Full bench order /THE HONOURABLE MR JUSTICE N. SATHISH KUMAR THE HONOURABLE MR.JUSTICE HEMANT CHANDANGOUDAR AND THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN CMA.Nos.3074 of 2021 & 550 of 2022 and CMP.Nos.3978 of 2022 & 9213 of 2025 CMA.No.3074 of 2021 1.Kanagaraj .. Appellant Vs. 1.Sakthi 2.Palanisamy 3.Reliance General Insurance Company

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 09.09.2026
Pronounced on : 29.09.2026
CORAM
THE HONOURABLE MR JUSTICE N. SATHISH KUMAR
THE HONOURABLE MR.JUSTICE HEMANT
CHANDANGOUDAR
AND
THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN
CMA.Nos.3074 of 2021 & 550 of 2022 and CMP.Nos.3978 of 2022 & 9213 of 2025
CMA.No.3074 of 2021
1.Kanagaraj .. Appellant
Vs.
1.Sakthi
2.Palanisamy
3.Reliance General Insurance Company Ltd
No.15-A, Kanagu Towers, 1st Floor
11th Cross Main Road
Thillai Nagar, Trichy .. Respondents
CMA.No.550 of 2020
Reliance General Insurance Company Ltd
No.15-A, Kanagu Towers, 1st Floor
11th Cross Main Road
Thillai Nagar, Trichy .. Appellant
Vs.
1.Kanagaraj
2.Sakthi
3.Palanisamy .. Respondents
Common Prayer: Civil Miscellaneous Appeals filed under Section 173 of Motor Vehicles Act, 1988 to set aside the decree and judgment dated 10.12.2018 passed in MCOP.No.1389 of 2013 by learned II Additional District and Sessions Judge, Motor Accident Claims Tribunal, Tiruppur.
For Appellants : Mr.Ma.P.Thangavel in CMA.No.3074 of 2021 Mrs.C.Bhuvanasundari in CMA.No.550 of 2022
For Respondents : Mrs.C.Bhuvanasundari for R3 in CMA.No.3074 of 2021 Mr.Ma.P.Thangavel in CMA.No.550 of 2022
Amici Curiae : Mr.R.Sankaranarayanan, Senior Counsel
Mr.S.Mukunth, Senior Counsel
Mr.P.Valliappan, Senior Counsel
Mr.N.Manokaran
Mr.Sharath Chandran
Mr.N.Vijayaraghavan
Ms.K.Abhirame
Mr.B.Sankaranarayanan
ORDER N.SATHISH KUMAR, J.
By an order dated 14.02.2024, a Division Bench of this Court comprising of M. Sundar, J (as he then was) and K. Govindarajan
Thilakavadi, J, noticed a conflict between the decision of a Division Bench of R. Subramanian and R. Kalaimathi, JJ in Gnanasoundari v
G.Vijayakala, (2023) 6 MLJ 135 and of another Division Bench of P.N Prakash and A.A. Nakkeeran, JJ in Reliance General Insurance Co Ltd., vs. Kanagaraj and others, CMA 550 of 2022, particularly with regard to the dispensation of notice to the respondent in the appeal stage, who were already set exparte before the Trial Court and referred the matter before the Hon’ble Chief Justice for resolving the predicament emanating from the conflicting views expressed by the Benches.
2. In Gnanasoundari (supra), the Division Bench held that the proviso to Rule 14(1) of Order XLI of the Code inserted by the Madras Amendment in 1976 was inconsistent with the provisions of Rule 14(4) of Order XLI as inserted by the Code of Civil Procedure (Amendment) Act, 1976 with effect from 01.02.1977. The Division Bench has held that by virtue of Section 97 of the CPC (Amendment) Act, 1976 the provisions of the Central Act would override any State Amendment made in exercise of power under the Code under Section 122 of the Code, thereby the Division Bench concluded that notice could not be dispensed with in the main appeal since Rule 14(4) to Order XLI permitted dispensing with notice to the respondents only in proceedings incidental to an appeal and not in the main appeal. On the other hand, another Division Bench by placing reliance on the very same proviso to Order XLI Rule 14(1) has dispensed with notice in the main appeal to the respondents who had remained ex-parte before the MACT.
3. Though the instant appeals arise out of awards passed by the Motor Accident Claims Tribunal under the Motor Vehicles Act, 1988, the procedure for hearing appeals prescribed by the Code and the Appellate Side Rules will be applicable while hearing appeals in the High Court from the awards of the MACT. This view is supported by the following observations of the Supreme Court in National Sewing Thread Co. Ltd. v.
James Chadwick & Bros. Ltd., (1953) 1 SCC 794:
“Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the Charter under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court. This rule was very succinctly stated by Viscount Haldane, L.C. In National Telephone Co. Ltd v. Postmaster General [National Telephone Co. Ltd. v. Postmaster
General, 1913 AC 546 (HL)] , in these terms : (AC p. 552)
“… When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decisions likewise attaches.”
The same view was expressed by Their Lordships of the Privy Council in Adaikappa Chettiar v. Chandrasekhara Thevar [Adaikappa Chettiar v.Chandrasekhara Thevar, (1946-47) 74 IA 264 : 1947 SCC OnLine PC 53] wherein it was said : (IA p. 271)
“… where a legal right is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal…
10. Again in Secretary of State for India in Council v. Chellikani Rama Rao, when dealing with the case under the Madras Forest Act their Lordships observed as follows:-“It was contended on behalf of the appellant that all further proceedings in Courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted. In their Lordships’ opinion this objection is not well-founded. Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the country, with regard to whose procedure, orders, and decrees the ordinary rules of the Civil Procedure Code apply.”
Though the above appeal arose under the Trade Marks Act, as the Trade Marks Act does not provide or lay down any procedure for the future conduct or career of that appeal in the High Court, the Hon’ble Supreme Court has held as above; whereas, Order XLI deals with hearing of appeals against the original decree under CPC and the proviso to Rule 14(1) of Order XLI of CPC applies to appeals against the award passed under MCOP cases.
4. In view of the settled position of law, the two questions arise for consideration in this reference are:
i. Whether there exists any inconsistency between the proviso to Rule 14(1) of Order XLI and Rule 14(4) of Order XLI, and whether the former is repealed by the latter by virtue of Section 97 of the Code of Civil Procedure (Amendment) Act, 1976?
ii. Whether the appellate court can dispense with service of notice to respondents against whom the proceedings have proceeded ex-parte in the court below? If so, under what circumstances?
5. This Court vide order dated 13.08.2026 appointed Mr.R.Sankaranarayanan, learned Senior Advocate, Mr.S.Mukunth, learned Senior Advocate, Mr.P.Valliappan, learned Senior Advocate, Mr.N.Manokaran, Mr.Sharath Chandran, Mr.B.Sankara Narayanan and
Ms.K.Abhirame, learned counsel, as amici curiae, to assist this Full Bench.
6. We have carefully considered the oral and written submissions that were filed by the learned amici curiae, who assisted this Court.
7. Mr.N.Vijayaraghavan, learned counsel would submit that the Code of Civil Procedure also applies to MCOP cases. Pointing out that the application filed for stay under Section 151 CPC in MCOP cases and the principles of the Code of Civil Procedure, viz., amendment, are being adopted in MCOP cases also, he would submit that the Code of Civil Procedure has universal application and hence would apply to MCOP cases also. He would submit that the Central Amendment, 1977, does not nullify or repeal the Madras Amendment, 1976, and that both can survive independently. The word “incidental” used in the Central Amendment, 1977, would indicate that incidental proceedings are different from the main appeal.
8. According to him, the non-obstante clause in Order XLI of CPC
does not make it inconsistent, hence, would submit that proviso to Order XLI Rule 14(1) of CPC introduced by virtue of Madras Amendment gives a discretionary power to the Appellate Court to dispense with the service of notice on a respondents who had remained absent, against whom the suit has been proceeded exparte, whereas, the Central Amendment permits dispensation only in proceedings incidental to an appeal on any respondent other than a person impleaded for the first time in the Appellate Court, unless he has appeared and filed an address for the service in the Court of first instance or has appeared in the appeal. Hence, according to him, appeal and incidental proceeding are not textually same stage. Sub-Rules (1) and (4) of Rule 14 of Order XLI operates on different field and Sub-Rules (3) to (5) were added based on the recommendation of the Law Commission. In fact, Law Commission has recommended to retain the existing Rules framed by certain State Governments, therefore, once the new provisions has been inserted and no amendment was brought to remove the provisions introduced by various State Governments, absolutely, there is no inconsistency whatsoever between the proviso to Rule 14(1) of Order XLI of CPC introduced by the Madras Amendment and the incidental proceedings introduced under Rule 14(4) of Order XLI by the Central Act. He would therefore submit that the element of discretion always is required to be maintained by the Appellate Court to avoid further delay to send the notice to the parties who are unnecessary and only made as a formal parties in the proceedings as respondent.
9. Mr.R.Sankaranarayanan, learned senior counsel would primarily contend on the ground of the principles of natural justice. He would submit that the Appellate Court cannot assume that the respondent who remained ex parte before the trial Court may have no say in the appeal. It is his further contention that the word “incidental” does not refer to the main appeal, but refers to the proceedings incidental to the appeal. The word “proceedings” is defined under Rule 3(10) of the Civil Rules of Practice as one which includes all documents presented to or filed in Court by any party or Commissioner or other officer of the Court, other than documents produced as evidence. Therefore, according to him, the word “incidental” refers to proceedings other than the main appeal. It is his contention that, though the Law Commission Report recommended that notice has to be dispensed with to the parties who remained ex parte before the trial Court with the object of avoiding delay, the Legislature, in its wisdom, has purposefully included the word “incidental” in the Central Amendment, 1977, to refer only to the proceedings incidental to the appeal, but not the main appeal itself. However, he would submit that, even with reference to such incidental proceedings, notice shall be served on the respondents to comply with principle of natural justice.
10. Mr.P.Valliappan, learned senior counsel would submit that the defendant who remained ex parte before the Trial Court cannot be merely denied notice in the main first appeal. The Madras Amendment was also followed in Andhra Pradesh and eventually, after the 1976 amendment, the Andhra Pradesh High Court held that notice had to be taken out to the exparte respondent. Though the Civil Justice Committee and 54th Law Commission recommended dispensing with notice for the ex parte respondents, it was not completely reproduced by the Parliament. Parliament accepted the need for expedition, but confined the dispensation of notice to a “proceeding incidental to an appeal”. At the same time, it expressly preserved the respondent’s right to defend the appeal; it was also saved through Rule 14(5). There are several situations in which an exparte defendant may have a real and continuing interest in the appeal, eg., where the decree concerns property, possession, partition, declaration, or status, an appeal may directly affect his interest, therefore, would submit that there is inconsistency between the proviso to Rule
14(1) of Order XLI of CPC introduced by the Madras Amendment and
Rule 14(4) of Order XLI introduced by the Central Act. Therefore, as per Section 97(1), State amendment which are inconsistent with the Central Amendment as to yield to Central Act.
11. Mr.S.Mukunth, learned senior counsel would submit that Order
XLI Rule 14(1) is similar to Order V Rule 1. “Hearing” under Rule 12 of Order XLI means hearing both sides. Order XLI Rule 14(1) is a mandatory provision and the proviso is a discretionary one. Mandatory provision cannot have a discretionary exception. The discretion can be exercised for incidental proceedings, such as Section 75 of the CPC. He relied Vareed Jacob vs Sossamma Geevarghese (2004) 6 SCC 378 and submitted that the incidental proceedings are in aid to the main proceedings. Further, he relied upon Bachhaj Nagar vs Nilima Mandal and Anr (2008) 17 SCC 491 to emphasise the principle of natural justice. Though notice to exparte respondents contributes to delay, in order to cut down the delay, the principles of natural justice of hearing both sides cannot be curtailed.
12. Mr.N.Manokaran, learned counsel would submit that Order XLI Rule 14(1) and Rule 14(4) operate in different fields, the former for main appeals and the latter for interlocutory petitions. The proviso to Rule 14(1) is not controlled by Rule 14(4). Amendments bringing in Sub-
Rules (3) to (5) were brought after the knowledge of various state amendments. He would also submit that though Rule 14(1) and Rule
14(4) operate in different situations, taking note of the rider clause under Order XLI Rule 21 of CPC, wherein, re-hearing is permitted to the respondent who was not duly served notice in the appeal, however, would submit that notice cannot be dispensed with in the main appeal.
13. Mr.Sharath Chandran, learned counsel submitted that there is no inconsistency between Order XLI Rule 14(1) and its proviso and Order XLI Rule 14(4) inserted by the Central Act as the two provisions operate in different situations. He elucidated that the Civil Justice
Committee report is the inspiration for the Madras High Court Amendment, which speaks of the unnecessary delay in the adjudication of an appeal. For the question of whether the first proviso survives the Amendment in 1976, he submits that the proviso to Order XLI Rule 14(1) is an exception to Order XLI Rule 12. In 1973, under the chairmanship of former Chief Justice P.B. Gajendragadkar, a comprehensive 54th Report on the Code of Civil Procedure, 1908 (CPC) was submitted, and based on that, the 1976 Amendment was brought. Thus, the two provisions can be harmoniously construed and there is no inconsistency. Further, Rule 14(1) of Order XLI applies to an appeal after fixing of a final hearing date under Order XLI Rule 12. The proviso to Rule 14(1), as inserted by the Madras Amendment, is distinct from Rule 14(4), as the latter would apply to incidental proceedings; further, the inconsistency noted in the Gnanasoundari judgment would not apply. The non obstante clause mentioned in Rule 14(4) of Order XLI also indicates that the notice shall be dispensed with for incidental proceedings also.
14. He referred to the judgment in National Sewing Thread Co. v. James Chadwick and Brothers [(1953) 1 SCC 794], stating that where a legal right is in dispute, and the ordinary courts of the country are seized of such dispute, the courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal. Hence, according to him, even in MCOP cases, procedure under CPC is applicable.
15. Ms.Abhirami, learned counsel would submit that there is an inconsistency in the Rules and further submitted that Order XLI Rule
14(4) cannot be construed to apply to a second appeal in light of Order XLII Rule 3. The final part in Rule 14(4) to Order XLI reading “or has appeared in the appeal” presupposes a previous notice in the main appeal.
The 54th Law Commission Report enunciates the right of a party who remained ex parte to sustain a decree by a provision for rehearing. Order XLI Rule 17(2) also presupposes notice to all the defendants and therefore submits that the notice should not be dispensed at the very early stage of final hearing.
16. Mr.B.Shankarnarayanan, learned counsel had submitted that there is no inconsistency between the rules for reference, however, submitted that the procedure which the court, Tribunal or Authority may adopt for adjudication must, in itself, be just and fair and in keeping with the well-recognized principles of natural justice. The 54th Law Commission report also considered the existence of the Rules introduced by various State amendments and suggested for adding Sub-Rules (3) to (5) to Rule 14 not to amend Sub-Rule (1) of Rule 14, hence, according to him, new provisions brought under the Central Act is only to incidental proceedings and not to the main appeal. In this regard, he has also referred to the case of Jamuna Bai and others vs. Chhote Singh [2004 (2) MPLJ 376] which by defining the word “proceedings incidental to an appeal” has clarified that there is no inconsistency between the MP amendment and the Central Amendment.
17. At the risk of repetition, the following points arise for consideration in this reference:-
i. Whether there exists any inconsistency between the proviso to Rule 14(1) of Order XLI and Rule 14(4) of Order XLI, and whether the former is repealed by the latter by virtue of Section 97 of the Code of Civil Procedure (Amendment) Act, 1976?
ii. Whether the appellate court can dispense with service of notice to respondents against whom the proceedings have proceeded ex-parte in the court below? If so, under what circumstances?
18. Prior to adding sub-Rules (3) to (5) in Rule 14 to Order XLI,
Order XLI Rule 14 stood as follows:
“Publication and service of notice of day for hearing appeal:
(1) Notice of the day fixed under rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the Appellate Court in the manner provided for the service on a defendant to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof shall apply to the service of such notice.
(2) Instead of sending the notice to the Court from whose decree the appeal is preferred, the Appellate Court may itself cause the notice to be served on the respondent or his pleader under the provisions above referred to.”
19. In 1923, the Government of India constituted a committee headed by Justice Rankin of the Calcutta High Court to examine the causes for delay in the disposal of suits and appeals and to make suitable recommendations. The Report of the Civil Justice Committee (1925) was submitted to the Government of India and one of the recommendations made therein pertained to service of notice in appeals which was as follows:
“While we are on the question of appeals we may refer to a certain class of cases which have come to our notice where defendants are made parties to the appeal against whom the suit has proceeded ex parte in the trial court. Whether such defendants are necessary parties to an appeal filed by the contesting defendant is another matter. But the necessity of serving each of these respondents with notice of appeal or of any interlocutory motion very often leads to an unnecessary delay. This is more specially the case if the appellant has obtained an interim stay of execution. It is quite easy for the ex parte defendant to collude with the defendant-appellant and evade service of notice thus enabling him to ensure a stay of execution for an indefinite period. A case came to our notice where more than three years elapsed before service of notice could be effected on the co-defendants. Obviously it is not, in such cases, to the interests of the appellant to expedite the service of process. The duty no doubt lies upon the court to make every effort to expedite the service of process, but courts rarely take action of their own motion. Discretion should be given to the court in such cases to dispense with the service of notices and proceed with the hearing of the appeal or with the interlocutory applications. If this procedure is adopted, we think there will be no risk of prejudice to pro forma respondents who did not appear in the lower court. For similar reasons we would also suggest that a rule on the lines of Order XLV, rule 9-A should be made part of Orders XLI, XLII and XLIII.”
20. Thus, the Committee recommended that a Rule on the lines of
Order XLV-Rule 9A should be included in Order XLI – XLIII. Order
XLV, as it originally stood, dealt with procedure in appeals to the Privy
Council (presently the Supreme Court). Rule 9-A was introduced by
Indian Limitation and Code of Civil Procedure (Amendment) Act, 1920 and reads as follows:
“9A. Power to dispense with notices in case of deceased parties.
Nothing in these rules requiring any notice to be served on or given to an opposite party or respondent shall be deemed to require any notice to be served on or given to the legal representative of any deceased opposite party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing in the Court whose decree is complained of or at any proceedings subsequent to the decree of that Court:
Provided that notices under sub-rule (2) of rule 3 and under rule 8 shall be given by affixing the same in some conspicuous place in the Court house of the Judge of the District in which the suit was originally brought, and by publication in such newspapers as the Court may direct.”
21. After the aforesaid recommendation of the Civil Justice
Committee, the Madras High Court introduced a proviso to Order XLI
Rule 1 by exercising its rule making power under Section 122 of the
Code. The Gazette Notification in Fort St George Gazette dated 15.01.1927 inserting the said rule reads as follows:
NOTIFICATION
“Under the provisions of section 122 of the Code of Civil Procedure, 1908 and with the approval of His Excellency the Governor in Council, the High Court makes the following amendments to the First Schedule of the Code of Civil
Procedure, 1908 viz:-
Insert new sub-rule(4) in Order XXII as follows:
*********
Insert the following as a proviso to sub-rule (1) of rule 14 of Order XLI:
“Provided that the Appellate Court may dispense with service of notice on respondents against whom the suit has proceeded ex-parte in the Court from whose decree the appeal is preferred”
(Sd) Murray Coutts Trotter, Chief Justice, C.V Kumaraswami Sastri, Judge, C. Krishnan, Judge, V.
Ramesam, Judge, C.E Odgers, Judge, M. Venkatasubba Rao,
Judge, E.H Wallace, Judge, H.O.C Beasley, Judge, D.G
Waller, Judge, C. Madhavan Nayar, Judge, V.V. Srinivasa Ayyangar, Judge, G.H.B Jackson, Judge, H.D.C Reilly, Judge and A.J Curgenven, Judge” – High Court, Madras, 3rd January, 1927”
22. Later, the aforesaid proviso to Rule 14(1) of Order XLI came up for consideration before the Law Commission of India in its 14th
Report on the “Reform of Judicial Administration”. In the said Report, the Law Commission recommended the enactment of a rule similar to the amendments made by the Madras High Court. The relevant
recommendation reads as follows:
“21. In case of parties who have not appeared in the Court below and who have not filed any address for service, provision may be made, as has been done in certain High Courts, empowering the Courts to dispense with service of notice of appeal on the respondents who have not appeared in the lower Court by an amendment of Order LXI Rule 14”
23. The Law Commission considered the issue once again in its
27th Report on the Code of Civil Procedure, 1908. This time, while observing that the Rules made by the State High Courts were useful, they recommended no change in the Central Law. The relevant observations of the Commission in this regard are as follows:
“A recommendation was made in the Fourteenth Report to the effect, that in the case of parties who had not appeared in the court below and who had not filed any address for service, provision may be made to dispense with service of notice of appeal. A somewhat similar recommendation was made by the Civil Justice Committee also, which observed that the necessity of serving each of those respondents against whom the suit had proceeded ex parte, with notice of appeal or of any interlocutory motion, led to an unnecessary delay. It stated, that this was more specially the case where the appellant had obtained an interim stay of execution, as it would be easy for an ex parte defendant to collude with the appellant-defendant and evade service of notice. Amendments on these lines have been made by the High Courts of Allahabad. Andhra Pradesh, Assam, Calcutta, Madhya Pradesh. Madras, Mysore and Punjab in Or. 41 R. 14 and by Orissa and Patna by inserting Or. 41 R. 14-A. It is, however, felt that it is unnecessary to carry out the suggested change, as not much delay is caused by the necessity of service of notice of appeal.”

24. Later, the Law Commission once again considered the issue in its 54th Report submitted in 1973, the Law Commission made the following recommendation
“41.37. Order 41 Rule 14 and dispensing with service on respondent against whom case was ex parte.—With reference to service of the memorandum of appeal, one point was considered in the earlier Report. A recommendation had been made in the Fourteenth Report to the effect, that in the case of parties who had not appeared in the court below and who had not filed any address for service, a provision may be made to dispense with service of the notice of appeal. A somewhat similar recommendation had been made by the Civil Justice Committee also, which observed that the necessity of serving each of those respondents against whom the suit had proceeded ex parte, with notice of appeal or of any interlocutory motion, led to an unnecessary delay. It stated, that this was more specially the case where the appellant had obtained an interim stay of execution, as it would be easy for an ex parte defendant to collude with the defendant-appellant and evade service of notice. Amendments on these lines, too, have been made by the High Courts of Allahabad, Andhra Pradesh, Assam, Calcutta, Madhya Pradesh, Madras, Mysore and Punjab in Or. 41 R. 14 and by the High Courts of Orissa and Patna by inserting Or. 41 R. 14-A.
41.38. The earlier Commission noted the above position, but felt that it was unnecessary to carry out the suggested change, as not much delay is caused by the necessity of service of notice of appeal.
41.39. It appears to us, however, that such a provision would be useful, as saving delay.
41.40. Recommendation.—We, therefore, recommend that in
Or. 41 R. 14, the following sub-rules should be added— “(3) The notice to be served on the respondent shall be accompanied by a copy of the memorandum of appeal.
(4) Notwithstanding anything to the contrary contained in sub-r. (1), it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the appellate court, unless he has appeared and filed an address for service either in the trial court or, in the case of a second appeal, in the lower appellate court, or, has appeared in the appeal.
(5) Nothing in sub-r. (4) shall bar the respondent referred to in the appeal and defending it.”
25. The above recommendations are the result of Order XLI Rule 14 (3) to (5) by the Code of Civil Procedure, (Amendment) Act, 1976 with effect from 01.02.1977. It is relevant to note that Sub-Rules (3) to (5) of Rule 14 of Order XLI were added in view of the recommendation made by the 54th Law Commission Report. The Law Commission in its recommendations has recommended that existing provisions namely proviso to Sub-Rule 1 of Rule 14 will be useful and were intended to prevent delay, therefore, what was recommended by the Law Commission is only Sub-Rules (3) to (5) which were added retaining the original Rule with existing proviso enacted by various High Courts. It is to be noted that Sub-Rules (3) to (5) were added by amendment and
substitution.
26. It is to be noted that before the Central Amendments came into force, the High Court, in exercise of power under Section 122 of the Code had amended Order XLI Rule 14 (1) by substituting the earlier proviso with the following:
“Provided that the Appellate Court may dispense with service of notice on the respondents, who have remained absent, against whom the suit has proceeded ex-parte in the Court from whose decree the appeal is preferred or who have been declared absent by the said Court. (P.Dis.No.221 of 1976) – T.N.Gaz, 17.11.1976, Pt.III, S.2 p.108).”
27. The aforesaid amendment came into effect on and from 17.11.1976. The Code of Civil Procedure, (Amendment) Act, 1976 came into effect on and from 01.02.1977. The question now is whether the Amendments to Order XLI Rule 14 by the Central Act 104 of 1976 is inconsistent with the Rule introduced by the High Court under Section 122.
28. It is further to be noted that new Sub-Rules (3) to (5) to Rule 14
of Order XLI were added based on the recommendation of the 54th Law Commission Report. In fact, the Law Commission had found that the provisions of the State Amendments were useful and were intended to prevent delay. However, as only a handful of High Courts had enacted such a rule, it was considered necessary to enact Sub-Rules (3)-(5) to
Rule 14 of Order XLI. The very basis of the recommendations of the Law Commission were made in the light of the High Court Amendments. An inconsistency could have arisen if the Law Commission had found the High Court amendments to be unsatisfactory and had recommended their supersession by a Central Law, whereas, new Sub-Rules (3) to (5) were enacted by a Central law was itself based and inspired by the High Court
Amendment. Therefore, it would not be possible to conclude that the
Rules so enacted by exercising under Section 122 of CPC by the High Court are inconsistent with the Central Act.
29. The proviso to Order XLI Rule 14(1) introduced by the Madras Amendment gives a discretion to the appellate court to dispense with service of notice on a respondent who had remained absent and against whom the suit had proceeded exparte. The proviso does not dispense with notice to every respondent. It applies only to a limited class of respondents who had chosen not to appear before the Trial Court. Further, the provision can reasonably be understood as applying to a respondent who is only a formal or proforma party and against whom no relief is claimed in the appeal. If a respondent has no independent interest in the subject matter of the appeal and no relief is sought against him still requiring service of notice on such a respondent would serve no useful purpose. Sub-Rule (4) of Rule 14 to Order XLI operates in a different field. It provides that notice of a proceeding incidental to an appeal need not be served in the circumstances stated therein. There is nothing in SubRule (4) which expressly prohibits the appellate court from dispensing with notice to a formal respondent who had remained exparte before the trial court. The two provisions can therefore be harmoniously construed. Sub-Rule (4) deals with notice of a proceeding incidental to an appeal, whereas, the Madras Amendment deals with limited question of
dispensing with notice to an exparte respondent who is a formal party and against whom no relief is claimed. The mere fact that both provisions permit dispensation of notice in certain circumstances does not make them inconsistent. There would be inconsistency only if the two provisions could not operate together, whereas, in the present rule position, two rules can operate in their respective field. Therefore, the Madras Amendment cannot be said to be repugnant or inconsistent with
Sub-Rule (4) of Rule 14 and the Sub-Rules (3) to (5) brought by virtue of
Central Amendment cannot be itself construed as having repealed by Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976.
30. The proviso introduced by the Madras Amendment to Sub-Rule
(1) does not take away the general requirement of notice under Sub-Rule (1), it only permits the appellate court, in a limited category of cases to dispense with such service. The power is discretionary and is not available in every cases where a respondent has remained absent. Therefore, retaining the discretionary power by proviso cannot said to be inconsistent with the Sub-rules added pursuant to the 54th Law Commission Report and the Law Commission itself has found that the provisions of State Amendments were useful and were intended to prevent delay. Therefore, we are of the view that appellate court while exercising the power under the Madras Amendment, must nevertheless satisfy itself that the respondent had remained exparte before the Trial Court, that he is only a formal/pro forma party or neither proper nor necessary party, unless his presence is completely required, the appellate court can exercise discretion in dispensing the service of notice.
31. While adding Sub-Rules (3) to (5), the Parliament consciously did not delete or modify Sub-Rule (1), nor did it enact a provision providing generally for dispensing with notice of the appeal to a respondent who had remained exparte before the trial court. Instead, it inserted Sub-Rule (4), which specifically provides that it shall not be necessary to serve notice of any proceeding incidental to an appeal in the circumstances mentioned therein. The language employed by Parliament is significant. Sub-rule (4) is confined to a proceeding incidental to an appeal. It does not provide that notice of the appeal itself need not be served on a respondent merely because such respondent had remained ex parte before the court of first instance. If Parliament intended to abolish the power conferred by the Madras amendment, it could have expressly amended sub-rule (1) or provided that such power shall no longer be exercised. It did not do so. Instead, it retained sub-rule (1) and inserted sub-rule (4) to deal with a specific and limited situation relating to proceedings incidental to an appeal. Therefore, the Madras Amendment and sub-rule (4) operate in different fields. The Madras amendment concerns the power of the appellate court to dispense with service of notice of the appeal itself in the limited case of an exparte formal respondent or formal parties against whom no relief is claimed, whereas, Sub-rule (4), on the other hand, concerns notice of a proceeding incidental to an appeal. Therefore, we are of the view that subsequent insertion of sub-rule (4), cannot by itself be construed as repealing the Madras amendment. Unless there is a clear inconsistency between the two provisions, Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 will not repeal the proviso to Rule 14(1) introduced by the Madras Amendment.
32. Further, it is also to be noted that even Sub-Rule (5) added by the Central Amendment does not take away the interest of the party to defend the appeal, even if the notice is not served on them and they are entitled to defend the appeal. Order XLI Rule 21 permits re-hearing of appeal, when an appeal is heard exparte and judgment is pronounced exparte. If any judgment is affecting the absent respondent, he can very well seek for re-hearing of the appeal. Thus, the rights of the parties are also protected by giving re-hearing. Therefore, there is no inconsistency between the Madras Amendment and the Central Amendments.
33. Further, it is also to be noted that in Gnanasoundari’s case, the Division Bench has proceeded on the basis that an inconsistency had arisen since the proviso to Order XLI Rule 14(1) empowered the Court to dispense with the notice in the main appeal itself whereas Sub-Rule 4 of Order XLI Rule 14 empowered the appellate court to dispense with the notice only in proceedings incidental to the appeal. Unfortunately, neither the Madras High Court Amendment of 1927 nor the recommendations of the Law Commission of India in its 14th, 27th & 54th Reports, extracted supra, explaining the basis for introducing sub-rules (3)-(5) in Order XLI Rule 14 were brought to the notice of the Division Bench.
34. It is clear that there is no inconsistency at all with the proviso to
Order XLI Rule 14(1) and Sub-Rule 4 of Order XLI Rule 14. Order XLI
Rule 14(1) contains the main rule which is as follows:
“Notice of the day fixed under rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the Appellate Court in the manner provided for the service on a defendant of a summons to appear and answer, and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice.”
35. Thus, the notice contemplated under Order XLI Rule 14(1) is the notice of the day fixed for hearing the appeal prescribed in Order XLI Rule 12. In Mahadev Govind Gharge v. LAO, (2011) 6 SCC 321, the Hon’ble Supreme Court has observed that “the hearing contemplated under Rule 12 is normally called “final hearing”.” Order XLI Rule 14(4) operates in a completely different field and is confined to “proceedings incidental to the appeal” and not the appeal itself.
36. The proviso originally inserted by the Madras High Court Amendment in 1927 carved out an exception to the above rule and empowered the Court to dispense with sending notice of the date fixed for hearing the appeal under Order XLI Rule 12 to respondents who were set ex-parte in the court below. It should be noted that the Madras Amendment is intended to be a proviso to Order XLI Rule 14(1). The function of a proviso has been explained by the Privy Council in Madras and Southern Mahratta Railway Company v. Bezwada Municipality, AIR
1944 PC 71, in the following manner:
“The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case.”

37. Thus, the proviso to Order XLI Rule 14(1) functions as an exception to the said rule, and permits the appellate court to dispense with sending notices to the respondents who were set ex-parte by the court below for the hearing contemplated under Order XLI Rule 12. Order XLI Rule 14(1) deals only with notice of the day fixed under Order XLI Rule 12 and not with any day such as the hearing of an interlocutory application etc. Thus, the proviso to Order XLI Rule 14(1) does not authorize the appellate court to dispense with notices in interlocutory applications before the Appellate Court.
38. The Rankin Committee had taken note of the delay in sending notices of the appeal as well as interlocutory applications in such appeal and had observed as follows:
“But the necessity of serving each of these respondents with
notice of appeal or of any interlocutory motion very often leads to an unnecessary delay.”
39. Taking note of the above situation, the 54th Report of the Law Commission, after referring to the Rankin Report had recommended the insertion of sub-rule (4) empowering notices to be dispensed with in proceedings “incidental to an appeal” to deal with dispensing notices in interlocutory proceedings which were obviously outside the scope of Order XLI Rule 14(1) and its proviso.
40. In Vareed Jacob v. Sosamma Geevarghese, (2004) 6 SCC 378, the Supreme Court explained the meaning of the word “incidental proceeding” as under:
“A distinction is to be borne in mind keeping in view the fact that the incidental proceedings are in aid to the final proceedings. In other words, an order passed in the incidental proceedings will have a direct bearing on the result of the suit. Such proceedings which are in aid of the final proceedings..”
Thus, notice in an incidental proceeding contemplated under Order XLI Rule 14(4) is a proceeding in aid of the appeal and not notice for final hearing of the appeal itself which is governed by Order XLI Rule 14(1).
41. Thus, Order XLI Rule 14(4) does not deal with notices for the date fixed under Order XLI Rule 12 which alone is governed by Order XLI Rule 14(1) and the proviso inserted by the Madras High Court. Thus, there is absolutely no conflict at all between Order XLI Rule 14(1) and its proviso and Rule 14(4). The non-obstante clause in sub-rule 4 has been inserted only ex-abundanti cautela ie., out of abundant caution which is not unusual (See P.R. Chowdhary v. State of U.P., AIR 1959 SC 1310 & Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552).
42. Section 97(1) of the Code of Civil Procedure (Amendment)
Act, 1976 pertains to savings and repeals and reads as follows:
“Any amendment made, or any provision inserted in the principal Act by State Legislature or a High Court before the commencement of this Act shall except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.”
43. To attract Section 97(1) the provisions inserted by the High Court should be inconsistent with the provisions of the principal Act ie., the Code as amended by the 1976 Amendment. It has already been pointed out that Order XLI Rule 14(4) inserted by the 1976 Amendment deals with dispensing with notices in proceedings ancillary to the appeal while Order XLI Rule 14(1) and the High Court proviso deals with notices for the hearing fixed under Order XLI Rule 12 and dispensing with such notices to parties who remained ex-parte in the court of first instance. Thus, both sub-rules operate in different situations and there is absolutely no inconsistency whatsoever so as to attract Section 97(1).
44. The decision in Sadiq Ali v Manu Narang, AIR 1985 Bom 274, cited by the Division Bench deals with amendments to Order 21 Rule 98 by the Bombay High Court which are not relevant for the interpretation of the provisions presently under consideration. Similarly, the decision in Pankajakshi v Chandrika, (2016) 6 SCC 157, dealt with Section 98(2) of the Code vis-à-vis the provisions of the Travancore-Cochin High Court Act in the matter of the procedure to be followed when there is a difference of opinion between two judges of the Division Bench while hearing an appeal.
45. In Bacha Rowther v. Chidambaram, AIR 1945 Mad 86, an observation was made by the Division Bench while hearing the appeal as under:
“In our opinion when an appeal is filed and the only respondents to that appeal are persons who have allowed the proceedings in the trial Court to go on ex parte it is undesirable to apply the proviso to Rule 14 of Order 41, Civil P.C., without an attempt to serve at least one of those respondents.”
46. These observations were made when the proviso to Order XLI Rule 14(1) as inserted by the High Court in 1927 was in force. In any event, the above observations merely indicate that it is undesirable to dispense with notice in cases where the only respondents in the appeal are persons who had allowed the proceedings in the court below to go on exparte. This was a case where there was no contesting respondent before the appellate court. These observations do not indicate that the power under Order XLI Rule 14(1) proviso should not be exercised. The power under the proviso to Order XLI Rule 14(1) is discretionary which is clear from the word “may” used therein. Therefore, in an appropriate case, the appellate court may direct notice to the respondents even though they remained ex-parte in the court below.
47. In Jamuna Bai v. Chhote Singh, (2004) 2 TN MAC 273, a Full Bench of the Madhya Pradesh High Court considered the meaning of the expression “proceedings incidental to an appeal” in Order XLI Rule 14(4) in an appeal under the Motor Vehicles Act, 1988 and held as under:
“We are unable to agree with the reasonings in the case of Sushila (supra) that sub-rule (4) of Rule 14 of Order XLI is applicable to incidental proceedings in appeal. On the contrary the Legislature has used specific words i.e. “proceedings incidental to an appeal”, which shows that as and when appeal is filed and admitted for hearing, after admission the next incident in the appeal is of issuing notice to respondents. Thus, issuance of notice to respondents will be a “proceeding incidental to an appeal”.
The said view was followed by a Division Bench of this Court in S.R Abdul Gaffar v V. Srinivasan, 2019 SCC Online Mad 4768.
48. The Karnataka High Court in Mohd. Moulana v. Nagappa, ILR
1980 Kar 678, noted the discretionary nature of its High Court
Amendment which is the same as the proviso inserted by the Madras High Court in 1927 in an appeal under the Motor Vehicles Act, 1939.
49. The Andhra Pradesh High Court in Magadri Satyanarayana v B.Jayaramarao, AIR 1990 AP 160, held that notice could not be dispensed with under Order XLI Rule 14(4) in the main appeal but only a proceeding incidental to an appeal. This decision did not consider the effect of the State Amendment in the State of Andhra Pradesh. However, in D. Prameelamma v State of Andhra Pradesh, 2021 2 ALT 612, Hon’ble Justice Battu Devanand considered the applicability of the amendment in the State of Andhra Pradesh, which is the same as Madras, and held as follows:
“The proviso to Sub-rule (1) of the above Rule 14 was incorporated by way of High Court amendment of our State and Sub-rules 3 to 5 were inserted by Act No. 104 of 1976. The proviso to Sub-rule (1) states that the respondent who remained ex parte in the Court below, notice to him in the appeal may be dispensed with.”
50. In view of the above, the answers to the questions set out in paragraph 4 are as follows:
a. Order XLI Rule 14(1) deals with service of notice to the respondents fixing a date for hearing of the appeal under Order XLI Rule
12. The date contemplated under Order XLI Rule 12 deals with the date for final hearing of the appeal.
b. The proviso to Order XLI Rule 14(1) inserted by the Madras High Court in exercise of powers under Section 122 of the Code, operates as an exception to sub-rule (1) of Order XLI Rule 14(1) and permits the High Court to dispense with notices to respondents who were ex-parte before the court below.
c. Being a proviso, its scope cannot traverse beyond the main rule. The scope of the proviso is confined to dispensing with notices issued for fixing the final hearing under Order XLI Rule 12 alone.
d. The proviso is discretionary in nature. The proviso to Order XLI Rule 14(1) does not mandate the appellate court to dispense with notices to the respondents who have remained ex-parte in every case while fixing a date for final hearing of the appeal under Order XLI Rule 12. The use of the expression “may” in the proviso indicates that the power to dispense with notice at that stage is discretionary and is to be exercised by the appellate court depending upon the facts and circumstances of the case.
For instances:-
(i) The respondent is a formal party or there are many respondents who are only made as formal parties have no right in the suit property and only the contesting parties are few of them; in such case, discretion can be exercised by the
Appellate Court,
(ii) If any one respondent remained exparte and the suit was dismissed; in such case, notice has to be necessarily given to every respondents; suppose, the appellate court decide the appeal on merits and is inclined to reverse the judgment against all the party whose interest is also likely to be affected, in such case notice is required to them,
(iii) In the partition suit, normally, there may be many defendants, only few respondents right has to be decided and others are made as a formal party, who remained exparte and have no interest in the immovable properties, the appellate court may dispense with the notice on such persons depending upon the facts and circumstances of each of the cases.
e. Neither Order XLI Rule 14(1) nor its proviso deal with notices or dispensing with thereof in proceedings incidental to the appeal. Order XLI Rule 14(4) deals with such a situation ie., dispensing with notices in proceedings ancillary to an appeal. An ancillary or incidental proceeding is one which is in aid of the appeal for example proceedings for setting aside abatement, bringing on record etc.
f. There is no inconsistency between Order XLI Rule 14(1) and its proviso and Order XLI Rule 14(4) inserted by the Code of Civil Procedure (Amendment) Act, 1976 as the two provisions operate in
different situations and scenarios.
g. Consequently, there is no scope to apply Section 97 of the Code of Civil Procedure (Amendment) Act, 1976. For these reasons, the decision of the Division Bench in Gnanasoundari v G.Vijayakala, (2023) 6 MLJ 135, cannot be said to have laid down the correct law.
(N.S.K., J.) (H.C., J.) (V.L.N., J.)
29.09.2026
dhk
Index : Yes / No
Speaking Order /Non speaking order
Neutral Citation : Yes /No
To
The II Additional District cum Sessions Court Tiruppur
N.SATHISH KUMAR, J. HEMANT CHANDANGOUDAR, J. and V. LAKSHMINARAYANAN
dhk CMA.Nos.3074 of 2021 & 550 of 2022
29.09.2026