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2004 DIGILAW 212 (PAT)

Sundar Yadav v. Asha Kumari

2004-02-23

P.K.SINHA

body2004
Judgment 1. Appeal has been sent by the Office for hearing under Order XLI, Rule 11 of the Code of Civil Procedure (the Code, in short). From Order dated 11.2.1998 it appears that this appeal was placed before court for a similar hearing and R.N. Sahay, J., as his Lordship then was, heard the matter and had framed substantial questions of law and had ordered for calling for the lower court records which, this court is informed, have been received, and also ordered issuance of notices to the respondents. However, by office notes dated 12.12.2003 this matter has again referred to the Bench for hearing this appeal under Order XLI, Rule 11 of the Code of Civil Procedure. The learned counsel for the appellants as well for the respondents who were issued appeal-notices by order dated 11.2.1998, submitted that since it was not specifically mentioned in the aforesaid order that this appeal was admitted, the office has not treated this second appeal to have been admitted. 2. Order XLI, Rule 11, and section 100, of the Code run as follows: "Order XLI, 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) Where an 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." "100. Second Appeal. (4) Where an 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." "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 subsection 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." 3. Order XLI, Rule 11(1) of the Code stipulates that the court, after fixing a date for hearing the appellant or his pleader, and on hearing accordingly, may dismiss the appeal without sending notice to the court from whose decree the appeal was preferred and without serving notice on the respondent or his pleader. Why this power has been granted to the court hearing a Second Appeal is made clear by provision under section 100 of the Code which stipulates that 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 involved a substantial question of law subsection (4) of Section 100 of the Code of Civil Procedure provides that when the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. These two provisions make it clear that hearing under Order XLI, Rule 11 is held to find out if any substantial question of law is involved and only if a substantial question of law is found to be involved, this court is to formulate that question which means that if any substantial question/questions is/are in volved in the second appeal, this court will not dismiss the appeal but formulate such substantial question of law and, per subsection (5) of Section 100, appeal shall be heard on the question so formulated though the respondents, at the time of hearing of the appeal, will be allowed to argue that the case did not involve any such question. This means that whenever any substantial question of law is formulated by this court, the appeal is to be heard upon that substantial question of law for which notices are to be issued to the respondents and lower court records are to be called for. Therefore, if the court frames substantial question/questions of law, there is hardly any need for a formal declaration by the court that the second appeal has been admitted for hearing upon such substantial question of law. Formulation of any substantial question of law itself makes it manifest that the second appeal stands admitted for hearing on such a question of law. 4. By order dated 11.2.1998 this court had ordered for hearing of this second appeal on the substantial questions of law that were framed. There is no need to record any formal order, in such circumstance, declaring the admission of the appeal in the formal way. 5. This appeal in due course be placed for hearing. The matter of hearing this appeal under Order XLI, Rule 11 of the Code of Civil Procedure for which the office has placed this appeal stands disposed of, this exercise already having been undertaken, and an order passed.