KESHAVLAL PARBHUDAS CHOKSHI Vs. MANUBHAI I VYAS

JUDGEMENT

(1.) The question which arises in this Revision Application is whether Rules 142 to 148A of the Ahmedabad City Civil Court Rules are ultra vires the rule-making power of the High Court. The plaintiff filed a suit being Summary Suit No. 1548 of 1966 against the defendants in the City Civil Court Ahmedabad to recover a sum of Rs. 7 734.07 ps. alleged to be due by the defendants to the plaintiff as remuneration for services rendered by the plaintiff to the defendants in connection with their income-tax work. The suit was filed as a Summary Suit and on an appearance being filed by the defendants a summons for judgment was taken out by the plaintiff. On the summons for judgment the learned Judge of the City Civil Court made a conditional order granting leave to the defendants to defend the suit on condition that the defendants deposited a sum of Rs. 1 900 two weeks. The defendants were aggrieved by this order and they therefore preferred the present Revision Application. The Revision Application was admitted and a rule was issued by Divan J. and the rule was made returnable on 21st November 1966. The rule ultimately came up for hearing before Sarela J. on 21st January 1967 but before that date a decision was given by Raju J. in Civil Revision Application No. 196 of 1963 declaring in effect and substance Rules 142 to 148A of the Ahmedabad City Civil Court Rules ultra vires the rulemaking power of the High Court and holding that the City Civil Court had no power to refuse leave to defend or to impose any condition for leave to defend. (Vithaldas v. Bombay Garage (Ahmedabad) Ltd. noted at IV G. L. R. 142). If this decision were correct the defendants would be entitled to unconditional leave to defend the suit and the rule would be liable to be made absolute; but Sarela J. finding difficulty in agreeing with the view taken in that decision referred the question of vires of Rules 142 to 148A to a Division Bench. That is how the present Revision Application has come up for hearing before us. Besides this Revision Application there are also other Revision Applications in which the same question is involved and those Revision Applications are also therefore placed on Board along with the present Revision Application and we have heard the learned Advocates appearing on behalf of the parties in those Revision Applications.

(2.) In order to appreciate the contentions urged in regard to the question before us it is necessary to refer to a few provisions of the Code of Civil Procedure and the Ahmedabad City Civil Court Rules. The Code of Civil Procedure was enacted with a view to consolidating and amending the laws relating to the procedure of the Courts of Civil Judicature. The Code is divided into two parts on the lines of the Judicature Acts in England and the Rules made under those Acts. The first part consists of sections which constitute the main body of the Code and the second part consists of rules set out in the First Schedule which refer merely to matters of machinery for working out the main provisions enacted in the sections. Taking up the sections we may straight go to Part X of the Code which is headed Rules and which consists of secs. 121 to 131. Sec. 121 which is the first in this group of sections enacts:-

(3.) Turning to the Rules in the First Schedule we find that the Rules are classified in various Orders. There are as many as 51 Orders but the only Order with which we are concerned is Order 37 which prescribes summary procedure. Rule 1 of that Order provides:-