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2006 DIGILAW 625 (JHR)

BISHNU BHAGAT v. PUSHPA DEVI.

2006-05-12

ALTAMAS KABIR, M.Y.EQBAL

body2006
Judgment : M. Y. EQBAL, J. ( 1 ) THE instant appeal has been placed before this Bench for deciding a question as to whether first appeal arising out of original decree is necessary to be placed for hearing under Order 41 Rule 11 of the Code of Civil Procedure. ( 2 ) THE instant appeal has been filed challenging the judgment and decree passed by the Additional District Judge, Simdega in judicial Separation Case No. 9/95 dismissing the case filed by the petitioner/appellant under section 10 of the Hindu Marriage Act. ( 3 ) WHEN the appeal was listed before the bench for admission a question arose as to whether the appeal ought to be sent up for admission in terms of Order 41 Rule 11 of the Code pf Civil Procedure or it should automatically be taken on file by the Registrar of this Court in exercise of power conferred under Rule 205 of the High Court of jharkhand Rules. A Bench of this Court (P. K. Balasubramanyan, CJ as he then was)answered the question by order dated 2-8-2004 holding that the appeals, whether it be under the Code of Civil Procedure or under any Special enactment, have to be sent up for admission before the Bench in terms of Order 41 Rule 11 of the Code of Civil Procedure notwithstanding the powers conferred on the Registrar by Rule 205 of the high Court of Jharkhand Rules, 2001. The learned Court held that the combined effect of Rules 11 and 11a of Order 41 is that any appeal filed has to be preliminarily heard by a Judge and order has to be passed on it either issuing notice or admitting the appeal. Even the unfettered right of appeal under Section 96 of the Code of Civil Procedure would be governed or curtailed by what is contained in Rules 11 and 11a of Order 41 of the Code of Civil Procedure. Even the unfettered right of appeal under Section 96 of the Code of Civil Procedure would be governed or curtailed by what is contained in Rules 11 and 11a of Order 41 of the Code of Civil Procedure. ( 4 ) THE instant appeal was, thereafter, placed before the Division Bench presided over by Honble the Chief Justice (Altmas kabir, CJ as he then was) and the following order was passed on 18-8-2005 : "in view of the order passed on 2nd August, 2004, let this matter be listed before the Division Bench presided over by the chief Justice for consideration as to whether the matter requires hearing under Order 41 rules 11 of the Code of Civil Procedure. The appellant is directed to file a second copy of the brief for the use of the learned second Judge. ( 5 ) THIS is how the instant appeal has been placed before this Bench for consideration as to whether a regular first appeal arising out of an original decree requires hearing under Order 41 Rule 11 of the Code of Civil Procedure. ( 6 ) BEFORE deciding the issue, I would first like to quote Rule 205 of the High Court of jharkhand Rules, 2001, which reads as under : "rule 205 : (1) If a memorandum of appeal is not barred by limitation, is sufficiently and properly stamped and com[plies with the provisions of these Rules and the law relating to the maintainability and filing of such an appeal; (a) in the case of a First Appeal from a judgment and decree, the Registrar General in the Lawazima Board shall admit the appeal by passing a formal order of admission and direct issuance of notices to the respondents; (b) all other appeals shall be posted before the appropriate Bench for. consideration of admission and passing of appropriate orders. (2) Any party seeking stay of the execution of the decree in every appeal of for ob-taining any other interim relief shall do so by making an appropriate application before the Court and the Court may pass orders on such application. The mere admission of a First Appeal by the Registrar General or the pendency of any appeal in the court shall not be construed or treated as a stay nor shall it amount to the grant of any interim relief in any form. The mere admission of a First Appeal by the Registrar General or the pendency of any appeal in the court shall not be construed or treated as a stay nor shall it amount to the grant of any interim relief in any form. ( 7 ) FROM bare perusal of the aforesaid rules, it is manifestly clear that the Registrar General of the High Court has been conferred power to admit the appeal by passing formal order of admission and direct issuance of notices to the respondents if the memorandum of appeal is not barred by limitation and is sufficiently and properly stamped irrespective of the fact whether such appeal has merit or not. Now the question that falls for consideration is to whether procedure provided under Rule 205 conflict with the Code of Civil Procedure. ( 8 ) PART VII of the Code of Civil Procedure deals with the appeals from original decree. Section 96 of the Code is worth to be quoted herein below : "96. Appeal from original decree - (1 ). Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear the appeal from the decision of such Court. (2) - An appeal may lie from an original decree passed ex-parte. (3) - No appeal shall lie from a decree passed by the Court with the consent of parties. (4) - No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of small causes, when the amount or value of the subject matter of the original suit does not exist (Rs. 10,000)" ( 9 ) SECTION 100 of the Code deals with the procedure of appeals from appellate decrees (Second Appeal) which reads as under : - Sectior 100 (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)" ( 10 ) COMPARING the two provisions, it is manifestly clear that an appeal shall lie from every decree passed by any Court exercising original jurisdiction unless the Code or any other law expressly bars it, for the time being in force. On the other hand, a second appeal i. e. appeal from appellate decree shall be entertained by the High Court only after the High Court is satisfied that the case involves substantial question of law. Section 100 of the Code further provides that in a second appeal the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. It further provides that the High Court, if satisfied that substantial questions of law are involved, then it shall formulate such questions. ( 11 ) SECTION 101 of the Code further clarifies that no second appeal shall lie, except on the ground mentioned in Section 100 of the Code. ( 12 ) IT would also be useful to quote herein below some of the provisions of Order XLI of the Code of Civil Procedure. Order XLI, Rule 11 and Rule 12 read as under:- Rule 11, Power to dismiss appeal without sending notice to Lower Court.- (1) Appellate Court 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. Order XLI, Rule 11 and Rule 12 read as under:- Rule 11, Power to dismiss appeal without sending notice to Lower Court.- (1) Appellate Court 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. (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. 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. ( 13 ) RULE 14 of Order XLI provided that those appeals which have not been dismissed at the admission stage under Rule 11, a date shall be foxed for hearing the appeal and Rule 14 makes provision for issuance of notice. Order XLI, Rule 14 reads as under :- Rule 14. Publication and service of notice of day for hearing appeal.- (1) Notice of the day fixed under Rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the Appellate court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice. (2) Appellate Court may itself cause notice to be served. ~ Instead of sending the notice to the Court from whose decree the appeal is preferred, the Appellate Court may itself cause the notice to be served on the respondent or his pleader under the provisions above referred to. (2) Appellate Court may itself cause notice to be served. ~ Instead of sending the notice to the Court from whose decree the appeal is preferred, the Appellate Court may itself cause the notice to be served on the respondent or his pleader under the provisions above referred to. (3) The notice to be served on the respondent shall be accompanies by a copy of the memorandum of appeal. (4) Notwithstanding anything to the contrary contained in sub-rule (1), it shall not b e necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the Appellate Court, unless he has appeared and filed an address for the service in the Court of first instance or has appeared in the appeal. (5) Nothing in sub-rule (4) shall bar the respondent referred to in the appeal from defending it. ( 14 ) RULE 16 of Order XLI is worth to be reproduced herein below : Rule 16. Right to begin.- (1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal. (2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case the appellant shall be entitled to reply. ( 15 ) SUB-RULE (4) of Rule 11 has been inserted in the year 1976 by C. P. C. Amendment Act of, 1976. Sub-rule (4) now made obligatory for the Appellate Court not being a High Court to deliver judgment recording in brief the grounds for dismissing the appeal under sub-rule (1 ). By now the legal proposition has been set at rest by the Supreme Court that notwithstanding the provision of sub-rule (4) of Rule 11 of Order 41 c. P. C. High Court is expected to pass a reasoned order even in dismissing appeal on the first day of hearing at the admission stage in absence of the respondents to ensure that justice not only done but appears to be done. Provisions of Order 41 Rule 11 (4)of the Code does not do away with its basic obligation of doing justice in deciding rights and liabilities of the contesting parties. Provisions of Order 41 Rule 11 (4)of the Code does not do away with its basic obligation of doing justice in deciding rights and liabilities of the contesting parties. ( 16 ) IN this connection reference may be made to the report of Justice Malimath Committees, Chapter III, P. 30, which reads as under : "indeed, the provisions of Order XLI Rules 11, 11a and 12 of the Code of Civil Procedure read together make it obligatory for the appellate Court to fix a day for the preliminary hearing of appeal as expeditiously as possible and to make endeavour to conclude such hearing within sixty days from the date of which the memorandum of appeal is filed and, unless the appeal is summarily dismissed at preliminary hearing, to fix a day for final hearing. In other words, the question of fixing a day for the final hearing of appeal arises only if the appeal is not summarily dismissed at the preliminary hearing which has to be fixed as expeditiously as possible after the memorandum of appeal is filed. In our view, these provisions should be strictly followed. However, care should be taken that an appeal which raises triable issue is not dismissed in limine. We would also like to emphasis that when an appeal is dismissed in limine, a brief order giving reasons for dismissal at the preliminary stage should invariably be recorded. A similar recommendation has been made by the Law Commission of India in its 79th report. " ( 17 ) IN the case of "mahadev Tukaram vetale and Ors v. Smt. Sugandha and Anr. " AIR 1972 SC 1932 a suit was filed for partition as well as other reliefs including genuineness of will. The trial Court came to the conclusion that the will in question was genuine will and decreed the suit. The defendant went up in appeal to High Court of Bombay. The High Court summarily dismissed the appeal in a single word "dismissed". The question for decision before the Supreme court was whether the appeal raised any triable issue. The Supreme Court held that if the appeal did raise any triable issue then the High Court was not justified in summarily dismissing the appeal. Consequently, the appeal was sent back to the High Court for re-admitting the appeal and for disposing the same according to law. The Supreme Court held that if the appeal did raise any triable issue then the High Court was not justified in summarily dismissing the appeal. Consequently, the appeal was sent back to the High Court for re-admitting the appeal and for disposing the same according to law. ( 18 ) IN the case of "jayanmti Departmental Enquiry and another v. Abani Kant Barat and others ( AIR 2000 SC 3578 (2), their Lordships observed : the appeal has been dismissed by the high Court with the following order : "this appeal is dismissed under Order xli, Rule 11 of the. Code of Civil Procedure. We are not satisfied that the High Court has considered the appeal on merits. Even if the dismissal is under Order 41, Rule 11 and the High Court is not required under sub-rule (4) to record in brief its grounds for doing so it is not a carte balanche to enable the Appellate Court to avoid recording any reason whatsoever. We think that the appeal required consideration on merits. We, therefore, set aside the impugned order and remit the appeal to the High Court for disposal of the same on merits and in accordance with law by stating the reasons. The position which remained as on the date of impugned order will continue till the disposal of the appeal. ( 19 ) IN the case of "devram Bilve v. Indumati" (2000) 10 SCC 540 , a Suit was fled for restoration of conjugal rights alleging that the appellant had deserted her. The suit was contested by the respondents and evidence was adduced by both the parties. The trial Court decreed the suit. Learned single Judge of the High Court allowed First appeal and the same was upheld by a Division Bench of this Court. In the Supreme court, it was argued that both the learned single Judge and the Division Bench have considered the evidence on record which should have been enable it to decide whether respondent was guilty committing any Act of cruelty. The Supreme Court allowed the appeal and remanded the matter to the High court for deciding the appeal afresh. Their lordships observed : "that learned counsel for the parties have taken us to the record. The Supreme Court allowed the appeal and remanded the matter to the High court for deciding the appeal afresh. Their lordships observed : "that learned counsel for the parties have taken us to the record. We find that neither the single Judge nor has the Division Bench considered the evidence on the record which would have enabled it to decide whether the respondent was guilty of committing any Act of cruelty. The letters on the basis of which cruelty was sought to be established have not even been referred by the Division Bench nor do they seem to have been analysed by the single Judge. Both the Courts did not appear to have gone into this aspect in great detail because they decide the appeal in favour of the respondent on the ground that the parties had lived together at Sagar Hotel at Indore and that amounted to an Act of condonation. We have some doubt, on the basis of the evidence on record or the lack of it, whether this conclusion is correct and, therefore, it was important for the single judge as well as the Division Bench to have examined the evidence on record in order to determine whether the appellant herein had been able to prove that the respondent had committed such acts of cruelty which could entitle the appellant to get a decree of divorce. ( 20 ) IN the light of the decisions of Supreme Court, quoted hereinbefore and also considering the provisions of sub-rule (4) of rule 11,1 am of the view that notwithstand-ing the provisions of sub-rule (4) of Rule 11 order 41 CPC the High Court is expected to pass a reasoned order even in dismissing appeal on the first date of hearing in absence of the respondents to ensure that justice not only done but appears to be dome. Provisions of Order 41, Rule 11 (4) of the code does not do away with its basic obligation of doing justice in deciding rights and liabilities of the contesting parties. ( 21 ) READING the entire provisions from order 41, Rule 11 it can safely be held that it is the Appellate Court and the Appellate court only before whom the appeal shall be listed for admission. If the Appellate Court finds no merit in the appeal then it shall dismiss the appeal without even issuing notices to the respondents. ( 21 ) READING the entire provisions from order 41, Rule 11 it can safely be held that it is the Appellate Court and the Appellate court only before whom the appeal shall be listed for admission. If the Appellate Court finds no merit in the appeal then it shall dismiss the appeal without even issuing notices to the respondents. On the first day of hearing at the admission stage if the Appellate Court finds arguable points in appeal then notices shall be issued to the respondents fixing a date for hearing of the appeal. ( 22 ) HAVING regard to the law discussed hereinabove, I fully agreed with the view of a Bench of this Court (P. K. Bala-subramanyan, CJ as he then was) that Rule 205 is inconsistent with the provisions of order 41, Rule 11 of the Code of Civil Procedure. His Lordships in his order dated 2-8-2004 observed: "this Rule enables the Registry to admit an appeal if the appeal is not barred by limitation and it is substantially and properly complied with the provisions of the High court of Jharkhand Rules and the law relating to the mandate for filing of such an appeal. It appears to me that in the context of Order 41, Rules 11 and 11a of the Code, rule 205 of the High Court of Jharkhand rules would have to be read down lest it conflicts with the mandate of Order 41, rules 11 and 11a of the Code. Since an appeal filed in the High Court is governed by the Code of Civil Procedure, any Rule of the high Court in respect of that appeal can only be consistent with the provisions relating to appeals in the Code of Civil Procedure. So viewed, Rule 205 (l) (a) of the High Court of jharkhand Rules to avoid it being in consistent with the scheme of Order 41, Rule 11 of the Code of Civil Procedure, has to be read as subject to the procedure in Order 41, Rule 11. In other words, the said Rule cannot prevail over the requirement of Order 41, Rule 11 of the Code. The said Rule has therefore to be read as only enabling the Registrar to register the appeal when the conditions therein are satisfied. In other words, the said Rule cannot prevail over the requirement of Order 41, Rule 11 of the Code. The said Rule has therefore to be read as only enabling the Registrar to register the appeal when the conditions therein are satisfied. The appeal thereafter has to be dealt with in terms of order 41, Rule 11 of the Code of Civil Procedure. Section 29 of the Bihar Reorganization act, 2000 under which the High Court of jharkhand Rules, 2001 are framed enables the High Court of Jharkhand either to adopt the Rules of the High Court of Patna or to make Rules for itself. This power to make rules relates to the procedure to be followed in the matter of a proceeding filed in the High court. This power to regulate the procedure, in my view, has to be understood consistently with the requirement of the Code of civil Procedure, which governs the filing of an appeal in this Court. So understood, I am of the view that the Rule 205 of the High court of Jharkhand Rules, 2001 cannot prevail over the requirement of Order 41, Rule 11 of the Code of Civil Procedure. I am, therefore, satisfied that appeals, whether it be under the Code of Civil Procedure or any special enactment have to be sent up for admission before the Bench in terms of Order 41, Rule 11 of the Code of Civil Procedure and notwithstanding the power conferred on the Registrar by Rule 205 of the high Court of Jharkhand Rules, 2001. ( 23 ) IN the light of the discussions made above, in our considered opinion, Rule 205 (l) (a) of the High Court of Jharkhand rules, 2001 needs to be amended to the extent that all appears arising out of the original decree, if it is sufficiently and properly stamped and complies with the provisions of the Rule and Law regarding maintainability shall be posted before the appropriate bench for consideration and admission and for passing appropriate order. ( 24 ) LET this appeal be placed for hearing under Order 41, Rule 11 of the Code of Civil procedure. Order accordingly. --- *** --- .