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Babu Laliteshwar Singh v. The Hon'Ble Maharaja Sir Rameshwar Singh Bahadur And Others
Concise Analytical Summary of the Opinion
Factual and Procedural Background
This is an application by the first Defendant to withdraw the leave previously granted to the Plaintiff under clause 12 of the Letters Patent to institute the suit in the Court. The suit was instituted on 11 May 1906, and leave had been obtained from the Registrar under Rule 515-A. The Defendant contends that such leave could only be granted by a Judge of the Court and therefore that Rule 515-A (authorising the Registrar or Master to grant leave) is ultra vires. The Court was asked to determine whether Rule 515-A is valid insofar as it authorises the Registrar or Master to grant leave to sue under clause 12 of the Letters Patent.
Legal Issues Presented
- Whether Rule 515-A, which authorises the Registrar or Master to grant leave under clause 12 of the Letters Patent, is ultra vires.
- Whether section 637 of the Code of Civil Procedure applies to permit the making of Rule 515-A and thereby authorise the Registrar or Master to perform this function.
- Whether the Court could validly make Rule 515-A under section 652 of the Code of Civil Procedure (subject to consistency with the Letters Patent).
- Whether clauses of the Letters Patent (notably clauses 12, 36 and 37), read together, permit delegation of the judicial function of granting leave to an officer of the Court.
- Whether section 9 of the High Courts Act, 1861 (and the historical powers of the Supreme Court under its Charter) provide a basis for validating the rule or delegating such judicial functions to officers of the Court.
Arguments of the Parties
Plaintiff's Arguments
- The Court could make Rule 515-A validly under section 652 of the Code of Civil Procedure, subject to consistency with the Letters Patent.
- Clause 37 of the Letters Patent (empowering the Court to make rules and orders for regulating proceedings in civil cases) is sufficiently wide to permit delegation of the function to the Registrar or Master.
- Section 9 of the High Courts Act, 1861 (vesting the High Court with all jurisdiction and powers of the abolished courts, including the Supreme Court) supports an argument by analogy to rules made for the Supreme Court (and their practice under the Judicature Acts) that allowed delegation to officers.
Defendant's Arguments
- Rule 515-A was made under section 637 of the Code of Civil Procedure, but section 637 applies only to non-judicial or quasi-judicial acts required to be done by a Judge under the Code; leave to sue under clause 12 arises under the Letters Patent (not the Code), so section 637 does not apply and the rule is ultra vires.
- Leave under clause 12 is a judicial act which must be granted by a Judge of the Court and therefore cannot be delegated to the Registrar or Master.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Haji Ismail v. Haji Mohamed | Describes an order granting leave to sue as not a mere formal order but a judicial order that determines a right between the parties (the right to sue in that Court). | The Court relied on this description to support the conclusion that leave under clause 12 is a judicial act and not merely ministerial. |
| DeSouza v. Coles | Adoption by other High Courts of the view that the order granting leave is judicial (not merely ministerial). | Used as supporting authority that the judicial nature of leave-granting orders is the accepted view in other High Courts and was not challenged. |
| Mudelly v. Mudelly | Same principle: adoption of the view that the leave order is judicial. | Relied on as further authority for the judicial character of leave under clause 12. |
| Rajam v. Seshayya | Same principle: adoption of the view that the leave order is judicial. | Relied on as further authority for the judicial character of leave under clause 12. |
| Ram Pertap v. Prem Shukh | Same principle: adoption of the view that the leave order is judicial. | Relied on as further authority for the judicial character of leave under clause 12. |
| Abdul Hamed v. Promatha Nath | Establishes that leave of the Court must be obtained before institution of the suit (i.e., a pre-institutional requirement). | The Court applied this principle to hold that the defect of leave being improperly obtained could not be cured by a later grant of leave by a Judge, and thus the plaint must be taken off the file. |
Court's Reasoning and Analysis
The Court conducted a stepwise analysis addressing whether Rule 515-A was validly made and whether it could lawfully authorize an officer (the Registrar or Master) to grant leave under clause 12 of the Letters Patent.
- The Court first considered the Defendant's contention that Rule 515-A was made under section 637 of the Civil Procedure Code and that section 637 does not apply because leave under clause 12 arises under the Letters Patent, not the Code. The Court accepted that section 637 refers only to non-judicial or quasi-judicial acts required to be done by a Judge under the Code and that leave under clause 12 is not granted under the Code.
- The Court observed, however, that the rule would not automatically be ultra vires merely because it purports to be made under section 637; if the Court had authority under some other provision of law to make the rule, the rule could still be valid. Accordingly, the Court turned to consider other possible statutory sources of authority.
- The Plaintiff suggested section 652 of the Code (which permits a High Court to make rules regulating its own procedure in its Original Civil Jurisdiction, consistent with the Letters Patent). The Court observed that any rule made under section 652 would have to be consistent with the Letters Patent and therefore examined the Letters Patent provisions.
- The Court reviewed provisions of the High Courts Act, 1861 (sections 2, 9 and 13) explaining how power vested in the High Court may be exercised by one or more Judges or by Division Courts. The Court noted that clause 12 of the Letters Patent requires the "leave of the Court" to be obtained in certain suits, which prima facie implies that a Judge of the Court must grant it.
- The Court analyzed the nature of the act of granting leave under clause 12 and concluded (on authority and reasoning) that it is uniformly regarded as a judicial act; the order is treated as a judgment appealable under clause 15 of the Letters Patent. The Court relied on case law (notably Haji Ismail v. Haji Mohamed and other cases) adopting this view.
- Given that the grant of leave is a judicial act, the Court asked whether the Court could delegate this judicial function to one of its officers by virtue of clauses of the Letters Patent. The Plaintiff relied on clause 37 (power to make rules and orders for regulating proceedings) and clause 36 (that any function directed to be performed by the Court may be performed by any Judge or Division Court). The Court held that, read together with clause 12, these clauses do not empower the Court to make a rule that delegates the judicial determination of whether the Court should exercise jurisdiction in a particular matter to an officer of the Court.
- The Court observed that a construction permitting delegation to officers under clause 37 would allow delegation of all judicial functions to subordinate officers, which the Court found unacceptable and unsupported by the text of the Letters Patent.
-
As a last resort the Plaintiff relied on section 9 of the High Courts Act (argument by analogy to jurisdiction and powers of the abolished Supreme Court, including the Supreme Court's Charter provisions). The Court rejected this argument for multiple reasons provided in the opinion:
- The source of the authority under which the Supreme Court rules were framed in England is different.
- The powers of the High Court under section 9 are defined and controlled by the Letters Patent, limiting the reach of such analogy.
- The Charter of the Supreme Court required rules to be submitted to the Privy Council for approval (a different statutory process).
- The Court could not find any authority showing that the Supreme Court had delegated judicial functions of the type in controversy to its officers.
- The Court therefore concluded that Rule 515-A is ultra vires insofar as it authorises the Registrar or Master to grant leave under clause 12 of the Letters Patent.
- Applying the principle that leave of the Court must be obtained before institution of the suit (Abdul Hamed v. Promatha Nath), the Court held that the defect in obtaining leave from the Registrar could not be cured at the current stage by a subsequent grant of leave by a Judge; accordingly the application to set aside that leave was allowed and the plaint was directed to be taken off the file. Costs were ordered as specified in the opinion.
Holding and Implications
Holding: The Court held that Rule 515-A is ultra vires insofar as it authorises the Registrar or Master to grant leave under clause 12 of the Letters Patent. The application of the first Defendant was allowed and the plaint was directed to be taken off the file.
Direct Consequences for the Parties
- The plaint is to be taken off the file because the leave obtained from the Registrar was invalid for the purpose of instituting the suit.
- Each party will pay his own costs. Those costs are to be taxed as between attorney and client on scale No. 2 (as directed in the opinion).
- The Court noted that in cases where the Registrar previously granted leave, nothing prevents leave being obtained by a Judge in a fresh action; in such a fresh action, orders might be passed permitting utilization of pleadings already filed.
- The Court invited attention to section 14 of the Indian Limitation Act should any limitation issues arise in relation to any fresh action based on this course (as mentioned in the opinion).
Broader Legal Implications (as stated in the opinion)
The opinion explains the boundary between judicial acts that must be performed by a Judge (or by a Judge acting under the Letters Patent) and administrative or quasi-judicial acts that may be delegated by the Court under rules framed pursuant to the Code. The Court emphasised that clause 12's requirement of "leave of the Court" and the judicial character of that leave prevent delegation of this particular judicial function to subordinate officers by rule. The opinion therefore limits the scope of rule-making power (under the Code or Letters Patent) so as not to permit delegation of core judicial determinations of jurisdiction to officers such as the Registrar or Master.
Attorneys noted in the opinion: Messrs B.N. Bose & Co. for the Plaintiff; Messrs Pugh & Co. for the Defendants.
This is an application on behalf of the first Defendant to withdraw the leave granted to the Plaintiff under cl. 12 of the Letters Patent to institute the suit in this Court. The suit was instituted on the 11th May 1906, and leave was obtained from the Registrar under Rule 515-A. It is contended on behalf of the Defendant that the leave under cl. 12 of the Letters Patent has not been properly obtained inasmuch as such leave can be granted only by a Judge of this Court. The question therefore arises whether Rule 515-A which authorizes the Registrar or Master to grant leave, is ultra vires. The rule in so far as it is applicable to the matter now before us is as follows:
“515-A.—All applications of the description specified hereunder shall be made to the Registrar or Master whose orders thereon shall be final; provided that the Registrar or Master shall refer any such application to be heard and determined by a Judge in chambers upon its appearing either that both parties so desire and their consent is endorsed upon the summons, or that one of the parties or, in the case of uncontested applications, that the applicant so desires and the Registrar or Master is satisfied that the matter is a fit and proper one, by reason of its importance or difficulty or novelty or by the reason of the order to be made thereon being appealable, to be referred to a Judge in chambers. All acts done by the Registrar or Master under this rule shall be deemed quasi-judicial acts within the meaning of sec. 637 of the Code of Civil Procedure…………………………………….
4. Applications for leave to sue under cl. 12 of the Charter.”
It is argued on behalf of the Defendant that the rule was made under sec. 637 of the Civil Procedure Code, that section has no application, and consequently the rule is ultra vires. Sec. 637 refers only to non-judicial or quasi-judicial acts which are required to be done by a Judge under the Code of Civil Procedure, and such acts may, under rules of Court, be done by the Registrar or by such officer as the Court may direct. Leave to sue, however, is granted not under the Code, but under the Letters Patent, and sec. 637 consequently has no application. It does not follow, however, that the rule is on this ground alone ultra vires, inasmuch as if the Court had authority to make it under some other provision of the law, it would not lose its validity merely because the Court purported to act under sec. 637 of the Code. It is, therefore, necessary to determine whether it was competent to the Court to make the rule under any other provision of law. It was suggested on behalf of the Plaintiff that the penultimate paragraph of sec. 652 of the Code authorises the Court to make a rule of this description. That paragraph provides that “notwithstanding anything in this Code contained any High Court established under the said Act (that is, Stat. 24 and 25 Vict., Chap. 104) for establishing High Courts of Judicature in India may make such rules, consistent with the Letters Patent establishing it, to regulate its own procedure in the exercise of its Original Civil Jurisdiction as it shall think fit.” It is obvious that the rule in question, if made under sec. 652, would be valid, only if it was consistent with the Letters Patent, the provisions of which must consequently be examined. But before we do so, it is necessary to refer briefly to some of the provisions of the High Courts Act, 1861 (Stat. 24 and 25 Vict., Chap. 104). Sec. 2 defines the constitution of the High Court and provides that the Court shall consist of the Chief Justice and as many Judges not exceeding fifteen, as Her Majesty may, from time to time, think fit and proper. Sec. 9 defines the jurisdiction and powers of the High Court. Sec. 13 provides that the power vested in the High Court may be exercised by one or more Judges or by Division Courts to be determined by the Chief Justice under sec. 14. But for these sections, the power vested in the Court would have to be exercised by all the Judges acting together; the effect of these sections is to vest each Judge or Division Court with the powers vested in the High Court. If we now look to the terms of cl. 12 of the Letters Patent (which is mentioned in sec. 9 of the High Courts Act), we find that in the cases of certain suits, the leave of the Court has to be first obtained. Primâ facie, therefore, the leave has to be granted by a Judge of the Court. Is it then competent to the Court to delegate this function to one of its officers? To determine this question, it is necessary to bear in mind the nature of the act granting leave to sue. It has been uniformly regarded as a judicial act, and the order has been treated as a judgment appealable under cl. 15 of the Letters Patent; see Haji Ismail v. Haji Mohamed, where Sir Richard Couch describes the order as “not a mere formal order or one merely regulating the procedure in the suit, but an order that has the effect of giving a jurisdiction to the Court which it otherwise would not have; it may fairly be said to determine some right between the parties, namely, the right to sue in a particular Court.” This view that the order is judicial and not merely ministerial or administrative has been adopted by the other High Courts, DeSouza v. Coles, Mudelly v. Mudelly, Rajam v. Seshayya and Ram Pertap v. Prem Shukh, and has not been challenged before us. We see no reason to dissent from this view. The question, therefore, arises whether the performance of this judicial act could be delegated to an officer of the Court. It was suggested on behalf of the Plaintiff that cl. 37 of the Letters Patent is wide enough to cover the matter. Cl. 37 empowers the Court to make rules and orders for the purpose of regulating all proceedings in civil cases, which may be brought before the Court. If this clause had stood by itself, it might have lent some support to the contention of the Plaintiff, but it has to be read along with cl. 12 which provides that the leave to be obtained is the leave of the Court and cl. 36 which provides that any function which is directed by the Letters Patent to be performed by the Court may be performed by any Judge or by any Division Court thereof. Reading all the clauses together and giving effect to all their provisions, as we must do, we are unable to hold that they empower the Court to make a rule under which the judicial determination of the question whether the Court should or should not exercise jurisdiction in a particular matter, is delegated to an officer of the Court. There is considerable force in the contention of the Defendant if such a wide construction as this was placed upon cl. 37 of the Letters Patent, it would enable the Court to delegate the exercise of all its judicial functions to its subordinate officers. It may further be suggested that cl. 37 refers to Rules and Orders for regulating all proceedings in civil cases which may be brought before the Court, and would hardly include the determination of the question whether the Court is to take cognisance of or exercise jurisdiction over a particular matter. We are unable to hold, therefore, that cl. 37 validates the rule in question.
As a last resort, the learned Counsel for the Plaintiff relied upon sec. 9 of the High Courts Act, 1861, which provides that the High Court to be established by Letters Patent shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in the Courts abolished under sec. 8, one of which was the Supreme Court. On this ground it was contended that, inasmuch as under sec. 18 of the Charter of the Supreme Court granted on the 26th March 1774, that Court was to be a Court of Equity and had full power and authority to administer justice as nearly a may be according to the rules and proceedings of the High Court of Chancery in Great Britain, this Court is competence to make rules and delegate the exercise of judicial functions to its officers, as it was suggested is done in England under the rules of the Supreme Court, framed under the Judicature Acts. In our opinion there is no foundation for this argument. In the first place, the source of the authority under whit the rules of the Supreme Court are ramed in England, is entirely different the second place, under sec. 9 of the High Courts Act, 1861, upon which reliance is placed, the powers of this Court are defined and controlled by the letters Patent. In the third place, sec. 38 of the Charter of the Supreme Court which authorised that Court to frame rules of practice, required the rules to be submitted to the Privy Council for approval, alteration or rejection. In the fourth place, we are unable to find the under the rules of the Supreme Court as they stood at the time when the High Court was created, that Court ever delegated the exercise of judicial functions of he description now in controversy, to any of its officers; indeed, no such question could have arisen under those rule. We must hold accordingly that Rule 515-A in so far as it authorises the Registrar or Master to grant leave under cl. 12 of the Letters Patent is ultra vires. As leave of the Court has to be obtained before the institution of the suit, Abdul Hamed v. Promatha Nath, the defect cannot be cured by grant of leave at this stage of the litigation by a Judge of this Court. The application, therefore, must be allowed and the plaint directed to be taken off the file. Under the circumstances of the case, each party will pay his own costs. The costs will be taxed as between attorney and client on scale No. 2.
We understand that in several cases leave has been granted by the Registrar. In these cases there is nothing to prevent leave being granted by a Judge in a fresh action, in which event orders might possibly be passed for utilizing pleadings, etc., which had been already filed. And should any question of limitation arise, we may invite attention to sec. 14 of the Indian Limitation Act.
Messrs B.N Bose & Co., Attorneys for the Plaintiff.
Messrs Pugh & Co., Attorneys for the Defendants.
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