Velu Pillai vs Sevuga Perumal Pillai

Balakrishna Ayyar, J.—On 19th June, 1956, the District Munsif of Tirumagalam passed an order holding that E.P. No. 297 of 1955 was

barred by limitation and that the defendant was entitled to the refund of a sum of Rs. 7 which he had paid on 13th February, 1956. The decree-

holder who seeks to canvass the correctness of this order in revision filed a petition, which has been numbered as S.R. No. 17267. Under Rule

41-A(2) of the Appellate Side Rules of this Court, such a petition has to be presented within ninety days from the date of the order complained of.

The same rule empowers the Court to excuse the delay where sufficient cause is shown to its satisfaction. In the present case there was a delay of

268 days in filing the petition. The only ground on the basis of which I am invited to excuse the delay is that the petitioner mislaid the bundle in his

village. That, in my opinion, is not a sufficient reason for excusing the delay.

When I expressed this view, learned Counsel for the petitioner put forward the contention that Rule 41-A(2) is ultra vires the rule-making

powers of this Court and that he is entitled to come to this Court regardless of the ninety days specified in that rule. In support of this contention he

referred to the decision in Abdul Ganny v. Mus. Russell AIR 1930 Rang. 229 . That case cannot help the petitioner because all that was decided

there was that where an Article in the Limitation Act provides a particular period of time, it is not open to the Court in exercise of its rule-making

powers to reduce that period of time. The Court ruled:

The High Courts are not entitled by rules to abrogate or vary the period of limitation set out in the Limitation Act, in respect of proceedings to

which the provisions of Limitation Act, apply.

The decision in Narsingh Sahai Vs. Sheo Prasad, , which was next cited does not take the petitioner any further. All that the Court decided was:

... we are unanimous in holding that this Court has no power by any rule that it may make to alter the period of limitation prescribed by the

Limitation Act.

It may be mentioned that Rule 41-A(2) of the Appellate Side Rules of this Court does not in any way touch or alter the period of time prescribed

by the Limitation Act.

In Sennimalai v. Palani 32 Ind.Cas. 1975 : AIR 1917 Mad 957, Coutts-Trotter, J., remarked:

Whatever may be the case of the Statute prescribing say three years for an action to be brought I am quite clear that the articles in the Act limiting

applications of this nature which are almost entirely interlocutory deal clearly with matters of procedure; and therefore the High Court has

jurisdiction u/s 122 to make the addition to Order 9, R.13.

This matter was examined exhaustively by a Full Bench of this Court in Krishnamachariar Vs. Sri Rengammal and Others, . There it was held that a

rule framed by this Court applying Section 5 of the Limitation Act to an application under Order 9, Rule 13 of CPC is intra vires. Learned Counsel

for the petitioner argued that in effect this decision merely gives a concession to persons who may be able to produce reasons to the satisfaction of

the Court as to why the delay in a particular ease should be excused. But the principle of the decision cannot be got rid of in this manner. The

decision shows that the Court has power by rules framed by it to regulate or enlarge the time relating to procedural matters. The argument that the

petitioner has a vested right to come up in revision at any time and that the decision of the Full Bench does not affect the right of his cannot be

accepted. The Full Bench decision of this Court was followed in Pandarinath v. Thakoredas AIR 1929 Bom. 262.

Now, nobody can dispute that a rule framed by a Court directing that certain kinds of applications shall be presented to certain of its officers is a

rule of procedure; it may be a matter of detail; but it is still a matter of procedure. Similarly it cannot be controverted that a rule which directs that

certain applications should be presented within certain hours of the day is also a matter of procedure. In like manner a direction that certain

applications should be presented before a certain time would also be matter of procedure. This is made clear by Coutts-Trotter, J., in the

judgment, I have already referred to.

Section 122, Code of Civil Procedure, empowers the High Courts to make rules regulating their own procedure and the procedure of the Civil

Courts subject to their superintendence. The section specifically empowers the High Court by such rules not merely to annul or alter any of the

rules in the first Schedule of the Code but also to add to them. This is a comprehensive power and is sufficient to empower the High Court to make

a rule of the kind embodied in Rule 41-A(2). Section 128, Code of Civil Procedure, to which the learned Counsel for the petitioner referred, does

not in any way cut down the ambit of Section 122. The first Sub-section of Section 128 specifically states that the rules ''may provide for any

matters relating to the procedure of civil Courts.'' The enumeration that follows in the second Sub-section is made ""without prejudice to the

generality of the powers conferred by Sub-section (1)"". I am clearly of the view that Rule 41-A(2) of the Appellate Side Rules is intra vires of the

powers of this Court. This petition is, therefore, dismissed with costs.