P L D 1956 (W (PLP)

KAIKAUS, J.

‑Fazal Muhammad, who is respondent in this application for leave to appeal: filed a suit for possession of land against Shah Muhammad petitioner. The suit was dismissed by the trial Court. On appeal to the High Court it was decreed. Shah Muhammad petitioner applied for leave to appeal to the Federal Court and the same was granted on the 20th of June 1955. On the 2nd of July 1955, the office issued a letter to learned counsel for the petitioner saying that he should direct his client to deposit a sum of Rs. 2,000 as required by rule 3 (2) of Chapter 9, Rules and Orders of High Court, Volume V, within six weeks from the 20th of June 1955. On the 23rd of July 1955, Shah Muhammad petitioner applied‑for acceptance of security other than cash. This application was rejected On the 26th of July 1955. On the 2nd of August, he put in an application (Civil Miscellaneous No. 361/C‑55) for extension of time. This application was returned to him by the office with a note that learned counsel for the petitioner should explain how the application lay. The application was returned by the office on the 5th of August 1955, and upto the 21st of November 1955, it had not been re‑filed. In the meantime, the office reported that the certificate granted to the petitioner should be cancelled on account of failure to deposit the security. The petitioner also re‑filed his appli cation for extension, sometime after the 21st of November 1955. This order will dispose of the application as well as the office note. Three points have been urged before us by learned counsel for the petitioner. The first is that the office had got no authority to demand the security of Rs. 2,000 without an order of Court, and there being upto the present date, no order by the Court for deposit of security, the petitioner was not bound to deposit security at all. The second is that time for the deposit of security should be extended. The third is that the petitioner should be allowed to deposit security other than cash. As regards the first point, the office had demanded security in accordance with rule 3 (2), Chapter 9, High Court Rules and Orders Volume V, which relates to appeals to the Federal Court. The rule runs :‑-- "3. (1) In cases falling under subsection 1 of section 205 of the Government of India Act the certificate shall state that the case involves a substantial question of law as to the interpretation of this Act of any order in Council made thereunder. (2) In all other cases the certificate shall be granted in Form B appended to these rules and the applicant shall be required to deposit within ninety days, or such further period not exceeding sixty days, as the Court may upon cause shown allow, from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever is the later date, a sum of rupees two thousand as security for the respondent's costs. In any special case the Court may, if it thinks fit, upon the appli cation of the respondent, require security to a larger amount; but in no case exceeding rupees ten thousand." Learned counsel for the petitioner urges that Order XLV, rule 7, contemplates an order by Court, and that the rule is of no validity not having been framed under section 122 of the Code of Civil Procedure which is the only section which empowers the High Courts to frame , rules relating to procedure in such cases. Order XLV, rule 7, runs :‑ 7. (1) Where the certificate is granted, the applicant shall, within ninety days or such further period not exceeding sixty days, as the Court may upon cause shown allow, from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever is the later date,‑ (a) furnish security in cash or in Government securities for the costs of the respondent, and (b) deposit the amount required to defray the expense of translating, transcribing, indexing and transmitting to His Majesty‑in‑Council a correct copy of the whole record of the suit, except‑ (1) formal documents directed to be excluded by any order of His Majesty‑in‑Council in force for the time being ; (2) papers which the parties agree to exclude ; (3) accounts, or portions of accounts, which the officer empowered by the Court for that purpose considers unnecessary, and which the parties have not specifically asked to be included and (4) such other documents as the High Court may direct to be excluded: Provided that the Court at the time of granting the certificate may, after hearing any opposite party who appears, order on the ground of special hardship that some other form of security may be furnished: Provided further, that no adjournment shall be granted to an opposite party to contest the nature of such security. (2) Where the applicant prefers to print in Pakistan the copy of the record, except as aforesaid, he shall also within the time mentioned in sub‑rule (1) deposit the amount required to defray the expense of printing such copy." This rule does imply that the amount which is to be deposited can be fixed by the Court. The question, however, is whether provision as to amount could not be regulated also by rules, and whether rule 3 quoted above is ultra sires. Admittedly the rule has not been framed under section 122 of the Code of Civil Procedure, but the High Court has jurisdiction under clause 27 of the Letters Patent to frame rule with respect to its practice. That clause runs :‑ "

27. And we do further ordain that it shall be lawful for the High Court of Judicature at Lahore from time to time to make rules and orders for regulating the practice of the Court and for the purpose of adapting as far as possible the provisions of the Code of Civil Procedure, being an Act No. V of 1908, passed by the Governor General‑in -Council, and the provisions of any law which has been or may be made, amending or altering the same, by competent legislative authority for India, to all proceedings in its testamentary, intestate and matrimonial jurisdiction, res pectively." It has been urged by learned counsel for the petitioner that this clause empowers the High Court to frame rules as to its "Practice" only and that "practice" would not include a provision as to the amount for which security is to be furnished. I do not see any force in this contention. The word "practice" is one of wide import and covers the whole of the proceedings in a Court from beginning to end. In Wharton's Law Lexicon, it is defined as "the form and manner of conducting and carrying on suits actions, or prosecutions at law or in equity, civil or criminal, through various stages, X from the commencement to final judgment and execution, according to principles and rules laid down by the several Courts." The same definition I find repeated in other law dictionaries. In A. G. v. Sillem ((1864) 10 Jur. N. S. 446), the question before the House of Lords was whether an enactment which enabled the barons of the Court of Exchequer to frame rules for regulating the practice of the Court would empower it to provide also for an appeal against their decision. It was held by the majority of the judges of the Court that the provision could not grant such powers but two of the learned judges even accepted that practice would include such a power and the discussion in that judgment would leave no doubt that the provision with which we are concerned is within the power conferred by clause

27. Of course, clause 27 cannot be interpreted so as to empower the High Court to frame rules inconsistent with the provisions of the Code of Civil Procedure. That would be in the first place oppose to the implication of section

122. Section 122 empowers the High Courts to frame rules so as to make amendments in, and additions to, Schedule I of the Civil Procedure Code. For the framing of such rules by the High Court, however, there is a complete procedure provided in sections 123, 124, 126 and

127. The rules have to be framed by a committee called the rules committee. They need under section 126 the previous approval of the Government of the Province in which the Court, whose procedure is to be regulated, is situate, and they also require to be published in the Official Gazette under section 127, Civil P. C. All this procedure is unnecessary in the case of rules framed under clause

27. The intention of section 122 is clear that if there is to be a change in the schedule it can only be effected by a recourse to it. In the pre sent case, there was no approval of Government and no publi cation, and in fact it is not the case for the respondent that the rules were framed under section

122. The rules would therefore be invalid in so far as they are in conflict with the rules in Schedule I of the Code of Civil Procedure. It should) also be pointed out here that rules framed under clause 27 would be invalid to such extent not only because they are not framed in accordance with section 112, but also because clause 27 does not in our opinion confer a power to frame rules inconsistent with any law. If, therefore, there be anything in the rules framed under clause 27 which is inconsistent with the provisions of the Code of Civil Procedure, it will to the extent of such incon sistency be ultra vires. Now, as already stated, the implication of Order XLV, rule 7, is that the amount of security can be fixed by the Court. This jurisdiction of the Court to fix the amount of security cannot be taken away by rules framed under clause 27 though it maybe supplemented. As Order XLV, rule 7 simply says that the applicants for leave to appeal shall deposit security without giving any directions as to the amount of the security, it will be very appropriate to frame a rule supplementing Order XLV, rule 7, and directing that a particular amount of security shall be deposited by the petitioner in the absence of an order o Court. Such a rule would not be inconsistent with rule 7, for it would not take away the jurisdiction of the Court to fix the amount. The provision, therefore, in the rules fixing an amount of security, which the petitioner was ordinarily to deposit, is within the power granted by clause

27. In so far as, however, rule 3 (2) provides that the Court can only increase the amount of security and not reduce it and the increase can only 62 up to a limit of Rs. 10,000 the rule interferes with the discretion which is vested in the Court by virtue of rule and is to that extent ultra vires. The Court may, in spite of this rule, considering the circumstances of the case and the small value of the property involved, order security of less than Rs. 2,000 and in a case where the amount of property is very large and the costs of the respondent would be more than Rs. 10,000 there is no reason why the Court should not be entitled to pass an order of security of more than Rs. 10,

000. As the Code provides that the security must be given for the costs of the respondent, any provision which takes away the jurisdiction of Court to provide for the whole of such costs would be ultra vires. So far we have dealt with this matter as if rule 3 (2) of Chapter IX did in fact apply. Rule 3 applies only to Federal Court appeals. Rule 3 (1) applies to cases falling under section 205 (1) of the Government of India Act, while 3 (2) applied to "all other cases". This may require an explanation for these rules relate only to the Federal Court which existed in pre‑partition India and dealt with cases arising under section 205 of the Government of India Act. A look at section 205 will show that the appeals which could be filed were not confined to a case where the petitioner disputed the interpretation of the Government of India Act by the Federal Court. Once a High Court granted a certificate in a case that a question as to the interpretation of the Government of India Act was involved, all parties in that case, whether they disputed the interpretation of the High Court or not, became entitled to file an appeal against that decision to the Federal Court. It is with respect to these cases that rule 3 (2) applies. The present is not a case covered by section 205 of the Government of India Act. It is just an ordinary appeal under the Code of Civil Procedure. The reason why the office applied rule 3 (2) to such cases is this. The jurisdiction of the Federal Court having been enlarged by the Enlargement of Jurisdiction Act I of 1950. the office regards the appeals fled in the Federal Court under this extended jurisdiction covered by rule 3 (2). This interpretation by the office we do not regard as correct. The jurisdiction that the Federally Court was granted by the Enlargement of Jurisdiction Act, was a jurisdiction which existed previously in the Judicial Committee of the Privy Council. With respect to the filing of appeals before the Judicial Committee of the Privy Council there were separate rules already framed by the High Court which are contained in Chapter 8‑A, High Court Rules and Orders, Volume V. Under section 6 of the Enlargement of Jurisdiction Act any law which was applicable to appeals to the Privy Council at the time when that Act came into force became applicable to the appeals to Federal Court so that in all such laws the words "Federal Court" were to be sub stituted for the words "His Majesty‑in‑Council." The rules which are framed by the High Court with regard to Privy Council appeals and which are contained in Chapter 8‑A become applicable by virtue of section 6 to Federal Court appeals. It may be argued that rule 3 (2) of Chapter 9 relates directly to the Federal Court, and there being only an enlargement of the jurisdiction of the same Court, the rule still remains applicable. There is more than one answer to this contention. The first is that by means of section 6, the rules contained in Chapter 8‑A being law become applicable to the Federal Court and have the force of law but the rules which were framed by the High Court under clause 27 of the Letters Patent Act relating to the Federal Court itself are rules which can have legal and binding force only in so far as they are not inconsistent with any other law in force. Section 6 of the Enlargement of Jurisdiction Act does constitute the rules contained in Chapter 8‑A as law. Therefore, if there be a contest between two sets of rules, those in Chapter 8‑A will have preference. Another answer is that rules in Chapter 9 were really framed in respect of the special jurisdiction, granted to the Federal Court under section

205. They relate to a particular jurisdiction and should be confined to that jurisdiction. In so far as the Federal Court began hearing appeals which were previously entertained by Judicial Committee of the Privy Council, its procedure should be governed by the rules which related to the exercise of juris diction by the Privy Council. Rule 3 of Chapter 8‑A, which in our opinion applies in this case, runs as follows :‑ "When the Court grants a certificate, which shall be in Form appended to these rules, the petitioner shall be required to deposit within ninety days, or such further period not exceeding sixty days, as the Court may upon cause shown, allow from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever is the later date, a sum of rupees four thousand as security for the respondent's costs". In any special case the Court may, if it thinks fit, upon the application of the respondent, require security to a larger amount ; but in too case exceeding rupees ten thousand" It will be observed that the rule is similar in terms to rule 3 of Chapter 9 with the differences that here the minimum amount of security is Rs. 4,000 and not Rs. 2,

000. This rule too is ultra vires in so far as it takes away the jurisdiction of the Court to fix the amount of security, on the grounds which we have already stated with reference to the other rule. The question would now arise what would be the effect of the office having demanded Rs. 2,000 whereas it should have demanded Rs. 4,000 in accordance with this rule. The reply is that an amount less than that required' has been demanded and the petitioner is not in any wav prejudiced. Assuming that the rule relating to the deposit of security of Rs. 4,000 is ultra vires and that the amount should be fixed by the Court the certificate will still have to be cancelled if security is not deposited in time. Order XLV, rule 7, makes it incumbent on the petitioner to give security for costs within a period named. It does not say the security is to be deposited in accordance with an order of Court. It appears to us that the duty to furnish security being absolute it is fort the petitioner to secure an order of Court as to amount of the security to be furnished. If he does not secure an order he, cannot avoid the consequences of a failure to furnish security on the ground that there is no order of Court as to amount of security. We would, therefore, hold that no order or further order of the Court was required and that the petitioner was bound to deposit security in accordance with Order XLV, rule 7, and in the absence of any deposit the certificate is liable to be cancelled.. The next question is as to whether time can and should be extended. Order XLV, rule 7, does not empower the Court to extend time for more than 60 days so that the total period which a petitioner can get, if the period is calculated from the date of the order granting the certificate, is 102 days. That period had expired before the 21st of November 1955, and if Order XLV, rule 7 was the only provision appli cable no question of extension would arise. However, a Full Bench of this Court held in Diwan Ghulam Rasul v. Diwan Ghulam Qutab‑ud‑Din (A I R 1942 Lah. 147 (F B)). That although Order XLV. rule 7. does not admit of an extension of time for more than 60 days, rule 9 of the Privy Council Rules which are contained in Chapter 8‑B, Volume V of the High Court Rules and Orders, did grant such power and that rule would on account of section 112 of the Code of Civil Procedure override the provisions of the Code of Civil Procedure. The power of extension, therefore, was in existence with respect to the appeals to the judicial Committee of the Privy Council. The only question that can arise is whether rule 9 will also govern appeals to the Federal Court. On account of section 6 of the Enlargement of Jurisdiction Act rule 9 will also apply to Federal Court appeals. It is true that the Federal Court has now framed its own rules with respect to civil appeals and rule 9 was a rule framed to regulate the procedure of a Court which no longer exists. However, there is nothing in the rules framed by the Federal Court which is inconsistent with rule 9, and we do not know of any principle on which we can reject, in these circumstances, the applicability of section 6 of the Enlargement of Jurisdiction Act to a rule framed by a Court. The provision is one in favour of the subject and in the absence of clear principle or authority we do not see why the litigants should be deprived of the privilege which that rule affords. While we hold that we have power to extend time, we do not find any proper grounds for extension of time. On the 2nd of August, the petitioner had asked for an extension of only one month on the ground that he was poor, but months later when this case was argued before us he was still asking for extension of time and was not ready with the security.. We would therefore, reject his application for extension of time. The third point urged is that we should order some other kind of security. An application to this effect has already been rejected and we see no reason to review that decision. As a result, the certificate granted to the petitioner is cancelled for failure to deposit security. A. H. Certificate cancelled.