Structured Summary of the Provided Legal Opinion

Factual and Procedural Background

These revision petitions challenge the validity of amendments made to Orders XVIII and XXVI of the Code of Civil Procedure (the "Code") by Notification No. 3/S.R.O./S.O. 119 dated November 29, 1973 (published in the State Gazette on December 1, 1973). The learned counsel for the petitioners argued against the validity of the new Rule 19 of Order XVIII and raised other related objections to the amendments and to a subsequent circular instruction (No. 17/PI dated December 10, 1973). The petitions were heard together and dealt with in a single common judgment. The court ultimately dismissed the revision petitions summarily.

Legal Issues Presented

1. Whether the newly inserted Rule 19 of Order XVIII is invalid because it is inconsistent with Rule 5 of Order XVIII and therefore contrary to Section 128(1) of the Code.
2. Whether the rules contained in the First Schedule of the Code (including rules in Orders XVIII and XXVI) form part of the "body of the Code" for the purposes of Section 128(1).
3. Whether the trial court's orders issuing commissions for recording statements of witnesses who were not resident within its local limits were illegal under the newly added Rule 4-A of Order XXVI.
4. Whether Instruction No. 4 in this Court's circular letter No. 17/PI dated December 10, 1973 is invalid as contravening Rule 5 of Order XVIII.

Arguments of the Parties

Petitioners' Arguments

• Rule 5 of Order XVIII forms part of the body of the Code; therefore the newly inserted Rule 19 of Order XVIII is invalid because it is inconsistent with Rule 5, relying on the provisions of Section 128(1).
• At least by way of an ancillary point, Rule 19 is inconsistent with Rule 5 so both inconsistent provisions cannot stand together.
• The trial court's orders for examination of witnesses on commission (in the cited revision S. B. Civil Revision No. 99 of 1974 and similar matters) were illegal under the newly added Rule 4-A of Order XXVI because those orders concerned witnesses not residing within the local limits of the court.
• Instruction No. 4 in the Court's circular letter No. 17/PI dated December 10, 1973 is invalid because it violates Rule 5 of Order XVIII.

Other Parties' / Trial Court's Position

The opinion does not contain a detailed account of adversarial arguments by other named parties beyond describing the trial court's orders and reasoning. The trial court's view (as recorded in the opinion) was that it was permissible to issue commissions for examining witnesses who resided beyond the local limits under Sub-rule (1) of Rule 4 of Order XXVI.

Table of Precedents Cited

Court's Reasoning and Analysis

The court's analysis proceeded in structured steps, rooted in statutory interpretation and the cited precedent:

1. Interpretation of Section 121: The court noted that Section 121 provides that the rules in the First Schedule "shall have effect as if enacted in the body of this Code" until annulled or altered under Part X. The court emphasized that this gives those rules the effect of being in the Code but does not mean they are literally sections forming the "body" of the Code.
2. Reliance on Chandra Bhushan Misra (Full Bench): The Full Bench had held that "the body of the Code" refers only to the sections and not to the First Schedule. The court expressed respectful agreement with that view and concluded that rules in the First Schedule are not part of the body of the Code.
3. Effect of Section 122: Section 122 authorizes High Courts to make rules regulating civil procedure and expressly permits them to "annul, alter or add to all or any of the rules in the First Schedule." Given that express power, the court found it futile to argue that Rule 19 of Order XVIII should be struck down because of supposed inconsistency with Rule 5.
4. Scope of Section 128(1): The court examined Sub-section (1) of Section 128 and observed that it applies to rules made by High Courts under Section 122 and requires those rules not to be inconsistent with the provisions in the "body" of the Code. Because the rules in the First Schedule are not part of the "body," Section 128(1) does not apply to them in the manner suggested by the petitioners; reliance on that sub-section was therefore beside the point.
5. Alleged inconsistency between Rule 19 and Rule 5 of Order XVIII: The court examined both rules and found no inconsistency. Rule 19 is an enabling provision allowing the court to get statements recorded on commission in accordance with Rule 4-A of Order XXVI. It permits examination of witnesses on commission in certain situations where the court does not consider it necessary to record their statements under Rule 5. The court concluded the two rules can co-exist and operate harmoniously within their respective spheres.
6. Legality of trial court orders issuing commissions for non-resident witnesses: The petitioners argued such orders were illegal under Rule 4-A of Order XXVI. The court pointed out that Sub-rule (1) of Rule 4 of Order XXVI expressly permits any court to issue a commission for the examination of any person residing beyond its local limits. The trial court's order (in S. B. Civil Revision No. 99 of 1974) was therefore held to be unobjectionable.
7. Validity of Instruction No. 4 in circular No. 17/PI: The petitioners argued this instruction violated Rule 5 of Order XVIII. The court found the argument futile: Rule 4-A of Order XXVI is a valid provision and Instruction No. 4 merely clarifies the court's discretion to have a defendant's witnesses examined on commission (at plaintiff's request and on payment of expenses) where the court is satisfied the defendant is delaying the trial. The court held that the instruction does not infringe any provision of law.

Holding and Implications

Final Disposition: The revision petitions were dismissed summarily.

Direct consequences and immediate implications as derived from the opinion:

• The court held that the rules in the First Schedule (including the newly inserted Rule 19 of Order XVIII) are not part of the "body of the Code" and therefore cannot be invalidated on the basis alleged under Section 128(1).
• Rule 19 of Order XVIII and Rule 4-A of Order XXVI were treated as valid provisions capable of co-existing with Rule 5 of Order XVIII by a harmonious construction.
• The trial court's orders directing examination of witnesses on commission (including orders concerning witnesses residing beyond the local limits, under Sub-rule (1) of Rule 4 of Order XXVI) were held to be unobjectionable.
• Instruction No. 4 in circular No. 17/PI dated December 10, 1973 was held not to contravene Rule 5 of Order XVIII and was therefore valid as a clarification of judicial discretion.

The opinion does not discuss broader doctrinal implications beyond these direct effects on the petitions and the validity of the specific rules and instruction challenged; therefore the decision's practical effect is to dismiss the petitions and uphold the challenged amendments and instruction in the circumstances addressed. The opinion does not purport to lay down a broader precedent beyond the conclusions expressly reached in this matter.