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Sadeppa Yellappa Dalawai Vs. Sadasiva Maharudrappa Cheelad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 920 of 1960
Judge
Reported inAIR1964Kant145; AIR1964Mys145
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(9), 100 and 551 - Order 41, Rules 11, 11(1), 17, 18, 30 and 31 - Order 42
AppellantSadeppa Yellappa Dalawai
RespondentSadasiva Maharudrappa Cheelad
Appellant AdvocateK.S. Srinivasa Iyer, Adv. for ;B.V. Krishnaswamy Rao, Adv.
Respondent AdvocateM.M. Jahagirdar, Amicus Curiae
Excerpt:
.....are weak links in every chain. i shall be happy if this rule is made imperative. quite clearly, the preponderance of judicial authority is in favour of the view that rule 31 o!.....an order of dismissal under rule 11 is not required to comply with the requirements of that rule. rule 31 speaks of 'the judgment of the appellate court'. earlier, we have come to the conclusion that the order dismissing an appeal under rule 11 is a judgment. therefore, prima facie, such an order falls within the mischief of rule 31. 4. it must ha remembered that the right to file an appeal under order xli is a very valuable right. therein both questions of law as well as facts can be agitated. on questions of fact the decision of the first appellate court is final. therefore, that decision has to be reached after carefully knowing the points in dispute, the evidence bearing on those points and the law governing the subject. that is the basis of rule 31. the object of r, 31 is to.....
Judgment:

1. The point of law urged in this case is an interesting one and, I am told, it is not covered by any decision of this Court. It is urged on behalf of the appellant that the judgment of the first appellate Court, not being in conformity with rule 31 of 0. XLI C. P. C. is liable to be set aside. The appeal filed by the appellant (Civil Appeal No. 31 of I960 in the Court of that District Judge, Belgaum) was dismissed under Rule 11 of Order XLI with the following observations:

'Find no sufficient ground to admit this appeal. Hence, rejected'.

Sri. Srinivasa Iyer, the learned counsel for the appellant, contended that the judgment of the first appellate court is no judgment in law and therefore, I must set it aside. The respondent in this case was not represented. Therefore, at my request, Sri M.M. Jahagirdar was good enough to argue the appeal on behalf of the respondent as amicus curiae. I must admit that I had considerable assistance from the arguments advanced by the learned counsel on either side.

2. Rule 11(1) of Order XLI says:

'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.'

Rule 31 of Order XLI lays down :

'The Judgment of the appellate Court shall be in writing and shall state (a) the points for determination -. (6) 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 and shall at the time that it is pronounced be 'signed and dated by the judge or by the Judges concurring therein.

Provided that where the Presiding Judge is specially empowered by the High Court to pronounce his judgments by dictation to a short-hand writer in open court, the transcript of the judgment se pronounced shall after such revision as may be deemed necessary be signed by the Judge'. On behalf of the appellant it is contended that Rule 11 is controlled by Rule 31. On the other hand Sri Jahagirdar contended that Rule 11 deals with the dismissal of an appeal whereas Rule 31 concerns with the judgment given In an appeal after hearing both the parties and therefore, they cover two different fields. Hence, according to him Rule 11 is not controlled by Rule 31.

3. It cannot be denied and it is not denied that the order of the first appellate court which I have extracted above is a judgment and that a decree had been drawn up on the basis of that judgment. It is also not denied that from that decree a second appeal lies to this Court. 'Judgment' is defined in Section 2(9) as follows:--

' 'Judgment' means the statement given by the Judge of the grounds of a decree or order'. This definition deals with judgments in general. In law, judgments of trial courts should conform to certain requirements. In the case of the judgments of the first appellate courts, they should conform to the aforementioned Rule 31. The question is whether an order of dismissal Under Rule 11 is not required to comply with the requirements of that rule. Rule 31 speaks of 'the judgment of the appellate court'. Earlier, we have come to the conclusion that the order dismissing an appeal under Rule 11 is a judgment. Therefore, prima facie, such an order falls within the mischief of Rule 31.

4. It must ha remembered that the right to file an appeal under Order XLI is a very valuable right. Therein both questions of law as well as facts can be agitated. On questions of fact the decision of the first appellate court is final. Therefore, that decision has to be reached after carefully knowing the points in dispute, the evidence bearing on those points and the law governing the subject. That is the basis of Rule 31. The object of R, 31 is to see that a Judge does not act callously or even mechanically. Its purpose is to put the Judge on the right track and to the extent rules of procedure can do it, to see that he acts judicially. If the restrictions placed by R, 31 are held to be inapplicable in case of dismissal, under Rule 11, then the danger of dismissing an appeal as a shortcut to disposal cannot be avoided. It is dangerous to offer such a temptation. There are weak links In every chain. The main purpose of the law Is to guard against them. The necessity of applying the restrictions contained in Rule 31 to a case of dismissal under Rule 11 Is far more greater than in the case of a decision after hearing both the parties. If two interpretations of Rule 31 are reasonably possible, I shall not hesitate to choose that Interpretation which advances the cause of justice. An arbitrary power in the very nature of things is not likely to advance the cause of justice. Law apart. It is of the utmost importance that all judicial orders should be supported by reasons. I shall be happy If this rule Is made Imperative.

5. So far as the language of Rule 31 is concerned, Itappears to me to bec plain and unambiguous. That rulesays:

'The judgment of the Appellate Court shall be in writing and shall state:.....'

I see no Justification to Ignore the plain language and the rule of grammatical interpretation and have recourse to other rules of construction such as the scheme of Order XLI.

6. The opposite view tasted on the scheme of Order XLI was forcefully presented by Hayward, J. in Tanaji Dagde v. Shankar Sakharam, H.R 36 Bom 116. This is what the learned Judge stated in that case:

'Now Order XLI is divided under several headings and Rule 11 comes under the heading 'Procedure on admission of appeal' and provides that '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 end 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 appellate court does not so dismiss the appeal, it is provided under the same heading that a day shall be fixed for hearing the appeal after procuring the record and giving notice to the respondent or his pleader. But there is no provision requiring any formal judgment.

The next heading of the order is 'Procedure on hearing' and thereunder provision is made in Rules 17 and 18 for dismissal of the appeal for default of appellant-and in the remaining Rules for the procedure to be ob-served at the hearing of the appeal. But here again there is no provision for any formal judgment.

It is not until under the following heading 'judgment in appeal' that such provision occurs and under that heading Rule 30 provides that 'the appellate Court, after hearing the parties or their pleaders and referring to any part of 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, and Rule 31 provides that the Judgment of the appellate court shall be in writing and shall state the points for determination; the decision thereon; the reasons for the decision; and certain other matters. It is to be observed that these provisions apply in their entirety only to regular hearings at which issues are raised in the presence of the parties with the recant before the Court.

'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 previsions 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 parties and with the record before the Court.'

The view expressed above was affirmed by a Full Bench of the Bombay High Court in Hanmant v. Annaji Hanmant, ILR 37 Bom 610, though in that case the High Court sat aside the judgment of the first appellate Court on the ground that it did not conform to the circular issued by that High Court (Civil Circular No. 51). A Bench of the Patna High Court in Makhu Sahu v. Kamta Prasad Sahu AIR 1934 Pat 341, a Bench of the Nagpur Judicial Com-,missioner's court in Mt. Gawarjabai v. Harlram , and a Bench of the Sind Judicial Commissioner's court in Newandrai Sithaldas v. Sirumal Atislng AIR 1937 Sind 206, adopted the view taken in Tanaji Dagde's case, ILR 36 Bom 116.

7. The view that a dismissal under Rule 11 of Order XLMis controlled by the provisions of Rule 31 of that Order issupported by numerous decisions.

8. The oldest case on the point is the decision of the Madras High Court in Royal Reddi v. Linga Reddi, ILR 3 Mad 1. That was a case under the old Civil Procedure Code. There, the learned Judges held that an order of adjudication made under Section 151 of the C. P. C. (which is similar to Rule 31 of Order 41) is a decree and the procedure authorised under that section does not dispense with the necessity of drawing up a judgment. The Calcutta High Court in Hari Dasi Devi v. Gadadar Roy AIR 1926 Cal 992, laid down that a Judge in dismissing an appeal under Rule 11 of Order 41 is not relieved of the necessity of writing a judgment as prescribed by Rule 31. That High Court has consistently adhered to that view. The very question before us came up for consideration before a Full Bench of the Allahabad High Court in Durga Thathera v. Narain Thathera : AIR1931All597 . Therein, the Full Bench held that in a judgment delivered on hearing an appeal under Order XII, Rule 11 by a Court subordinate to High Court, compliance with the provisions, of Rule 31, 0. 41 is necessary. In the course of his judgment, Sulaiman, Ag. C. J. observed:

'Furthermore a second appeal Is allowed from such decrees under 0. 42, C. P. C. and before the appellate Court in second appeal can make up its mind as to whether there are grounds of interference under Section 100, C. P. C. it must know that points which were for determination and the decision of the lower appellate Court on each of those points in order to decide whether the decree can be affirmed or not. If the appellate Court ware simply to dismiss the appeal summarily without pointing out what its decisions are, the result would be impossible to know what findings of fact are binding upon the second appellate Court and what questions of law have been decided and how.'

The Rangoon High Court in Maung Yar Wee v. N. 14. Firm, MR 1927 Rang. 20, also took the view that Rule 11 is controlled by Rule 31. The said view finds further support from the decision of the Punjab High Court in Mohammad Arif v. Mohd. Ishaq AIR 1937 Lah 352, and to some extent, from the decision of the Patna High Court in Mariabir Das v. Sadho Choudhuri AIR 1936 Pat 505.

9. From the foregoing it is seen that even though the Bombay High Court is of the opinion that Rule 31, as such, does not control Rule 11, it has achieved the required result by issuing a circular. The Allahabad High Court, the Calcutta High Court, the Madras High Court and the Lahore High Court have consistently taken the view that Rule 31 controls Rule 11. The Patna High Court has spoken in two voices. This leaves us with two Courts, viz., the Judicial Commissioner's Court of Sind and the Judicial Commissioner's Court of Nagpur. Quite clearly, the preponderance of judicial authority Is In favour of the view that Rule 31 o! Order 41 controls Rule 11 of that order.

10. For the reasons mentioned above, I allow thisappeal, set aside the decree and judgment of the firstappellate Court and remand the case back to that Courtfor disposal according to law.

11. Appeal allowed.


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