Skip to content


Punjsons (P) Ltd. and anr. Vs. Delhi Printing and Publishing Co. (P) Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenancy
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 54 of 1976
Judge
Reported inAIR1977Delhi4; 13(1977)DLT267; ILR1976Delhi143
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rule 11
AppellantPunjsons (P) Ltd. and anr.
RespondentDelhi Printing and Publishing Co. (P) Ltd.
Advocates: T.N. Sethi and; Daya Kishan, Advs
Cases Referred(Smt. Surinder Kaur v. Mohinder Singh
Excerpt:
(i) civil procedure code - order 41, rule 11--applicability of, to letters patent appeal-such an appeal may also be dismissed in liming.; (repelling the argument of the counsel for the appellant that to dismiss the letters patent appeal under order 41 - rule 11 in liming was to deny the appellant a right given by the letters patent which the court had no right to do) that order 41-rule 11 code of civil procedure applies to letters patent appeals also, where the rule of the high court to do not prohibit its application. rule 11 empowers the appellate court to dismiss the appeal after hearing the appellant or his pleader and without serving notice on the respondent. in a letters patent appeal there is nothing to prevent the high court from applying the provisions of rule 11 of order 41,..........appeal under clause 10 of the letters patent (punjab). the appellants have now brought a letters patent appeal. the appeal was put up before us for admission. (3) at the very outset it appeared to us that the questions raised in the appeal were substantially questions of fact and were not deserving of consideration by the fourth court. we, thereforee, asked the counsel to address us and show why the appeal should be admitted. (4) counsel for the appellants raised the following three contentions and submitted that these required to be examined in the letters patent appeal. the contentions are: 1. that the plaint is not signed or verified or filed by a properly authorised person on behalf of the plaintiff ; 2. that the plaintiff has failed to prove that it was a tenant in respect of.....
Judgment:

Avadh Behari Rohatgi, J.

(1) On February 24, 1964, the respondent brought a suit for possession, injunction and damages against the appellants. The claim in suit was mainly for the possession of a courtyard at the back of shop No. M-12, Connaught Circus, New Delhi in which the respondent company is a tenant since 1939. The respondent's allegation was that the courtyard was included in their tenancy and that the appellants after purchasing the property from the previous owner in 1962 forcibly deprived the respondent of its possession. Injunction was sought with respect to demolition of structures and removal of goods placed in the courtyard by the appellants. A decree for Rs. 3,000 on account of damages was also claimed.

(2) The trial court decreed the suit for possession and injunction on March 29, 1967. The claim for damages was, however, dismissed.

'THE appellants appealed. The additional district judge affirmed the decree of the trial court and dismissed the appeal on April 5, 1969.

The appellants carried the matter in second appeal to the High Court. A learned single judge of this court dismissed the second appeal on February 3,1976.

On an application of the appellants the learned single judge on April 8, 1976, granted leave to appeal under clause 10 of the Letters Patent (Punjab). The appellants have now brought a Letters Patent Appeal. The appeal was put up before us for admission.

(3) At the very outset it appeared to us that the questions raised in the appeal were substantially questions of fact and were not deserving of consideration by the fourth court. We, thereforee, asked the counsel to address us and show why the appeal should be admitted.

(4) Counsel for the appellants raised the following three contentions and submitted that these required to be examined in the Letters Patent Appeal.

The contentions are:

1. That the plaint is not signed or verified or filed by a properly authorised person on behalf of the plaintiff ;

2. That the plaintiff has failed to prove that it was a tenant in respect of the courtyard in dispute and the finding of the lower appellate court is unreasonable ; and

3. That the defendants had not dispossessed the plaintiff.

(5) To the respondent's suit for possession the appellants raised two principal defenses. One was that the plaint was not presented by a duly authorised person and the other that the courtyard was never included in the respondent's tenancy and it was never dispossessed there from. Both these defenses were rejected by all the three courts.

(6) As regards the first defense the courts found that Viswanath was the managing director and secretary of the respondent company and was duly authorised by the articles of association to institute the suit. In the first appellate court the respondent sought an amendment of the plaint which was allowed. Viswanath who had previously described himself as the managing director now added that he was the secretary also and, thereforee, competent to bring the suit. Such defect as there existed in the form of the suit was removed by amendment.

(7) With regard to the second defense the finding of all the three courts is concurrent. The courts have uniformly held that the courtyard was in the tenancy of the .respondent who had been using the same for a very long time for diverse purposes. The courts found that it was only after the purchase of the property that the respondent was unlawfully dispossessed by the appellants. In the result all the courts without variation held that the respondent was entitled to get possession.

(8) In second appeal the learned single judge was of the view that finding of the courts below on the second defense was 'a pure finding of fact binding In second appeal' under section 100, Code of Civil Procedure. On this aspect of the case he expressed himself thus :

'THE second contention of Mr. Sethi pertains to the question that the finding of the court below that the respondent was a tenant in respect of the space in the courtyard in dispute is erroneous. It is really a finding of fact which cannot be assailed in second appeal in this court. Mr. Sethi has, however, contended that the finding of the court below is unreasonable and so not binding. ...................

I have examined the submission of the learned counsel for the appellants, but I do not find any force in it. The sufficiency or reliability of the evidence is a matter for the courts of fact to consider and the same cannot be agitated in the second appeal under section 100 of the Code of Civil Procedure.'

(9) The learned single judge referred to Mandmanchi Ramappa v. Muthaluru Bajjappa. : [1964]2SCR673 in support of his conclusion.

(10) Counsel urged before us those very arguments which were rejected by all the three courts consistently. We thought that the appeal did not deserve to be admitted.

(11) Counsel argued that the learned single judge had granted him leave to file Letters Patent Appeal and that it would be an unusual course to dismiss the appeal in liming. We cannot accept this submission. As regards the procedure of admission there is no difference between a first appeal and a Letters Patent Appeal. Order 41, rule , Code of Civil Procedure applies to Letters Patent Appeals also where the rules of the High Court do not prohibit its application. That rule empowers the appellate court to dismiss the appeal after hearing the appellant or his pleader and without serving notice on the respondent. In a Letters Patent Appeal there is nothing to prevent the High Court from applying the provisions of rule Ii of Order 41, Code of Civil Procedure.

(12) In Jagdish Chandra v. Chandra Mohan, Air 1920 Pat 509 (2) a division bench (Dawson-Miller C.J. and Adami J.) held that Order 41, rule Ii applied to the Letters Patent Appeals. There it was argued, as before us, that to dismiss the appeal under rule 11 was to deny the appellant a right given by the Letters Patent which the court had no right to do. Rejecting the argument the Chief Justice said:

'NOW the High Court Rules, as already pointed out, although they do not set out in detail the procedure to be adopted in such cases, clearly indicate that procedure by coupling appeals under Cl. 10, Letters Patent with those under O. 41, R. 11, and directing a date to be fixed or hearing the appellant or his pleader. This hearing of the appellant or his pleader undoubtedly constitutes an appeal and the Court considers any arguments that may be put forward in support of the appeal by the appellant to whom the right of appeal is granted. If the appellant in the absence of his opponent fails to convince the Court that the judgment appealed against should be set aside or varied it is difficult to see how the presence of his opponent would assist him in obtaining this result or how he suffers any injury by his absence. If on the other hand, the argument shows that the appeal is one of substance requiring to be answered by the respondent the case is in effect adjourned for the respondent to appear.'

(13) On this point we have the high authority of the Privy Council.As early as 1921 the Judicial Committee held in Sabitri Thakurain v. Savi, Air 1921 PC 80 (3) that the Orders and Rules under the Code of Civil Procedure are applicable to the jurisdiction exercisable under the Letters Patent. There the question was whether Order 41 rule 10, Code of Civil Procedure applied to the Letters Patent Appeal. Lord Sumner delivering the opinion of the Board said :

'THE appellant further contended broadly that the Orders and Rules made under the Code of Civil Procedure, 1908 have no application to appeals brought under the Letters Patent of 1865. This contention again is too wide. The real question is whether Order 41 Rule 10, applies to such appeal as the High Court thought that it did, and to this question alone their Lordships will proceed to address themselves......................................

The Orders and Rules .made under the Code are by Section 121, given the same effect as if they had been enacted in the Code, and thereforee Order 41 Rule 10, is one of the provisions of the Code. It applies to appeals in the High Court, including the present appeal, unless any particular section of the Act can be found to exclude it.'.

(14) On the facts of the present appeal we have no doubt that there is little precious to consider by the Letters Patent Bench. That there may be cases where questions eminently deserving of consideration, by a Letters Patent Bench arise we do not for a moment doubt. Where it appears that there are important questions particularly of private importance or where it appears there are important decisions or rulings which should be taken into consideration, it would be proper to admit such Letters Patent Appeals and hear them on merits. (State of Bombay v. L. M. Co-op. Bank, : AIR1971SC2255 .

(15) Nor should we be understood to suggest that in Letters Patent Appeals the High Court cannot enter into questions of fact. It is true that in a Letters Patent Appeal the powers of the High Court are very wide. But as a matter of practice, the single judge's findings on questions of fact, more particularly when they accord with the findings of the trial court, are treated with a great deal of respect. They are not interfered with except for very good reasons : AIR1968Delhi79 . Jurisdiction under Cl. 10 of the Letters Patent cannot be used to reappraise the evidence in order to attempt to come to a different finding than that arrived at by the first appellate court (Smt. Surinder Kaur v. Mohinder Singh, 69 P.L.R. 774 (6). There is no judgment of reversal in this case. The two appellate judgments are judgments of affirmance.

(16) Confining ourselves to the scope of the present appeal it is enough to say that the matters involved in the present appeal were heard thrice and decided against the appellants and there is little that a Letters Patent Bench would consider worthwhile to examine for a fourth time.

We would, thereforee, dismiss the Letters Patent Appeal in liming.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //