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2002 DIGILAW 618 (CAL)

SURINDER KAUR RAI v. JYOTI RANJAN BANERJEE

2002-09-16

ASOK KUMAR GANGULY, HRISHIKESH BANERJI

body2002
Asok Kumar Ganguly, Hrishikesh Banerji ( 1 ) IN this matter when this Court, after hearing Mr. Sudhis Dasgupta, learned Counsel for the appellant, was about to formulate the substantial questions of law for admission of this appeal, Mr. Bimal Chatterjee, learned Counsel for the Caveator intervened and urged that the court should hear him on behalf of the respondent-Caveator at the initial stage of formulation of the questions of law and he is entitled to point out that no such questions actually arise in this case. ( 2 ) THE issue which crops up in view of the submission of Mr. Chatterjee is whether the respondent is entitled to be heard at the initial stage when the court formulates the question. The learned Counsel for the Caveator submits that once the court formulates the question and admits the appeal for hearing, the hearing normally takes place after a considerable period of time and his client will be denied the benefit of his right which has been crystallized in the judgment and decree of the First Appellate Court. According to the learned Counsel since his client's right will come under a shadow, as a result of the admission of this appeal with the formulation of substantial questions of law, he has an immediate and contemporaneous right to point out that no such question of law exists. According to him he has lodged the CAVEAT for the purpose of joining issue at this initial stage. The learned Counsel also submits that under Order 41 Rule 11 of the Civil Procedure Code, which is a procedural provision of the Code relating to appeal, there is no express bar on the respondent from arguing at the initial stage that no such substantial question of law is involved in the case. ( 3 ) THE learned Counsel for the appellant on the other hand submits that if Order 41 Rule 11 and Order 41 Rule 12 are properly read with Section 100 of C. P. C. , it will clearly appear that at the initial stage of formulation of substantial question of law by the High Court, the respondent has no right of audience. The learned Counsel submits that the respondent can address the court only after formulation of the question and at the hearing of the appeal. The learned Counsel submits that the respondent can address the court only after formulation of the question and at the hearing of the appeal. The learned Counsel also submits that even though the respondent has lodged a CAVEAT, the lodging of such a CAVEAT only enables him to argue on the question of interim order which the court may pass after admitting the appeal. The lodging of the CAVEAT will not enable the respondent to address the court at the initial stage of formulation of substantial question of law by the High Court. ( 4 ) FOR a better appreciation of the points at issue, this court sets out hereinbelow Section 100 and also Order 41 Rule 11 and Rule 12 of C. P. C. :"section 100. Second appeal.-- (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. ""order 41 Rule 11. ""order 41 Rule 11. Power to dismiss appeal without sending notice to lower Court.-- (1) The appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader. (2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. (3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred. (4) Whereas appellate Court, not being the High Court, dismisses an appeal under Sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment. ""order 41 Rule 12. Day for hearing appeal.-- (1) Unless the appellate Court dismisses the appeal under Rule 11, it shall fix a day for hearing the appeal. (2) Such day shall be fixed with reference to the current business of the Court, the place of residence of the respondent, and the time necessary sufficient time to appear and answer the appeal on such day. " ( 5 ) ON a conjoint reading of these provisions it appears that Section 100 of the C. P. C. confers the substantive right of appeal from an appellate decree passed by any court subordinate to High Court and that right can be exercised only if the High Court is satisfied that the case involves a substantial question of law. Sub-section (3) of Section 100 provides that in an appeal under Section 100, the memorandum of appeal must precisely state the substantial question of law involved in appeal and Sub-section (4) of Section 100 further provides that if the High Court is satisfied that any substantial question of law is involved, it shall formulate that question. Sub-section (3) of Section 100 provides that in an appeal under Section 100, the memorandum of appeal must precisely state the substantial question of law involved in appeal and Sub-section (4) of Section 100 further provides that if the High Court is satisfied that any substantial question of law is involved, it shall formulate that question. Therefore, on a proper reading of Sub-sections (3) and (4) of Section 100 of the C. P. C. , the following position is clear:a) An appeal will lie to High Court from an appellate decree passed by any court subordinate to it only if the High Court is satisfied that the case involves any substantial question of law; b) The memorandum of appeal, obviously to be filed by the appellant, shall precisely state the substantial question of law; c) If the High Court is satisfied that substantial question of law is involved, it shall formulate the said question. ( 6 ) THE aforesaid Sub-sections (1), (3) and (4) of Section 100 of C. P. C. do not contain any reference to the respondent at this stage. ( 7 ) REFERENCE to the respondent is made at a later stage, namely under Sub-section (5) of Section 100 of the C. P. C, Under the said sub-section it is provided that the respondent shall be allowed to argue that the case does not involve any such substantial question but that opportunity will be given to the respondent only at the hearing of the appeal. ( 8 ) FROM Order 41 Rule 11 of the Code we find that the appellate court may, after hearing the appellant or his pleader on the date fixed or if the appellant does not appear on that day, dismiss the appeal ex parte without serving notice on the respondent. Thus there is no provision for sending of notice to the respondents at the initial stage of either dismissal of the appeal or formulation of question of law and the consequential admission of the appeal. The respondent surfaces only under Rule 12 of Order 41. ( 9 ) CLAUSES (1) and (2) of Rule 12 of Order 41 make it clear that if the appeal court does not dismiss the appeal under Rule 11, it shall fix a date for hearing of the appeal. The respondent surfaces only under Rule 12 of Order 41. ( 9 ) CLAUSES (1) and (2) of Rule 12 of Order 41 make it clear that if the appeal court does not dismiss the appeal under Rule 11, it shall fix a date for hearing of the appeal. Sub-rule (2) of Rule 12 of Order 41 provides that on the date of hearing the respondent should be allowed sufficient time to appear and answer the appeal. ( 10 ) THEREFORE, both the provisions of Order 41 Rule 12 Sub-rule (2) and Section 100 Sub-section (5) talk of the respondent and the respondent's right to appear and argue the appeal. It is open to the respondent to contend at that stage that no substantial question of law is involved. Therefore, the clear mandate of the law is that the right of the respondent to appear and argue that substantial question of law is not involved in the appeal is at a subsequent stage and not at the initial stage of the formulation of the question by the court. ( 11 ) THE learned Counsel for the appellant has argued that the expression "hearing" occurring in Order 41 Rule 12, Sub-rules (1) and (2) and Sub-section (5) of Section 100 of the Code would mean the hearing of the appeal after admission. It was contended that the word 'hearing' must have the same meaning in both the situations. In support of this contention the learned Counsel relied on Maxwell's Interpretation of Statute, 10th Edition. At page 322 in Maxwell, it has been held as follows:"it has been justly remarked that, when precision is required, no safer rule can be followed than always to call the same thing by the same name. It is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act. Accordingly, in ascertaining the meaning to be attached to a particular word in a section of an Act, though the proper course would seem to be to ascertain that meaning if possible from a consideration of the section itself, yet, if the meaning cannot be so ascertained, other sections may be looked at to fix the sense in which the word is there used. " ( 12 ) THE learned Counsel points out that the said dictum in Maxwell has been accepted by this Court in the case of Gouribala Sadhukhan v. Jibankrishna Sadhukhan and Ors. , reported in 77 CWN 676-680 at para 16. ( 13 ) MULLA's commentary on Section 100 of the Code, is very pertinent (see Mulla: Civil Procedure Code, 14th Edition, page 600 ). Relevant excerpts from the commentary are extracted below:" (a) that the High Court, presumably at the stage of admission, must be satisfied that the case involves such a substantial question of law; (b) that such a question has been precisely stated in the memorandum of appeal; (c) that even where the High Court is satisfied that a substantial question of law is involved, it shall formulate it, and (d) that even where the High Court has been so satisfied and has formulated the substantial question of law, a respondent has still been re-served the right of challenging that such a question is not involved. Such a challenge can presumably he taken after the High Court has admitted the appeal on being satisfied that a substantial question of law arises. "[underlined by Court] ( 14 ) SIMILAR view has been expressed by the Hon'ble Supreme Court in the case of Kshitish Chandra Purkait v. Santosh Kumar Purkait and Ors. After construing Section 100 of the Code the learned Judges at para 7 page 2521 of the report was pleased to observe" (a) it is the duty cast upon the High Court to formulate the substantial question of law involved in the case even at the initial stage; and (b) that in (exceptional) cases, at a later point of time, when the court exercises its jurisdiction under the proviso to Sub-section (5) of Section 100 of the C. P. C. in formulating the substantial question of law, the opposite party should be put on notice thereon and should be given a fair or proper opportunity to meet the point". [underlined by Court] ( 15 ) THIS Court is in respectful concurrence with the aforesaid view. [underlined by Court] ( 15 ) THIS Court is in respectful concurrence with the aforesaid view. ( 16 ) THE submission of the learned Counsel for the respondent is that since there is no express bar either under Section 100 or Order 41, Rules 11 and 12 of the Code to give the respondent a hearing at the stage of formulation of questions, such a hearing at least under inherent powers of the Code cannot be ruled out. This contention is not sound. First of all, it is well settled that inherent powers cannot override the express provisions of the Code. If dealing with a particular situation, specific provisions have been made in the Code and that has been done here, in that case such provisions expressly or by necessary implication exhaust the scope of the Court's powers dealing with such situation. And the inherent powers cannot be invoked cutting across the statutory powers. "the prohibition in the Code need not be express but may be implied or implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates" (See the judgment of the Supreme Court in Arjun Singh v. Mohindra Kumar ). ( 17 ) THIS is more so in the context of a right of appeal. Right of appeal and -right of suit are not the same thing. Right of suit is inherent in every one subject to any legal bar as recognised under Section 9 of the C. P. C. But right of appeal is always controlled by the statute (See Ganga Bhai v. Vijay Kumar ). Since a right of appeal is provided under the statute from an appellate decree, the appellate decree cannot be treated as final if the High Court on a second appeal is satisfied that substantial questions of law are involved in the case which calls for High Court's intervention. ( 18 ) IT is also the long-standing practice followed by this court, since the amendment of the C. P. C. in the year 1976, not to hear the respondent at the stage of formulation of the question. Of course, Mr. Chatterjee, appearing for the respondent, submits that no practice can be converted into a rule of law, if as a result of following the said practice a person's right is taken away and the law is not followed. Of course, Mr. Chatterjee, appearing for the respondent, submits that no practice can be converted into a rule of law, if as a result of following the said practice a person's right is taken away and the law is not followed. In support of this submission Mr. Chatterjee cited a few decisions. ( 19 ) THE first decision, which was cited, was rendered in the case of Santimoy Dey v. Suriya Properties. In that case, the Division Bench of this Court construed the word "requisite" in Section 12 (3) of the Limitation Act and held that this word is a strong one and means more than the word "required". The Court referred to the practice that the party applying for a certified copy of an order or decree has to inform the Copying Department that the order or decree has been filed and then the Copying Department notifies to him the folios required (para 16 ). As the appellant did not inform the Copying Department for 2 years that the order had been filed, his prayer for condonation of delay in filing the appeal was rejected. ( 20 ) ON appeal to Supreme Court, the decision was reversed and one of main grounds was that the appellant was conducting his case in person till the stage of Letters Patent Appeal. A litigant appearing in person is not supposed to know the practice of a Court. The other ground was that a rule of practice cannot be exalted to a law of limitation as held in the case of Chandra Bhusan v. Deputy Director of Consolidation, a decision on which Mr. Chatterjee also relied. ( 21 ) HERE the practice followed is consistent with the provision of law and not in derogation of the same. Therefore, there is no reason why this should be departed from by this Court. This Court is not inclined to introduce some thing which is inconsistent with the clear words of statute. The court reminds itself of what was said long ago by Lord Atkin in Pakla Narayan Swamy v. Emperor, AIR 1937 Privy Council 47. Lord Atkin said "when the meaning of the words is plain, it is not the duty of Courts to busy themselves with supposed intentions". The court reminds itself of what was said long ago by Lord Atkin in Pakla Narayan Swamy v. Emperor, AIR 1937 Privy Council 47. Lord Atkin said "when the meaning of the words is plain, it is not the duty of Courts to busy themselves with supposed intentions". (Page 51 of the report) ( 22 ) THIS Court is of the view, if a second appeal is presented before the High Court, it may have three stages. The first stage is before the Stamp Reporter. The Stamp Reporter has to find out if there are defects in the appeal and whether or not the appeal is barred by limitation. The appeal is technically admitted at this stage. If that hurdle is crossed and the appeal is a defect free one, it is taken up by the Court, at times with curable defeats. The second stage is the satisfaction of the High Court that substantial question of law is involved in the appeal. If such questions exist then on the formulation of those questions by the High Court, accepted for hearing. At these two stages, the respondent has no right of hearing. If the second appeal survives these two stages then the third stage begins and the respondent enters the scene. The appeal then comes up for hearing. So in the instant case at the initial stage of formulation of the substantial question of law by the High Court the respondent has no right of being heard. The contentions of Mr. Chatterjee are thus overruled. We now, therefore, take up this appeal for hearing under Order 41.