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Roshan Lal Bharadwaj Vs. Shiv General Finance (P.) Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberRegular Appeal No. 46 of 1985 and Regular First Appeal No. 138 of 1985
Judge
Reported in28(1985)DLT364
ActsCode of Civil Procedure (CPC), 1908 - Order 47
AppellantRoshan Lal Bharadwaj
RespondentShiv General Finance (P.) Ltd.
Advocates: B.R. Saini, Adv
Cases ReferredKiranmal Zumeralal Borana Marwadi v. Dnyanoba Bajirao Koht and
Excerpt:
the case debated on whether the high court was required to give reasons for the dismissal of appeal - it was ruled that with regard to order 41 rule 11 (4) of the civil procedure code, 1908, it was not necessary to give reasons for dismissal of appeal in liming - thereforee, the review application filed by the appellant was dismissed - - then, why send for the record at all ? such a proposition makes noneense of order 41 rule 11 of the civil procedure code which clearly envisages the dismissal of an appeal even after the record has been called. clearly, it would not be desirable that an order, made in liming, without a full hearing, should be allowed to attain the status of an authority, which it would do if reasons were given......that judgment, the supreme court merely held that, on the facts of that case, there were serious questions to be decided and the appeal ought to have been admitted. all the observations made have to be understood in that sense.(5) furthermore, order 41 rule 11(4) now gives statutory recognition to the long established practice of high courts not to give reasons for dismissing an appeal in liming. that sub-rule specifically excludes high courts from the requirement of giving reasons for dismissal at preliminary hearing. the reason for the exclusion is obvious. the high court is a court of record. any pronouncement made by it becomes an authoritative interpretation of the law. it is binding on the subordinate courts. clearly, it would not be desirable that an order, made in liming,.....
Judgment:

T.P.S. Chawla, J.

(1) Considerable portions of this application for review are most objectionable as they purport to reproduce observations allegedly made, and opinions allegedly expressed, by us when the appeal was heard and dismissed. It has been repeatedly held that it is very improper to attempt to reproduce the observations made by judges in court in the course of the hearing of a case. We do not propose to spend time in trying to correct the record by dealing with each observation or opinion attributed to us in this application. Suffice it to say that what is stated in this application is far from correct.

(2) One of the grounds for review, raised in this application, is that since, in the course of the preliminary hearing, we had sent for the record of the trial court, we ought to have admitted the appeal. It seems to us that this proposition is utterly preposterous. For, if this proposition were to be accepted, then in every case in which the appellate court felt the need to send for the record, it would have to admit the appeal. Then, why send for the record at all Such a proposition makes noneense of Order 41 rule 11 of the Civil Procedure Code which clearly envisages the dismissal of an appeal even after the record has been called.

(3) We have heard counsel at length on the points raised in this application for review, and even on the merits of the appeal. It is patent from the history of the case, that the purchaser has not been able to obtain possession of the shop in question although the sale deed was executed in his favor on 2nd June 1966. Thus, almost 20 years have passed without his obtaining any relief. The trial judge has dealt exhaustively with all the issues, and we could not find any flaw in his reasoning. In our opinion, the appeal was merely an attempt to further delay the delivery of possession of the shop to the purchaser. We see no reason whatsoever for reviewing the order of dismissal which we made on 9th July 1985.

(4) One last point remains to be noticed. Counsel for the appellants has drawn our attention to Kiranmal Zumeralal Borana Marwadi v. Dnyanoba Bajirao Koht and others, : AIR1983SC461 and urged that the order of dismissal ought to have stated reasons. We do not think that the case cited, if properly construed, supports that proposition. As we understand that judgment, the Supreme Court merely held that, on the facts of that case, there were serious questions to be decided and the appeal ought to have been admitted. All the observations made have to be understood in that sense.

(5) Furthermore, Order 41 rule 11(4) now gives statutory recognition to the long established practice of High Courts not to give reasons for dismissing an appeal in liming. That sub-rule specifically excludes High Courts from the requirement of giving reasons for dismissal at preliminary hearing. The reason for the exclusion is obvious. The High Court is a court of record. Any pronouncement made by it becomes an authoritative interpretation of the law. It is binding on the subordinate courts. Clearly, it would not be desirable that an order, made in liming, without a full hearing, should be allowed to attain the status of an authority, which it would do if reasons were given. Hence, the exclussion. We, thereforee, reject the submission on behalf of the appellant.

(6) This application is dismissed. I.A. 1095/85

(7) Since R.A. No. 46 of 1985 has been dismissed, this application does not survive and is, also, dismissed.


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