Hon'ble Judges/Coram:
B.P. Singh and Altamas Kabir

JUDGMENT

Altamas Kabir, J.

1. The submissions advanced in this appeal by way of special leave necessitates a brief glance into the historical origin of the Calcutta High Court.

2. In August 1861, the British Parliament passed the Indian High Courts 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 of Judicature at Calcutta. By subsequent Letters Patent dated 26th June, 1862, the High Court at Bombay and Madras were also established.

3. The Letters Patent empowered the High Court of Calcutta to exercise Ordinary Original Civil Jurisdiction within the local limits of the Presidency 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, 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.

4. 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:

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, 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 competent legislative authority for India.

5. 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 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 establ........