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In Re: Perumal Nadar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in109Ind.Cas.651; (1928)54MLJ595a
AppellantIn Re: Perumal Nadar and ors.
Cases ReferredVengu Naidu v. Deputy Collector of Madura Division
Excerpt:
practice - consolidation of appeals--inherent power--effect of consolidation--separate vakalatnamas, process-fees, copies of decrees, etc., whether necessary--civil procedure cede (act v of 1908), section 151. - securitisation & reconstruction of financial assets & enforcement of security interest act, 2002 [c.a. no. 54/2002]section 17; power of tribunal to impose condition relating to deposit for grant of stay of auction held, there is no specific provision made under section 17 of securitisation act or under any other provisions of the said act empowering the tribunal to pass any interim order. but under sub-section (12) of section 19 of the recovery of debts due to banks and financial institutions act, 1993, the tribunal has been empowered to pass various interim orders. if..........high court to consolidate appeals is one which is inherent in it and the other high courts have allowed consolidation in proper cases vide kashi prasad singh v. secretary of state for india 29 c. 140 and in the matter of the 'falls of ettrick' 22 c. 511 : 11 ind. dec. (n.s.) 341. in vengu naidu v. deputy collector of madura division 45 ind. cas. 468 : 14 m.l.j. 279 mr. justice phillips allowed consolidation of a number of appeals against awards in land acquisition cases.2. the question for consideration now is whether the appellants can be allowed to join in one vakalatnama when presenting separate appeals in the hope that the court would consolidate the appeals. in these two batches, the trials were only two and there were only two judgments. the appeals arise out of rent suits and.....
Judgment:
ORDER

Devadoss, J.

1. Mr. Watrap S. Subramania Iyer appears for the appellants in two batches of second appeals. He has filed two sets of appeals and he asks for permission to consolidate the 38 into one and the 52 into another and also for permission to produce one vakalatnama in each of the batches. As this is a matter which would involve loss of revenue in case the application is granted, I ordered notice to the Government Pleader and Mr. Venkataramana Rao appears and contends before me that separate vakalatnamas ought to be filed even though the Court is prepared to allow consolidation of the two batches. The power of this Court to consolidate appeals in which the same question is involved, and in which there was only one trial and one judgment in the lower Court, was dealt with by me in a recent case in Which the question of paying process-fee was considered. In England consolidation of cases or matters is regulated by Order XLIX, Rule 8. The power of the High Court to consolidate appeals is one which is inherent in it and the other High Courts have allowed consolidation in proper cases vide Kashi Prasad Singh v. Secretary of State for India 29 C. 140 and In the matter of the 'Falls of Ettrick' 22 C. 511 : 11 Ind. Dec. (N.S.) 341. In Vengu Naidu v. Deputy Collector of Madura Division 45 Ind. Cas. 468 : 14 M.L.J. 279 Mr. Justice Phillips allowed consolidation of a number of appeals against awards in Land Acquisition cases.

2. The question for consideration now is whether the appellants can be allowed to join in one vakalatnama when presenting separate appeals in the hope that the Court would consolidate the appeals. In these two batches, the trials were only two and there were only two judgments. The appeals arise out of rent suits and the question at issue is common to all the tenants. The landlord is only one person. The contention of Mr. Subramania Iyer is that when the Court allows consolidation it allows the parties to treat the consolidated appeals, whatever the number may be, as one and, therefore, he is entitled to file in each batch one vakalatnama to which all the appellants in all the appeals are parties. Mr. Venkataramana Rao contends that Article 10, Schedule II of the Court Fees Act is against the contention of the petitioner. Article 10 runs as follows:

3. Mukhtarnama or vakalatnama.

4. When presented for the conduct of any one case:

(a) To any Civil or Criminal Court other than a High Court, or to any Revenue Court, or to any Collector or Magistrate, or other Executive Officer, except such as are mentioned in Clauses (b) and (c) of this number; eight annas.

(c) To a High Court, Chief Commissioner, Board of Revenue, or other Chief Controlling Revenue or Executive Authority; two rupees.

and he also draws attention to Rule 31 of the Appellate Side Rules which is as follows:

5. Where a person is a party in two or more connected suits he shall execute a separate vakalatnama in each case, notwithstanding that he may retain the same Pleader in all.

6. Under Article 10 Schedule II of the Court Fees Act a party who engages a Pleader has to give a vakalatnama in each case. He cannot give one vakalatnama for two cases because he is the appellant in both, nor can he give one vakalatnama for several cases because he engages only one legal practitioner in all the cases. But the question is that when the Court allows consolidation can the parties to the appeals which are consolidated treat the appeals as one for purpose of vakalatnama as well as for process-fees, I have held in C.R.P. Nos. 1517 to 1519 of 1927 that, after consolidation, the process fee leviable is only on the basis of one appeal, When the Court allows consolidation, should it insist upon separate vakalatnamas from each party? I think the very object of consolidation in proper cases is to save the party unnecessary expense and the Court unnecessary trouble. I think, when the Court allows consolidation, it allows the parties to the appeals to treat the consolidated appeals as one, and that being so, I fail to see why the parties should not be allowed to join in one vakalatnama when they apply that their appeals should be consolidated. Article 10, Schedule II of the Court Fees Act does not stand in the way of the Court consolidating a number of appeals into one and if, after consolidation, the cases are to be treated as one for purposes of process-fees I do not see why, when parties apply for consolidation they should put in separate vakalatnamas as if they were applying in different appeals. Rule 31 of the Appellate Side Rules does not at all apply to cases in which consolidation is allowed by the Court. Brother Wallace, J., in C.M.P. No. 1336 of 1925 ordered consolidation and allowed the appellants to file one vakalatnama. Although this question was not argued before him after notice to the Government Pleader, yet I think his opinion is entitled to considerable weight.

7. It is urged by Mr. Venkataramana Rao that the decision in Vengu Naidu v. Deputy Collector of Madura Division 45 Ind. Cas. 468 : 14 M.L.J. 279 cannot be held to be good in view of the amendment introduced into tire Land Acquisition Act in 1921. He refers to Section 26, Clause (2) which says that 'every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of Section 2, Clause (2), and Section 2, Clause (9), respectively of the Code of Civil Procedure, 1908.' I do not see how this could take away the value of the decision in Vengu Naidu v. Deputy Collector of Madura Division 45 Ind. Cas. 468 : 14 M.L.J. 279. In that case Mr. Justice Phillips allowed consolidation of a number of appeals against awards made by the District Judge and he allowed consolidation in order that the appellants in all the cases may be enabled to pay one Court-fee as on the basis of one decree. Mr. K.S. Jayarama Iyer who appeared in that case was good enough to appear before me and inform me that if he had had to pay the Court-fee in each case, he would have had to pay a very large sum, but on account of consolidation the amounts were clubbed together and he had to pay Court-fee on the sum total of all the amounts, thereby saving a considerable amount of Court-fee. If that is the effect of consolidation with regard to Court-fee it is difficult to see why a different principle should apply to vakalanamas which are powers of attorney authorising a Vakil to prepare, file and conduct appeals. When all the appellants to the batch of appeals which are likely to be consolidated join together and execute one vakalatnama it should not be said that they are executing vakalatnamas in different appeals. If they are engaging Vakils in different appeals no doubt they ought to pay the fee payable on each vakalatnama in respect of each case; but when their object is to get all the cases consolidated into one and tried as one case, I think the parties could be allowed by the Court to join, in one vakalatnama and pay the Court fee on a single vakalatnama.

8. Mr. Venkataramana Rao also contends that there ought to be separate appeals under Order XLI, Rule 1, Civil Procedure Code, Which is as follows:

9. 'Every appeal shall be preferred in the form of a memorandum signed by the appellant or his Pleader and presented to the Court or to such officer as it appoints in this behalf, The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded' and therefore, there should be separate memoranda and for such memoranda there must be separate engagements of the Pleader. It does not follow that because separate memoranda ought to be filed in such cases that engagements of the Pleader should be separate.

10. As the quantum of relief claimed against the tenant in each suit may not be the same, and as the quantum of relief granted may not be the same, but may be different, or even if they are not different there being no joint interest, each tenant must file, if he is the appellant, a separate memorandum of appeal, and the landlord if he is the appelant, should, file a separate memorandum of appeal. But this has nothing to do with the engagement of the Vakil who prepares and files the memoranda. I do not think that Order XLI, Rule 1, Civil Procedure Code, in any way conflicts with the principle of consolidation and the consequences that follow from such consolidation. I hold that one vakalatnama in each batch will be sufficient.

11. The production of one vakalatnama in different cases does not at all obviate the necessity of producing the decree in each case. The Appellate Court must know what is the relief granted against the defendant in each case and in order to draft a decree in appeal, it is essential that the Court should have the decree of the lower Court before it and, therefore, the parties are not relieved of the obligation to produce a properly stamped decree in each of the appeals filed by them. The Court may, no doubt, dispense with the production of the copies of the judgment in all but one as it is a common judgment in all the cases but the decree is not a common decree and when a decree is appealed against it ought to be produced along with the memorandum of appeal and it must also be stamped as required by law.


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