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Nandlal Shankarlal Tiwari and ors. Vs. Laxman Umakant Malkarjun and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberMisc. Civil Appln. Nos. 114, 115 and 143 of 1969
Judge
Reported inAIR1970Bom268; (1970)72BOMLR715; 1970MhLJ264
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(9), 33 and 551 - Order 20, Rule 4(1) and 4(2) - Order 41, Rules 1, 2, 3, 3(1), 3(2), 4, 5, 6, 7, 8, 9, 9(1), 10, 11, 11(1), 12, 13, 14, 15, 16, 17, 17(1), 18, 19, 20, 21, 22, 30, 31, 32, 33, 34, 35, 36 and 37; High Courts Act; Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 29
AppellantNandlal Shankarlal Tiwari and ors.
RespondentLaxman Umakant Malkarjun and ors.
Advocates:B.R. Mandlekar, Adv.
Excerpt:
.....court to pronounce a judgment when an appeal is summarily rejected under order xli, rule 11 of the civil procedure code, 1908. tanaji v. shankar (1911) 13 bom. l.r. 1002, followed. hanmant v. annaji (1913) 15 bom. l.r. 765, f.b., explained. puttapa v. yellappa (1903) 5 bom. l.r. 233, makhu sahu v. kamta prasad [1934] a.i.r. patna 341 and gangabai v. gourishankar (1964) 67 bom. l.r. 231, referred to. - - the legal position in this behalf so far as this court is concerned is already concluded by judgments as well as by long standing practice. however, since this question is being raised recently in this court particularly by petitioners who have hardly any point to urge for obtaining a leave to file a letters patent appeal, it is better that the legal position is once more summarised...........ought to be granted. hence this order. 2. mr. mandlekar argued that order 41, rule 11 of the civil procedure code applies to file further hearing of appeal before this court and a judgment including reasons for the summary dismissal of the appeal must be made by this court. the one-word order of dismissal is not a judgment according to law. the legal position in this behalf so far as this court is concerned is already concluded by judgments as well as by long standing practice. however, since this question is being raised recently in this court particularly by petitioners who have hardly any point to urge for obtaining a leave to file a letters patent appeal, it is better that the legal position is once more summarised. 3. what is argued is that the provisions of order 41, rule 11.....
Judgment:

1. These are three applications for permission to file Letters Patent Appeal, All the three, second appeals were summarily dismissed by one-word order 'dismissed'. Leave is being refused in all the three applications to file an appeal under Clause 15 of the Letters Patent as none of them involves any point of law which requires to be considered by Division Bench. However, Mr. Mandlekar has raised a technical question which he thinks, is an important point of law for which leave ought to be granted. Hence this order.

2. Mr. Mandlekar argued that Order 41, Rule 11 of the Civil Procedure Code applies to file further hearing of appeal before this Court and a judgment including reasons for the summary dismissal of the appeal must be made by this Court. The one-word order of dismissal is not a judgment according to law. The legal position in this behalf so far as this Court is concerned is already concluded by judgments as well as by long standing practice. However, since this question is being raised recently in this Court particularly by petitioners who have hardly any point to urge for obtaining a leave to file a Letters Patent Appeal, it is better that the legal position is once more summarised.

3. What is argued is that the provisions of Order 41, Rule 11 of the Civil Procedure Code must be read along with Rule 81 of the same order as well as Sections 2(9), S3 and Order 20, Rule 4 Sub-rule (2). The argument in short is that even while the appeal is being summarily dismissed under Rule 11, the Court ought to make a judgment according to law. The word 'judgment' has been defined in clause (9) of Section 2 and means the statement given by the Judge of the grounds of a decree or order. Order 20, Rule 4, deals with the contents of judgments, Sub-rule (1) of Rule 4 relates to the judgment of a Small Causes Court and it is enough if the judgment of that Court contains the points for determination and the decision thereon. Sub-rule (2) of Rule 4, however, requires that Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. Along with this provision Rule 31 of Order 41 is read to point out that the judgment of the Appellate Court shall be in writing and shall state (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. At the time this judgment is pronounced it shall be signed and dated by the Judge or by the Judges concurring therein, In short, even while the appeal is being summarily dismissed under Order 41, Rule 11 of the Civil Procedure Code a regular judgment as is made at the end of the final Hearing of an appeal ought to be made by the Judge or Judges in motion hearing.

4. The provisions relating to appeals are contained in Order 41 of the Civil Procedure Code 1908. The various rules in this order are grouped under appropriate headings dealing with particular topics. Rules 1 to 4 deal with the form of appeal and the compliance with the technicalities before an appeal memo is considered to be in order and is directed to be entered in the register of appeal maintained in Court. Rules 5 to 8 deal with the provisions of stay order and security to be taken in relation to the stay order. Rules 9 to 15 deal with the procedure on admission of appeal. After the appeal is found in order it is entered into the register under Sub-rule (1) of Rule 9. After an appeal is so entered in the register of appeals, the Appellate Court sets it down for what is known as motion, hearing or the state of admission of the appeal. Rule 11(1) which is the subject-matter of dispute is in the following terms:--

'Order 41, Rule 11 (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.' If the Court does not dismiss an appeal under this rule, it has to set down a date for hearing and issue notice to respondent.

5. Rules 10 to 22 of Order 41 of the Civil Procedure Code deal with the procedure on hearing. Once the appeal is admitted for final hearing a notice thereof is issued to the respondent. The procedure to be adopted is laid down by these rules. It may be noted that under Sub-rule (1) of Rule 17 it is open to the Court to dismiss the appeal for default if the appellant does not appear when the appeal is called on for hearing. If the appellant commits default in payment of process charges and the notice of hearing of the appeal could not be served upon the respondent because of 'this default of the appellant it is again open to the Court to dismiss the appeal under Rule 18. The provisions contained in these two rules indicate that in certain circumstances it is open to the Court to dismiss the appeal without writing a detailed judgment. It may incidentally be noted that it is open to the Court under Sub-rule (1) of the Rule 3 to reject a memorandum if it is not presented in the proper form nor is it amended in spite of the directions of the Court, Sub-rule (2) of Rule 9, however, requires that where the Court rejects any memorandum, it shall record the reasons for such rejection. There is a marked difference between the language of Sub-rule (2) of Rule 3 and the language of Sub-rule (1) of the Rule 11. The language of Sub-rule (1) of Rule 11 is more analogous to the language of Rules 17 and 18.

6. Rules 30 to 34 of Order 41 deal with the judgment in appeal. Rule 31, which has already been referred to earlier, requires the judgment of the Appellate Court to be in a certain form. It also lays down what the judgment shall contain, However, Rule 30 says that the Appellate Court, after hearing the parties or their pleaders and referring to any part o the proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment in open Court. Obviously therefore, Rule 30 comes into operation only where a notice of appeal is being sent to the respondent and the parties are heard and in which hearing points are raised for the consideration of the Appellate Court. It is only when such a stage is reached that the judgment contemplated in the manner provided by Rule 31 has to be made. Rules 35 to 37 deal with the decrees in appeal.

7. On a plain reading of the scheme of Order 41, it does not seem, to be necessary for the Appellate Court to write any judgment or a detailed order while dismissing an appeal summarily under Rule 11. Tanaji Dagde v. Shankar Sakharam : (1911)13BOMLR1002 , a Division Bench of this Court considered this question where the District Court passed a very brief order under Order 41, Rule 11 of the Civil Procedure Code while dismissing an appeal. The order passed was 'the lower Court has given good reasons for holding that plaintiff appellant was a mere benamidar for the defendant-respondent (who is in possession) and not a real purchaser'. In the face of a such a Cryptic order, the argument addressed to this Court was that the judgment is not according to law. Hayward, J., referred to an earlier judgment of this Court in Puttapa v. Yellap-pa, (1903) 5 Bom LR 233 in which a Division Bench expressed the view that a formal judgment was necessary in the case of an appeal dismissed without sending notice to the lower Court, However, it is pointed out that no reasons were assigned for that decision. The learned Judge proceeds to consider the scheme of Order 41 and points out that the reference to 'a judgment in appeal' arises only when that stage is reached when both sides are to be heard and the Court is to write a judgment under Rule 30. The final conclusion drawn by the learned Judge with whom the other learned Judge Seaman, J., concurred, is as follows:--

'It appears to me therefore, looking to Order XLI as a whole, and to the position in, it of Rule 11., relating to the summary dismissals of appeals, as also of Rules 17 and 18, relating to dismissals for default of the appellant, and having regard to the practical difficulty of applying to any such dismissals the provisions of Rules 30 and 31 relating to judgments, that those provisions cannot be held, and were never intended by the Legislature to be held, applicable to any but regular hearings of appeals in the presence of the parties and with the record before the Court.' This judgment has been overruled by a subsequent Full Bench Judgment of this Court in Hanmant Rukhamaji v. Annaji Hanmant : (1913)15BOMLR765 . It may be remembered that the Question before the Division Bench of this Court in : (1911)13BOMLR1002 was whether the District Court was justified in passing a very brief and unspeaking order while dismissing the appeal under Order 41, Rule 11 of the Civil Procedure Code. On an interpretation of the provisions of Order 41 the view taken was that the order was thoroughly justified and legal. Before the Full Bench, the question canvassed was that Tanaji Dagde's case was wrongly decided. The learned Chief Justice points out that a Civil Circular 51 was published in 1890 under the provisions of the High Courts Act. The Civil Circular provides that when an Appellate Court subordinate to this Court dismisses an appeal under Section 551 of the Code of Civil Procedure, a judgment should be written and a formal decree drawn up. The Full Bench proceeds to point out that there was nothing in the new Code of Civil Procedure which introduces any change in law, except in so far as the rules commencing with Rule 9 of Order XLI are headed 'Procedure on admission of appeal'. That change is not sufficient to abrogate the rule published under the High Courts Act, which is quite consistent with the provisions of the Code, The rule in the Civil Circulars is the basis of all the Bombay Judgments referred to by the learned Chief Justice in that judgment except the one reported in (1911) ILR 36 Bom 116 = 13 Bom LR 1002. It is, therefore, pointed out that the practice laid down in that circular must still be observed by the Courts in the Presidency subject to the superintendence of the High Court.

8. The net result, therefore, is that so tar as the Courts subordinate to the High Court in this State are concerned Civil Circular 51 issued in 1890 still holds good, and the subordinate Courts are obliged to write ft judgment and draw up a formal decree.

9. It may be noticed that Beaman, J., who was a party to Tanaji Dagde's case and concerned with the judgment of Hayward, J., was also one of the judges constituting the Full Bench deciding Hanmant Rukhmaji's case. In view of the Circular 51 pointed out by the Chief Justice, Beaman, J., agreed with the judgment proposed by the Full Bench but has observed as follows:--

'Had we nothing more to do here than give a true construction of O. XLI, then notwithstanding the conflicting decisions which have been cited to us, I should certainly have adhered to the view expressed by my brother Hayward, in which I concurred, in Tanaji Dagde v. Shankar Sakharam. But in view of the circular order which has been mentioned, I feel that so long as that Circular Order stands, and has the force of law, I ought to concur, and therefore I do concur in the judgment which has just been pronounced by my Lord the Chief Justice.' Ever since, the District Courts have been pronouncing formal judgments and drawing up decree where appeals are summarily dismissed under Order 41, Rule 11 of the Civil Procedure Code. It may be noted, however, that in spite of this judgment which is meant for the guidance of subordinate Courts, the practice of passing one-word dismissal order is in vogue in this Court throughout these years. It is not because a mere practice has developed but because on a true construction of Order 41 read as a whole it is not obligatory on an Appellate Court to pronounce a judgment when an appeal is being summarily rejected. The Full Bench dealt with a limited issue as to how the Courts subordinate to the High Court should conduct themselves while dismissing appeals under Order 41, Rule 11 of the Civil Procedure Code. It has not either considered or disapproved the true construction of the provisions of Order 41, Rule 11 as pointed out by the Division Bench in Tanaji Dagde's case. The interpretation of Order 41, Rule 11 made in Tanaji Dagde's case is still good law so far as the dismissal of appeals by this Court under Order 41, Rule 11 is concerned.

10. The opinion on this point is not unanimous between the various High Courts. The Calcutta High Court has for a long time taken a view that a reasoned Judgment must be made in dismissal of appeal under Order 41, Rule 11 of the Civil Procedure Code. The Rangoon High Court has followed the judgment of this Court because the High Court of Burma had issued a rule similar to Civil Circular 51 of this Court. A Division Bench of the Patna High Court in Makhu Sahu v. Kamta Prasad Sahu, AIR 1934 Pat 341 has approved and agreed with the view of this Court in Tanaji Dagde's case. After an exhaustive analysis of the provisions of Order 41 was done, the observation of the Patna High Court is as follows:--

'A simple order of dismissal may be passed if the appeal is not admitted and it is not until after admission and after hearing that a judgment is required.' Mr. Mandlekar argued before me that the judgment in Tanaji Dagde's case having been overruled by a Full Bench it would not be permissible for this Court to act upon the interpretation made in Tanaji Dagde's case, I do not think that this approach is correct. A very limited issue was decided by the Full Bench and to the extent that the Full Bench gave direction based upon a Circular issued by this Court, the point is concluded so far as the judgments to be made by the Courts subordinate to this Court are concerned. The provisions of that Circular are not confined to the District Courts alone but they control all subordinate Courts. That view has been recently taken by a Division Bench of this Court in Gangabai Tokersay v. Gouri Shankar Chhitarmal, : AIR1966Bom34 . Under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, an appeal lies under Section 29 from a judgment of a Judge of the Court of Small Causes Bombay to the Division Bench of the same Court, The Appellate Division Bench of the Small Causes Court summarily rejects an appeal without giving reasons or without writing a judgment. When that order was challenged as not in accordance with law, the Division Bench of this Court points out that the Civil Circular 51 of 1890 is applicable to all Courts subordinate to this Court which hear appeals according to the provisions of the Civil Procedure Code, for the Appellate Bench of the Small Causes Court, Bombay, it is obligatory to follow that circular and make judgment even when the appeal is being rejected under Order 41, Rule 11.

11. These judgments, according to me merely point out the extent of the operation of the Civil Circular 51 of 1890 and do not in any manner impair the authority of the interpretation of the provisions of Order 41, Rule 11 as made by the Division Bench in Tanaji Dagde's case. That appears to me to be the consistent view of this Court and nothing seems to have happened which requires a reconsideration of that view. Thus, the point raised by Mr. Mandlekar is without substance. Leave refused in all the three petitions.

12. Leave refused.


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