A. R. SHEIKH, J.--The facts relevant for disposal of this review application may be stated briefly.
Mian Nazar Farid Ahmad Khan Maneka son of Noor Ahmad Khan Maneka along with his three sisters, Mst. Atia Begum, Mst. Aziza Begum and Nazeera Begum (petitioners) successfully challenged the orders of the Controller of the Estate Duty in Writ Petition No, 988 of 1957. The respondents then filed an application under Articles 157 and 158 of the Constitution Act of 1956 read with Order XLV, rule 2 of the Code of Civil Procedure for grant of a certificate that the case was a fit one for appeal to the Supreme Court. The prayer was allowed on the 23rd of January 1961, when the objections of the petitioners were rejected. The respondents were to furnish security in cash or Government securities for the costs of the petitioners and also to deposit the amount required to defray the expenses of translation, transcribing, indexing, printing and transmitting, to the Supreme Court a correct copy of the whole record of the suit within 90 days or such further period not exceeding 60 days, as the Court may upon cause shown allow from the date of the decree complained of or within six weeks from the date of the grant of the certificate whichever is the later date. The respondents defaulted in depositing the security amount in time and ultimately on the 13th of June 1963, an application (not accompanied by an affidavit) was moved by learned counsel for the respondents for condo-nation of delay in depositing security for costs on the ground that "through inadvertance the petitioner could not comply with the aforesaid role. This is due to the fact that the clerk of the petitioners' counsel did not know about this rule." This application was heard cx parte by the learned Single Judge on the 4th of October 1963, when the following order was passed:-- "Mr. Abdul Hach Advocate.
Delay is condoned."
The petitioners preferred a Letters Patent Appeal against this ex parte order. This appeal was dismissed as incompetent on the ground that the aforesaid order of the 4th October 1963 was not "judgment" in the context of Clause 10 of the Letters Patent. Their Petition for Special Leave to Appeal was dismissed by the Supreme Court on the statement of learned counsel for the petitioners to the effect that his clients were attempting a review of the order of the learned Single Judge, in the High Court.
2. In this review application, learned counsel for the petitioners has firstly contended that the order of condonation of delay having been passed without notice and without hearing the petitioners, is bad in law being violative of the principles of natural justice. It is further contended that since the petitioners had acquired a valuable right in getting the certificate revoked on account of respondents' failure to comply with the provisions of Order XLV, rule 7 of the Code of Civil Procedure, no ex parte order of condonation of delay could have been passed in the case. Learned counsel for the respondents has not been able to meet this argument and we find that the order dated the 4th of October 1963 should be read as an interim order, subject to all just exceptions, and the review application be treated as objection to the application for condonation of delay for furnishing the requisite security. We have accordingly heard learned counsel for the parties in the application for condonation of delay along with the review application as objections to the said application. In view of this finding of ours we are not called upon to express any opinion on the question of maintainability of the review application under Order XLVII, rule 1 of the Code of Civil Procedure. It may be added that for facility of reference, hereinafter the expression 'Petitioners' and 'Respondents' will refer to the parties as arrayed in the Review Application.
3. Learned counsel for the respondents has argued that under rule 3 (2) of Chapter 9 of the High Court Rules and Orders, Volume V, reproduced below in extenso it was the respondents who were to furnish security within ninety days or such further period not exceeding sixty days, as the Court may upon cause shown allow, from the date of the decree complained of or within six weeks from the date of the grant of the certificate whichever is the later date only when 'required' by the Court to deposit security and as till today there has been no notice served on the respondents by the Court to deposit the said sum of Rs, 2,000.00, no question of default or condonation of alleged delay arises:-- "3.---(1)
(2) In all other cases the certificate shall be granted in Form appended to these rules and the applicant shall be required to deposit within ninety days, or such further period not exceeding sixty days, as the Court may upon cause shown allow, from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever is the later date, a sum of rupees two thousand as security for the respondent's costs.
In any special case the Court may, if it thinks fit, upon the application of the respondent require security to a larger amount; but in no case exceeding rupees ten thousand."
It has been further contended that the respondents of their own accord had deposited the sum of Rs, 2,000.00 on the 23rd of September 1963, by way of security and that they have also deposited within time a sum of Rs, 16.00 by way of printing and other amounts demanded by the Office in that regard and these facts establish the bona fides of the respondents that they have not been negligent in prosecuting the appeal. When it was pointed out to learned counsel that rule 3 of Chapter 8-A and not rule 3(2) of Chapter 9 of the High Court Rules and Orders, Volume V, deals with appeals to the Privy Council (now Supreme Court) and the amount of security mentioned therein is Rs, 4,000.0O3 he attempted to argue that even under that rule the word "required" is indicative of demand being made by the Court and the argument earlier advanced by him applied with equal force and the respondents were prepared to pay the balance of Rs, 2,000.00 and thus make up the deficiency in the sum fixed in rue 3 of Chapter 8-A. The question then arose as to what is the binding force of the rules contained in Chapter 8-A of the High Court Rules and Orders, Volume V. It was argued that the same have been framed under section 122 of the Code of Civil Procedure. This argument was not pressed further, when it was brought to the notice of learned counsel that the High Court has framed no such rules under the said section of the Code of Civil Procedure. He then attempted to fall back on Clause 27 of the Letters Patent, which reads as under: -- "And we do further ordain that it shall be lawful for the High Court of Judicature at Lahore from time to time to make rules and orders for regulating the practice of the Court and for the purpose of adapting as far as possible the provisions of the Code of Civil Procedure, being an Act No, V of 1908, passed by the Governor-General-in-Council, and the provisions of any law which has been or may be made, amending or altering the same, by competent legislative authority for India, to all proceedings in its testamentary, intestate and matrimonial jurisdiction, respectively."
Learned counsel has not been able to show whether actually the rules contained in Chapter 8-A were framed under this Clause of the Letters Patent. The power vested in the High Court under this Clause is to make rules and orders for regulating the practice of the Court and for the purpose of adapting as far as possible the provisions of the Code of Civil Procedure and the provisions of any law which has been or may be made amending or altering the same. This no where envisages framing of or making of any rules which are not consistent with the Code of Civil Pro-cedure. But differently Clause 27 of the Letters Patent cannot be read as arming the High Court with power to amend the framed for regulating the practice of the Court and for the Code of Civil Procedure. All that it says is that rules may be purpose of adapting as far as possible the provisions of the Code of Civil Procedure. A similar question came up for determination before this Court in Shah Muhammad v. Fazal Muhammad when it was held that 'rules framed under section 122 of the Code of Civil Procedure or Clause 27 of the Letters Patent would be invalid in so far as they were in conflict with the rules in Schedule I of the Code of Civil Procedure and Clause 27 in fact does not confer a power to frame rules inconsistent with any law'. Rule 7 of Order XLV of the Code of Civil Procedure unequivocally lays down that the applicant shall within ninety days or such further period not exceeding sixty days, as the Court may upon cause shown allow, from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever is the later date, furnish security in cash or in Government securities for the costs of the respondent.
There is no mention of any demand being made by the High Court in this respect; rather a duty is cast upon the person obtaining the C certificate to furnish security within the period prescribed.
The amount of security has to be fixed by the Court according to the language of rule 7 of Order XLV, C. P. C. and as this provision has to be interpreted and applied untrammelled by rule 3 of Chapter 8-A of the High Court Rules and Orders, Volume V, the latter rule will be ultra vires to the extent it travels beyond the provisions of rule 7, Order XLV, C. P. C. The argument grounded on the word "required" appearing in rule 3 of Chapter 8-A of the High Court Rules and Orders, Volume V, is, therefore, of no avail to the respondents.
4. Learned counsel next attempted to argue that this Court has power to condone delay under rule 9 of the Privy Council Rules as was held in Diwan Ghulam Rasul v. Diwan Ghulam Qutab-ud-Din .
Learned counsel for the petitioners pointed out that rule 9 of the Privy Council Rules became inoperative with the establishment of the Federal Court of Pakistan (now the Supreme Court of Pakistan) under the Federal Court of Pakistan Order, 1948, the Federal Court (Enlargement of Jurisdiction) Act, 1950, and the promulgation of the Federal Court Rules of 1950 subsequently replaced by Supreme Court Rules, 1956. It was further contended that even rule 4 of Order XII1 2 (which rule corresponds exactly to rule 9 of the Privy Council Rules) of the Supreme Court Rules, 1956, having been omitted as per Supreme Court of Pakistan Notification No, S. R. O. 211 (K)/63 of the 26th of March 1963, the ratio decidendi of Diwan Ghulam Rasul v. Diwan Ghulam Qutab-ud-Din could not be pressed into service. Learned counsel for the respondents, however, maintained that there being no provision in the Constitution Act of 1956 for framing of Rules for Civil Appeals, as rules referred to in Article 159 pertain to criminal appeals only, the Supreme Court Rules, 1956, as they stood before the 26th of March 1963 appearing in Order XII captioned: "Civil Appeals" are ultra vires and in the absence of any other rules, the respondents were rightly entitled to invoke Rules of Chapter 8 A of the High Court Rules and Orders, Volume V. The argument on behalf of the respondent is misconceived because under Article 177 of the 1956-Constitution, power had been given to the Supreme Court to frame rules and the plain language of Schedule III appended to the said Constitution clearly shows that the Supreme Court Rules, 1956, framed by the Supreme Court do not lack in authority. Adverting to the question of applicability of the Supreme Court Rules, 1956, we find that rule 1 of Order XII (unamended), pertaining to civil appeals, provided that the provisions of Order XLV of the Code of Civil Procedure and of any rules made for the purpose by the High Court concerned so far as they may be applicable, shall apply to appeal preferred to the Court under Article 158 of the 1956-Constitution. Rule 3 of the said Order XII lays down that the security to be furnished under rule 7 (1) (a) of Order XLV of the Code of Civil Procedure shall, unless otherwise ordered by the High Court, be in the sum of Rs, 2,000.00: provided that the Court appealed from May, if it thinks fit, in any appropriate case require security to a larger amount but in no case exceeding Rs, 5400.00. Rule 4, as already stated above, corresponds to rule 9 of the Privy Council Rules. These Rules had an overriding effect in view of section 112 of the Code of Civil Procedure, with the result that rule 3 of Chapter 8-A of the High Court Rules and Orders, Volume V, stood superseded by rule 3 of Order XII of the Supreme Court Rules, 1956, and the duty to furnish security being absolute both under Order XLV, rule 7, C. P. C. and rule 3 of Order XII of the Supreme Court Rules, 1956, the party obtaining the certificate remained under no obligation to secure an order of the Court as to the amount of security to be furnished. As to the effect of omission of rule 4 of the Supreme Court Rules, 1956, the contention of learned counsel f r the respondents is that since the cause is to be determined in accordance with law in force at the time of its institution, the omission of rule 4 of the Supreme Court Rules, 1956, would not affect the power of this Court to condone the delay. There is sufficient authority for the view that while provisions of a statute dealing merely with matters of procedure may properly, unless that construction is textually in- admissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute, are not to be applied retrospectively in the absence of express enactment or necessary intendment. But admittedly no litigant has a vested right to come to Court beyond the period of limitation prescribed by law and, therefore, the respondents cannot be heard to say that despite omission of rule 4 of Order XII of the Supreme Court Rules, 1956, their existing right of extension of time has remained unaffected. Again since the Rules relied on by the respondents pertain to the province of procedural law, repeal/ omission thereof will be considered to have taken effect retrospectively, and the contention of learned counsel for the respondent cannot succeed.
5. We now turn to consider the words used in Order XLV rule 7, C. P. C. Originally this rule allowed the appellant six months from the date of the decree complained of or six weeks from the date of the grant of the certificate. While considering the provisions of section 602 of Act X of 1877, the reasoning given by the Calcutta High Court in In re : Soorjmukhi Koer in favour of extension of time was that the rule provided no penalty for failure on the part of the appellant to furnish security and in view of the known principles of interpretation of statutes, this absence of penalty meant that the words were directory and not mandatory and, therefore, the High Court3 had power to extend the time fixed. The view of the Full Bench of the Calcutta High Court was approved of by their Lordships of the Judicial Committee in Burjore v. Bhagana observing that the words in section 602 of Act X of 1877 in regard to extending time for giving security in appeal were directory only and there was jurisdiction in the High Court to grant extension of time for cogent reason. Then came in the amendment of 1920, which reduced the period of six months to ninety days or such further period not exceeding sixty days as the Court may allow. The period of six weeks was left unaltered. No penalty was provided for failure. Rule 9 of the Privy Council Rules also came in at the same time and as the said rule was of overriding nature in view of section 112 of the Code of Civil Procedure, the contention raised in various cases that the new amendment being restrictive in nature should be read as mandatory and no extension should have been allowed by the High Court under the amended rule 7 was rejected mainly on the basis of rule 9 of the Privy Council Rules. The successor rule of the Supreme Court Rules, 1956, having also been omitted and not being available any more for condonation of delay, it has to be determined whether any such power can be spelt out of the provisions of Order XLV of the Code of Civil Procedure. We find that rule 11 of Order XLV, C. P. C. expressly provides for the effect of failure to comply with the order made under rule 10 but there is no rule which prescribes the consequences of non-compliance with the order made under rule 7. Failure to make this provision is not without significance. If default is committed under rule 10, rule 11 comes into play, which expressly provides that proceedings shall be stayed and the appeal shall not proceed without an order in that behalf of the Supreme Court and in the meantime execution of the decree appealed from shall not be stayed, whereas non- compliance of an order under rule 7 is not visited with any such penalty. In other words, where the Legislature intended to penalise the party in default, a specific provision has been made and omission to make any such provision in regard to the consequences of non-compliance, if the order is mane under rule 7, is greatly suggestive of the fact that jurisdiction of the Court to extend time was not intended to be taken away. The Legislature in its wisdom has left it open to the High Court to decide where failure to comply with its order under rule 7 should be condoned or where the delay should not be condoned and the certificate revoked. On this view of the matter, following with respect the dictum in Burjore v. Bhagana, we are inclined to hold that this Court has jurisdiction to extend time on the plain language of rule 7, Order XLV, FC. P. C. regardless of the provisions of rule 4 of Order XII of the Supreme Court Rules, 1956, since omitted.
6. Next comes the question whether delay should be condoned in the case before us. The writ petition was allowed in the case on the 15th of March 1960, an application for grant of certificate was made on the 16th of September 1960 and the certificate wes granted by the Bench on the 23rd of January 1961. By virtue of the provisions of Order XLV, rule 7, C. P. C. read with rule 3 of Order XII of the Supreme Court Rules, 1956, security in the sum of Rs, 2,000.00 or the amount to be determined by the Court not exceeding Rs, 5,000.00 was to be furnished within six weeks. No security has admittedly been filed by the 9th of March 1961, the last date in the case. Security of Rs, 2,000 is, however, shown to have been deposited by the respondents on the 23rd of September 1963, without obtaining any order from the Court. The reason given for this default, as already noticed above, is that 'through inadvertence the petitioner could not comply with the aforesaid rule (rule 3(2) of Chapter 9, High Court Rules and Orders, Volume V). This is due to the fact that the clerk of the petitioners' counsel did not know about this rule'. In his address at the bar, learned counsel for the respondents, however, had adopted a different line of argument, which contention we have not been persuaded to accept. Ignorance of law has never been accepted as a good excuse. Further, it has not been established before us that the respondents have prosecuted the proceedings with due care and attention. In the circumstances, no cogent reason having been established, the application for condonation of delay does not succeed and is hereby dismissed. 4