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2025 DIGILAW 2280 (MAD)

V. S. Chandrasekaran v. R. Uma

2025-04-25

G.R.SWAMINATHAN, M.JOTHIRAMAN

body2025
ORDER : G.R.SWAMINATHAN, J. This first appeal filed under Section 96 of CPC is directed against the judgment and decree dated 02.03.2024 made in O.S No.88 of 2018 on the file of the V Additional District and Sessions Judge, Madurai District. The defendant is the appellant. The suit was for recovery of money. The long prevailing practice of the Madras High Court is that notice will be issued to the respondents by the Registry after numbering the first appeal. Instead of doing so, the appeal has been listed under the caption “For Admission” before this Bench. The Registry has done so on account of the direction issued by The Hon'ble Mr.Justice N.Sathish Kumar vide order dated 07.03.2025 in A.S No. 148 of 2025. Paragraphs 21 and 22 of the said order read as follows : “21.On circumspection of the overall parametres discussed hereinabove, coupled with various judgments of High Courts and Supreme Court, it is amply clear that appeals should be posted before the Judge for admission. Thus, in view of the amendment to Order XLI Rule 11, all First Appeals shall be hereafter posted before the concerned Court for admission and it is for the Judge to decide whether the appeal requires to be admitted or there is no merit in the appeal, as the existing Rules or Standing Orders, which are inconsistent with the substantive provisions of the CPC, will not empower the Deputy Registrar of the Registry to number the appeal and call for records. 22.In fine, Registrar Judicial of this Court is hereby directed to issue a circular, instructing the Deputy Registrar and other Registrars to post all the First Appeals for admission only before the concerned Judge having roster henceforth.” 2.The Hon'ble Judge was fully conscious that as per Order II Rule 3 of the Rules of the High Court, Madras, Appellate Side, 1965, the Deputy Registrar is obliged to receive all appeals against original decrees of subordinate courts and issue notice forthwith and listing the first appeals for admission before the court is not envisaged. What impelled the Hon'ble Judge to depart from this procedure and practice is the amendment made to Order 41 of CPC through parliamentary legislation by way of Amendment Act 46 of 1999. What impelled the Hon'ble Judge to depart from this procedure and practice is the amendment made to Order 41 of CPC through parliamentary legislation by way of Amendment Act 46 of 1999. The amendment itself was pursuant to the Malimath Committee report which observed that there is no justification for not listing regular first appeals for preliminary hearing or admitting them as of course. The Hon'ble Judge took note of the amendments made to Rules 9 and 11 of Order 41 of CPC which are as follows : “9. Registry of memorandum of appeal.—(1) The Court from whose decree an appeal lies shall entertain the memorandum of appeal and shall endorse thereon the date of presentation and shall register the appeal in a book of appeal kept for that purpose. (2) Such book shall be called the register of appeal.” 11. Power to dismiss appeal without sending notice to Lower Court - (1) The 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...” 3. The Hon'ble Judge after citing quite a few decisions of the Hon'ble Supreme Court ( U.P.Avas Evam Vikas Parishad vs. Sheo Narain Kushwaha (2011) 6 SCC 456 , Salem Advocate Bar Association, Tamil Nadu vs. Union of India (2005) 6 SCC 344 and Mahadev Govind Gharge vs. Special Land Acquisition (2011) 6 SCC 321 ) rightly concludes that the aforesaid amendment had taken away the right of automatic admission and that every appeal has to be posted before the court under Order 41 Rule 11 of CPC for orders as to admission. No exception can be taken to this conclusion and the approach is, if we may say with respect, well-founded. But that would be the position only if the procedure regarding admission of first appeals filed under Section 96 of CPC is governed by Order 41 of CPC alone. 4.That admittedly is not the case. Order II Rule 3 of the Appellate Side Rules, Madras High Court prescribes a modified procedure. “R.1. The power and authority which under these or other rules or the practice of the Court are exercisable by the Registrar may be exercised by the Deputy Registrar or the Assistant Registrar of the Appellate Side or such other officers as the Chief Justice may specify. “R.1. The power and authority which under these or other rules or the practice of the Court are exercisable by the Registrar may be exercised by the Deputy Registrar or the Assistant Registrar of the Appellate Side or such other officers as the Chief Justice may specify. The Chief Justice may, by general or special order, specify the power and authority exercisable by such officers. R.2. Where any duty to be discharged under these rules or any enactment or any rules made thereunder is a duty which has heretofore been discharged by any officer, such duty shall, unless or until otherwise ordered, continue to be discharged by the same officer or by such other officer as the Chief Justice may by order direct. Where any new duty is to be discharged; the proper officer to discharge the same shall be such officer as Chief Justice may from time to time appoint. R.3. In addition to the powers conferred by other rules, the Registrar shall have the following duties and powers, subject to any special or general order made by the Chief Justice: Provided that the Registrar may in his discretion refer any proceeding before him for the decision of the Court; Provided also, that, at the request of any party, the Registrar shall post the matter before the Court - (1) to receive appeals, petitions and other proceedings; (2) to require any memorandum of appeal, petition, application or other proceeding presented to the Court or to the Registrar to be amended (or rectified) in accordance with the procedure or practice of the Court. (3) (i) In appeals against (a) original decrees of subordinate Courts; (b) final judgments in original suits disposed of by the High Court in the exercise of its original jurisdiction; and (c) under Clause 15 of the Letter Patents from the Judgment of single judges passed in appeals from appellate decrees or orders, where the certificate provided for in Order IV Rule 28 has already been obtained, the Registrar shall issue notice forthwith. (ii) In all miscellaneous appeals other than appeals under Order XLIII, Rule 1 (u) of the Code, the Registrar may direct the issue of notice forthwith or post any such appeal before the Court for orders. (ii) In all miscellaneous appeals other than appeals under Order XLIII, Rule 1 (u) of the Code, the Registrar may direct the issue of notice forthwith or post any such appeal before the Court for orders. (iii) In all appeals under Clause 15 of the Letters Patent from judgments of Single Judges, other than those specified in Rule 3(3)(i) [(b) and], (c), the Registrar shall post them before the Court for orders. (iv) In appeals against appellate decrees, miscellaneous appeals under Order 43 Rule 1(u) of the Code and miscellaneous second appeals, the Registrar shall take the orders of the Judge whether notice to the respondent shall issue. If the Judge direct that the appeal be posted for hearing under Order XLI Rule 11 of the Code, the Registrar shall post the appeal for hearing subject to the provisions of Order I Rule 2(5)(c) of these rules. (v) In civil revision petitions the Registrar shall take the orders of a judge whether notice shall issue and shall post the petition for hearing in the manner prescribed for appeals by Order XLI Rule 11 of the Code, if so directed. (4) To fix the date of hearing of any civil revision petition under Order IV Rule 26. (5) To fix the date of hearing of any application under Order IV Rule 38. (6) To determine all cases referred to him under Order VII Rule 8. (7) To order the supply to parties to a proceeding (i) records duly certified as correct copies; (ii) uncertified printed, cyclostyled or typed records; and iii) translations under Order VIII Rule 17. (8) To stop at his discretion the issue of all or any papers to any practitioner who has failed to pay any fee or charges due to the Court. (9) To require any person or party to file an affidavit in any proceeding before him. (10) To call for a further deposit, when the deposit already made by the appellant in an appeal to the Supreme Court is not sufficient to defray the cost of preparing the records. (11) To order repayment of the unexpected balance of charges deposited for the preparation of the record in any proceeding. (12) To give directions as to the preparation of the record in connected appeals. (11) To order repayment of the unexpected balance of charges deposited for the preparation of the record in any proceeding. (12) To give directions as to the preparation of the record in connected appeals. (13) To give directions as to the apportionment of costs of the preparation of the record in appeals to the Supreme Court consolidated under Order XII Rule 6 of the Supreme Court Rules. (14) To extend the period mentioned in Order XLI-A Rule 2 of the Code as follows: (i) if the respondent resides beyond the limits of Tamil Nadu but within India to not more than eight weeks. (ii) if the respondent resides outside India to not more than ten weeks. (15) To consider and dispose of claims by a party for the cost of unnecessary printing done at the instance of the opposite party. (16) To dispense with service of notice on respondents under the proviso to Order XLI Rule 14 (1) of the Code on an application by an appellant or petitioner. (17) To make an order for payment of costs of any application heard by him.” Obviously, there is an inconsistency between Order 41 Rules 9 and 11 of CPC as interpreted by the Hon'ble Supreme Court and Order II Rules 1 to 3 of the Appellate Side Rules of the Madras High Court. His Lordship Mr.Justice N.Sathish Kumar is of the view that since the Appellate Side Rules were framed prior to the 1999 amendments to Order 41 of CPC, they have to give way. We respectfully disagree with the said view. 5. The Appellate Side Rules, 1965 were issued by the Madras High Court under the provisions of Section 122 of the Code of Civil Procedure, 1908 . The Hon'ble Supreme Court in the decision reported in (2011) 15 SCC 330 ( Malthesh Gudda Pooja v. State of Karnataka ) considered the question if there was any inconsistency between the Rules made by the High Court under Section 122 of CPC and Order 47 Rule 5 of CPC. Even while holding that there was no inconsistency between the two, the Hon'ble Supreme Court clarified the legal position in the following terms : “10.The Rules made under Section 122 cannot be inconsistent with the body of the Code (that is, sections in the Code), but can be inconsistent with any of the rules in the First Schedule to the Code. As the Rules under Section 122 can alter or add any rule in the First Schedule to the Code, the provisions of Chapter 3 Rule 5 of the High Court Rules will prevail over Order 47 Rule 5 of the Code.” In fact, the Hon'ble Supreme Court only affirmed the prevailing position. Our attention was drawn by Shri.H.Lakshmi Shankar, learned counsel to the decision of the Division Bench of the Madras High Court in The Tamil Nadu Electricity Board, rep.by its Chairman, Mount Road, Madras -2 v. R.Srinivasan ( 1991 SCC OnLine Mad 384 ) wherein also it was held that if there is any inconsistency between the Appellate Side Rules and the provisions of the First Schedule of the Code, the Appellate Side Rules having been formulated pursuant to powers under Section 122 of the Code shall take precedence. 6. Section 2(18) of CPC defines “Rules” as follows “ ' “rules” means rules and forms contained in the First Schedule or made under Section 122 or Section 125” ' Thus, the provisions in First Schedule partake the character of only Rules notwithstanding the fact that they were enacted by the parliament. Merely because they owe their origin to a parliamentary enactment, they would not acquire a status superior to the Rules made by the High Court under Section 122 of CPC. The Appellate Side Rules rank higher in the hierarchy. This is too well settled and does not admit of any doubt. The Hon'ble Supreme Court in Ispat Industries Limited vs. Commissioner of Customs (2006) 12 SCC 583 quoting Kelsen held that in every legal system, there is a hierarchy of laws and whenever there is conflict between a norm in a higher layer in this hierarchy and a norm in a lower layer, the norm in the higher layer will prevail. When thus the Appellate Side Rules would rank superior and prevail over the Rules in the First Schedule of the Code at all times, the fact that some amendments were made to First Schedule subsequent to the making of the Appellate Side Rules is of no consequence. 7.The learned Judge had relied on the decision of the Hon'ble Jharkhand High Court in Bishnu Bhagat vs. Pushpa Devi reported in AIR 2006 Jhar 117. 7.The learned Judge had relied on the decision of the Hon'ble Jharkhand High Court in Bishnu Bhagat vs. Pushpa Devi reported in AIR 2006 Jhar 117. No doubt, the said decision holds that the Rules of the High Court of Jharkhand cannot prevail over the requirement of Order 41 Rule 11 of the Code. Two comments have to be made here. The Madras High Court is a chartered High Court. The Appellate Side Rules can be traced not only to Section 122 of CPC but also Clause 37 of the Letters Patent. Secondly, Bishnu Bhagat cannot be said to be good law in the light of the decision of the Hon'ble Supreme Court in Malthesh (supra). 8.The learned Judge also placed reliance upon the decision of the Hon'ble Division Bench of Allahabad High Court reported in 2005 SCC OnLine All 148 (Moti Lal v. Bhagwan Das). In this decision, only two issues had arisen for consideration. The first question was whether a regular first appeal under section 96, C.P.C., being an appeal on facts and law both, should be admitted mechanically, without any hearing under Order XLI, Rule 11, C.P.C. And the second question was whether the issue of admission of an appeal is a matter exclusively between the appellant and the Court in which the respondent has no say; and if so, whether the respondent, who has appeared at that stage on the strength of a caveat or otherwise, should be shut out from hearing till after the appeal is admitted and till the stage comes for considering grant or refusal of interim order in the admitted appeal. The interplay between the Rules framed by the High Court under 122 and Order XLI, Rule 11 was not discussed. 9. The learned Judge relied on the decisions of the Division Bench of the Karnataka High Court in T.S.Channegowda s. Sri H.Thopaiah (ILR 2015 Kar 2809) and M.C.Mohammed vs. Gowramma and ors (ILR 2006 Kar 4584 . But in both the decisions, the interplay between the Rules framed by the High Court and Order 41 Rule 11 was not discussed. 10. Another decision on which reliance has been placed by the learned Judge is that of the Division Bench of the Calcutta High Court in Nilmoni Mazumdar vs. Smt.Sanghamitra Maumdar (2002 SCC OnLine Cal 394) . But in both the decisions, the interplay between the Rules framed by the High Court and Order 41 Rule 11 was not discussed. 10. Another decision on which reliance has been placed by the learned Judge is that of the Division Bench of the Calcutta High Court in Nilmoni Mazumdar vs. Smt.Sanghamitra Maumdar (2002 SCC OnLine Cal 394) . In the said decision, the question that arose was whether an appeal under Section 28(2) of the Hindu Marriage Act is required to be set down for hearing under Order 41 Rule 11 CPC. The learned Judges answered the question in the affirmative. The said decision does not contain any proposition that the appellate side rules are to be read as subservient to the provisions in the First Schedule. On the other hand, it has been specifically held therein that the appellate side rules have all the authority of a legislation or statutory law under the provisions of the Charter Act, Clause 36 of the Letters Patent, Section 122 of CPC and under Article 225 of the Constitution. 11. It is relevant to mention here that the Appellate Side Rules of the Madras High Court open thus : “Under the provisions of Section 122 of the Code of Civil Procedure, 1908 , and all other powers hereunto enabling and with the previous approval of the Government of Madras, the High Court hereby issues the following rules to apply, so far as may be practicable, to all proceedings taken on the Appellate Side of the High Court, Madras, in suppression of the existing rules of the High Court, Madras, Appellate Side...” 12. Shri.Shrivatsav N, the learned counsel points out that the Hon'ble Calcutta High Court in Atish Kumar Mukherjee vs. Nitish Kumar Mukherjee (2022 SCC OnLine Cal 2529), while dealing with Order XLI Rule 11 and the relevant provisions of delegation to the Registrar under Calcutta High Court Appellate Side Rules notes that the rules which permit the Registrar to admit appeals is incompatible with Order 41 CPC. The court noted that since the rules are statutory, the matter needed to be referred to the Rule Committee to consider the observations of the court and to recommend if it so deems fit, any amendment to the said rule. It held that as long as the said rules are not declared invalid, they are deemed to be valid. 13. The court noted that since the rules are statutory, the matter needed to be referred to the Rule Committee to consider the observations of the court and to recommend if it so deems fit, any amendment to the said rule. It held that as long as the said rules are not declared invalid, they are deemed to be valid. 13. It is true that in Managing Director, Thanthai Periyar Transport Corporation vs. Karthiyayini ( AIR 1995 Mad 102 ), the Hon'ble Division Bench observed that where in an appeal arising out of a regular suit, there is delay in filing the said appeal and an application is filed for excusing the said delay, Order 41 Rule 3(A)(3) CPC would preclude the court from granting an interim stay for execution of decree, until the court, after hearing under Rule 11 of Order 41 CPC, admits the appeal for being heard. Again, this decision cannot be relied upon to upset the settled practice of this Court because in this case also, the efficacy and applicability of the Appellate Side Rules were not gone into or considered. On the other hand, the Full Bench decision in M.Ranka v. Justice P.S.Mishra (1994) Vol 2 Mad LJ 110 ), the procedure governing any proceeding in the High Court was delineated as follows : “In every proceeding in this Court, there are four stages: (1) Presentation, (2) Filing, (3) Admission and (4) Final hearing. Whenever any proceeding is presented, the Registry enters the same in the Stamp Register or General Diary. The serial number of the proceeding represents the number of the proceeding presented in the year. In this Court, matters presented on the Original Side are entered in the register called Diary and the serial number is known as Diary Number. In fact, this petition is bearing Diary No. 14283/92. On the appellate Side, the registers are called Stamp Register and Unstamped Register. .... Then the Registry scrutinises the papers and if the requirements of the rules are satisfied, they will be passed and taken on file. At that stage, they will be entered in the registers separately kept for each class of proceeding..... Taking the case on file by assigning a number to the proceeding does not tantamount to admission of the case. Then the Registry scrutinises the papers and if the requirements of the rules are satisfied, they will be passed and taken on file. At that stage, they will be entered in the registers separately kept for each class of proceeding..... Taking the case on file by assigning a number to the proceeding does not tantamount to admission of the case. After the proceeding is taken on file, some matters are posted before Court for admission and some matters are admitted by an Official in the Registry according to the Rules, for example, an appeal under S. 96, Code of Civil Procedure, is admitted by the Deputy Registrar automatically after it is taken on file. Similarly, a Civil Suit is admitted by an Officer in the Original Side. 14. It may be noted that the Appellate Side Rules of the Madras High Court which were in force before being repealed by the 1965 Rules spoke of the duty and power of the Registrar “to admit all appeals against the decrees or orders of civil courts and to issue notice to the respondents therein...” In the 1965 Rules, the word “admit” is conspicuously absent. We do not propose to go into the issue if the Registrar retains the power to admit the appeals filed under Section 96 of CPC. The only issue posed for consideration is whether after numbering the said appeals, they have to be listed for admission before the Court. Our answer is in the negative. 15. Having held so, we have to necessarily observe that the Rule Committee can take a call and decide to amend Order II of the Appellate Side Rules so as to bring it in conformity with the amendments made to Order 41 of CPC. Till such amendment is done to the Appellate Side Rules, the existing practice in the matter of admission of first appeals under Section 96 of CPC shall continue and they need not be listed for admission before the court concerned. 16. We deeply appreciate the assistance rendered by the learned Amici Curiae, namely, Mr.T.R.Rajagopalan, Senior Counsel, Mrs.N.Krishnaveni, Senior Counsel, Mr.V.Raghavachari, Senior Counsel, Mr.Srinath Sridevan, Senior Counsel, Mr.Sricharan Rangarajan, Senior Counsel, the learned counsel Mr.H.Lakshmi Shankar, Ms.Prarthana Ramesh, Ms.Ananya Pattabhiraman and Mr.N.Shrivatsav.