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ismail Haji Mohammed Abrahani and anr. Vs. State of Bombay - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 486 of 1960
Judge
Reported inAIR1966Guj264; (1966)GLR208
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rules 9, 11, 11(1) and 31; High Court Rules; Code of Civil Procedure (CPC), 1882 - Sections 92 and 551; Hindu Law; Code of Criminal Procedure (CrPC) - Sections 554 and 548
Appellantismail Haji Mohammed Abrahani and anr.
RespondentState of Bombay
Appellant Advocate Suresh M. Shah, Adv.
Respondent Advocate G.M. Vidyarthi, Adv.
DispositionAppeal allowed
Cases ReferredNingappa v. Chandra
Excerpt:
civil - natural justice - order 41 rules 9, 11, 11 (1) and 31 of code of civil procedure, 1908, high court rules, sections 92 and 551 of civil procedure code, 1882, hindu law, sections 554 and 548 of criminal procedure code - second appeal against order of district and sessions judge dismissing first appeal under order 41 rule 11 (1) - as per high court civil circular rule no. 410 when appeal is dismissed under order 41 rule 11 (1) court shall record reason for dismissal - rule 410 not in conflict with any provision of law - subordinate court bound by such rules - subordinate court acted contrary to such rule - order passed by district judge liable to be set aside - appeal allowed. - - 2. the plaintiffs had filed a suit against the original state of saurashtra under section 92 of the..........sessions judge, sorath, junagadh, dismissing their first appeal under order 41 rule 11 clause (1), civil procedure code.2. the plaintiffs had filed a suit against the original state of saurashtra under section 92 of the civil procedure code for the relief that certain immovable properties which plaintiff 1 had by a wakfnama handed over for the benefit of one islamia girls school at junagadh be made use of for another object mentioned in that very wakfnama as the original object had failed and for framing a scheme. various grounds were set forth in support of this prayer but they are not necessary to be stated herein. the state had contested the plaintiff's suit on various grounds and the trial court came to the conclusion that none of the grounds urged by the plaintiff's entitled them to.....
Judgment:

1. This is a second appeal by the plaintiffs against the order of the District and Sessions Judge, Sorath, Junagadh, dismissing their First Appeal under Order 41 Rule 11 Clause (1), Civil Procedure Code.

2. The plaintiffs had filed a suit against the original State of Saurashtra under Section 92 of the Civil Procedure Code for the relief that certain immovable properties which plaintiff 1 had by a wakfnama handed over for the Benefit of one Islamia Girls School at Junagadh be made use of for another object mentioned in that very wakfnama as the original object had failed and for framing a scheme. Various grounds were set forth in support of this prayer but they are not necessary to be stated herein. The State had contested the plaintiff's suit on various grounds and the trial Court came to the conclusion that none of the grounds urged by the plaintiff's entitled them to the reliefs that they had claimed and dismissed the suit with costs. The plaintiffs had filed the suit in their capacity as trustees of the said wakf or public charitable trust and as stated above had sought for a scheme regarding those properties. Being aggrieved by the decision of the trial Court, the plaintiffs appealed to the District Judge at Junagadh and set forth various grounds in the appeal. The learned District Judge, it appears, decided to exercise, jurisdiction under Order XLI Rule 11 and passed the following order:

'Heard L. A. Shri Virani; Summarily dismissed under Order 41 Rule 11(1) Civil Procedure Code. L. A. Virani has argued all points raised in memo of appeal. 7th November 1958.'

The original plaintiffs therefore, have filed this second appeal on various grounds. At the hearing, the learned advocate Mr. S. M. Shah on behalf of the appellants raised a preliminary point of law and urged that the learned District Judge had erred in not writing a judgment and recording his reasons while dismissing the appeal under his summary powers. The order is, therefore, not in accordance with law and must, therefore, be set aside. In support of this preliminary point Mr. Shah relied upon the decision in Hanmant Rukhmaji v. Annaji Hanmant : (1913)15BOMLR765 , a Full Bench decision of the Bombay High Court. It was submitted that this being a decision before the 1st May 1960, if is binding on this Court. In the said decision it was held that in dismissing an appeal under Order 41 Rule 11 of the Civil Procedure Code, the appellate Court should write a judgment as required by Civil Circular No. 51 of 1890. It may be mentioned that there is Civil Circular No. 410 in the Circulars in force which is in substance equivalent to Circular No. 51 mentioned in this old decision of the Bombay High Court. That circular is as follows;

'410. When an appeal is dismissed summarily under Order XLI, Rule 11 of the Civil Procedure Code, the Court shall record a brief judgment, stating the reasons for dismissal. A formal decree should also be drawn up in such a case.'

In the case : (1913)15BOMLR765 , the reference was made to the Full Bench because in the case of Tanaji Dagde v. Shankar Sakharam (1912) ILR 36 Bom. 116, a Division Bench of that Court took the view that 111 dismissing an appeal under Order 41, Rule 11 of the Civil Procedure Code, (Act 5 of 1908), it was not obligatory upon the Lower Appellate Court to write a judgment, while the previous practice as upheld by the Bombay High Court in several reported cases was that even while dismissing the appeal under summary powers, the District Judge was bound to write a short judgment giving reasons. Thus a conflict of decisions had arisen and hence the reference. Before the Full Bench, on behalf of the appellant it was urged that the Lower Appellate Court should have written the judgment as provided in Civil Circular No. 51 even while dismissing the appeal under Order 41 Rule 11. Reliance was placed on some of the older decisions of the High Court. While, on behalf of the other side, reliance was placed on the above mentioned case in (1912) ILR 36 Bom 116. It was argued that the provisions of Rule 11 of Order 41 were different from those of Section 551 of the Civil Procedure Code, 1882, inasmuch as Rule 11 contained the words 'after sending for the record if it thinks fit so to do.' which were not in Section 551. The alteration showed that the appellate Court need not write a judgment if it agreed with the subordinate Judge. The provisions of Rule 31 did not apply to summary disposals under Rule 11. They applied only to the hearing after notice to the respondent. It was conceded that the Civil Circular No. 51 was specific on the point, but it was argued that it must give way when it conflicts with the legislative provisions of the Civil Procedure Code. Scott C. J. while delivering the judgment, observed that the reference was made on the ground that the decision in (1912) ILR 36 Bom. 116 seemed to conflict with the previous practice of the Court as appearing from various decisions of that High Court. He further observed that there was much to be said for the reasoning in (1912) ILR 36 Bom 116 upon the materials which were then before that Court. But the Court did not appear to have had in mind the existence of Civil Circular No. 51 which was published in 1890 under the provisions of the High Courts Act That circular provided that 'when an appellate Court dismissed an appeal under Section 551 of the Code of Civil Procedure, a judgment should be written and a formal decree drawn up'. He further observed that there was nothing in the new Code of Civil Procedure which introduced any change -in the law, except in so far as the rules commencing with Rule 9 of Order XLI are headed 'Procedure on admission of appeal.' That change was not sufficient to abrogate the rule published under the High Courts Act, which was quite consistent with the provisions of the Code. The said rule in the Civil Circulars was the basis of all the Bombay Judgments above referred to, except the one reported in (1912) ILR 36 Bom. 116. They were, therefore, of opinion that the practice laid down in that Circular must still be observed by the Courts of the Presidency subject to the superintendence of the High Court. Justice Bea-man, who was a party to the decision of (1912) ILR 36 Bom 116 observed as follows:

'Had we nothing more to do here than give a true construction of Order 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 (1912) ILR 36 Bom. 116. I think too that what that case authorized is desirable and right to be done as tending to relieve a hardworked moffusil judiciary From a heavy burden of clerical work, which must, in many cases at least, be practically superfluous. 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.'

Shah J. did not write a separate judgment, but only concurred in the judgment delivered by Lord Chief Justice. It is obvious that this Full Bench decided that the lower Court had erred in not writing a judgment according to law, and that even while dismissing the matter under Order 41 Rule 11, the Lower Appellate Court should have written a judgment as provided in Civil Circular No. 51, and as he had not done so, it was not a judgment in accordance with law

3. Mr. G. M. Vidyarthi, the learned Assistant Government Pleader, appearing on behalf of the State, however, urged that the decision in : (1913)15BOMLR765 was not binding on this Court. The first ground for this submission, according to him, was that Their Lordships in the said Full Bench decision appeared to have treated the Civil Circular as having the force of law which it has not. Secondly, Their Lordships had found the reasoning in (1912) ILR 36 Bom. 116 to be consistent and strong and if they were to interpret the provisions of Rules 11 and 31 of Order 41 by themselves, they would have endorsed the view taken in Tanaji's case (1912) ILR 36 Bom 116. But as in Tanaji's case (1912) ILR 36 Bom 116 attention to the circular No. 51 was not at all drawn and as it was believed that the Civil Circular had the force of law and as the old practice was also there, they came to the conclusion that the District Judge should write a judgment even while deciding me appeal under Order 41 Rule 11. Mr. Vidyarthi urged that the later decisions of the same High Court have laid down that all the rules made by the High Court and incorporated in the High Court Civil Circulars have not the force of law and as Circular No. 410 was not made under any enactment, it cannot have the force of law. He further argued that as this Circular conflicts with Rule 11 of Order 41, which was made under the provisions of an enactment, the circular cannot have precedence over the said rule.

4. In order to support his submission that the High Court's Circular has not the force of law and, therefore, it must give way before Rule 11 of Order 41, Mr. Vidyarthi relied upon the following decisions:

5. Dayanand Pandurang v. Daji Narayan : AIR1926Bom548 . It was held in the said case that circulars issued by the High Court are not on the same footing as rules which are passed in accordance with the prescribed procedure in Part X of the Civil Procedure Code. Unless a Circular is passed under some enactment which gives it the force of law, the mere fact that it is issued under the authority of the High Court is not sufficient to give it that force. The facts of the case were that in execution of decrees against a Hindu father, who was a member of a Joint Hindu family, his share in joint family properties was sold. His sons were not parties to the suits in which the decrees were obtained. They sued the defendants (auction-purchasers and persons claiming through them) to recover their share in the properties sold on the ground that only the share of their father actually passed to the defendants, for the proclamations for sales did not contain their names, as required by Civil Circular No. 69, i (vii), issued by the High Court, if their interest was also to be sold. The lower Court found that the sons' interest was sold by the Court executing the decrees and that the High Court Circular did not affect the principle of Hindu Law. On appeal, Their Lordships came to the conclusion that the omission to comply with the Circular had not the effect of making the share of the father alone pass to the defendants; and that, although the proclamations did not state that the sons' interest was being put up for sale, yet the circumstances were such as to justify the lower Court in holding that their interest also was actually sold. Relying upon this decision Mr. Vidyarthi urged that the High Court had held that the Circular having not the force of law could not have precedence over a provision of law. In the instant case, according to him, Rule 11 is a provision of law having the force of law which gave the District Judge the discretion not to write a judgment or give reasons for summarily dismissing the appeal and when the Circular required him to write a judgment & give reason, it was in conflict with the provision of law, and, therefore, the Circular cannot be forced upon the District Judge who had only acted in accordance with law in not writing a judgment. In my view, however, the decision of 28 Bom LR 1082: (AIR 1926 Bom 548 (2)) does not go to the length to which Mr. Vidyarthi wants me to, and that the learned Judges in the said case came to the conclusion mentioned here-inabove on the particular facts and the position of law and the nature of the Circular in the said case. This becomes obvious when we examine the following observations of Fawcett J. who delivered the Judgment:

'The Circulars are not on the same footing as rules which are passed in accordance with the prescribed procedure in Part X of the Civil Procedure Code. At any rate, a large number of Circulars, embodied in the Manual of Civil Circulars, are not such rules, and it is not shown that this particular Circular 69 was issued as a rule under the Civil Procedure Code. Unless it is passed under some enactment, which gives it the force of law, obviously the mere fact that a Circular is issued under the authority of this Court is not sufficient to give it that force. And, it seems to me, with great respect, that the Circular goes too far when it says 'as otherwise his interest will not pass to the purchaser.' It would be better, I think, if the Circular were altered by substituting the word 'may', for 'will' or by inserting the word 'probably' between 'will' and 'not', or in some other way so as to make it less categorical than it at present is. It is quite clear from the decisions of the Privy Council and High Courts that, although the proclamation of sale may not state that the sons' interests are being put up for sale, yet the circumstances may be such as to fully justify a Court in holding that those interests were actually sold.'

Now, from this it is pertinent to note that, in the opinion of the learned Judge, the Circular had gone too far when it said, 'as otherwise his interest will not pass to the purchaser', and thus it was in conflict with the principle of law well established under the Hindu Law. Under that circumstance, their Lordships came to the conclusion that the Circular having not the force of law and being in conflict with the accepted principles of law, cannot have the effect of overriding the, principles of law. Now, that that is not the case in the matter before us I shall point out a little later.

6. (2) The second case which Mr. Vidyarthi relied upon was Parashuram Detaram v. Sir Hugh Golding Cocks AIR 1942 Bom. 26. This was a criminal case. Mr. Vidyarthi stated that the principle laid down there can also apply to the facts of the present case. In the said case, the effect of a Criminal Circular No. 160A which was framed under Section 554 of the Criminal Procedure Code, came in for consideration. It was observed in the said case that under Section 548 of the Criminal Procedure Code, a party had an implied right to ask the presiding Magistrate or Judge to allow him inspection of the record referred to in the Section. The expression 'papers exhibited in the proceeding' in the above referred to rule is intended to covet the whole record. The rule is not exclusive and it did not deprive the Court of the right which it previously enjoyed of granting inspection of the whole record to a party properly entitled thereto. Mr. Vidyarthi appeared to base a contention on the reasoning of this ruling that the learned District Judge had the authority under Rule 11 to dismiss the appeal summarily and without writing a judgment & the Circular made by the High Court cannot, therefore, come in his way in exercising his jurisdiction given to him by such provision of law, that is to say, Rule 11 of Order 41. I find it difficult to accept this contention as correct. The observation in the decision relied upon by Mr. Vidyarthi itself shows that it can have no bearing on the facts of the present case. In the said decision Beaumont C. J. came to the conclusion, on the interpretation of the Circular itself, that the said rule or Circular was not exclusive and it did not deprive the Court of the right which it previously enjoyed of granting inspection of the whole record to the party properly entitled thereto. Therefore, the conclusion was based on the peculiar wordings of the Circular and the positive powers of the Court under the provisions of the Criminal Procedure Code. It did not involve any such principle as Mr. Vidyarthi wanted to urge.

7. (3) The next decision relied upon by Mr. Vidyarthi was Ningappa v. Chandra AIR 1942 Bom. 198. It is a decision of a Single Judge. The learned Judge firstly held that the Circular had not the effect of a rule under the Civil Procedure Code. The Court had the power to go into the question as to whether there was sufficient reason for not depositing the costs of the preparation of the paper-book on the due date. The Bombay High Court Circular No. 1257 of 1940 did contemplate that the Court had power in proper circumstances to excuse the delay. The Circular issued by the High Court was not so strict as the lower Court had supposed. These observations were made by the learned Judge of the High Court because, the lower Court had, relying upon the above stated Circular, dismissed the appeal as costs were not deposited within the particular period provided for by the said Circular. Barring the observation that the High Court Circular has not the effect or force of the rule made under the Civil Procedure Code, the other observations of the learned Judge did not lay down any dicta.

I do agree that the later decisions of the Bombay High Court and other Courts have laid down that the Circulars issued by the High Court have not the force of law as such. These decisions however, do not carry the case of the respondent any further.

8. Circular rule No. 410 is not made under any provision of any enactment or under the High Court's rule making power under the Civil Procedure Code and it is true therefore that such a rule cannot be said to have the force of law as the rules made under an enactment. But that by itself to my mind cannot be the only criterion to decide the point under consideration. It is important to note that Rule 11 of Order 41 does not lay down that the Judge shall not write a judgment or give any reasons while deciding an appeal summarily under that rule. At best it is silent on the point. I agree with the learned Assistant Government Pleader that rule 31 which positively requires the Judge to write a judgment as such has no application when the District Judge exercises his summary power under Rule 11. But having regard to the fact that Rule 11 does not make any positive provision that the District Judge will not write any judgment, it requires no stressing that the Circular No. 410 is not in any direct conflict with any part of Rule 11 and Chief Justice Scott, while deciding the reference in (1913) 13 Bom. LR 765 (FB), has also considered this aspect of the matter when he observed '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.' It is true that the observations made by Beaman J. in the said ruling appear to suggest that he considered the Circular Order to nave the force of law. But it is to he noted that this point was not directly mooted as to whether the said Circular rule is such as can he said to have the force of law. In my view, the words 'having the force of law' were used by Beaman I. only to convey that so long as the said rule was not in conflict with any statutory provision of law or any rule made under any enactment and, as such, it could be legally enforced by the High Court under its powers of superintendence. This reasoning gets support once again from the reasoning adopted by Scott C. J. when he observed 'We are, therefore, of opinion that the practice laid down in that Circular must still be observed by the Courts of this Presidency subject to the superintendence of the High Court.' I, therefore, do not find any justification in the submission made by Mr. Vidyarthi that the decision of : (1913)15BOMLR765 is not good law now and, therefore, is not binding on this Court.

9. Mr. Shah had urged that once a question has been decided by a Court of competent jurisdiction which decision would be binding on this Court, it is not open to any party to urge that the reasoning adopted in coming to that conclusion by the said Court is erroneous or that the argument subsequently urged was not considered therein and, therefore, the decision would not be binding. I do agree with Mr. Shah that if that was the only ground on which any party wanted to challenge the binding nature of that decision, if will not be open to him to do so. It is true the binding effect of a decision does not depend on the fact whether a particular argument was considered in the prior decision or not, provided that the point, in respect whereof the argument is subsequently raised, was actually decided therein. But, if the very basis on which a conclusion was reached in that previous decision which is tried to be made binding on this Court is held to be erroneous by any subsequent decisions of that Court, which are also binding on this Court, it would be open for any party to point out such a position and it would be for this Court to decide whether, under those circumstances, the decision reached in the prior case would still be binding or not. But I have examined the merits of the contentions raised by Mr. Vidyarthi fully and also as can be seen from the discussion that follows that the said decision has a binding effect on this Court.

10. The High Court has the authority under its powers of superintendence to make rules to be followed by the subordinate judiciary to ensure dispensation of justice in accordance with acknowledged principles of law and natural justice. So far as those rules do not conflict with any statutory provisions having the force of law, certainly these rules have a binding effect on the lower judiciary. Rule 11 of Order 41, as has been pointed out, is silent as to whether a judgment in writing shall be passed or not and whether reasons for such summary dismissal be given or not. The High Court of Bombay, many years back even before the Civil Procedure Code of 1908 came into effect, thought it proper to provide (Circular) Rule 51 and a rule very similar in its spirit and effect has been kept into force till now. The rule has been based apparently on the canons of natural justice which, after the coming into force of the Indian Constitution, have been given even judicial recognition by the highest judicial authority in the country that ordinarily the parties are entitled to know the reasons why their claim or their matter has been rejected and how the contentions raised by them are not acceptable to the authority. This is much more so where the matter is appealable, so that before the appellate authority he may be facilitated to submit his reasoning to show that the order was not passed by the subordinate authority in the proper exercise of its jurisdiction or powers, If the reasons are not given by the subordinate authority, the litigant is deprived of this facility. It is true that want of giving of reasons may not in all cases make an order invalid or not binding where that is not so specifically provided for. But in order to see that this principle is followed by the District Courts the High Court under the authority vested in it has made the Circular rule in question. Under these circumstances, it cannot be said that the subordinate Court may ignore the rule and yet the order made by it is to be considered to be an order in accordance with law. The subordinate Court is bound by such rules unless, as stated above, it is in direct conflict with any statutory provision or any rule made thereunder. Rule 410 is not in conflict with any provisions of law. It any subordinate Court has acted contrary to such specific provision of the rule made by the High Court, the High Court has certainly the authority to set aside the order made in disregard of such rule and send back the matter for decision according to law.

11. For the reasons stated, I uphold the preliminary objection and allow the appeal. The order passed by the learned District Judge dismissing the appeal is reversed and the matter is remanded back to the District Court at Junagadh for its decision according to law. The parties shall bear their respective costs of this appeal.


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