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Judgment
Dhavle, J.—This is an application in revision against an order of the Subordinate Judge of Cuttack granting the opposite party time to move their Lordships of the Judicial Committee for review of a judgment. The order of the Subordinate Judge was passed in connexion with an execution proceeding pending before him in consequence of an order of His Majesty in Council which was transmitted at the instance of the petitioners to that Court for execution.
Mr. Sen, who appears for the opposite party, has raised a preliminary objection to the hearing of the application by me. He contends that under Clause 35, Letters Patent of this High Court, read with Rule 5, in Ch. 22 of the Rules of the High Court, the Vacation Judge has no jurisdiction to hear the matter since it is required by the provisions indicated to be heard in Orissa. As to the powers given to the Vacation Judge by Rule 4 in Ch. 2 of the Rules of the High Court, Mr. Sen argues that the rule refers to Bihar cases and that the operation of Ch. 2, the chapter in which that rule occurs, is confined to Patna as distinguished from Orissa. Mr. Shiveswar Dyal who appears for the petitioners does not dispute the position that the case would be governed by Rule 5 in Ch. 22, but he contends that that rule like the rest of Ch. 22 must be read with the rules in Ch. 2 and that
the original and appellate jurisdiction vested in the Court
which is referred to in Rule 4, Ch. 2, means the jurisdiction of the High Court apart from the mode and conditions of its exercise and includes the discretionary power of the Chief Justice under Clause 35, Letters Patent, to order that any particular case arising in the Division of Orissa shall be heard at Patna. According to Mr. Shiveshwar Dayal the Vacation Judge has power to hear a case coming within Rule 5, Ch. 22, and hear, it at Patna, provided of course that the other conditions laid down in Rule 4, Ch. 2, are satisfied.
I understand from the parties that the matter is one of first impression.
Clause 35, Letters Patent, in effect provides that every case arising in the Division of Orissa shall be heard by one or more Judges of this Court visiting that division by way of circuit, unless it is a case or falls within the class of cases which the rules declare "shall be heard at Patna," or unless the Chief Justice in his discretion has ordered that it shall be heard there. The rules framed under this clause of the Letters Patent are contained in Ch. 22 of the Rules of the High Court, headed
Rules for cases arising in the Division of Orissa.
I do not say that the rules in the chapter purport to be made under Clause 35, Letters Patent, but the important rules in that chapter are clearly referable to the clause and it is immaterial in this connexion that some of the rules, such as those relating to the Registrar, are referable to Clause 38, Letters Patent. Rule 2, Ch. 22, specifies what cases subject to the power reserved to the Chief Justice by Clause 35, Letters Patent, shall be heard at Patna. Rules 3 and 4 deal with certain criminal cases which are to be heard at Patna, unless the persons accused or convicted wish them to be heard in Orissa. Then comes Rule 5 which provides that
all other cases arising in the Division of Orissa shall be instituted and heard in Orissa.
Mr. Sen has argued that the present is a case coming within Rule 5 and Mr. Shiveswar Dayal has been content to argue the case on that footing. There is no specific order of the Chief Justice that the case shall be heard at Patna. Indeed there could not be any, as the case arose three or four weeks after beginning of the vacation and after the departure of the Chief Justice from Patna. Mr. Sen. therefore contends that sitting as I do at Patna I have no jurisdiction to hear the case. If the case be entirely governed by Rule 5, Ch. 22, it is quite clear that it would have to be heard in Orissa. Mr. Sen''s further contention is that Rule 4 in Ch. 2 which gives certain powers to the Vacation Judge, the capacity in which I am sitting at present, does not contain anything to enable me to deal with a case which Rule 5 in Ch. 22, required to be heard in Orissa. This Rule 4 in Ch. 2 runs:
Except in a case, which the law requires to be heard by a Bench of two or more Judges, a single Judge, while acting in a long vacation as a Vacation Judge, may exercise the original and appellate jurisdiction vested in the Court:
In any matter, which he considers urgent, connected with, relating to, or arising out of the execution of a decree.
Mr. Shiveshwar Dayal''s contention is that the powers so conferred on the Vacation Judge do enable me to deal with a case like the present notwithstanding Rule 5 in Ch. 22. This contention is rested on an interpretation of the words:
original and appellate jurisdiction vested in the Court,
used in the rule. The words are apparently wide enough to do so, but it is necessary to consider the scheme of the chapter in order to appreciate the scope of the rule. The heading of the chapter is:
Constitution of Benches and powers of Benches and of the Registrars.
We may here leave the Registrar out as the rules relating to him are referable to Clause 38, Letters Patent, and have nothing to do with the matter in dispute before me. The other rule in Ch. 2(1) seem to have been made u/s 108(1), Government of India Act, which empowers the High Court to provide by rules for the exercise of its jurisdiction by one or more Judges or by Division Courts The general rule in Ch. 2 seems to be Rule 10:
Save as provided by law or by these rules or by an order of the Chief Justice every other case shall be heard by a Bench of two Judges.
The first rule in the chapter provides what matters may be heard and disposed of by a single Judge, while rules like seven to nine deal with matters which shall be heard by a Bench of three Judges. Rule 4 seems to qualify what I have called the general rule, namely Rule 10, and subject to certain exceptions it empowers a single Judge while acting in a long vacation as a Vacation Judge, to hear certain matters. This seems to be quite a different matter from regulating what Orissa cases shall or may be heard at Patna, a subject dealt with in Ch. 22 of the rules. Mr. Shiveshwar Dayal has contended that the operation of Ch. 2 is not confined to Patna, but that this chapter must be read along with Ch. 22 for certain purposes. It is perfectly clear that Mr. Shiveshwar Dayal''s contention is correct. It is, for instance, under Rule 1, of Ch. 2 that Judges of this Court-visiting the Orissa Division by way of circuit sit singly to hear certain matters, there, but does it follow from this that the jurisdiction vested in the Court which the Vacation Judge may exercise under Rule 4, Ch. 2, is free from the restrictions imposed on its exercise by Clause 35, Letters Patent, and the rules made thereunder? I observe in the first place that whatever the expression
the original and appellate jurisdiction vested in the Court,
used in Rule 4, Ch. 2 may mean, it cannot include the discretion conferred on the Chief Justice in the proviso in Clause 35, Letters Patent, to order that any particular case arising in the Division of Orissa shall be heard at Patna or in that division. This discretion cannot be governed by any rules made by the High Court. But apart from the exercise of such discretion by the Chief Justice no Judge sitting at Patna in term time has power to exercise the jurisdiction of the High Court in respect of cases arising in the Orissa Division except in accordance with the rules made under that clause of the Letters Patent
declaring what cases or class of cases arising in the Division of Orissa shall be heard at Patna.
The dominant provision about Orissa is that cases arising in that division shall be heard in Orissa. Judging from its position in Ch. 2 the object of Rule 4 seems to be no more than to dispense with the necessity of having more than one Judges in the vacation to dispose of certain cases or class of cases, the classification being made not with reference to the territorial distinction between Bihar and Orissa, but with reference to the nature of the cases as requiring one Judge or more to deal with them in term time. On careful consideration, it seems to me impossible to treat Rule 4 in Ch. 2 as a rule intended to operate not merely u/s 108(1), Government of India Act, but also under Order 35, Letters Patent. Mr. Shiveshwar Dayal has argued that in this view there will be no Judge empowered to do for cases from Orissa what the Vacation Judge can do for the rest of this Province. That may possibly be so. Mr. Sen has said that except when Judges are visiting the Orissa division by way of circuit, that Bench of this High Court which is commonly called the circuit Court is rarely in vacation, though if this be so, we shall have to say that it is in vacation but without a Vacation Judge; but I do not think that that is a sufficient reason for reading into Rule 4 in Ch. 2 something which does not seem to have been intended by the framers of the rules and which involves a construction of the expression
the original and appellate jurisdiction vested in the Court
independently of Clause 35, Letters Patent. The Registrar of Orissa has much wider powers than the Registrar at Patna. It may be that even so, there ought to be a Judge clothed with the authority of the Vacation Judge for the purpose of cases arising within the Orissa Division on lines similar to those found in Rule 4, Ch. 2. Rule 4, Ch. 2, does not contain anything bearing on territorial distinctions and cannot therefore be said by itself to exclude Orissa. But it is not permissible to read it shorn of its context. Taken with the context in which it occurs, the rule does seem inapplicable to Orissa cases except when they come within Rule 2 to 4, Ch. 22. Whether a Vacation Judge is necessary for Orissa may be examined on a suitable occasion. But I must, I think, accept Mr. Sen''s contention that the possible inconvenience arising from the absence of a Vacation Judge for Orissa is no reason for placing upon Rule 4 an interpretation which it will not bear if regard is had to the other rules contained in that chapter and also to the rules in Ch. 22 read with Clause 35, Letters Patent.
In this view I hold that it is not open to me to hear the revisional application of the petitioners. The Rule is accordingly discharged with costs. I assess the costs at three gold mohurs.