YELUMALAIBY NEXT FRIEND M MARIAPPA NAICKER Vs. KUPPAMMAL

JUDGEMENT

(1.) A question of some importance has been raised in this case by Mr. Devanathan. He contends that Order 33, Rules 10 and 11, Civil Procedure Code, do not apply to suits by paupers filed on the Original Side of the High Court. As this question must arise frequently, I have directed notice to the Government Solicitor and the learned Advocate-General has appeared and argued the point. To deal with this contention, it is necessary to examine several provisions of law. The broad question is, to what extent do the provisions of the Civil Procedure Code apply to the High Court in the exercise of its ordinary original civil jurisdiction? Section 117 which occurs in Part IX provides that, save as provided in that Part or in Part X or in rules, the provisions of the Code shall apply to High Courts. Section 121 runs thus: The rules in the First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this Part. Section 129 deals with the power of Chartered High Courts to make rules as to their original civil procedure. It says that, notwithstanding anything in the Code, any such High Court may make such rules not inconsistent with the Letters Patent establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit. Then we come to Order 49 which specifies certain provisions of the Code inapplicable to the Original Side of the High Court.

(2.) The result of these various provisions is, that the Civil Procedure Code is generally applicable to the High Court in the exercise of its ordinary original civil jurisdiction, except where it is specifically excluded or unless the High Court itself has made rules superseding any particular provisions of the Code.

(3.) Now turning to the rules of the Original Side, we find there is a specific rule to the same effect. Order 1, Rule 3, provides inter alia that the provisions of the Code so far as they are inconsistent with the rules enacted shall stand repealed and superseded. The question then is, are Rules 10 and 11 of Order 33, Civil Procedure Code, applicable or not to the Original Side? Their application has not been excluded by the Code itself; on the contrary, there is sufficient indication that they are intended to be applied. Order 49, while specifying the rules not applicable to the Original Side, mentions among them, Rule 7 of Order 33, thus implying that the other rules of the same Order do apply.