Holding

Procedural requirements under the amended CPC are directory; a plaint filed without an affidavit is not non‑est, and once the defect is cured the suit is deemed instituted from the original filing date, rendering the interim injunction valid.

Summary

The appellants filed a civil suit in the Original Side of the Calcutta High Court without attaching an affidavit, as required by the 2002 amendments to Section 26, Order IV and Order VI Rule 15 of the Code of Civil Procedure. The Division Bench of the Calcutta High Court held the suit non‑est and set aside the interim injunction granted by a Single Judge, deeming the suit properly instituted only from the date the affidavit was filed. On appeal, the Supreme Court examined whether the amended procedural requirements are mandatory or directory, the relationship between the High Court’s Original Side Rules and the Code, and the effect of curing the defect on the date of institution. It held that the omissions are merely procedural irregularities, curable, and that the suit is deemed instituted on the original filing date (26 July 2002). Consequently, the Division Bench’s order was set aside, the interim injunction revived, and the suit allowed to proceed. The Court emphasized that procedural rules are to further justice and should not be applied pedantically.

Issues considered

Whether non‑compliance with the amended provisions of Section 26, Order IV and Order VI Rule 15 of the CPC (i.e., failure to file an affidavit) renders a plaint filed in the Original Side of the Calcutta High Court non‑est.
Whether such procedural omissions are directory and can be cured, and if cured, whether the date of institution reverts to the original filing date or the date of cure.
Whether the Calcutta High Court Original Side Rules have overriding effect over the CPC in matters of suit institution.
Interpretation of the term "duly" in Order IV Rule 3 of the CPC in the context of the Original Side Rules.
Whether the interim injunction order passed before the suit was deemed duly instituted remains valid.

Legislation cited

Code of Civil Procedure, 1908s. 116, s. 120, s. 26, s. 4
General Clauses Act, 1897

Subjects

Civil ProcedureInstitution of SuitAffidavit RequirementNon‑est SuitOriginal Side RulesProcedural IrregularityInterim InjunctionStatutory Interpretation

Judgment

I

--,- VIDYAWATI GUPTA AND ORS. A
.. v.
BHAKTI HARi NAY AK AND ORS.

FEBRUARY 3, 2006

[B.P. SINGH AND AL TAMAS KABIR, JJ.] B

-~f
Code of Civil Procedure, 1908 (as amended by Amending Act 46 of
1999)-Sections 26 and 129-0rder JV; Rule I-Order VI; Rule 15(4); Order
VII-Calcutta High Court Original Side Rules-Chapter Vil; Rule I-Suit
instituted without filing an affidavit as required under the amended provisions
c
of the Code-Omission remedied by filing affidavit subsequently-High Court
holding that the suit is deemed to have been properly instituted only ·with
effect from the date offiling of the affidavit and not from the date of initial
institution of the suit-Correctness of -Held, amendments in the Code were
brought in to eliminate procedural delays-The requirements of the Code are D
directory in nature and hence any omission to comply will not render the suit
non-est under the Code and under the Original Side Rules of the High Court-
Rectification ofthe omission will have effect from the date of original institution
of the suit and not from the date of rectification of omission.

Appellants, claiming to be owners of suit premises, filed a civil suit before E
High Court against respondents in respec~ of their right, title and interest in
it The appellants also filed an interlocutory application for interim injunction
to direct the respondents to restore the condition of a part of the appellant's
suit premises as was existing on the date of institution of the suit A Single
Judge of the High Court allowed the application. The High Court also
F
restrained the respondents from interfering in any manner with the
appellant's interest in the suit premises, including the properties which were
directed to be restored, till the disposal of the suit.

The respondents preferred an appeal before Division Bench of the High
Court and raised a preliminary objection contending that the suit was not G
duly instituted by the appellants within the meaning of the provisions of the
•
t-._ Code of Civil Procedure, 1908 as amended by the Ar.tending Act 46of1999;
and hence the entire proceedings from the filing of the plaint and the
entertaining of the interlocutory applications by the Single Judge of the High

9 H
10 SUPREME COURT REPORTS [2006] 2 S.C.R.

A Court was without jurisdiction. The High Court allowed the appeal of the
respondents holding that the plaint was filed by the appellants without
compliance of the amended provisions of the Code and hence it is non-est in
the eye of law; and that since it was rectified by the appellants, in the mean
time, by filing an affidavit subsequently, the suit is deemed to have been
B properly instituted by the appellants only with effect from the date of curing
of the defect and not from the date of initial presentation of the plaint.

In appeal of this Court, the appellants contended that the provisions
contained in section 26 and Orders IV, VI and VII of the Code dealing with
institution of suits are directory and not mandatory and hence an omission
C to comply with such provisions would not ender a suit invalid; that the defect
therein is a mere irregularity which can be cured by amendment; that the
Court can grant an opportunity to the plaintiff to cure the defect and that
when the defect is cured, the plaint must be taken to have been presented on
the date when it was first presented and not on the date when the defect was
cured; that the High Court Original Side Rules have an overriding effect over
D the provisions of the Code; and that the Original Side Rules do not require
the plaintiff to file an affidavit for verification of the contents in the plaint
and hence in the absence of such requirement, it could not be insisted to file
an affidavit under the amended provisions of the Code.

The respondents contended that the amended provisions of the Code
E relating to presentation of plaints would have to be interpreted in their literal
sense, as otherwise the very purpose would be rendered nugatory; that Order
VI of the Code referred to in the Original Side Rules must mean a reference
of Order VI as it stood at the time when the Original Side Rules were framed
and also as it stands after amendment in 2002; that non-compliance of the
F provisions of sub-rule (4) of Rule 15 of Order VI would render the suit non-
es!; that the plaint must be deemed to have been duly instituted only after
filing of an affidavit and not before; and that the object of introduction of
the provision of filing of an affidavit in support of the pleadings and the plaint
is to quicken the process of disposal of suit by fixing responsibility on the party
initiating the suit and such object would be frustrated if a liberal approach
G was adopted in implementing the amended provisions of the Code.

Allowing the appeals, the Court

HELD: 1.1. The requirem ~nts of Order VI and Order VII of the Code
of Civil Procedure, 1908, being procedural in nature, any omission in respect
H
-1
VIDYAWATI GUPTA"- BHAKTI HARi NA YAK 11
thereof will not render the plaint invalid and that such defect or omission will A
""I not only be curable but will also date back to the presentation of the plaint.
The reference to the provisions of the Code in Rule 1 of Chapter VII of the
Original Side Rules of the High Court cannot be interpreted to limit the scope
of such reference to only the provisions of the Code as were existing on the
date of such incorporation. It was clearly the intention of the High Court when
it framed the Original Side Rules that the plaint should be in conformity with
B
the provisions of Order VI and Order VII of the Code. By necessary
implication, reference will also have to be made to Section 26 and Order IV
----f- of the Code which, along with Order VI and Order VII, concerns the
institution of suits. The provisions of Sub-rule (3) of Rule 1 of Order IV of
the Code will also have to be read and understood in that context. The c
expression "duly" used in Sub-rule (3) of Rule 1 of Order IV of the Code
implies that the plaint must be filed in accordance with law. The rules of
procedure are made to further the cause of justice and not to prove a
hindrance thereto. [27-D, E, F; G]

1.2. The intention of the legislature in bringing about the various D
amendments in the Code with effect from 1st July, 2002 were aimed at
eliminating the procedural delays in the disposal of civil matters. The
-l_
amendments effected to Section 26, Order IV and Order VI Rule 15 of the
Code are also geared to achieve such object, but being procedural in nature,
they are directory in nature and non-compliance thereof would not
E
automatically render the plaint non-est. Such a stand would be too pedantic
and would be contrary to the accepted principles involving interpretation of
statutes. [28-B-C]

1.3. Even though the amended provisions of Order VI of the Code are
attracted in the matter of filing of plaints in the Original Side of the High F
Court on account of the reference made to Order VI and Rule 1 of Chapter
VII of the Original Side Rules, non-compliance thereof at the initial stage did
not render the suit non-est. On account of such finding of the Division Bench
of the High Court, not only have the proceedings before the Single Judge been
wiped out, but such a decision has the effect of rendering the proceedings taken
in the appeal also non-est. [28-E-F] G
Salem Advocate Bar Association, Tamil Nadu v. Union of India, [2003] 1
SCC 49; State.of MP. v. MB. Narasimhan, AIR (1975) SC 1835; Life Insurance
:>,
Corporation ofIndia v. D.J. Bahadur, [1981] 1 SCC 315; Mr. Shaikh Salim Haji
Abdul Khavumsab v. Kumar and Ors., (2005) 10 JT SC 1; Kai/ash v. Nankhu
H
""' r
12 SUPREME COURT REPORTS [2006] 2 S.C.R.

A and Ors., 12005( 4 SCC 480; P.S. Sathappan (Dead) by lrs. v. Andhra Bank ltd
and Ors., 12004111 SCC 672; Iridium India Telecom ltd v. Motorola Inc., 120051
2 SCC 145; State of Kera/av. M.S. Mani and Ors., 120011 8 SCC 82 and Delhi
Development Authority v. Kochar Construction Work and Anr., 119981 8 SCC
559, referred to.

B East End Dwellings Co. lid v. Finsbury Borough Council, 119511 2 All
E.R. 587, referred to.

Hirabai Gendalal v. Bhagirath Ramachandra & Co.. AIR (1946) Bombay
174; Wali Mohammad Khan v. Ishak Ali Khan and Ors.. AIR (1931) Allahabad
C 507; Ramgopal Ghose v. Dhirendra Nath Sen and Ors., AIR (1927) Calcutta
376; Subbiah Pillai alias S.S.M Subrumania Pillai v. Sankarapandiam Pillai and
Ors., AIR (1948) Madras 369 and All India Reporter ltd .Bombay v. Ram
Chandra Dhondo Datar, AIR (1961) Bombay 292, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3005 of2005.
D From the Judgment and Order dated 9.6.2004 of the Calcutta High
Court in G.A. No. 1423/2004 in A.P.O.T. No. 214/2004.

Anindya Mitra, Jaideep Gupta, Abhrojit Mitra, Prateek Jalan, Aani Kr.
Roy, Mohd. Iqbal and Rauf Rahim for the Appellants
E Ranjit Kumar, Pradip Kr. Ghosh, Tapas Ray, K.V. Vishwanathan,
Bijan Kumar Ghosh, Satish Vig, Goodwill Indeevar and Dr. Kailash Chand
for the Respondents

The Judgment of the Court was delivered by

F ALT AMAS KABIR, J. The submissions advanced in this appeal by
way of special leave necessitates a brief glance into the historical origin of
the Calcutta High Court.

In August 186 I, the British Parliament passed the Indian High Courts
G Act which empowered the Crown to establish, by Letters Patent, High Courts
of Judicature at Calcutta, Madras and Bombay. Consequent to such authority,
the Letters Patent dated 14th May, 1862 was issued establishing the High
Court.
~. l
of Judicature at Calcutta. By subsequent Letters Patent dated 26th
Ju'ne, 1862, the High Court at Bombay and Madras were also established. "'

H The Letters Patent empowered the High Court of Calcutta to exercise
>
VIDYAWATI GUPTA v. BHAKTI HARi NA YAK [AL TAMAS KABIR, J.] 13

'y
Ordinary Original Civil Jurisdiction within the local limits of the Presidency A
town of Calcutta as might be prescribed by a competent Legislative Authority
for India. Within such local limits, the High Court was authorized to try and
determine suits of every description, except those falling within the jurisdiction
of the Small Causes Court at Calcutta. Apart from its Original Jurisdiction,
the Letters Patent vested the High Court with wide powers including appellate
powers from the Courts of Original Jurisdiction and in procedural matters,
B
the High Court was given the power to make rules and orders in order to
regulate all proceedings, civil and criminal, which were brought before it
»
In this connection, it may not be out of place to refer to the provisions
of Clause 37 of the Letters Patent which provides as under:-
c
"37, Regulation of Proceedings, and we do further ordain, that it shall
be lawful for the said High Court of Judicature at Fort William in
Bengal from time to time to make rules and orders for the purpose
of regulating all proceedings in civil cases which may be brought
before the said High Court, including proceedings in its Admiralty, D
Vice-Admiralty, Testamentary, Intestate, and Matrimonial jurisdictions
respectively: Provided always that the said High Court shall be guided
in making such rules and orders, as far as possible, by the provisions
of the Code of Civil Procedure, being an Act passed by the Governor-
General in Council, and being Act No. VII of 1859, and the provisions
of any law which has been made, amending or altering the same, by E
competent legislative authority for India."

As will be seen from the above, the aforesaid clause vested in the High
Court the power to make rules and orders for the purpose of regulating all
proceedings in civil cases, which may be brought before it It was, however,
also provided that in making such rules and orders, the High Court should be F
-J
guided, as far as possible, by the provisions of the Code of Civil Procedure,
(hereinafter referred to as 'the Code') which had been enacted for courts in
India not established by Royal Charter.

By virtue of the issuance of the Letters Patent, the High Courts of
G
Calcutta, Bombay and Madras came to be known as the Chartered High
Courts empowered to regulate their own procedure, inter alia in respect of
its Ordinary Original Civil Jurisdiction.
:;..,
The Original Side Rules of the Calcutta High Court (for short 'the
Original Side Rules'), which are still in force, came to be framed by the High H
14 SUPREME COURT REPORTS (2006] 2 S.C.R.

A Court under Clause 37 of the Letters Patent which has to be read along with
Section 129 of the Code which also confers on the High Courts powers to
make rules as to their own original civ:il procedure and reads as follows:-

"129. Power of High Courts to make rules as to their original civil
procedure·-Notwithstanding anything in this Code, any High Court
B not being the Court of a Judicial Commissioner may make such rules
not inconsistent with the Letters Patent or order other law establishing
it to regulate its own procedure in the exercise of its original civil
jurisdiction as it shall think fit, and nothing herein contained shall
affect the validity of any such rules in force at the commencement of
this Code."
c
Apart from Section 129, Order XLIX of the Code specifically excludes
the application of certain rules and orders of the aforesaid Code to any of the
Chartered High Courts. At the same time, Chapter XL of the Original Side
Rules indicates that the provisions of Section 2 of the Code and of the
D General Clauses Act, 1897 would apply to the Original Side Rules, but where
no other provision is made by the Code or by the said Rules, the procedure
and practice in existence would continue to remain in force.

Chapter Vil of the Original Side Rules framed by the Calcutta High
Court to regulate its own procedure in original civil matters deals with the
E institution of suits. Inasmuch as, a good deal of submission has been made
with regard to the provisions of Rule I of Chapter VII which will have a
significant bearing with regard to a decision in this case, the same is reproduced
hereinbelow:-

"!. The plaint to be written or printed : manner of: contents. The
F plaint shall be legibly written, or printed, in the English language, on
durable foolscap paper or other paper similar to it in size and quality,
bookwise, and on both sides of the paper, with not more than 25 or
less than 18 lines, of about I0 words in each line in each page, and
with an inner margin of about an inch and a quarter wide. It shall be
stitched bookwise in the following order : ( 1) Warrant to sue, where
G
the plaintiff appears by an Advocate acting on the Original side ; (2)
Concise statement, (3) The plaint, (4) List of documents upon which
the plaintiff relies, (5) List of documents produced with the plaint, (6)
Exhibits or copies of exhibits filed. Dates, sums and numbers occurring ..
H
in the plaint shall be expressed in figures as well as in words stated
in rupees, annas and pies, and the corresponding English dates being ..
VIDYAWATI GUPTA v. BHAKTI HARi NAY AK [AL TAMAS KABIR, J] J5

added, where the dates are not according to the English calendar. The A
plaint shall comply with 0. VI of the Code, and shall contain the
particulars required by 0. VII, rr I to 8 of the Code. Every alteration
in the plaint shall be marked and authenticated by the initials of the
persons verifying the plaint, or with leave of the Judge or Officer, by
the Advocate acting on the Original side."
B
A glance at the aforesaid provisions will indicate that although the
f
heading of the aforesaid Chapter is "Institution of Suits", Rule 1 does not
really indicate the manner in which a suit is required to be instituted. The
directions contained in Rule I deal mainly with the form in which a plaint
is required to be prepared with specific instructions regarding the printing of C
the contents and the paper to be used in the preparation of the plaint and
provides for the various other documents which are to be filed along with the
plaint. What it does mention in addition to the above is that the plaint has to
comply with the provisions of Order VI of the Code and has to contain the
particulars required by Order VII, Rules I to 8 of the said Code.
D
.J. Order VI of the Code deals with pleadings generally and as provided
in Rule I of Order VI "Pleadings" has been indicated to mean 'plaint' or
'written statement'. Rule 15 of Order VI provides for verification of pleadings
and reads as follows:-

"15. Verification of pleadings--( I) Save as otherwise provided by E
any law for the time being in force, every pleading shall be verified
at the foot by the party or by one of the parties pl~ading or by some
other person proved to the satisfaction of the court to be acquainted
with the facts of the case.

(2) The person verifying shall specify, by reference to the numbered F
paragraphs of the pleading, what he verifies of his own knowledge
and what he verifies upon information received and believed to be
true.

(3) The veritication shall be signed by the person making it and shall
state the date on which and the place at which it was signed. G
;;;i (4) The person verifying the pleading shall also furnish an affidavit
in support of his pleadings."

It is of relevance to these proceedings to point out that Sub-rule (4) of
Rule 15 reproduced hereinabove was introduced by way of Amending Act 46 H
\
I

16 SUPREME COURT REPORTS (2006) 2 S.C.R.

A of 1999 with effect from Ist July 2002. Prior to such amendment, there was
no general provision regarding verification of pleadings in a plaint also by
way of an affidavit, though such a practice had been introduced and followed
in some of the High Courts in India.

Order VII referred to in Rule I of Chapter VII of the Original Side
B Rules deals with plaints and indicates the contents to be included in a plaint.
Rules I to 8 of Order VII of the Code deals specifically with the contents of
the plaint .which has to be complied with for the purpose of institution of a
suit under Chapter VII of the Original Side Rules.

Although, we shall have occasion to advert to the provisions of Section
C 26 of the Code at a later stage of this judgment, together with Order JV Rule
I of the said Code, since the said provisions are inter-connected with Orders
VI and VII of the Code, it would be in the fitness of things to reproduce the
same at this stage. Section 26 of the Code which deals with institution of
suits provides as follows:-
D
"Section 26. Institution of suits.---{ I) Every suit shall be instituted by
the presentation of a plaint or in such ocher manner as may be
prescribed.

(2) In every plaint, facts shall be proved by affidavit."
E Sub-section (2) of Section 26 was also inserted by way of amendment
with effect from 1st July, 2002.

Order IV Rule I which also deals with the institution of suits provides
as follows:-

F "I. Suit to be commenced by plaint.--{ I) Every suit shall be instituted
by presenting a plaint in duplicate tu the Court or such officer as it
appoints in this behalf.

(2) Every plaint shall comply with the rules contained in Orders VI
and VII, so far as they are applicable.
G
(3) The plaint shall not be deemed to be duly instituted unless it
complies with the requirements specified in sub-rules (I) and (2)."

As in the case of Sub-section (2) of Section 26, Sub-rule (3) of Rule
I of Order IV was also introduced by Amending Act 46 of 1999 with effect
H from 1st July, 2002. We shall have occasion to refer to Sub-rule (3) of Rule
I
'
18 SUPREME COURT REPORTS (2006) 2 S.C.R.

A objection was raised on behalf of the appellants, who are the respondents
herein, regarding the valid institution of the suit itself in view of the amended
provisions of the Code. The Division Bench decided to adjudicate on the said
objection first since it felt that the said question went to the very root of the
matter concerning the jurisdiction of the learned Single Judge to entertain the
B suit and the interlocutory applications filed therein.

Before the Division Bench, it was submitted on behalf of the appellants
that prior to Ist July, 2002, Section 26 of the Code merely indicated that
every suit shall be instituted by the presentation of a plaint or in such other
manner as may be prescribed. The manner in which such plaint was to be
prepared and presented has been provided for in detail in Orders VI and VII
of the Code. It was submitted on behalf of the appellants that with effect
from !st July, 2002, certain amendments were effecu:d to the aforesaid
provisions of the Code by Act 46 of 1999 which made it mandatory that in
every plaint, facts would have to be proved by an affidavit. It was submitted
that sub-section (2) was added to Section 26 by way of amendment
D incorporating the said provision. Con-espondingly, amendments were also
introduced in Order VI Rule 15 relating to venfication of pleadings and Sub-
rule (4) was inserted mandating that the person verifying the pleading was
also required to furnish an affidavit in support of its pleadings. In addition
to the above, Order IV of the Code, which deals with the institution of suits,
E was also amended and Sub-rule (3) was added to Rule I and it was specifically
stipulated that the plaint to be filed in compliance with the provisions of
Orders VI and VII would not be deemed to have been duly instituted unless
it complied with the requirements specified in Sub-rules (I) and (2). It was
the further case of the appellants that having regard to the provisions of
Chapter VII Rule I of the Original Side Rules, the reference made in Sub-
F rule (3) of Rule I of Order IV of the Code would also include the amendments
brought about in the said Orders with effect from Ist July, 2002. Consequently,
it was urged that since the amended requirements of Sub-rule (4) of Rule 15
of Order VI had come into operation with effect from !st July, 2002 and
since the suit had been instituted thereafter on 26th July, 2002, the same
G could not be said to have been duly instituted within the meaning of Sub-rule
(3) of Rule I of Order IV of the Code. It was urged that the entire proceedings
from the filing of the plaint and the entertaining of the interlocutory
applications by the learned Single Judge was without jurisdiction and was .
liable to be declared as such.

H ·· On behalf of the respondents, who are the appellants before us, it was
f

VIDYAWATI GUPTA v. BHAKTI HARi NAY AK [AL TAMAS KABIR, J.J 19
submitted that the provisions of the Code being subject to the rules framed A
by the Chartered High Courts, of which the Calcutta High Court was one, the
Rules as framed by the High Court would have an overriding effect over the
provisions of the Code. It was contended that the Original Side Rules relating
to the institution of suits had been framed under the Letters Patent and would
prevail over the provisions of the Code. It was further submitted that Rule 1 B
of Chapter VII of the Original Side Rules, while setting out the specifications
relating to the filing of the plaint, has merely indicated that the plaint should
comply with the provisions of Order VI of the Code and shall contain the
particulars required by Rules 1 to 8 of Order VII of the Code. It was contended
that there was no stipulation in the said Rule which required the plaintiff to
file an affidavit for the purpose of verification of the contents of the plaint C
and in the absence of such requirement, it could not be insisted that having
regard to the amendments of the Code, verification in a plaint presented in
the Original Side of the Calcutta' High Court was also required to be supported
by an affidavit.

In addition to the above, it was also urged on behalf of the respondents D
that mere procedural omissions which were curable could not affect the validity
of a plaint as filed. Various decisions of the different High Courts relating to
failure in complying with the provisions of Order VI of the Code were cited
on behalf of the respondents and it was pointed out that in all the said cases
it was consistently held that the court has a discretion to remove the illegality E
to be cured if the plaintiff has acted in good faith and without any gross
negligence and after the defect is cured the suit will be deemed to have been
filed when it was first instituted. In particular the decision of the Bombay
High Court in Hirabai Genda/al v. Bhagirath Ramchandra & Co., reported
in AIR 1946 Bombay 174, that of the Special Bench of the Allahabad High
~.J
Court in the case of Wa/i Mohammad Khan v. Jshak Ali Khan & Ors., reported F
' in AIR (1931) Allahabad 507 and the decision of the Calcutta High Court in
the case of Ramgopa/ Ghose v. Dhirendra Nath Sen & Ors., reported in AIR
1927 Calcutta 376 were relied upon. In addition, the respondents also relied
on a recent decision of this Court in the case of Salem Advocate Bar
Association, Tamil Nadu v. Union of India, reported in [2003] 1 SCC 49, G
wherein while considering the effect of the amendments introduced in the
Code by the Amending Acts 46 of 1999 and 22 of 2002, it was observed in
paragraph 16 that the attention of the Court had been drawn to Order VII
Rule 11 to which clauses (e) and (f) had been added which enabled the Court
to reject the plaint where it is not filed in duplicate or where the plaintiff
failed to comply with the provisions of Rule 9 of Order VII. This Court was H
20 SUPREME COURT REPORTS [2006] 2 S.C.R.

A of the view that the said clauses being procedural would not require the
automatic rejection of the plaint at the first instance. If there was any defect
as contemplated by Rule l l(e) or non-compliance as referred to in Rule
J l(t), the Court should ordinarily give an opportunity for rectifying the defects
and in the event of the same not being done, the Court will have the liberty
or the right to reject the plaint.
B
On the basis of the aforesaid submissions, it was contended on behalf
of the respondents that the non-filing of an affidavit in support of the pleadings
.•
in the plaint at the time of presentation thereof was a mere procedural error
which was capable of being cured and had actually been cured pursuant to
C leave granted by the Appeal Court and that an affidavit in support of the
plaint was affirmed and filed before the Division Bench on 28th April, 2004.
It was submitted that having regard to the various decisions referred to above,
the plaint must be deemed to have been presented in the Computer Department
of the Calcutta High Court on 26th July, 2002 and the preliminary objection
taken regarding the validity of the plaint was required to be rejected.
D
After considering the various provisions of the Code along with the
relevant amendments introduced in the Code with effect from !st July, 2002
and the relevant provisions of the Letters Patent and after considering various
decisions cited at the Bar, in particular the decision of this Court in the case
of State of MP. v. M.B. Narasimhan, reported in AIR. (1975) SC 1835, the
E Appeal Court came to the conclusion that the instant case stood on a different
footing from the various decisions cited in view of the express provisions of
Order IV Rule 3 of the Code, as amended. Relying on the interpretation of
the expression "duly" used in Order IV Rule 3 in a decision of this Court in
the case of Life Insurance Corporation of India v. D.J. Bahadur, [1981] I
F SCC 315 and the decision of the House of Lords in the case of East End
Dwellings Co. Ltd. v. Finsbury Borough Council, reported in [1951] 2 All
E.R. 587, the Division Bench was of the view that unless the plaint complied
with the requirements of the amended provisions, there would be no due
institution of the plaint. The Division Bench held that if a plaint is filed
without compliance with the requirement of the amended provisions, in the
G eye of law no plaint can be said to have been filed and the same is non-est.
However, having regard to the various decisions cited, including the decision
of this Court in Salem Advocate Bar Association (supra) it was also held by ..
the Division Bench that from the moment the error is rectified, the plaint will
be deemed to have been properly instituted but the rectification could not
H relate back to a period when in view of the deeming clause there was no due
VIDYAWA Tl GUPTA v. BHAKTI HARi NAY AK [AL TAMAS KABIR, J.] 2\

institution of the plaint. On the aforesaid reasoning, the Division Bench held A
that the suit could not be dismissed nor could the plaint be rejected because
of non-compliance with the amended provisions since the omission had been
remedied by the filing of an affidavit by the respondent-plaintiff. It was held
that after the defect was removed the suit must be deemed to have been duly
instituted with effect from 28th July, 2004 and not before that date and B
consequently the interlocutory order that had been passed by the learned
single Judge at a point of time when the suit had not been duly instituted
-/
! could not survive.

The Division Bench accordingly set aside the order passed by the learned
Single Judge on 2nd April, 2004 but made it clear that the same had been set C
aside not on merits but for the reasons discussed in the judgment and the
plaintiff, if so advised, would not be prevented from approaching the learned
Single Judge with another prayer for injunction and if such a prayer was
made the said application may be dealt with in accordance with law.

It is against the aforesaid order of the Appeal Court that the instant civil D
appeal is directed.

Appearing in support of the appeal, Mr. Anindya Mitra, learned senior
advocate, repeated and reiterated the submissions made before the Division
Bench of the Calcutta High Court. In particular, Mr. Mitra, upon a reference
to Section 26, Orders IV, VI and VII of the Code, contended that the provisions E
contained therein had been held to be directory and not mandatory in nature.
In .other words, Mr. Mitra submitted that omission to comply with any of the
provisions contained therein would not render a suit invalid but that an
opportunity was required to be given by the Court to the plaintiff to cure the
defect by supplying the omission. In this regard, a reference was made to the F
decision of this Court in Mr. Shaikh Salim Haji Abdul Khayumsab v. Mr.
Kumar & Ors., JT (2005) 10 SC I, wherein the provisions of Order VIII Rule
l, after amendment, were held to be directory on the reasoning that rules of
procedure are handmaids of justice and while the language employed by the
draftsman of processual law may be liberal or stringent, the fact remains that
the object of prescribing procedure is to advance the cause of justice. Reference G
was' also made to the decision of this Court in Kai/ash v. Nankhu & Ors.,
[2005] 4 sec 480, wherein also while considering the amended provisions
·\
of Order VIII Rule I of the Code this court held that unless compelled by
express and specific language of the statute the provisions of the Code or any
other procedural enactment ought not to be construed in a manner which H
22 SUPREME COURT REPORTS [2006] 2 S.C.R.

A would leave the Court helpless to meet extraordinary situations in the ends
of justice. This Court went on to hold that merely because the provision of
law is couched in negative language, implying a mandatory character, the
same is not without exceptions and that the directions contained regarding
the period for filing written statement in Order VIII Rule I of the Code was
B directory and not mandatory being procedural law.

As an extension of the aforesaid submission, Mr. Mitra urged that it
had been consistently held by the different High Courts from as far back as •
in the case of Ramgopal Ghose v. Dhirendra Nath Sen & Ors., AIR (1927)
Calcutta 376, that when a pleading does not conform with the provisions of
C Order VI Rule 15, the defect therein is a mere irregularity that can be cured
by amendment and consequently when the verification in the plaint is amended
being originally defective, the plaint must be taken to have been presented
not on the date of the amendment but on the date when it was first presented.

Reliance was also placed on the decision of the Madras High Court in
D Subbiah Pillai alias S.S.M Subramania Pillai v. Sankarapandiam Pillai &
Ors., AIR ( 1948) Madras 369 and on a decision of the Bombay High Court
in the case of All India Reporter Ltd, Bombay v. Ram Chandra Dhondo
Datar, AIR (1961) Bombay 292, where similar views were expressed.

Mr. Mitra contended that an analogy similar to the decision in the
E aforesaid cases could and should also be drawn in the facts of the instant case
where the omission complained of was also procedural in nature and did not
affect either the territorial or the pecuniary jurisdiction of the Court to entertain
the suit. Mr. Mitra urged that having held that the defect and omission were
curable, the Division Bench of the Calcutta High Court had thereafter erred
F in holding that having regard to the provisions of Sub-rule (3) of Rule 1 of
Order IV of the Code, the suit will be deemed to have been instituted from
the date on which the defects stood cured and not from the date of initial
presentation of the plaint. Mr. Mitra urged that the said error had caused the
Division Bench to set aside the order impugned in the appeal on the said
technical ground without going into the merits of the matter.
G
Mr. Mitra submitted that after the decision rendered by the Division
Bench on 9th June, 2004 this Court had occasion to consider the provisions
of the Letters Patent of the Madras High Court and the Bombay High Court
in the case of P.S. Sathappan (Dead) By Lrs. v. Andhra Bank Ltd. & Ors.,
[2004] l I SCC 672 and in the case of Iridium India Telecom Ltd. v. Motorola
H Inc., [2005] 2 SCC 145. In the first of the said two cases, to which one of
VIDYAWATI GUPTA v. BHAKTI HARi NAY AK [AL TAMAS KABIR, J.] 23

us (B.P. Singh, J.) was a party, while considering the effect of the amended A
provisions of Section IOOA and Section 104 of the Code in relation to appeals
provided for under Clause 15 of the Letters Patent of the Bombay High
Court, the majority view of the Constitution Bench was that a Letters Patent
is a special law of the High Court concerned while the Code is a general law
applicable to all courts. It was observed that it was well settled law that in B
the event of a conflict between a special law and a general law, the special
law must always prevail and though there was no apparent conflict between
the Letters Patent and Section I 04, if there was any conflict between the
Letters Patent and the C.P.C., then the provisions of the Letters Patent would
always prevail, unless there was a specific exclusion, which position would
also be clear from Section 4 of the Code which provides that nothing in the C
Code would limit or affect any special law.

In the latter case, this Court had occasion to consider in detail the
relevant amendments in the Code referred to above also in the context of the
Bombay High Court Original Side Rules and the Bombay. High Court Letters
Patent and after a detailed analysis of the various provisions, and in particular D
the provisions of Clause 3 7 of the Letters Patent and Section 129 of the
Code, this Court in no uncertain terms, upon a reference to the decision in
P.S. Sathappan 's case (supra), concluded that far from doing away with the
Letters Patent, the Amending Act of 2002 has left unscathed the provisions
of Section 129 of the Code and what follows therefrom and upheld the E
contention of the Division Bench of the Bombay High Court that suits on the
Original Side of the High Court were to be governed by the Original Side
Rules and not by the amended provisions of Order VIII Rule I of the Code.

Mr. Mitra submitted that since the matter had been set at rest by the
two aforesaid decisions, the finding of the Division Bench of the Calcutta F
High Court that the Original Side Rules and the Code were supplementary to
each other, was liable to be set aside and not only was the suit liable to be
held to have been duly instituted on 26th July, 2002, but the interim order
of injunction passed therein was also liable to be restored.

Appearing on behalf of the respondents, who were the defendants in G
the suit, Mr. Ranjit Kumar, learned senior advocate, tried to convince us with
his usual eloquence that the amended prov;sions of the Code relating to
.:-.I pre5entation of plaints would have to be interpreted in their literal sense, as
otherwise the very purpose for which the amendments had been introduced
would be rendered nugatory. He laid special emphasis oh the provisions of H
I
<
'
24 SUPREME COURT REPORTS (20061 2 S.C.R.

A Sub-rule (3) of Rule I of Order IV of the Code which provides that the plaint
shall not be deemed to be duly instituted unless it complies with the
requirements specified in Sub-rules (I) and (2) which in their turn provide
that every plaint shall comply with the Rules contained in Orders VI and VII
of the Code.

B Mr. Ranjit Kumar pointed out that even Rule (I) of Chapter VII of the
Original Side Rules is similar to Sub-rule (2) of Rule I of Order IV and
provides that the plaint shall comply with Order VI of the Code and shall
contain the particulars required by Order VII Rules I to 8 of the Code. Mr.
Ranjit Kumar submitted that the reference made to Order VI of the Code in
C Clause I of Chapter VII must mean a reference to Order VI as it stood at the
time when the Original Side Rules were framed and also as it stands today
since the provisions of Order VI had been incorporated in Rule l of Chapter
VII by reference which could not be taken to be partial but had to be considered
as a whole. According to Mr. Ranjit Kumar, the provisions of Sub-rule (4)
of Rule 15 of Order VI were equally attracted to the facts of the instant case
D and non-compliance thereof had been very rightly held by the Division Bench
to have rendered the suit non-est when it was instituted on 26. 7.2002 without
being accompanied by an affidavit. Mr. Ranjit Kumar, however, accepted the
position as explained by this Court in the Salem Advocate Bar Assocn. case
(supra), paragraph 16 whereof was relied upon by the Division Bench of the
E Calcutta High Court and wherein it was observed that on non-compliance of
the provisions of Order VII and clauses (e) and (f) of Rule 11 and Rule 9
there should not be any automatic rejection of the plaint at the first instance
but that the Court should ordinarily give an opportunity for rectifying the
defect. Mr. Ranjit Kumar submitted that pursuant to the above, the Division
Bench of the Calcutta High Court had granted leave to the appellants herein
F to file an affidavit in support of the pleadings iii the plaint and that such an
affidavit had been filed pursuant to the leave granted on 28th April, 2004 and
the plaint must be deemed to have been duly instituted only thereafter as had
been held by the Division Bench of the Calcutta High Court.

Although, various decisions were cited by Mr. Ranjit Kumar on the
G question of legislation by reference, we are not really required to dwell on
such submission since it is the common case of the parties that the provisions
of Order VI and select portions of Order VII would have application to
plaints filed on the Original Side of the Calcutta High Court and it is also the
settled position that the Rules uf the Original Side as framed under the Letters
H Patent, unless excluded and/or modified, would continue to have primacy
/
i
VIDYAWATI GUPTAv. BHAKTI HARi NAY AK [ALTAMASKABIR, J.] 25
over the Code and matters not provided for. What we are really required to A
'1 consider is the effect of the amended provisions of the Code in relation to
Chapter VII Rule I of the Original Side Rules. We need not, therefore, advert
to the various decisions cited by Mr. Ranjit Kumar on this aspect of the
matter.

In support of his submission.that failure to comply with Order VII Rule B
15 would render the suit non-est, Mr. Ranjit Kumar submitted that the omission
to comply with the requirements of the amended provisions of the Code
'I relating to filing of plaints could not be condoned but require rectification.
Mr. Ranjit Kumar referred to and relied on a decision of this Court in State
of Kera/a v. MS. Mani & Ors., [2001] 8 SCC 82 , which arose out of ari
application under the Contempt of Courts Act, 1971, Section 15 whereof
c
requires a person to obtain the prior consent in writing of the Advocate .
General for making a motion under the said Act and it was held that such a
provision being mandatory, the failure to obtain such prior consent would
render the motion not maintainable. In fact, it was also held in the said case
that obtaining consent subsequently would not cure the initial defect. D
Relying heavily on the said decision, Mr. Ranjit Kumar pointed out that
in the Statement of Objects and Reasons for the amendments to the Code, it
had been indicated that the decision to introduce the provisions for the filing
of an affidavit in support of the pleadings and the plaint had been taken to
fl quicken the process of disposal of suits by fixing responsibility on the party E
initiating the suit and such object would be frustrated if a liberal approach
was adopted in implementing the amended provisions.

Reference was also made to two decisions of this Court in the case of
Life Insurance Corporation of India v. D.J. Bahadur & Ors., [1981] l SCC
315 and Delhi Development Authority v. Kochhar Construction Work & Anr.,
F
·--! [1998] 8 sec 559, where similar views have been expressed in the 1,;ontext
of the Industrial Disputes Act, Life Insurance Corporation Act and Arbitration
Act, 1940. Certain other decisions were als'o referred to in the context of
Section 69 of the Partnership Act, which do not need any elucidation.
1 G
-· Mr. Ranjit Kumar submitted that the reasoning and the judgment of the
Division Bench of the Calcutta High Court did riot call for any interference
and the matter had been rightly remanded to the First court for a denovo
~ decision if a fresh application for injunction was filed on behalf of the plaintiffs/
appellants.
H
26 SUPREME COURT REPORTS [2006] 2 S.C.R.

A Mr. Pradip Kumar Ghosh, learned senior advocate, appearing for one
of the respondents, while adopting the submissions made by Mr. Ranjit Kumar,
drew our attention to Section 4 of the Code which provides that in the
absence of any provision to the contrary nothing in the Code shall be deemed
to limit or otherwise affect any special local law now in force or any special
B jurisdiction or power conferred, or any special form of procedure prescribed,
by or any other law for the time being in force. Mr. Ghosh contended that
when there was specific provision available the provisions of the Code must
be deemed to have primacy over other special or local laws, especially in the
context of Section 26 and Orders IV, VI and VII of the Code dealing with
the institution of suits.
c Referring to the Constitution Bench decision of this Court in the case
of P.S. Sathappan (supra), Mr. Ghosh pointed out that in paragraph 32 of the
judgment, while discussin5 the special nature of the Letters Patent, it was
also ob£erved with reference to Section 4 of the Code that only a specific
provision to the contrary, such as Section 1OOA of the Code, could exclude
D the special law. Mr. Ghosh submitted that since specific provision had been
made in Section 26, Order IV as also Order VII Rule 15 for the filing of an
affidavit along with the verification in support of the plaint, such a provision
being special in nature and not being provided for in Rule 1 of Chapter VII
..
of the Original Side Rules, would prevail and its requirement would acquire
E a mandatory forn1 even in respect of plaints filed under the Original Side
Rules of the Calcutta High Court.

Mr. Ghosh also referred to Section 116 contained in Part IX of the
Code and submitted that the same made the said Part applicable to High
Courts not being the Court of a Judicial Commissioner and that save as
F provided in the said Part or in Part X or under the Rules, the provisions of
the Code would apply to such High Courts. Mr. Ghosh submitted that Section
120 of the Code made specific provision as to which sections of the Code,
namely, Sections 16, 17 & 20, would not apply to the High Court in the
exercise of its ordinary original civil jurisdiction.

G Mr. Ghosh also urged that no interference was called for with the order
passed by the Division Bench of the Calcutta High Court and the appeal was
liable to be dismissed.

Mr. Tapash Ray, learned senior advocate appearing for the Corporation
of Caclutta, submitted that although the Corporation of Calcutta was an
H interested party, it had no role to play in the instant proceedings.
-l
VIDYAWAT! GUPTA v. BHAKTI HARi NAYAK[ALTAMAS KABIR, l] 27
While we have noted and considered the views expressed by this Court A
'f in the case of Iridium India Telecom Ltd. (supra) and P.S. Sathappan 's case
(supra), with which we respectfully agree, regarding the primacy of the Original
Side Rules framed under the Letters Patent over the provisions of the Code
in case of conflict, in the instant case, no such conflict has surfaced which
necessitates a reference thereto. Although, Mr. Mitra did urge that matters
relating to the Ordinary Original Civil Jurisdiction of the Calcutta High Court
B
would be governed by the Original Side Rules, which would prevail over the
provisions of the Code, he also accepted the position that a plaint which is
~ presented in the Original Side will have to comply with the requirements of
Orders VI and VII as incorporated by way of reference in Rule I of Chapter
VII of the Original Side Rules. What is in controversy is whether a person c
presenting such plaint after !st July 2002, would also be required to comply
with the amended provisions of Order VI Rule 15 of the Code.

In this regard we are inclined to agree with the consistent view of the
three Chartered High Courts in the different decisions cited by Mr. Mitra that
the requirements of Order VI and Order VII of the Code, being procedural D
in nature, any omission in respect thereof will not render the plaint invalid
,..\,
and that such defect or omission will not only be curable but will also date
back to the presentation of the plaint. We are also of the view that the
reference to the provisions of the Code in Rule I of Chapter VII of the
Original Side Rules cannot be interpreted to limit the scope of such reference
E
to only the provisions of the Code as were existing on the date of such
incorporation. It was clearly the intention of the High Court when it framed
the Original Side Rules that the plaint should be in conformity of the provisions
of Order VI and Order VII of the Code. By necessary implication reference
will also have to be made to Section 26 and Order IV of the Code which,
along with Order VI and Order VII, concerns the institution of suits. We are F
ad idem with Mr. Pradip Ghosh on this score. The provisions of Sub-rule (3)
_j of Rule I of Order IV of the Code, upon which the Division Bench of the
Calcutta High Court had placed strong reliance, will also have to be read and
understood in that context. The expression "duly" used in Sub-rule (3) of
Rule I of Order IV of the Code implies that the plaint must be filed in
accordance with law. In our view, as has been repeatedly expressed by this
G
Court in various decisions, rules of procedure are made to further the cause
of justice and not to prove a hindrance thereto. Both in the case of Khayumsab
.::.. (supra) and Kailash (supra), although dealing with the amended provisions of
Order VIII Rule I of the Code, this Court gave expression to the salubrious
principle that procedural enactments ought not to be construed in a manner H
I

28 SUPREME COURT REPORTS (2006) 2 S.C.R.

A which would prevent the Court from meeting the ends of justice in different
situations. t

The intention of the legislature in bringing about the various amendments
in the Code with effect from Ist July, 2002 were aimed at eliminating the
procedural delays in the disposal of civil matters. The amendments effected
B to Section 26, Order IV and Order VI Rule 15, are also geared to achieve
such object, but being procedural in nature, they are directory in nature and
non-compliance thereof would not automatically render the plaint non-est, as
has been held by the Division Bench of the Calcutta High Court.

C In our view, such a stand would be too pedantic and would be contrary
to the accepted principles involving interpretation of statutes. Except for the
objection taken that the plaint had not been accompanied by an affidavit in
support of the pleadings, it is nobody's case that the plaint had not been
otherwise verified in keeping with the unamended provisions of the Code and
Rule 1 of Chapter VII of the Original Side Rules. In fact, as has been submitted
D at the Bar, the plaint was accepted, after due scrutiny and duly registered and
only during the hearing of the appeal was such an objection raised.

Considering the aforesaid contention, even though the amended ,..
provisions of Order VI are attracted in the matter of filing of plaints in the
Original Side of the Calcutta High Court on account of the reference made
E to Order VI and Rule I of Chapter VII of the Original Side Rules, non-
compliance thereof at the initial stage did not render the suit non-est. On
account of such finding of the Division Bench of the Calcutta High Court,
not only have the proceedings before the learned Single Judge been wiped
out, but such a decision has the effect of rendering the proceedings taken in
F the appeal also non-est.

The decision in MS. Mani's case (supra) relied upon by Mr. Ranjit
Kumar and Mr. P.K. Ghosh, cannot be equated with the views expressed in
Khayumsab 'sand Kai/ash's case, inasmuch as, in the former case, the provision
requiring the prior consent in writing of the Advocate General was an intrinsic
G part of the application touching upon the maintainability of the motion itself
and not procedural as in the facts of the instant case. The said decision,
therefore, cannot come to the aid of the respondents.

We have, therefore, no hesitation in holding that the Division Bench of
the Calcutta High Court took a view which is neither supported by the
H provisions of the Original Side Rules or the Code nor by the various decisions
{
VIDYAWATI GUPTA v. BHAKTI HAR! NA YAK [AL TAMAS KABIR, J.] 29

of this Court on the subject. The views expressed by the Calcutta High Court, A
being contrary to the established legal position, must give way and is hereby
set aside.

The appeal is accordingly allowed and the impugned order under
challenge is set aside. Consequent upon the views expressed by us, the plaint
as filed on behalf of the appellants herein must be deemed to have been B
presented on 26th July, 2002 and not on 28th April, 2004 and the interim
order pa~sed by the learned Single Judge on 2nd April, 2004, stands revived.
'! The Division Bench of the Calcutta High Court is directed to re-consider and
hear the appeal filed by the respondents herein on merits as expeditiously as
possible. C
Having regard to the peculiar facts of the case, the parties will bear
their own costs.

B.S. Appeal allowed.
D

. .J