be accompanied by four printed copies of each of the judgments of the trial Court and the lower appellate Court. O 43, R. 2 of the Code says the
rules of O. 41 and of O. 41-A shall apply so far as may be, to appeals from the orders specified in R.1. Rr. 135 and 136 of the Civil Rules of
Practice speak about compulsory printing of judgments and orders.
The point raised by Mr. R. Thillai Villalan, learned counsel for the petitioner is that the Circular is wholly incompetent because it runs into conflict
and brings about inconsistency with the provisions of the Code and the Civil Rules of Practice and this cannot be countenanced. In answer Mr. P.
Chandrasekaran, learned Government Advocate appearing for the respondents, submits that the source of power for the impugned Circular is Art.
227 (2)(b) of the Constitution of India as well as Clause 37 of the Letters Patent of this Court. On going through the said provisions, I do not think
that the submission of the learned Government Advocate is correct and could be accepted. Art. 227(2)(b) of the Constitution is qualified by the
proviso to both Art. 227(2) and (3) and the proviso reads as follows:
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provisions of any
law for the time being in force, and shall require the previous approval of the Governor.
The very reading of the proviso makes it clear that any rule made shall not be inconsistent with the provision of any law for the time being in force
and shall further require the previous approval of the Governor. Here we find the patent inconsistency with the provisions of the Code and the Civil
Rules of Practice and furthermore, it is not claimed that the impugned Circular had the previous approval of the Governor. Hence reliance on Art.
227 (2)(b) of the Constitution is a misconception. In this connection, I would like to refer to two pronouncements of the High Court of Gujarat.
P.N. Bhagwati, J., (as he then was) speaking for the Bench in Keshavlal Chokshi Firm v. Manubhai, while spelling out that there was no clash or
conflict between the proviso to Art. 227 and S. 122 of the Code of Civil Procedure, which gives the powers to certain High Courts to make the
rules, observed as follows:
The proviso to Art. 227 declares that any rules nude by the High Court in exercise of its rule-making power under Art. 227, Cl.(2) shall not be
inconsistent with the provisions of any law for the time being in force. This limitation imposed by the proviso to Art. 227 which requires that the
rules must not be inconsistent with the provisions of any law for the time being in force is, therefore, by the clear and specific language of the
proviso applicable only where rules are made by the High Court in exercise of its rule-making power under Art. 227, Cl.(2) and has no application
where rules are made by the High Court in exercise of rule-making power under some other statutory provision. The proviso to Art. 227 also does
not operate as a limitation on the exercise of the rule-making power belonging to the High Court under S.122 of the Code. Art. 227, Cl.(2) and S.
122 of the Code are two distinct and different provisions conferring rule-making power on the High Court and the limitation imposed by the
proviso to Art. 227 is applicable only to the exercise of the rulemaking power conferred under Art. 227, Cl.(2) and cannot be imported so as to
restrict the scope and ambit of the rule-making power conferred under S.122 of the Code.
The same observations were quoted with approval subsequently by the learned Judge as Chief Justice (as he then was), once again speaking for
the Bench in United Industries v. Dalwadi & Co2, Even with regard to the scope of the power of the High Courts under S. 122 of the Code, a
Bench of this Court, consisting of Madhavan Nair and Cornish, JJ., in Venkataswamy v. Venkataramana Rao3, after referring to S.128of the
Code, observed as follows:
So if the rule is consistent with the present Code, it will have the same force and effect as if in had been made under the present Code. Power of
the High Court to make rules is contained in S.122, Civil P.C., which says that:
The High Courts established under the High Courts Act, 1861, for the Government of India Act, 1915), etc., may, from time to time after
previous publication, make rules regulating their own procedure and the Procedure of Civil Courts subject to their superintendence, and may be
such rules annual, alter, or add to all or any of the rules in the first schedule.''
These rules, according to S. 128, Civil P.C., must not be inconsistent with the provisions in the body of the Code.
When the very rule formulated by the High Courts pursuant to powers under S. 122 cannot run into conflict with the provisions of the Code, and
only taking note of this position, the amendments proposed covered not only the provisions of the Civil Rules of Practice, but also the provisions of
the Code, it is not possible to comprehend a bare Circular as the present impugned one to come into conflict and be inconsistent with the
provisions of the Code as they stood on the date of the impugned Circular.
The other reliance on Cl. 37 of the Letters Patent of this Court is not a proper and a complete answer to the contention raised. Cl. 37 relates to
proceedings in civil cases which may be brought before the High Court, including certain enumerated ones. Even there they say that while making
such rules and orders, guidance shall be taken as far as possible from the provisions of the Code. The set of expressions ''as far as possible'' has
received a wider connotation, as to say ''as far as consistent with.'' If an authority is required, I can refer to the pronouncement of the Bench of this
Court in Hinde v. Brayan1. I had occasion, while dealing with the case in Ganapathy v. Anbalagan2, to refer to this pronouncement of the Bench
of this Court as well as the pronouncement of a single Judge of the High Court of Allahabad in Rani v. Deputy Director of Consolidation3. In my
view, invoking the power under Cl. 37 of the Letters Patent of this Court, it is not possible to bring in a circular which practically militates against
and is inconsistent with the provisions of the Code and the Civil Rules of Practice. On the date of the impugned Circular, none of the proposed
amendments had come into effect and got implemented. Hence, I had to hold that the first-respondent lacked the competency to pass the
impugned Circular. This is sufficient for the petitioner to succeed in the writ petition. However, Mr. P. Chandrasekaran, learned Government
Advocate appearing for the respondents, would submit that the petitioner could not be stated to have any locus standi or be an affected person to
maintain the writ petition. The petitioner is the Secretary of the Tamil Nadu Court Judgment Printers Association and it is claimed that the members
of this Association did have and even today, by virtue of orders of stay, continue to have the benefit of having the judgments and orders of Courts
printed through their Printing Presses. By virtue of the Circular, making the printing of the judgments and orders optional, the trade of the members
of the petitioner-Association could certainly be said to have been affected. Hence, I do not think that I should hold that the petitioner is
incompetent to maintain the Writ Petition.
Mr. P. Chandrasekaran, learned Government Advocate, also brings to my notice that by Notification dated 23.12.1983 published in the Tamil
Nadu Government Gazette, dated 4.1.1984, the amendment to R.41, R.1 (i) of the Code has come into effect. That is a subsequent event and I
am not expressing any opinion over the same because that is not put in issue in the present writ petition, and we are only concerned with the power
and competency of the first-respondent to issue the impugned Circular on its date. For the foregoing reasons, this Writ petition is allowed. No
cost.