DEVKI NANDAN Vs. UNION OF INDIA

JUDGEMENT

(1.) At this stage of the present suit which has been instituted under Order 37 of the Code of Civil Procedure, a number of interesting problems regarding the application of the amended Code vis-a-vis the existing original Side Rules have arisen. I may here say that these problems have not arisen for the first time and before dealing with the same I think it should be stated that the Delhi High Court Original Side Rules, 1967 require to be amended to take due consideration of the fact that the Civil Procedure Code has been amended in respect of summary suits.

(2.) The legal position regarding the Original Side Rules is not only set out in the Delhi High Court Act (26 of 1966) but is also stated in Section 122 & 129 of the Code of Civil Procedure, 1908. Section 129 makes the Original Side Rules take effect even if the rules set out in the Code of Civil Procedure are inconsistent therewith; hence the result is that the amendments made in Order 37 do not have the effect of varying the Original Side Rules of the High Court. This proposition leads to considerable difficulty in the present suit.

(3.) Firstly, in the Original Side Rules, Chapter 15 which deals with summary suits. As it happens the first rule in this chapter states "The provisions of this Chapter shall apply to all suits upon bills of exchange, hundies and promissory notes". The subsequent portions of the Chapter show that a notice has to issue to the defendant to obtain leave from the Court to appear and defend the suit within twenty days from the date of service of the notice. As this Chapter over-rides the Code of Civil Procedure, it would follow that if there is a suit brought on a bill of exchange, hundi or promissory note it shall not be decided according to Order 37 of the Code but according to Chapter 15 of the Original Side Rules and the procedure set out in the amended Order 37 will not apply to such suits. The problem which is now to be faced, is that the present Order 37 of the Code deals not only with summary suits brought on bill of exchange, promissory notes etc., but .also provides for suits based on written contracts, enactments or guarantees. This class of suits cannot be governed by the existing Chapter 15 of the Original Side Rules, so I have first to decide whether such suits can be brought in the Original Side of the Delhi High Court or whether such suits are barred because there are no provisions for them in the Original Side Rules as existing.