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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Mitter
  • Sharpe, JJ.
Acts
  • Court; rules 11, 13 and 51 of the Judicial Committee Rules, 1925,
  • Indian Independence Act and the Government of India Act, 1935.
  • sec. 9, sub-sec. (1), cl. (c) of the Indian Independence Act.
  • sec. 9 (1) (i) of the Indian Independence Act, 1947,
  • rule 11 of the Judicial Committee Rules, 1925,
  • GOVERNMENT OF INDIA ACT 1935
  • rule 13. Rule 51
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Mitter
  • Sharpe, JJ.
Acts
  • Court; rules 11, 13 and 51 of the Judicial Committee Rules, 1925,
  • Indian Independence Act and the Government of India Act, 1935.
  • sec. 9, sub-sec. (1), cl. (c) of the Indian Independence Act.
  • sec. 9 (1) (i) of the Indian Independence Act, 1947,
  • rule 11 of the Judicial Committee Rules, 1925,
  • GOVERNMENT OF INDIA ACT 1935
  • rule 13. Rule 51
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The opinion concerns two applications arising from suits concerning land situated in that part of the District of Sylhet which, on partition, falls within the territory assigned to the Dominion of Pakistan. Both suits originated in courts located within that Dominion. The two applications before this Court were:

  • An application to extend the time to deposit the amount due for paper-book costs on a supplementary estimate.
  • An application relating to the appointment of a guardian ad litem for a minor respondent.

In both matters this Court had already passed the decrees and given certificates under section 110 of the Code of Civil Procedure before 15 August 1947 (the "appointed date"), and the appeals to His Majesty in Council were finally admitted before that date. The records which were to be printed in India had not yet been printed and had therefore not been transmitted to England. The central procedural question posed was whether those Privy Council appeals, which were pending in this Court on the appointed date and whose records had not been sent to England, were transferred to the High Court established at Dacca (East Bengal), thereby ousting this Court's jurisdiction to deal with the pending applications.

Legal Issues Presented

  1. Whether this Court (the Calcutta High Court as continued by the Calcutta Order, 1947) or the High Court established for the Province of East Bengal has jurisdiction to deal with the applications in the two described cases.
  2. Whether paragraph (3) of Article 13 of the High Court (Bengal) Order, 1947 (the "Bengal Order") applies to Privy Council appeals that were pending in this Court on the appointed date but whose printed records had not yet been transmitted to England.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court's analysis proceeded in several discrete steps, each based on textual construction of the relevant constitutional and transitional instruments referred to in the opinion:

  1. Identifying the relevant instruments:

    The Court framed the question by reference to Article 13(3) of the Bengal Order, but stated that construction of that paragraph required consideration of Article 12 of the Bengal Order, Article 3 of the Calcutta Order, certain provisions of the Letters Patent of the Calcutta High Court, rules 11, 13 and 51 of the Judicial Committee Rules, 1925, and paragraphs 5 and 10 of the India (Adaptation of Existing Laws) Order, 1947.

  2. Effect of the Calcutta Order (Article 3):

    Under Article 3 of the Calcutta Order the Calcutta High Court "continues to exist as before" and, except where the Bengal Order expressly provides otherwise, retains all original, appellate and other jurisdiction it had immediately before 15 August 1947. This preservation of the Court's pre-existing jurisdiction was a foundational premise for the subsequent construction of Article 13 of the Bengal Order.

  3. Scope of Article 12 and Article 13 (Bengal Order):

    The Court observed that Article 12 of the Bengal Order deals with appeals to His Majesty in Council "coming from the High Court of East Bengal" but does not address the Court's jurisdiction in the narrow period after a certificate under section 110 CPC had been granted and before records were transmitted to England or a petition lodged in the Privy Council Registry. Article 13 of the Bengal Order withdraws Calcutta High Court jurisdiction over territories included in East Bengal from the appointed day but expressly preserves Original Side jurisdiction and certain other original or review jurisdiction notwithstanding that subject-matter is situated in East Bengal.

  4. Construction of "proceedings pending on the Appellate Side":

    Paragraph (3) of Article 13 opens with the qualifier "subject to the preceding provisions of this Article," and the Court read that phrase as indicating that "proceedings pending on the Appellate Side" should be confined to proceedings the Calcutta High Court could have finally adjudicated upon — i.e., appeals and revisions pending on its Appellate Side which could be finally disposed of by that Court under the clauses listed in paragraph (2) (clauses (a) to (c)).

    The Court relied on clause (7) of Article 13 which defines a "proceeding" as pending until the Court has disposed of all issues between the parties, including taxation of costs. The Court observed that "issues" in the ordinary meaning are material propositions in dispute between parties and did not, in its view, encompass administrative steps that arise after the certificate under section 110 has been given and before the record is sent to England.

  5. Ambiguity and rule against ultra vires construction:

    The Court noted the phrase "proceedings pending on the Appellate Side" is ambiguous and could be read to include pending Privy Council appeals. However, because two constructions were possible, the Court invoked the established rule of construction that where a choice exists, the interpretation that would render the provision ultra vires (or that would require unlawful modification of other instruments) should be discarded. Thus the construction excluding Privy Council appeals was preferred.

  6. Limits of the Governor-General's adaptation powers:

    The opinion examined the source and limits of the Governor-General's power to make the Adaptation (of Existing Laws) Order, 1947, under section 9(1)(i) of the Indian Independence Act, 1947. That power permitted omissions, additions and adaptations of certain statutes and Orders in Council in their application to the new Dominions, but did not extend to modifying the Letters Patent of the Calcutta High Court. The schedule to the Adaptation Order did not refer to any provision of the Letters Patent.

    Article 10 of the Adaptation Order authorises courts or authorities to adapt "existing Indian Law" for consistency with the Indian Independence Act and the Government of India Act, 1935. The Court concluded that the Letters Patent establishing a High Court do not fall within the defined phrase "existing Law" for these purposes, and an Order in Council made under an Act of Parliament is expressly excluded by that definition. Consequently, the Judicial Committee Rules, 1925 could not be treated as subject to adaptation by courts under Article 10.

  7. Practical consequences regarding procedural steps in Privy Council appeals:

    Clause 42 of the Letters Patent required this Court to certify (under its seal) and transmit records to the Privy Council; rule 11 of the Judicial Committee Rules anticipated registrarial certificates of service; rule 13 contemplated certifying printed copies by signature on every eighth page; rule 51 contemplated certificates of proper substitution for persons to be substituted. The Court reasoned that if paragraph (3) of Article 13 were read to transfer pending Privy Council appeals to the Dacca High Court while those records still remained in this Court, it would effectively require modification of clause 42 of the Letters Patent and the cited Judicial Committee Rules — modifications that the Governor-General lacked power to effect by the Adaptation Order.

  8. Preservation of jurisdiction and avoidance of practical difficulties:

    The Court concluded that Article 13 curtailed its Appellate jurisdiction only in respect of matters of origin in East Bengal but preserved its Original jurisdiction. More generally, the Court held that its jurisdiction over matters pending on the appointed date is preserved where those matters fall within its "other" jurisdiction (i.e., not within its Original or Appellate jurisdiction), and therefore paragraph 3 of Article 13 does not apply to Privy Council appeals pending in this Court on the appointed date whose records had not been sent to England.

    Finally, the Court observed that this interpretation would not create future complications because orders passed by this Court would be regarded as orders of the High Court of East Bengal by reason of paragraph (4)(b) of Article 13 of the Bengal Order.

Holding and Implications

The Court held that paragraph (3) of Article 13 of the High Court (Bengal) Order, 1947 is not applicable to Privy Council appeals that were pending in this Court on the appointed date (15 August 1947) where the printed records had not yet been transmitted to England, and that this Court therefore retains jurisdiction to pass orders in the two described cases.

Implications

  • Direct effect on the parties: The Calcutta High Court retains jurisdiction to consider and pass orders on the two pending applications (extension of time for paper-book costs and appointment of a guardian ad litem), despite the subject-matter and courts of origin being situated in the Province of East Bengal, because the relevant Privy Council records remained in this Court on the appointed date.
  • Practical mechanism preserved: The decision preserves the procedural role of this Court and its Registrar in certifying and transmitting records to the Privy Council in accordance with the Letters Patent and the Judicial Committee Rules, 1925, because including such pending Privy Council appeals within Article 13(3)'s ambit would have required modifications beyond the Governor-General's adaptation powers.
  • Broader precedent: The opinion does not purport to create or announce a new principle beyond its construction of the transitional provisions; it gives a direct ruling on jurisdiction in the two cases and notes that orders made by this Court will be treated as orders of the High Court of East Bengal by operation of paragraph (4)(b) of Article 13. The opinion does not elaborate any broader precedential consequences beyond these immediate effects.
Show full summary ...

    Brojendra Kishore Roy Chowdhuri v. Mohini Mohan Chowdhuri And Ors.

    1. The question for consideration in both the appeals is the same, namely, whether this Court or the High Court established for the Province of East Bengal has jurisdiction to deal with the applications made therein. In the first case the application is for extending the time to put in the amount of paper-book costs due on a supplementary estimate. In the second case the application relates to the appointment of a guardian ad litem of a minor Respondent. In both the cases the subject-matter of the suits is land situate in that part of the District of, Sylhet which is within the territory assigned to the Dominion of Pakistan and the Courts of origin are situated within that Dominion. In both the cases this Court passed the decrees and gave the certificates under sec. 110 of the Code of Civil Procedure before the 15th of August, 1947, “the appointed date”, and the appeals to His Majesty in Council were finally admitted before that date. The records which are to be printed in India, have not been printed yet, and so they have not been transmitted to England. On these facts the question is whether these two Privy Council appeals stand transferred to the High Court established at Dacca.

    2. If that is the position this Court's jurisdiction to deal with any matter which relates to these two appeals had ceased from “the appointed date”. As the question is of general importance we took time to consider the matter after the learned Advocates had exhaustively argued it from various aspects. The question ultimately depends upon the construction of Article 13, paragraph (3) of the High Court (Bengal) Order, 1947 (hereafter called the Bengal Order). But for the purpose of construing that paragraph we have to take into consideration Article 12 of that Order, Article 3 of the High Court (Calcutta) Order, 1947 (hereafter called the Calcutta Order), some clauses of the Letters Patent of the Calcutta High Court; rules 11, 13 and 51 of the Judicial Committee Rules, 1925, promulgated by the Order in Council dated the 2nd May, 1925 and paragraphs 5 and 10 of the India (Adaptation of Existing Laws) Order, 1947.

    3. The first thing of importance to notice is that by Article 3 of the Calcutta Order the High Court in Calcutta continues to exist as before and continues to have, save as expressly provided for by the Bengal Order, all such original appellate and other jurisdiction as it had immediately before the 15th August, 1947. Article 12 of the Bengal Order refers to appeals to His Majesty in Council and defines the law to be applied to such appeals as would be coming from the High Court of East Bengal. It does not in our opinion deal with the jurisdiction such as the Calcutta High Court had in respect of appeals to His Majesty in Council after the certificate had been granted under sec. 110 of the Code of Civil Procedure and before the records had been transmitted to England and the petition of appeal lodged in the Registry of the Privy Council. Article 13 of the Bengal Order enacts that on and from the appointed day the Calcutta High Court is to have no jurisdiction over the territories for the time being included in the Province of East Bengal. That paragraph, however, preserves the jurisdiction of the Calcutta High Court over proceedings pending in its Original Side and over appeals from judgments of a Judge sitting on its Original Side, and in respect of review of orders made by a Judge of that Court, notwithstanding that the subject-matter or part of the subject-matter of the suit or proceeding is situated in the Province of East Bengal. Paragraph 3 of the said Article, namely, Article 13, deals with proceedings pending in the Appellate Side of this Court on the appointed date. Paragraph (3) of that Article opens with the words “subject to the preceding provisions of this Article,” and those words in our opinion give some indication that the phrase “proceedings pending on the Appellate Side of the High Court in Calcutta refers to proceedings pending on the Appellate Side in respect of which this Court could have given an adjudication on the merits in the same manner; and to the same extent as it could have in respect of the matters mentioned in clauses (a) to (c) of paragraph 2 of that Article, that is to say, to appeals and revisions pending on the Appellate Side of this Court which could have been finally disposed of by this Court.

    4. We are fortified in this view by cl. (7) of, Article 13 which provides that—

    “Proceeding shall be deemed to be pending in a particular Court until that Court has disposed of all issues between the parties, including any issues with respect to the taxation of the costs of the proceeding.”

    5. “Issues” in its ordinary meaning denotes some material proposition of fact or law concerning which there is controversy between the parties, and will not, we think, include such matters as arise for disposal by this Court after the certificate has been given under sec. no of the Civil Procedure Code and before the despatch of the Record to England. In any event apart from these considerations the phrase “proceedings pending on the Appellate Side of the High Court at Calcutta” is ambiguous and may be so construed as to refer to proceedings of the nature we have indicated above, that is to say, proceedings in respect of which this Court exercises Appellate or Revisional Jurisdiction or it may be construed to refer also to proceedings in pending Privy Council appeals. But in our judgment the last mentioned construction should not be adopted, for it is an established rule of construction that if, two constructions are possible that one should be discarded which would make the provision ultra vires.

    6. The Bengal and the Calcutta order have been promulgated by the Governor-General by virtue of the powers given to him by sec. 9 (1) (i) of the Indian Independence Act, 1947, and the Adaptation (of Existing Laws) Order, 1947, have been promulgated by him by virtue of the power given by sec. 9 (i) of the said Act of Parliament. The last-mentioned paragraph, however, gives him the power to make omissions from, additions to and adaptations and modifications of (a) the Government of India Act, 1935; and (b) Orders in Council, rules and other instruments made under the Government of India Act, 1935, in their application to the separate new Dominions. No power has been conferred accordingly to the Governor-General to modify the Letters Patent of this Court. In fact he has not by the Adaptation (of Existing Laws) Order attempted to alter the Letters Patent of this Court. The schedule to that Order does not refer to any provision of the Letters Patient. Articles 5 and 10 of that Order are, however, of a general character.’ They are intended to provide for omissions in the schedule annexed to that Order.

    7. Article 5 is not very material. Article 10, however, confers the power on the Court, tribunal or authority to adapt the “existing Indian Law” which it is required or empowered to enforce for the purpose of rendering it Consistent with the Indian Independence Act and the Government of India Act, 1935. In our opinion, the Letters Patent establishing a High Court does not fall within the definition of “existing Law” as given in that Order. An Order in Council made under an Act of Parliament is also expressly excluded by that definition. The Judicial Committee Rules, 1925, cannot, therefore, be the subject-matter of adaptation by Courts by virtue of the power conferred on Courts by Article 10 of the Adaptation (of Existing Laws) Order. Clause 42 of the Letters Patent still remains as it is. As the two appeals to His Majesty in Council are against the judgments and decrees of this Court, this Court will have to certify under the seal of this Court and to transmit the record to the Privy Council by virtue of what is contained in that clause of the Letters Patent, and the Registrar of this Court will have to give the certificate relating to service of notice, etc., in the lines of rule 11 of the Judicial Committee Rules, 1925, and to transmit 40 copies of the printed record to England, if the Appellant to England had chosen to print them here, after certifying one copy by signing at every eighth page thereof by reason of what is contained in rule 13. Rule 51 would require this Court to give a certificate that a particular person is the proper person to be substituted. Those provisions cannot be modified and have not been modified by the Governor-General acting on the powers conferred on him by the Indian Independence Act. This Court and the Registrar of this Court would not be able to do these things if the records of pending Privy Council appeals preferred against the judgments, orders and decrees of this Court delivered before the appointed day are to stand transferred to the High Court at Dacca, The interpretation which would include appeals to His Majesty in Council, the records of which are still in this Court and have not been transmitted to England, within the phrase “proceedings pending on the Appellate Side, etc.,” occurring in paragraph 3 of Article 13 of the Bengal Order would require modification of clause 42 of the Letters Patent of this Court and those rules of the Judicial Committee Rules which the Governor-General was not competent to do by making an Adaptation Order as his power in that respect has been limited to the matters mentioned in sec. 9, sub-sec. (1), cl. (c) of the Indian Independence Act. It is also pertinent to observe that whereas the High Court for the Province of East (Bengal has been created by the Bengal Order, the Calcutta Order continues this Court as it was and subject to the Bengal Order, this Court is to have such Original, Appellate and other Jurisdiction as it had immediately before the appointed day. The Bengal Order curtails its Appellate Jurisdiction by taking away its jurisdiction over the territories of the Province of East Bengal and in regard to matters pending on the Appellate Side where the Court of Origin falls within that Province. Notwithstanding the division of territories, its Original Jurisdiction over matters pending on the appointed date is preserved and in our opinion its jurisdiction over matters pending in this Court on the appointed date is preserved where those matters fall within its “other” jurisdiction that is to say not within its Original or Appellate Jurisdiction. We accordingly hold that paragraph 3 of Article 13 of the Bengal Order is not applicable to Privy Council appeals pending in this Court on the appointed date and that this Court still retains jurisdiction in respect of them, though the subject-matter thereof are situated in the Province of East Bengal and the Court of origin is also with that Province. This view, of ours would not introduce complications or difficulties in future as the orders to be passed by this Court shall also be considered to be orders of the High Court of East Bengal by reason of the provisions of sub-cl. (b) of paragraph (4) of Article 13 of the Bengal Order.

    8. We accordingly hold that we have jurisdiction to pass orders in the two cases mentioned above.

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    Comments

    Brojendra Kishore Roy Chowdhuri v. Mohini Mohan Chowdhuri And Ors.
    (Dec 22, 1947)