In the light of the above discussion, the view taken by the Judgment in Karupuchetty @ Vaiyapuri v. Papathi and others in AS.No. 148 of 2025 dated 07.03.2025 and Prema v. Nallasellam in A.S.No.588 of 2025 dated 29.04.2025 are over- ruled. The Registry shall continue to adhere to the Appellate Side Rules and issue notice on the appeals being presented and registered. It shall not post the appeals for admission as directed in the aforesaid judgments. If the court so directs, it shall list the appeal for hearing under Order XLI Rule 11. 140. List the appeals before the learned Single Judge tomorrow i.e., on 23.05.2025 for appropriate orders. (G.R.SWAMINATHAN, J.) & (V.LAKSHMINARAYANAN, J.) 22.05.2025 Index : Yes/No Neutral Citation : Yes/No Speaking Order / Non-speaking order KST/NL/KRK G.R.SWAMINATHAN, J. AND V.LAKSHMINARAYANAN, J. KST/NL/KRK A.S.Nos.617,618,619 and 621 of 2025 22.05.2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.05.2025
CORAM :
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
A.S.Nos.617,618,619 and 621 of 2025 and
C.M.P.Nos.11921, 11930, 11932, 11649, 12016 & 12017 of 2025
A.S.No.617 of 2025:
1.P.R.Saravanan
2.R.Senthil Kumar
3.R.Dhanabakkiam
K.Dhanalakshmi (Died)
1.K.Sivakumar
…. Appellants
-Vs-
2.Subramaniam
…. Respondents
For Appellants A.S.No.618 of 2025:
1.A.Ponnarasi
: Mr.R.Nalliyappan
2.S.Sampoornavalli
…. Appellants
-Vs-
1.M.Dhanalakshmi
2.Venkatesh
A.Arunachalam (Died)
3.A.Arunkumar
4.ShriRam City Union Finance,
Rep by its Branch Manager,
K.Anbalagan,
A Non Banking Financial Institution,
Duly registered under the Reserve Bank of India Act,
And having its registered office at Door No.123,
Angappa Naicken Street,
Chennai – 600 001.
…. Respondents
For Appellants A.S.No.619 of 2025:
: Ms.R.Poornima
M.Thaiyal Nayagi
…. Appellant
-Vs-
1.E.Indhirani Ammal
E.Srinivasan (died)
2.E.Murugan
3.D.Saraswathi
4.E.Venkatesan
5.C.G.Kirubanandan
6.S.Ambika
7.S.Prakash
8.Kalaivani …. Respondents
For Appellants : Mr.M.Venkadeshan A.S.No.621 of 2025:
R.Hemant Kumar …. Appellant
-Vs-
1.M/s.Shell India Marketing (P) Ltd.,
(Now known as Shell India markets Pvt Ltd)
Represented by Mr.Ramakrishnan,
No.12, Old No.22, 1st Cross Street, Ramakrishnanagar, Mandaveli, Chennai – 600 028.
Presently at 2nd Floor, Campus 4A,
RMZ Millennia Business Park, 143, Dr.M.G.R.Road, Perungudi, Chennai – 600 096.
2.R.Sridevi
Relangi Satyanarayana Babu (Deceased)
3.A.Chamundeswari
4.R.Thirumal Babu
5.R.Gayathri
6.R.Rajyalakshmi
7.Vijaya Medical and Educational Trust,
Represented by its Managing Trustee,
B.Venugopal Reddy,
Vijaya Hospital Buildings, No.180, Kodambakkam High Road, Vadapalani, Chennai – 600 026.
M.Uttam Reddy (Died)
8.Estate of B.Nagi Reddy (Died),
Rep. by Intermeddler, B.Viswanatha Reddy, Vijaya Gardens, Vadapalani, Chennai – 600 026.
9.Muthu Hotels (P) Ltd., Muthu Hotels Pvt Limited,
a Company registered under the Companies Act, 1956, Represented by its Director having its registered office at No.44/1, West Circular Road, Mandaveli, Chennai – 600 028.
10.B.Viswanatha Reddy …. Respondents
For Appellants : Mr.B.Natarajan
COMMON ORDER
(Order of the court was made by V.LAKSHMINARAYANAN.J.)
These appeals were originally listed before Hon’ble Mr.JUSTICE
G.R.SWAMINATHAN for admission. Taking note of the fact that he was a part of the coram in V.S.Chandrasekaran -Vs- R.Uma (A.S.(MD)No. 5 of 2025 dated 25.04.2025), he referred the matter to this Division Bench.
Introduction
2. The practice of this Court has been that on the first appeal, being presented and numbered, notice is issued to the respondents. Thereafter, the appeals are listed for hear- ing before the appropriate Bench. The Hon’ble Mr.JUSTICE N.SATHISHKUMAR, took a view in Karupuchetty @ Vaiyapuri (Died) -Vs- Papathi (A.S.No.148 of 2025 dated 07.03.2025) that after the amendment to Order XLI Rule 11 of Code of Civil Procedure, the first appeals would have to be listed for a hearing on “admission” and only thereafter the other steps can be taken.
3.Taking cognizance of this view, certain first appeals were listed for admission before a Division Bench of this Court sitting at Permanent Bench at Madurai. The Division Bench, consisting of one of us (Hon’ble Mr.Justice
G.R.Swaminathan) and Hon’ble Mr.Justice M.Jothiraman, took a view in
V.S.Chandrasekaran -Vs- R.Uma (A.S.(MD)No. 5 of 2025 dated
25.04.2025) that the interpretation of Order XLI Rule 11 made in Karupuchetty’s case is not in line with the Code and Appellate Side Rules. They further held that when the Appellate Side Rules of the Madras High Court are in variance with the first Schedule appended to the Civil Procedure Code, the Appellate Side Rules will take precedence. Consequently, they directed the procedure followed prior to Karupuchetty’s case to be continued.
4. Within four days of the order of the Division Bench, the Hon’ble Mr.Justice N.Sathish Kumar in Prema -Vs- Nallasellam (A.S.No.586 of 2025 dated 29.04.2025) re- affirmed his opinion in Karupuchetty case. He held the judgment in V.S.Chandrasekaran’s case is contrary to judgments of the Supreme Court, which are binding on all parties including the High Court Registry. He directed that the Registry should contin- ue to list the First Appeals for admission under Order XLI Rule 11 CPC. On 16.05.2025, these appeals were listed for admission before Hon’ble Mr.JUSTICE G.R.SWAMINATHAN. Taking note of the incongruity expressed in the three judgments, he referred the matter to this Division Bench.
5. We heard the counsel on the short issue, “whether first appeals have to be listed for “admission”?”
Appeals down the ages and cultures
6. Appeals and appellate procedures are not a modern day discovery. Legal systems have slowly developed the concept of an appeal. We can usefully refer to a scholarly article written by Peter. S.Poland titled “Appellate Remedy:
The Ancient Precedents of a Modern Right” published in the Journal of Appellate Practice and Process [Volume 17, Page 11 (2016)].
7. A reading of this article shows that the Mesopotamian legal system, though it did not have a vertical hierarchy of courts as we know today, provided a means of redressal for the litigants to address their grievances. The legal system was in operation in the Second Millennium B.C.E. As per the system, the cases were presented before the Court. The Judgment used to be rendered and recorded in a clay tablet. Once the judgment was rendered, the parties were made to swear that no fresh litigation would be brought on the same cause of action. Unfortunately, such a procedure is not being followed today and the courts are repeatedly called upon to apply the principle of res judicata or nip the litigation in the bud as an abuse of process of law. Despite the same, such litigations are on the rise.
8. Even in this rudimentary system, if after the pronouncement of thejudgment, new evidence emerged or if any “material error” could be pointed out during the first trial, the parties were permitted by law to bring forth a new proceeding to rectify “the material error that had occurred in the first trial”.
9. The Mesopotamian example was followed in ancient Egypt too. There was no vertical hierarchy. Yet, litigants were permitted to institute a fresh proceeding on the same cause of action, if a new evidence was discovered after the pronouncement of the earlier judgment.
10. One is able to see traces of vertical appellate systems between 945 – 715 BCE, in this Egyptian legal system. However, appeals were not presented to legally trained minds, but were presented to an oracle. After the judgment was pronounced, the litigants could appeal to an oracle, either through written document or orally. Oracle would then pronounce its verdict which was treated as epiphany i.e., moment of sudden and great revelation or realization. The oracle, in its physical manifestation, was a statue of a deity carried on a litter (similar to a palanquin) by several priests. The priests, who interpreted the will of the oracle, would either move the litter forward or backward in response to questions of the appellants. Forward move indicated “yes” and backward move indicated “no”. To a rational mind, it was not the deity who was sitting on the appeal, but it was the priests performing the priestly duties who acted as the Judges. There have been in- stances where appeals were directly made to the Pharaoh or the King. For all other purposes, the ruling of the oracle was final.
11. The features of the present vertical appellate procedure can be seen in
Athens. Solon, the 6th century BCE Athenian politician and poet, introduced the first appellate procedures. A judgment rendered by a Magistrate was made appealable to the Eliaia – an assembly of Athenian citizens, who had been specifically convened for the said purpose. The Eliaia heard the case afresh (de novo) and had the power to affirm the judgment of the Magistrate or reverse it and render a new judgment. The judgments pronounced by Eliaia were final. No further appeal lay from it. With the passage of time, Eliaia became the Court of first instance, and therefore, its appellate powers became irrelevant.
12. Turning to the classic Roman history, we are able to see that an appellate procedure was in existence during the Roman Empire. It was a vertical hierarchy procedure. The Roman Appellate Courts were entitled to receive new evidence, if they considered it essential for the purpose of rehearing. The litigants were required to present the appeal and the written grounds of appeal to the courts from whose judgment they sought to file an appeal. If we may draw a similarity, the present procedure under Order XLI Rule 9 resembles the same.
13. Coming to the Indian context, the concept of appeal was not alien to ancient In- dian Jurisprudence also. We referred to the book “Hindu Law: A New History of Dharmasastra” (Oxford University Press, 2018) by Patrick Olivelle and Donald R. Davis, Junior. At page No.297 of the said book, the authors, referring to the works of Yajnavalkya and Brihaspati, state that these two jurists had instructed the King to review any wrong decisions made by the court and if necessary punish the court officials. Brihaspati would state that:
“When someone is not satisfied, however, even after a decision has been reached by a family and the like, the king should in- vestigate how it was carried out and take up again for review one that has been badly conducted.”
14. The authors would point out that the ancient Indian jurisprudence permitted appeals to the king from any decision of a judge in a royal court, especially when the losing party suspected that the assessors were involved in the miscarriage of justice. Katyayana was of the opinion that when the verdict was on account of corruption or wrong legal reasoning and when the assessors were found guilty, they were not only punished, but a new legal trial was ordered.
15. As we are not following the ancient Hindu jurisprudence any more, but have adopted colonial procedure, we decided to travel to England to see how the appeal procedures were followed in England.
16. In a speech delivered by Lord Justice Atkin titled “Appeal in English Law” Cambridge Law Journal [Volume III, Page 1 (1927)], the distinguished jurist states that in England the concept of appeal was in existence from the days of the King. During the earlier days of English law, a litigant did not have a right of appeal. Judiciary and executive during that time were united and the disputes were resolved by the ruler. Later the ruler, on certain occasions delegated this power to a subordinate. Since both the powers were rolled into one authority, there was no provision for appeal.
17. After the germination of the concept of separation of powers, the concept of appeal also grew. We extract the view of Lord Justice Atkin:
“…As soon as a ruler began to delegate his function to a sub-ordinate there can be no question that he would from time to time de- sire to revise the decisions that were arrived at, partly from self-interest, and partly, one may assume, from a sense of justice, knowing that, or thinking that, the decision was wrong and that he could give a better one. And in that kind of way there would gradually emerge a more or less settled system by which decisions would become the subject of review.”
18. As will be seen later, the Code of Civil Procedure emerged from the Judicature Act, 1873. Prior to Judicature Act, the appeals were maintainable on the Chancery side of the English courts on questions of facts and law. There was no right of appeal on a question of fact in other courts. A litigant was granted the right to seek for a new trial. But there was no appeal as understood by us today on a decision of fact. In 1873, the Judicature Act set up a Court of Appeal. There were six Judges of Appeal with the Master of Rolls to sit as the President of the Court. There was to be an appeal from all the decisions of the lower courts. An appeal was provided by way of re-hearing, with power to reverse not only decisions of law but also determinations of fact.
19. A similar view has been expressed by Cassandra Burke Robertson in an article titled “Right to Appeal” North Carolina Law Review [Volume No.91, Page No.1219 (2013)]. The author states that the Equity Courts permitted an appeal to review the factual matters instead of being limited to legal errors.
However, under common law, there was no right to appeal and a litigant would have to seek a “Writ of Error” which enables the court to correct the legal errors committed by the Trial Court with a bar on factual matters. We have gone back in history in order to show across civilizations and ages, a provision for appeal has been considered as one of the fundamentals of a legal system.
Definition of ‘Appeal
20. According to Black’s Law Dictionary (6th Edition, 1990), an “appeal” is defined as resort to a superior court to review the decision of an inferior court or administrative agency. It is in the nature of a complaint to the higher tribunal pointing out to the errors and injustice committed by the trial court and seeking for correction or reversal.
21. Lord Westbury in Attorney-General -Vs-Sillen [10 H.L.C. 704 (1864)] held that the right of appeal is the right of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. Laying down the test for appeal in Chappan-Vs- Moidin [I.L.R. 22 Mad. 68 at p. 80 (1898)], Mr.Justice Subramania Ayyar observes that for the purpose of an appeal, two essential aspects have to be present:
(1) that there should be in existence the relationship of superior court and inferior Court, and
(2) the power, on the part of the former, to review decisions of the latter.
22. The view of Mr.Justice Subramania Ayyar is in line with that of famous American jurist Joseph Story in his work on the Constitution (Vol. II, secs. 1760 to 1776). In the same spirit, Ashutosh Mookerjee and Coxe JJ in Secretary of
State for India in Council v. British India Steam Navigation Company, [(1910-11) 15 CWN 848] held as follows:
“an “appeal” is defined as the removal of a cause from a Court of inferior to one of superior jurisdiction for the pur- pose of obtaining a review and retrial, and it is explained that in its technical sense it differs from a writ of error in this, that it subjects both the law and the facts to a review and retrial, while the latter is a Common Law process which removes matter of law only for re-examination”
23. The view of Justice Ashutosh Mookerjee came to be accepted by the
Supreme Court in Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, [(1969) 2 SCC 74]. Voicing a similar view while
interpreting Section 100 A of the Code of Civil Procedure, the Supreme Court in Kamla Devi v. Kushal Kanwar, [(2006) 13 SCC 295] held in paragraph 12 as follows:.
“An appeal, as is well known, is the right of entering a superior court invoking its aid and interposition to redress an error of the court below. The central idea behind filing of an appeal revolves round the right as contradistinguished from the procedure laid down therefor.”
24. To complete the narration, we refer to Malluru Mallappa v. Kuruvathappa [(2020) 4 SCC 313] which discussed as to how regular appeal under Section 96 must be dealt with. In the said process, the Supreme Court defined the term appeal in paragraph 10 in the following manner:
“It is a judicial examination of the decision by a higher court of the decision of a subordinate court to rectify any possible error in the order under appeal.”
25. The gist of the discussion being an appeal should lie, as of a right, in order to enable a litigant to submit to an appellate authority, the perceived errors of law and facts of the Trial Court and plead for redressal.
Jurisprudential Basis for Appeal
26. We now turn to the jurisprudential basis for an appeal. Yet again we refer to the speech of Lord Justice Atkin and other works referred to above. In his speech, while referring to the origin of appeals in England, Lord Justice Atkin observed:
Page 2: It is obvious that it would be to the interest of the King, as wielding paramount authority, to have the power of reviewing the decisions of subordinate courts, including those held by his own officers, and it is not surprising, therefore, to find dating from very early times, one of the forms of procedure which is tantamount to appeal. I mean the procedure by way of the three great prerogative writs issued by the King: the writ of prohibition which prevents a court from exercising jurisdiction which does not belong to it and stops proceedings in it altogether, the writ of mandamus which compels a court to proceed and do justice according to the law, and, lastly, a very important writ, the writ of Certiorari, which brought up decisions at the law courts for review before the King’s court to be quashed for excessive jurisdiction or for error if it was placed on record that there was an obvious mistake in law. It is probably by way of proceedings by prerogative writ that appeals began.
27. As can be seen from the above passage, writs were issued by the King to keep a check on his subordinates exercising judicial functions and review their decisions from time to time. This power of review later took the form of an appeal. Therefore, it is clear that the mechanism of appeal originated to review and redress the errors committed by the subordinate courts, thus, ensuring justice. This mechanism of appeal in addition to rectifying the errors of the subordinate courts perform other functions which are crucial in the maintenance of rule of law. Here, it would be pertinent to refer to the work of Cassandra Burke Robertson, which was referred to earlier. In her work, she has noted as follows:
“Legal scholars have identified a number of different functions that a robust appellate system serves, including correct- ing legal and factual errors; encouraging the development and refinement of legal principles; increasing uniformity and standardization in the application of legal rules; and promoting respect for the rule of l aw . In criminal cases, appellate rights play an additional role in guarding against wrongful conviction of the innocent.”(Page 1224)
28. Professor J.Clark Kelso in his research paper titled “A Report on the California Appellate System” published in Hastings Law Journal [Volume 45, Page 433 (1994)] underscored the importance of the appellate system by highlighting the pivotal function of the appeal mechanism in the following words:
“Page 433: The underlying sentiment that there is (or must be) a higher authority which may be consulted to correct injustice has been ingrained in formal, governmental disputeresolution systems throughout recorded history. The right of appeal has been a component of governmental disputeresolution systems for at least 6000 years. Ancient Egypt (circa 4000 B.C.E.) is one of the earliest known societies to incorporate some form of appellate process.
Page 434: There are legitimate reasons for maintaining an appellate system apart from historical practice. Traditional wisdom involves the following core reasons for permitting appeals in our common-law system: (1) to correct errors committed by the tribunal from which the appeal is taken;6 (2) to have a consistent, uniform declaration of what the law is, not only in the case on appeal, but also as it will be applied to similar cases in the future; and (3) to satisfy the public’s demand for justice, which includes a demand that important grievances be heard and resolved by the highest possible governmental authority.
29. An anatomization of these views leads us to the conclusion that a regular appeal has been recognised in jurisprudence for the following purposes:
(1) Qualitative analysis & correctional mechanism: A court of appeal reviews the decisions of the lower court not only for errors of law but also for errors of fact and improper procedure. The errors of procedure should be of such nature that it affected the merits of the case or jurisdiction of the court. (See,
Section 99 of the Code of Civil Procedure).
(2) Measure of rule of law: Right of appeal provides a safeguard against potentially unfair or unjust decisions. It affords a path for a party, who believes that his or her case had been wrongly appreciated, to have the same case reviewed by a different set of judicially trained minds.
(3) Laying down precedents: When a judgment is rendered by an appellate court, it gives reasons for arriving at a conclusion. These reasons, especially the ratio decendedi contribute to the growth of the legal system, in the form of precedents. It helps to clarify existing law and in certain cases, establish new ones. These precedents helps the same Court or / and courts below and lead to consistent application of the laws.
(4) Avenue for redress : By giving a right of appeal, a party who approaches the appellate court is offered a chance to be heard again, and if the situation so arises, to reach a different result. In order to continue the faith of the public in the judiciary, the right of appeal serves as a concomitant with the principles of justice. Finally, the right of appeal helps to bolster public trust and confidence in the legal system. It assures the litigant that the legal system, though not error-free, has inbuilt checks and balances, and thereby satisfies the grievances of the litigants.
History of the Code of Civil Procedure in India
30. Before we proceed to discuss the issue of “admission”, we find it necessary to trace the history of the First Appeals from the time procedures were developed for disposal of the same.
31. A survey of the Law Commission Reports and several books on the Civil Procedure Code reveal the following. The Code of Civil Procedure was first introduced in this country by the British in 1859. It was brought about for a uniform system for disposing of civil cases. Prior to the 1859 Code, there was no one code or law laying down a procedure that applied to the entire country. In fact, the Presidency of Bengal had nine such systems. In order to bring about uniformity, Sir Charles Wood, the President of the Board of Control within East India Company dealing with the affairs of India directed the Second Law Commission to come up with a simple and uniform Code. Accordingly, the Law Commission prepared four draft Codes of Civil Procedure intended to be applied to the Presidencies of Bengal, Madras, Bombay, and North Western Provinces.
After a detailed discussion, the drafts were amalgamated and the Code of Civil Procedure was notified in 1859. We should point out here that during the relevant time, there were in existence in the Presidency towns of Calcutta, Madras, and Bombay; three Supreme Courts established in the years 1773, 1800, and 1823 respectively. The Code of Civil Procedure of 1859 did not apply to these Courts.
32. Soon after the culmination of the First War of Indian Independence, in 1857, when the Crown took over the administration of this Country directly, it enacted the Indian High Courts Act of 1861. The Act abolished the Supreme Courts and the powers that had been exercised by the Supreme Courts were vested with the High Courts created under the Act. Consequently, in 1862, Queen Victoria issued Letters Patent creating High Courts in Calcutta, Madras, and Bombay respectively. The Letters Patent issued in 1862 were amended in 1865. The High Courts were directed under Clause 21 to be Courts of Law and Equity, and the rule of good conscience was to be applied by these Courts in every case coming before them under their appellate jurisdiction. Insofar as the regulation of proceedings is concerned, it is covered under Clause 37 of the
Letters Patent. This provision reads as follows:
“37. Regulation of proceedings:
And we do further ordain that it shall be lawful for the said
High Court of Judicature at Madras from time to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, ViceAdmiralty testamentary, intestate and matrimonial jurisdiction respectively:
Provided always, that the said High Courts shall be guided in making such rules and orders as far as possible by the provisions of the Code of Civil Procedure, being an Act passed by the Governor-in-Council, and being Act No. VIII of 1859, and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.”
33. The relevant provision for the purpose of this discussion is the proviso attached to Clause 37. The proviso states the High Courts will be guided in making such Rules, as far as possible, by the Code of Civil Procedure of 1859 and the provisions of law which may be made by amending or altering the Code by the competent jurisdictional authority for India. This clause was interpreted by this Court in P.Radhakrishnan -Vs- High Court of Judicature at Madras (1986 (2) MLJ 88) to point out that, while making such Rules and Orders, guidance should be taken as far as possible from the Code. The expression ‘as far as possible’ has received a wider connotation , as to say ‘as far as consistent with’. To arrive at this conclusion, the learned judge relied upon Arthur Richard Hinde -Vs- Ponnath Brayan and Ors., (1883 (7) ILR Mad 52 (Paragraph 7)). He concluded it is not possible to exercise the powers under Clause 37 of the Letters Patent to bring a circular which practically mulcts against, and is inconsistent with the provisions of the Code and the Civil Rules of Practice. Insofar as the Original Side Rules are concerned, there is no issue because, the Original Side Rules prevail over the provisions of the Code of Civil Procedure in cases of conflict (See, Iridium India Telecom Ltd. -Vs- Motorola Inc., ((2005) 2 SCC 145); P.S. Sathappan -Vs- Andhra Bank Ltd., ((2004)
11 SCC 672); and C.Vidyawati Gupta -Vs- Bhakti Hari Nayak (2006 (2) SCC 777)).
34. Coming back to the history of the Code, it was found that the 1859 Code was not complete and had not been arranged in a proper manner. Therefore, Sir Heaway Harrington prepared another draft to replace the 1859 one. His work was placed before Dr.Whitley Stokes, the then Secretary to the Government of India, Legislative Department. Dr.Stokes rearranged the Code of Civil Procedure. At that time, he borrowed sever- al provisions from both sides of the Atlantic viz., The Judicature Act, 1873 and from the New York Civil Code. The provisions for appeal so drafted were sculpted by Lord Hobhouse, the then Law Member of the Council. The new Code of Civil Procedure came into force in
1877.
35. The procedure contained in the 1877 Code too was found to be wanting and therefore, another Code was enacted viz., the Code of Civil Procedure of 1882. After working the Code for nearly about two decades, the users of the Code viz., the Courts and the practitioners felt that the 1882 Code was rigid and did not meet the requirements of the varied needs of this vast country. Therefore, a special committee was appointed to re- vise the provisions of the 1882 Code. It was headed by Sir Earle Richards. He was ably assisted by Dr.Rashbihari Ghose. It was this committee that had developed the concept of the Code being divided into two parts viz., body of the Code and the Schedule.
36.The report of the special committee states as follows:
” The general principle on which we have proceeded has been to keep in the body of the Bill, those provisions which appear to us to be fundamental and those provisions which bear powers operating outside the province in which the Court is situated. In some cases, we have adopted the plan of inserting leading provisions in the appeal in general terms, the powers of the

Court and of leaving the details to the Rules.”
37. The Bill drafted by the special committee, which finally became the
Code of Civil Procedure of 1908, created a Schedule in order to give elasticity to the Code. While the original intention of the Code was to bring about uniformity across the country, as years passed by, flexibility was incorporated into the Code. The marriage between the two resulted in a legislated “body of the Code” and a “schedule” to be modified by the respective High Courts/States to suit their needs. In case of any difficulty, the Bill provided for immediate resolution by way of modification through the High Court itself rather than through the process of legislation. In this regard, the relevant portion of the report of the special committee is extracted hereunder:
“They don’t desire to do away with the uniformity in main principles, but they think that, with due regard to those considerations, it is possible to confer the power to change the l ess i mportant provisions of the Code in order that defects in them can be remitted at once as they are
discovered and i n order that i n special circumstances , the Courts may have the power to simplify our legal machinery and to make it more adapting to the wants of the less advanced communities.”
38. These two extracts of the report of the special committee show that the Code of Civil Procedure, 1908 was so enacted to give the powers of amendment and modification to the High Courts so as to enable them to make Rules to suit their needs rather than a stiff and uniform Code as it was originally contemplated in 1859. We should point out here that the provisions for appeal that had been drafted by the special committee were enacted as they were first recommended by the said committee, with a few minor modifications.
First Appeal and importance of Sec. 96 under the Code of Civil
Procedure
39.Even under the 1877 Code of Civil Procedure, a first appeal was contemplated. This was under Chapter XLIII. The appropriate provision being Section 588. As per this provision, an appeal shall lie from the orders specified under Clauses (a) to (w) of that Section. Finality to the judgment passed by the first appellate Court was incorporated, save those which provided for further appeals under Section 584 and 591.
40. With the enactment of the Code of Civil Procedure of 1882, a new chapter was introduced for appeals against orders. This was under Chapter XLIII. Section 582 of the 1882 Code made it clear that an appellate Court, while dealing with such appeals, will have the same powers and perform the same duties as may be conferred on the Courts of original jurisdiction. This statutorily recognized the oft repeated principle that an appeal is a continuation of the suit.
The finality granted under Section 588 was subject to a second appeal, which was made available under limited circumstances as found under Chapter XLII of that Code consisting of Sections 584 to 586.
41. Currently, Section 96 of the present Code deals with first appeals. Section 96(1) declares, an appeal shall lie from every decree passed by any Court exercising original jurisdiction and the appeal would be heard by the Court authorised to hear the appeals from the decisions of such Court.
42. Except for sub-section (3) inserted under Section 96 of the 1908 Code, Section 540 of the 1882 Code has been reproduced, as it is in Section 96 of the 1908 Code. Section 96(3) bars appeals against consent decrees. This position too has undergone a change after the insertion of Order XLIII Rule 1A, providing for an appeal under certain circumstances. It points out how precious the Code treats “appeals”. The bar on filing an appeal against consent decrees, more or less, corresponds to Section 49 of the Judicature Act, 1873. The difference being, under the Judicature Act, the judge or the Court which recorded the compromise, could grant leave to a party to file an appeal.
43. The appellate court while hearing the First Appeal, calls upon the judge to arrive at his or her own conclusion, about the controversies raised in the suit. This is the reason why the First Appellate Court does not proceed to read the judgment of the Trial Court straight away and decide the appeal. The First Appellate Court peruses the pleadings, analyses the oral and documentary evidence, and thereafter, if necessary, refers to the judgment of the Trial Court. The right of First Appeal is an extremely valuable right available to the litigant, and the parties have the right to be heard both on facts and on law. This is also the reason why the first appellate court is required to frame points for determination, dehors, the issues that have already been framed by the trial court. An appeal has to be decided by giving independent reasons in support of the Court’s findings. (See, Mahender Pal Chabra & another Vs. Subhash Aggrawal, [2024 SCC OnLine SC 331]). At this juncture, we refer to the judgment of the Division Bench of Gujarat High Court in Harijan Vanabhai Devabhai -Vs- Khoda Gram Panchayat (AIR 1994 Guj 1) to point out how appeals are to be disposed off. The then Hon’ble Chief Justice Mr. S.Nainar Sundaram held that when the Appellate Court had not chosen to assess the merits of the case in First Appeal, but had relied upon the reasons given in the judgment of the Trial Court, then such a judgment would be improper and has to be set aside. When an appeal, at the first instance, comes up before a Court, the typed set of papers normally carries the pleadings, the grounds of appeal, and the judgment of the Trial Court. This would be hardly sufficient for the First Appellate Judge to render a judgment, as would be required by the First Appellate Court. If on the basis of these papers alone, an appeal were to be disposed off, it would shake the very foundation of the First Appellate Court’s jurisdiction and would adversely affect the right of the litigants. Justice Krishna Iyer in Sita Ram & ors. Vs. State of Uttar Pradesh, [1979 (2) SCC 656]
said:
“appeal is a remedial right and if the remedy is reduced to a husk by procedural excess, the right becomes a casualty.”
44. This is not to be understood that without the records, an appeal cannot be dismissed under Order XLI Rule 11. The legislature, when it enacted the provision gave the power to the appellate Court to dismiss an appeal without records. (See, Pachi Dassi Vs. Bala Das and others, [1909 (2) Ind Cases
405]).
45. First appellate remedy is not a mere procedural remedy. It is asubstantive right granted by the Civil Procedure Code. A right of appeal is a vested right. It accrues on the date on which the initial proceedings (Suit, Application, Objections, etc.) are initiated. The right to appeal is considered to be so sacrosanct that unless an intention is conveyed otherwise by the legislature, it cannot be taken away even by a subsequent legislation repealing the appellate remedy. In stark distinction to the power of revision, which can be taken away or restricted, subsequent to the institution of proceedings, the right of appeal is not affected with respect to pending proceedings, unless specifically so expressed by the legislature. (See, The Colonial Sugar Refining Company, Limited -Vs- Irving. ([1905] A.C. 369), Garikapati Veeraya -Vs- N. Subbiah
Choudhry (AIR 1957 SC 540), and Videocon International Ltd. -VsSEBI ((2015) 4 SCC 33)).
46. We have elaborated so much on Section 96 in order to show how valuable and important the right of appeal is. As has been pointed out by the learned Single Judge, the expression ‘appeal’ has not been defined by the Code.
Hence, the attempt in preceding paragraphs to breath life into that term.
47. To take the discussion further, a person, who is not even a party to thesuit, but who would be aggrieved by the judgment, is also entitled to file an appeal with the leave of the Court. We need not strain ourselves too much on this proposition as it has been settled at least 75 years ago.
48. This Court in K.Ponnalagu Ammal -Vs- State of Madras (AIR 1953 Madras 485) while dealing with an appeal under the Letters Patent, held that every party to a suit is not entitled to file an appeal against the decree passed in the said suit. A party must be a “person aggrieved” to avail the right of appeal. The Bench further, following the consistent view of the English Courts, held that the persons, not being parties on record, may, upon obtaining leave, move the Court of appeal against the judgment or order affecting their interests.
The Court further held that,
“ordinarily leave to appeal should be granted to persons who, though not parties to the proceedings, would be bound by the decree or judgment and who would be precluded from
attack- ing its correctness in other proceedings.”
49. The view taken by the Division Bench found acceptance in the hands of the Supreme Court in V.N.Krishnamurthy -Vs- Ravikumar (2020 (9) SCC 501). The purpose of this discussion is to show how important the right of appeal is for a litigant and that the Courts retain the power to grant to even a non-litigant before the trial Court an opportunity to prefer an appeal before it. The Laws and Courts have gone to such an extent because regular appeals, being a part of rule of law, naturally accompanies the purpose of establishing hierarchical Courts, i.e., achieving justice.
1999 amendment – Statement of Objects and Reasons:
50. Prior to the amendment of the Code of Civil Procedure, the power of “admission” of appeals, if at all, was traceable to Order XLI Rule 9 and not to Order XLI Rule 11. The power under Order XLI Rule 11 is to dismiss an appeal, which in the view of the Court is, worthless and does not require a full fledged hearing. Therefore, to trace the power of “admission” to Order XLI Rule 11, in our view is erroneous.
51. It is relevant here to refer to the Statement of Objects and Reasons, which brought about Act 46 of 1999. Under Clause 3(j) of the Statement of Objects and Reasons, in order to reduce the delay, it was proposed to amend the Code in two places.
52. The primary one being that on the date of pronouncement of the judgment, authenticated copies are issued to the parties. The second one being that appeals have to be filed in the Court which passes the decree and notice to be served on the Advocates of the parties in the Court of first instance. Consequently, the words “admitted” under Order XLI Rule 9 was removed and appeals were directed to be filed before the Trial Court. This amendment makes it clear that in so far as first appeals are concerned, the procedure of “admission” which was prevalent prior to 1999 ceased to operate. Easing the difficulties expressed by the Bar and the litigants, the Supreme Court in Salem Advocate Bar Assn. v. Union of India, [(2003) 1 SCC 49] interpreted Order XLI Rule 1 and Order XLI Rule 9 to hold that appeals should be filed before the Court where the appeals are maintainable and not before the Trial Court.
53. A reading of clause 3(j) of the Statement of Objects and Reasons of
Act 46 of 1999, along with Rule 9 shows that notice in appeal is not given by the Court as a judicial proceeding, but as an act of the appellant, when issued by the court, it is but a ministerial act. As per clause 3(j), a party himself was called upon to serve notice on the other side and file memorandum of appeal before the Trial Court. By virtue of the intervention of the order of Supreme Court, this procedure has not been made mandatory. The point remains as if an appellant presents an appeal before the appellate Court under Order XLI Rule 1, he is also entitled to file the memorandum of grounds of appeal before the Trial Court under Order XLI Rule 9, serving notice on the other side. It is this act of the party which he performs in the Trial Court in terms of Order XLI Rule 9 which is performed by the Registry in terms of Order XLI Rule 1 read with Order 2 Rule 3 of the Appellate Side Rules. For ready reference, it is extracted as hereunder:
“3.Some of the more important changes proposed to be made are as folLows:
(a) … (b) …
(c) …
(d) …(e) …
(f) …
(g) …(h) …
(i) …
(j)with a view to reduce delay, it is proposed that the Court shall on the date of pronouncement of the judgment simultaneously provide authenticated copies of the judgment to the parties. Appeal shall be filed in the Court which passes the decree and notice shall be served on the Advocates of the parties in the Court of first instance.”
The statement of objects and reasons with respect to appeals extracted above shows that the Parliament considered issuance of notice as an act of the parties and not as a judicial act.
54. This makes it clear that the Parliament did not want the process of admission to be carried on after 1999 as it would result in delay in filing the appeals.
55. It is relevant to note here that Order XLI Rule 13 was deleted in full by the 1999 amendment. Prior to 1999, if an appeal was not dismissed under Order XLI, the appellate Court was directed to send notice to the Court from whose decree the appeal was preferred (Trial Court). The notice serves as an intimation about the appeals and calling upon it to transmit the records. However, the Parliament retained the procedure under Order XLI Rule 14 directing the service of summons in the same manner as in the suit.
56. There is no question of “screening” or “admission” procedure in thesuit. A combined reading of Order XLI Rule 9, 11, 13 & 14 as it existed before the amendment and how it exists today shows that the Parliament has re-drawn the procedure as follows:
i) On the presentation of the grounds of appeal before the Appellate Court and if necessary, before the Trial Court, notice is issued to the respondents.
ii) The procedure of admission followed prior to 1999 was entirely given up. The power enabling the Appellate Court to dismiss the appeal without sending notice to the respondents was also removed, since the other side party would have been served with the notice in terms of Order XLI Rule 9. The failure to issue notice under Order XLI Rule 9 to the respondents is not fatal. (See, Salem Advocate Bar Association Vs. Union of India, [AIR 2003 SC 189]).
iii) At any stage of the proceedings after issuance of notice to the respondents, the appellate Court has the power to dismiss worthless or vexatious appeals.
Admission – w ill-o’-the-wisp
57. Will-o’-the-wisp is a flame-like phosphorescence caused by gases from decaying plants in marshy areas. In times gone by, it was believed that a spirit carried the will-o’-the wisp which was followed by strangers to the marsh, leading them astray into the marsh itself. The word ‘admission’ has perhaps acted as the will-o’-the-wisp leading to the two judgments passed by the learned Single Judge. The word ‘admission’ is not found under Order XLI Rule 11. Order XLI Rule 11(1) reads as follows:
“the appellate Court, after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal”.
58. Order XLI Rule 11 deals with a situation of dismissal of the appeal and not admission thereof.
59. The word ‘admission’ is found under Order VII Rule 9 of the Code of Civil Procedure. It speaks about “procedure on admitting the plaint”. It is too well-settled position of law, but would have to be reiterated for the purpose of this case, that a litigant has a right to approach a Court, in case his civil right is affected, except where the cognizance is expressly or impliedly barred under Section 9. (See, Ganga Bai -Vs- Vijay Kumar and others (AIR 1974 SC
1126) (para. no.15)).
60. If the word ‘admission’ found under Order VII Rule 9 has to beconstrued as done by the learned Single Judge, then any Court of original jurisdiction, be it a District Munsif or this Court, should call upon a party to argue “for admission” before taking the suit on file. Such a procedure is unknown to the Code of Civil Procedure. The words ‘procedure on admitting the plaint’ were introduced by the very same amendment, which the learned single Judge has relied upon viz., Civil Procedure Code Amendment Act, 1999. Unless and until plaint cannot be taken on file on ministerial aspects, the Registry of the Court does nothing while numbering the plaint and issuing notice to the defendants.
This position too has been settled by a judgment of this Court in Selvaraj and Others -Vs- Koodankulam Nuclear Power Plant India Limited and Others (2021 (3) L.W. 677). The purpose of referring to the term “’procedure on admitting the plaint” under Order VII Rule 9 is because, similar words are found before the commencement of Order XLI Rule 9 of the Code. Rules 9 to 15 under Order XLI are contained in a chapter bearing the special heading: “procedure on admission of appeal”. Therefore, the word “admission” found in the chapter heading cannot be taken to mean a separate stage of preliminary hearing.
61. Another provision under Order XLI which speaks about “admission” is Order XLI Rule 19. This provision applies when the appellant does not proceed with the arguments either when the appeal is listed for hearing under Order XLI Rule 11 or when it is dismissed for default under Order XLI Rule 17. If the appellant is not present on both the occasions, the Appellate Court will not go into the merits of the case, but will dismiss it for default. If the appellant shows sufficient cause for his non-appearance, then the Appellate Court will set aside the order of dismissal and restore the appeal for hearing. If the word “admission” is given, the same meaning as done in Karuppuchety and Prema‘s case, then the appeal must be heard for admission all over again. Such is not the purport of Order XLI Rule 19. By setting aside the order of dismissal for default and restoring the appeal back onto its file, it is re-admitting the appeal. This shows that the word admission used under Order XLI does not contemplate a screening test for the appeals.
Pre-eminence of the Body of the Code over the Schedule
62. The discussion on the history of the Code of Civil Procedure has pointed out that the substantive provisions are found in the body of the Code and other flexible aspects are found under the Schedule. Section 96 is found in the body of the Code, which gives the right of first appeal, whereas Order XLI Rule 11 falls in the Schedule. If the view of the learned single Judge must be accepted, then Order XLI Rule 11 under the Schedule would bind the body under
Section 96.
63. The discussion in Karupuchetty’s case, V.S.Chandrasekaran’s case and Prama’s case, instead of giving importance to Section 96, in our view, has been carried away with the words “may dismiss the appeal” found under Order XLI Rule 11. The power to dismiss a first / regular appeal continues to be with a judicial officer, be it a Subordinate or District or a Judge of the High Court. It has not been delegated to the Registry. Order XLI Rule 11 is only an enabling provision. It is not a compulsive one as in the case of second appeals. This is clear from the usage “may dismiss the appeal”. Order XLI also does not make it mandatory to set down appeals for a preliminary hearing. Useful reference in this aspect can be made to a Full Bench of the Andhra Pradesh High Court in B.Veera Nageswara Rao Vs. B.Rama Devi, [(1997) 3 APLJ 124 (FB)].
Section 4 of the Code of Civil Procedure:
64. Section 4 of the Code is an important provision which has not been taken note of in Karupuchetty case, V.S.Chandrasekaran case and Prema’s case. It reads as follows:
“4. Savings.—(1) In the absence of any specific
provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed , by or under any other law for the time being in force.
(2)….. ”
65. The Appellate Side Rules having been made in exercise of the powers conferred on this Court under Clause 37 of the Letters Patent, Section 122 of the Code of Civil Procedure and Article 225 of the Constitution of India, is a special / local law within the meaning of Section 4. When anything in the Code of Civil Procedure is in conflict with a special or a local law, the Code will not prevail unless and until there is a specific provision in the contrary to the Code itself. The Code must specifically indicate, and not by implication, that it overrides the rules and other local laws. This is because as per section 2(18) of the Code, “rules” not only includes the rules and forms in the first schedule but also those made under sections 122 and 125 of the Code. We will be expanding on the forms
later.
66. Under Order XLI Rule 11, the power to dismiss an appeal is available
with the Judge dealing with the portfolio allotted to him by Hon’ble The Chief Justice. This power has not been conferred on the Registrar nor can it be conferred on a Registrar. This is because, as rightly pointed out by the learned Judge in Prema’s case, a judicial power cannot be delegated to a non-judicial authority. From the time this Court has been established, this Court has followed the practice of delegating the ministerial powers to receive the appeals, petitions and other proceedings and to issue notice to the respondents through the Registrar of the Court. It is following the said practice that the appellate side rules have been made. The Rules, being special in character, is saved by virtue of Section 4(1) of the Code of Civil Procedure, unless of course, specially provided for otherwise by the Code.
67. Section 4 was a subject matter of interpretation by a Constitution
Bench of the Supreme Court in Pankajakshi & others Vs. Chandrika, [2016 (6) SCC 157]. Speaking for the Bench, Hon’ble Mr.Justice R.F.Nariman held that whenever there is a special, local or other law which deals with any matter specified in Code, those laws will continue to have the force and effect notwithstanding that they deal with the same matter as contained in the Code of Civil Procedure. Interpreting the words “specific provision to the contrary”, the Court held that the specific provision is not referable to any other law, but must be contained in the Code of Civil Procedure itself.
68. If the Appellate Side Rules is treated as a special or a local law, then the procedure contemplated under those Rules, unless and until are expressly contrary to the provisions of the Code, will continue to operate. We will be discussing later that there is nothing in the Appellate Side Rules which is contrary to the Code of Civil Procedure. For the present, we hold the Appellate Side Rules under Order II Rule 3 are in line with Section 96 of the Code of Civil Procedure.
The Approach of the Code toward First and Second Appeals
69. At this juncture, it is pertinent to understand the differences in the language employed under Section 96 and Section 100 of the Code, and the procedures evolved. The substantive provisions relating to the first and second appeals viz., Sections 96 and 100, are reproduced hereinafter to facilitate a better appreciation of the discussion to follow:
Section 96(1)
Section 100(1)
Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any
Court exercising original jurisdiction the
Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed by any Court Subordinate to the High Court, if the High Court is satisfied that the case involves a
Court authorized to hear appeals from the decisions of such Court.
Section 96(1)
Section 100(1)
substantial question of law.
70. At the outset, it should be noted that both the Sections use the term “shall” while making provision for first and second appeals respectively. This indicates the mandatory nature of the provisions. However, what has to be borne in mind, and closely scrutinized, is that part of the provision which follows the term “shall lie”. Section 96, as can be seen from the table above, does not require the Appellate Court to record satisfaction before the taking the first appeal onto its file. There is no screening test, as it were. The first Appellate Court must take onto its file a first appeal that has been preferred against the decree of the Trial Court. It is not vested with any discretion to dismiss the appeal prematurely without the same being taken onto its file. The exception to this mandatory entertaining of first appeals is Order 41 Rule 11. This modus operandi has not been retained under Section 100. Under Section 100, the High Court is placed under an obligation to record its satisfaction regarding the existence of a substantial question of law be- fore taking the second appeal onto its file. This “satisfaction” is recorded at the time of the preliminary hearing in a second appeal. It is hence that second appeals are listed for “admission”.
71. Further, Order XLII Rule 2 contemplates a mandatory hearing under
Order XLI Rule 11. This is also a reason why the process of listing the appeal for “admission” is followed in second appeals and not in the first appeals. This further reiterates the settled position of law that the first appeal is claimed as a matter of right, whereas, the survival of the second appeal is left to the judicial satisfaction of the High Court.
72. In relation to the procedure followed, this Court has not framed any Rules as regards posting of first appeals for “admission”. We will be discussing this aspect in detail later, but suffice it to state for the present that an Act cannot be so interpreted in order to defeat the other provisions of the Act.
73. As pointed out earlier, the appellate Judge has the same powers as that of the Trial Court and is entitled to, under certain conditions enumerated under Order XLI Rule 27, entertain fresh evidence, be it oral or documentary. This power is wide and not restricted as found under Section 100 of CPC. We hasten to add that we should not be understood to have held that Order XLI Rule 27 is not available to a Second Appellate Court, as Section 107 and Order XLII enable the Second Appellate Court also to receive evidence.
74. The difference between Section 96 and Section 100 is that, while
there is a right to first appeal and a duty on the Court to entertain such an first appeal, no such right to appeal is available when it comes to a Second Appeal. Further, it should also be borne in mind that the rule of first appeal is that of hearing, whereas dismissal of a first appeal is an exception. In the case of second appeal, admission is an exception.
75. We must also reiterate that the first appeal being a continuation of the suit, the first appellate Court is the last Court to decide on facts and law. This is the reason why Order XLI Rule 27 empowers the Court of first appeal to receive fresh evidence. Therefore, the first appellate Court, unlike the second appellate Court, is bound to read the pleadings, oral and documentary evidence, and finally, the judgment to arrive at a conclusion on the correctness of the decree appealed against. If the procedure contemplated under Order XLI Rule 11 is interpreted to mean that the first appeal can be only heard on merits after listing the appeal for a preliminary hearing, it would amount to depriving the appellant of its right to appeal guaranteed under Section 96 for the entire records will not available with the Court at that stage.
76. As far as second appeal is concerned, since it only arises on a question
of law, the availability of the entire records at the stage of the preliminary hearing is not necessary and the effectiveness of such hearing is not vitiated by the absence of the records of the case appealed against. However, to import the procedures governing second appeals into the proceedings relating to the first appeal, as earlier stated, would be tantamount to following a procedure not envisioned by the Code.
77. To put it pithily, the first appellate Court shall entertain a first appeal, whereas the second appellate Court, on being satisfied that there exists a substantial question of law, may entertain a Second Appeal.
Scope of Order XLI Rules 9 and 11 after the advent of
Act 46 of 1999
78. We will now proceed to compare the amendments to the Code of Civil Procedure viz. those made in 1976 and 1999 which modified the position of law under Order XLI.
Act 104 of 76
Act 46 of 99
Rule 9 : Register of Memorandum of Appeal
Rule 9 : Register of Memorandum of Appeal
Act 104 of 76
Act 46 of 99
(1) Where a Memorandum of Appeal is admitted, the appellate Court or the proper officer of the Court, shall endorse thereon the date of presentation, and shall register the appeal in a book to be kept for the purpose.
(1) The Court from whose decree an appeal lies, shall entertain a Memorandum of Appeal and shall endorse thereon, the date of presentation and shall register the appeal in a book of appeal kept for that purpose.
(2) Such book shall be called the Register of Appeal.
Act 104 of 1976
Act 46 of 1999
Rule 11(1) : Power to dismiss appeal without sending notice to lower Court.
(1) the Appellate Court, after sending for the record, if it thinks fit so to do, and after fixing a day for hearing, the appellant or its pleader and hearing him accordingly, if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or its pleader.
The Appellate Court, after fixing a day for hearing the appellant or his pleader, and hearing him accordingly, if he appears on that day, may dismiss the appeal.
79. A perusal of the tabular columns shows that the Parliament has taken a conscious decision to delete the word “admitted” from Rule 9 while amending the Act in 1999. This reveals the legislative mandate as to how an appeal should be dealt with. The Legislature did not want the process of “admission” to be gone into by a first appellate court, but had given a direction that the appeal should be entertained in terms of Section 96 and Order XLI Rule 1.
80. The amendment to Order XLI Rule 11 that has been relied upon by the learned Single Judge does not in any way affect the terminology employed in Order XLI Rule 9. Therefore, this makes it clear that the procedure of admission cannot be insisted under Rule 9. Then the question arises why was not an admission procedure followed between 1976 to 1999. The reason is not far to see. Appellate Side Rules had been made by the High Court which is, as pointed out above, a Special Law within the meaning of Section 4 of the Code of Civil Procedure. Therefore, though Order XLI Rule 9 of the Code of Civil Procedure, as stood in 1976, contemplated an admission of first appeal, the procedure was not followed in this Court on account of the special law. The few lines set forth above have become academic, in view of the Parliament having deleted the word “admitted” from Order XLI Rule 9. When the Parliament has cautiously removed any reference to the process of “admission” by its 1999 amendment, it cannot be brought back into the statute through interpretation of another provision.
81.Under Rule 11, the Parliament has deleted the words “after sending for records” and substituted it in a manner as seen from the tabular column. It provides that an appeal can be dismissed under Order XLI Rule 11 without sending a notice to the respondent or its pleader. Under Rule 11(3), the Parliament has mandated the notification of the dismissal of the appeal to the Trial Court from whose decree the appeal was preferred. However, there is nothing under this Rule mandating the listing of the appeal for a preliminary hearing before the appeal is taken on file.
82. Notice to the respondent is sent by the Registry as soon as the appeal is received by the Court and is found to be in order. While Order XLI Rule 11 was amended, Order XLI Rule 14 has been retained as it is. Order XLI Rule 14 calls upon the appellate Court to serve notice on the respondent in the same manner provided for service on a defendant of a summons to appear and answer. Summons to appear and answer the claim made in a plaint, are issued on the defendant as soon as the plaint is taken on file by the Trial Court. When the same procedure has been endorsed under Rule 14, it is only reason- able to infer that the Registry is required to send notice to the respondent as soon as the appeal is presented and numbered. Therefore, there is nothing under Rule 11 that mandates the listing of an appeal for admission before serving notice to the respondent.
83. This takes us to the very next provision in the Code. Order XLI Rule 12 of Code of Civil Procedure states that unless the appellate Court dismisses the appeal under Order XLI, it shall fix the date for hearing the appeal. An option is given to the Appellate Court to reject frivolous or deadwood appeals at any stage of the proceedings. Though the word “shall” is used under Order XLI Rule 12, there is nothing in the statute which speaks about the consequences of not adhering to the said procedure.
84. It is here, we will usefully refer to the classic judgment of the
Supreme Court in Sangram Singh Vs. Election Tribunal, Kotah, [1955 (2) SCR 1]. The Supreme Court was dealing with a situation of non compliance of a procedural requirement. The Court held if such requirement is designed to facilitate justice and further its ends and the consequences of non-compliance is not provided, then, the requirement is merely directory. Merely because a procedural law is couched in a negative language, implying the mandatory character does not mean the same is without just and reasonable departures. After all, Rules of procedure are mere handmaid of justice and nothing more.
The body of the Code which has incorporated Section 96 gives a substantive right and the Schedule merely gives a procedure thereof. The important aspect, namely the hearing of an appeal is not dealt with under Order XLI Rule 9 to 15, but are enumerated under Order XLI Rule 16 to Rule 27. Hence, the reference to Order XLI Rule 11 in a non-mandatory provision as under Order XLI Rule 12, also leads us to a conclusion that the screening test or preliminary hearing of a regular appeal is not contemplated.
85. One crucial aspect of the 1999 Amendment is the deletion of Order 41 Rule 13 but retention of Form 5 and 6 of Appendix G. Under the Code, the Forms also form a part of the rules. Prior to 1999, there existed a provision under Order 41 Rule 13 which enabled the appellate court to inform the trial court, about the taking on file of the appeal Order 41 Rule 13(2) directed the trial court to transmit the papers immediately to the appellate court for the purpose of disposal. The intimation from the appellate court to the trial court and to the parties, was carried out in terms of Form 5 and Form 6 of Appendix G to the Code of Civil Procedure.
86. We have seen that post the 1999 Amendment to Order XLI Rule 9, a party had to give an intimation to the trial court regarding the filing of the appeal under Order 41 Rule 1. It also enables the appealing party to inform the respondents about the presentation of the appeal. This made the continuance of Order 41 Rule 13 unnecessary. However, in order to address the situation where a party does not give such intimation to the trial court or to his adversary, a safeguard under the pre-existing Form 5 and Form 6 was continued under the Amended Act also. It is relevant to note here that the words “admitted” are not found in the body of the Forms, though found in title to the same. The words used in the Forms are “preferred”, “prescribed” and registered”.
87. The delay that has been caused by sending intimation by the appellate court to the trial court in terms of Order 41 Rule 13 was addressed by mandating the appealing party himself to perform the task. In case, he did not do so, the appellate court on receipt of the appeal under Order 41 Rule 1 was called upon to inform the trial court under Form 5 and the opposite party under Form 6 of Appendix G. A bare perusal of these notices shows that it is only a ministerial act that has been performed by the Registry and not a judicial act as interpreted by the learned Single Judge.
88. Another indication to show that there is no admission procedure is clear from old Order 41 Rule 13. Under Order 41 Rule 13, as it existed before its deletion, the Registry was to issue notice only after conducting a hearing under
Order 41 Rule 11. This provision has since been deleted. In fact, a reading of the Form 5 of Appendix G would show that on a mere preference of an appeal to the court, the Registry would have to intimate the trial court, and on presentation and registration of the appeal by an appellant, the respondent would have to be informed about the appeal.
89. This leaves us with one other issue as to the scope of Order XLI 41
Rule 11. We have already pointed out that Order XLI Rule 9 is akin to Order VII Rule 9 and the procedure for service of summons under Order XLI Rule 14 is akin to the procedure under Order V of the Code. The power under Order XLI Rule 11 can be compared to the power of the Court under Order VII Rule 11.
[See, Mahender Pal Chabra & another Vs. Subhash Aggrawal, (2024 SCC OnLine SC 331)]. For the very fact that the suit has been entertained and notice has been issued does not mean that, when it comes up for hearing before the trial Court, the Court does not have the power to reject the plaint. This power can be exercised at any stage including the stage of judgment. Similarly, an appeal which is vexatious, can always be dismissed invoking the power under Order XLI Rule 11. This power exists and can be exercised by the Court even if notice has been issued. A party can always request the Court to post the matter for disposal stating that the appeal is vexatious and worthless. For the mere fact that Registry has issued the notice, does not mean it impairs the power of Court under Order XLI Rule 11. [See, (Tamil Nadu Civil Supplies Corporation Vs. Ramasamy Rice Merchants, (1995) 2 L.W. 473] – Though this judgment was rendered with respect to original side appeal, the observations made by M.Srinivasan.J can be applied to this issue.
90.To give an example, when an interlocutory application is moved for staying the execution of the proceedings, the appellate Court while dealing with the application, can find that the appeal is worthless and dismiss the appeal at that stage itself. This would be an example of invoking the power under Order XLI Rule 11. We are not multiplying the examples. The life of an appeal is as myriad as the life of a human itself. Several instances may arise, where the first appellate Court may decide that the appeal is worthless and dismiss it. Yet, the power of dismissal under Order XLI Rule 11 must not be construed as the power of admission. It is a power of dismissal and not one of admission.
Rules departing from the Schedule of the Code
91. The following is in addition to the discussion on Section 4 set forth above. The learned Single Judge seems to have been of the view that Section 122 of the Code alone gives the power to the High Court to frame the Rules. As pointed out above, the power to frame the Rules can be traced to Clause 37 of the Letters Patent and to other provisions including Article 225 of the Constitution of India. This is clear from the preamble to the Rules of the High Court, Madras, Appellate Side, 1965 which states that the High Court has framed the Rules by virtue of the powers vested in it under Section 122 of the Code of Civil Procedure and “and all other powers”.
92. A Division Bench of this Court in Tamil Nadu Electricity Board
-Vs- R.Srinivasan (AIR 1992 Madras 40) had held that, the Appellate Side Rules supplant the provisions of the Code. Further, the Bench held that if there is an inconsistency in the Appellate Side Rules and the provisions of the Code, the Appellate Side Rules having been formulated pursuant to the powers under Section 122 of the Code, under which it is permissible to annul, alter or add to all or any of the Rules of the Code shall take precedence.
93. After perusing the Appellate Side Rules of the Madras High Court, the learned Single Judge has come to the conclusion that the Registry cannot be conferred with the power of admission. We have pointed out already that, by issuing notice the Registry is not admitting the appeal, but is merely following the directions of Section 96 and Order XLI Rule 1 and entertaining the appeal.
Further, Order II Rule 1 of the Appellate Side Rules stipulates
“the Chief Justice may, by general or special order, specify the power and authority exercisable by such officers”.
94. At this instance, we can give an example of the Hon’ble The Chief Justice giving a “special order”. A perusal of Order II Rule 3(ii) would show that civil miscellaneous appeals against orders of remand [Order XLIII Rule 1(u)] alone were directed to be listed before the Court for orders on notice. This Court, in a judgment, has recorded that till late 1970’s, in civil miscellaneous appeals preferred under Order XLIII, the Registrars used to issue notice. Only the interlocutory applications in such appeals used to be posted before the Court for orders. By a “special order” passed by the then Chief Justice, all civil miscellaneous appeals were listed for admission. This shows that the Court is entitled to modify its procedure to suit its convenience and it cannot be strictly read that appeals have to be listed for admission when the Code of Civil
Procedure does not contemplate such a situation.
95. Similarly, Rule 3 of Order II makes it clear that, in addition to thepowers conferred by the other Rules, the Registry shall have the powers and duties subject to any general or special order or directions that may be given by the Chief Justice. Applying the Rule as it stands, if the Registrar encounters a doubt regarding the entertainability of a matter, he certainly has the power to refer the matter for a decision to the learned Judge dealing with the matter as per the portfolio allocation by the Hon’ble The Chief Justice.
96. The attempt of the Court, while interpreting two statutory provisions must be to harmoniously resolve the conflict, if the Court sees one, rather than pitting one against the other and coming to a conclusion that one prevails over the other. The jurisprudential universe in this country is wide enough for seemingly contradictory provisions to co-exist, and there is no need for using one to ride roughshod over the other. This takes to the concept of repugnancy.
The Doctrine of Repugnancy
97. The learned Single Judge in Prema’s case was of the opinion that since Order XLI Rule 11 was modified by the Civil Procedure Code (Amendment) Act of 1999 to mandate the listing of the appeal presented for a preliminary hearing before issuing notice to the respondent and as the Appellate Side Rules deviates from the said procedure, it would stand repealed by virtue of Section 32 of the Amendment Act of 1999. First, the Code of Civil Procedure does not call upon a Court to conduct a preliminary hearing of an appeal. It merely points out that if the appeal is worthless, the Court has the power to dis- miss the appeal without calling for the records. Hence, we will immediately notice the difference between Order 41 Rule 11 as it stood before the amendment and after. Though it has been clarified in the preceding paragraphs that the Appellate Side Rules would prevail in case of conflict with the Schedule appended to the Code, it must first be ascertained whether the Appellate Side Rules are really inconsistent with the provisions of the Code as modified by the Amendment Act of 1999, for Section 32 to be applicable. In this regard, first, it is necessary to reproduce
Section 32 of the Amendment Act of 1999: –
“32 (1) Repeal and Savings: Any amendment made or any provision inserted in Principal Act by State Legislature or High Court before the commencement of this Act shall, except insofar as such amendment or provision is consistent with the provisions of the Principal Act as amended by this Act, stands repealed.”
98. Though CPC was amended in 1999, on account of the protests
initiated by the legal fraternity, the amendment was not notified immediately. The CPC suffered another amendment by way of Central Amendment Act of 2002, which toned down certain amendments that had been proposed in the 1999 Amendment Act. Both the Central Amendment Acts came into force with effect from 01.07.2002. The Repeal and Savings Clause in the Amendment Act of 2002 under Section 16 is identical to Section 32 of the Amendment Act of 1999 in all respects. We propose to dedicate a few paragraphs on the concept of repugnancy and how and when it applies.
99. In order to understand the position of law regarding the validity of two seemingly repugnant laws, one framed by the Centre and the other by the State, one must look into the provisions relating to the division of the legislative powers under the VII Schedule of the Constitution of India. The power to legislate upon the Code is found in Entry 13 of List III, which reads as follows:
“Civil Procedure, including all matters included in the CPC, at the commencement of this Constitution, Limitation and Arbitration”
100. By virtue of Article 246(1) of the Constitution of India, the Parliament has the exclusive power to make legislation with respect to List I of the VII Schedule. Under Article 246(3), the Legislature of any State has the exclusive power to make laws for such State, or any part thereof on any matter enumerated in List II of the VII Schedule. As to how primacy must be given to the laws made by the Union vis-a-vis the laws made by the State with respect to the matters enumerated in List III is governed under Article 254(1). Under Article 254(1), if any provision of law made by the Legislature of a State is repugnant to any provision of law made by the Parliament in the same field, the latter will prevail. The exception being, that if the State law was reserved for the consideration of the President and has received his/her assent, then the law which received the assent of the President will prevail in the State.
101. The Supreme Court dealt with the issue of repugnancy in the case of M. Karunanidhi -Vs- Union of India ((1979) 3 SCC 431). It held:
“24. It is well settled that the presumption is always in favour of the constitutionality of a statute and the onus lies on the person assailing the Act to prove that it is unconstitutional. Prima facie, there does not appear to us to be any inconsistency between the State Act and the Central Acts. Before any repugnancy can arise, the following conditions must be satisfied:
1. That there is a clear and direct inconsistency between the Central Act and the State Act. ?
2. T hat such an inconsistency is absolutely irreconcilable.
3. T hat the inconsistency between the provisions of the two Acts is of such nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other.”
102. The propositions it laid down were as follows:
“On a careful consideration, therefore, of the authorities referred to above, the following propositions emerge:
1.That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field.
2.That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes.
3.That where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results.
4.That where there is no inconsistency but a
statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field.”
103. This shows that in order to come to a conclusion that there is a repugnancy between two pieces of legislation, the Court would first have to conclude that both statutes cannot operate in the same field at the same time. The Court cannot presume repeal by implication unless the inconsistency appears on the face of the two statutes. This issue further was clarified in Ram Chandra Mawa Lal -Vs- State of Uttar Pradesh (1984 (Supp) SCC 28). In that case, the Supreme Court had rendered an interpretation in a graphic manner as to how the Court must arrive at a conclusion while dealing with the issue of inconsistency:
“47. …The Centre and the State both cannot speak on the same channel and create disharmony. If both speak, the voice of the Centre will drown the voice of the State. The State has to remain “silent” or it will be “silenced”. But the State has the right to “speak” and can “speak” (with unquestionable authority) where the Centre is “silent, without introducing disharmony. If the Centre occupies only a portion of the chair, the State can occupy the remaining portion, with their arms resting on each other’s shoulders. While the State cannot sit on the lap or shoulders of the Centre, both can certainly walk hand in hand, offering mutual support in a friendly manner, toward the same destination. If the Centre has built a wall, and has left a gap from which intruders can infiltrate, the State can fill the gap in the wall, and thus make its own contribution to the Common Cause.”
104. Let us apply these principles to the issue on hand. Unless and until the Appellate Side Rules are so inconsistent with the Code of Civil Procedure Amendment Act, 1999 that both cannot operate at the same time, it cannot be held to be repugnant to the Code of Civil Procedure. Further, in so far as the repeals and savings clause under Chapter IV of the Civil Procedure Code Amendment Act, 1999, is concerned, it only holds that the amendment made to the principal Act by the State legislature or the High Court if in conflict with the provisions of the amended Act would stand repealed. The Appellate Side Rules only call upon the Registrar to receive instructions from the Judge to list the matter for hearing under Order XLI Rule 11 of the Code of Civil Procedure. This does not mean that the Registrar is exercising the power of admission as pointed out above. Neither Section 96 nor does Order XLI Rule 11 contemplate an admission procedure or motion procedure as is called. The Court on numbering the appeal issues notice to the respondents, this does not mean that the Registrar is admitting the appeal. We have also seen the notices in the appendix
G which calls upon the Registry to issue notice on the appeal being “preferred”,
“presentation” and “registration”. Therefore, there is no conflict between the Appellate Side Rules and the Code.
105. Section 96 does not place any bar on the presentation of an appeal by a person aggrieved. Let not a boom barrier be found under Order XLI Rule 11 to lay down a procedure not envisaged by the Code. A conflict might have arisen, had the Code contemplated an “admission” procedure and the rules called upon the registrar to issue notice dehors the same. As such a situation has not arisen, we are not discussing the same. The Code guarantees the right of first appeal and the same cannot be taken away by bending the words of the Code to mean those that were never intended in the first place. When that is the situation, the numbering of the first appeals and the issuance of notice by the Registrar, by virtue of the powers provided under the Appellate Side Rules, cannot be seen as incompatible with the provisions of the Code that preserve the right of first appeal.
106. To give an example, if an application is presented for interim stay of a proceeding in a partition suit where the appeal is absolutely worthless, the Court need not grant an interim order of stay. At that very stage, the Court can fix a date for hearing the same and call upon the appellant to make his arguments in the appeal. After hearing the appellant, if the Court finds the appeal is pointless, it can be dismissed straight away without calling upon the respondent to place his submissions. If, however, the appeal is worth hearing, then the Court can adjourn the matter to hear the respondent in the appeal. It is for dealing with circumstances such as these that Order XLI Rule 11 was modified by the Amendment Act, 1999. That being the case, the numbering of the appeal and issuance of notice by the Registrar under the Appellate Side Rules are not repugnant to Order XLI Rule 11, and the same is not hit by Section 32 of the Amendment Act, 1999.
107. The learned Single Judge has placed reliance upon Section 32 of the Code of Civil Procedure Amendment Act of 1999. Section 32(5) does not in any way affect the Appellate Side Rules. It only deals with the amended provisions, which have already been dealt with herein above. As pointed out earlier, the amendment has taken away the word “admitted” under Rule 9 and has included the words “shall be served on the respondent”under Rule 14, which shows that the concept of admission, if at all, was taken away while dealing with the First
Appeals. To re-introduce it again by way of the judgment as done by the learned Single Judge in Karuppuchetty’s case and Prema’s case is contrary to the directions given by the Parliament and hence cannot be sustained.
108. Further, when Section 128 states that primacy must be given to the body of the Code over the Rules, obviously it means Sections 1 to 158 of the Code of Civil Procedure take primacy over Orders I to LI of the Code of Civil Procedure. Therefore, the precious right under Section 96 cannot be whittled down by an interpretation to Order XLI Rule 11.
109. The learned Judge in Prema’s case concluded that, since there is a conflict between Order XLI and the Appellate Side Rules, the right of the appellant must be subject to the procedure envisaged under Order XLI. The logic adopted by the learned Single Judge appears to suggest that, as the Appellate Side Rules conflict with Order XLI Rule 11 of the Code of Civil Procedure, the benefit of the Rules should not extend to appeals under Section 96. In our view, such an interpretation is contrary to Section 128(1) of the Code of Civil
Procedure.
110. It is relevant to note here that the power to frame Rules has been conferred on the High Courts not only under Section 122, but also under Section 125 of the Code. Section 122 applies to High Courts not being a Court of a judicial commissioner and Section 125 applies to Courts not covered under Section 122. Both the Rules require prior consent of the Government, be it the State or the Central Government as the case may be, in terms of Section 126.
These Rules when made by the High Court have to be in conformity with Section 128 of the Code. Superiority of the body of the Code over the amendments made to the Schedule is clear from Section 128(1). This Section deems that the Rules made by the High Court should be consistent with the provisions of the body of the Code, and subject to this restriction, the Rules can provide for any matter relating to the procedure of the Civil Court and not take away substantive
rights.
111. This leaves us with the Standing Orders which speak about “admission”. We called for the original Standing Orders of the High Court. We did not find any reference to any statutory provision backing the same. They seem to be a consideration of instructions given by the Court, from time to time, for the purpose of regulating the manner in which the Registry must proceed, and as to how its duties are to be assigned. Circulars of the High Court cannot be put on the same footing as Rules framed under Article 225 of the Constitution of India, Clause 37 of the Letters Patent, or Section 122 of the Code of Civil Procedure. They do not have the same force as the Rules framed under any of these provisions. Unless a circular is passed under some enactment which has the force of the law, it will not take precedence over the Rules framed under a particular enactment. The mere fact that it has been issued under the authority of the High Court is not a sufficient cause to give it that force. In this regard, we only have to refer to a Division Bench judgment of the Bombay High Court in Dayanand Pandubang Nerkar and others -Vs- Daji Narayan Nerkar and others, ((1926) SCC OnLine Bom 106). Therefore, even on this score, the reasoning of the learned Single Judge does not hold water.
Per Incuriam
112. The learned Single Judge has held that the view of the Division Bench in V.S.Chandrasekaran’s case is per incuriam. What is per incuriam has been settled by the Supreme Court in several cases. We will refer to a few of them before reaching a conclusion as to whether the view taken in Prema’s case is correct.
113. The first of these cases is Mamleshwar Prasad -Vs- Kanhaiya
Lal ((1975) 2 SCC 232) wherein Justice V.R.Krishna Iyer held as follows:
“7.Certainty of the law, consistency of rulings and comity of courts — all flowering from the same principle — converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. ‘It should be a glaring case, an obtrusive omission‘.”
114. This principle was reiterated in A.R.Antulay -Vs- R.S.Nayak ((1988) 2 SCC 602). This judgment was rendered by a Bench consisting of seven Hon’ble Judges. Justice Mukharji, Justice Oza and Justice S.Natarajan held that per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or some authority binding on the Court concerned. In such cases, some part of the decision or some step in the reasoning on which the decision is found, on account of the said ignorance or forgetfulness, would have become demonstrably wrong. If a decision is given per incuriam, the Court can ignore it. In order for the principle of per incuriam to apply, the binding precedent ignored in the subsequent judgment should be on the point on which the later judgment was rendered. It is this ignorance or nonapplication of a ratio laid by a previous judgment, which renders the subsequent judgment per incuriam.
115. If the Supreme Court had held Order XLI Rule 11 contemplates an admission procedure, and the said judgment had been ignored by the Division Bench of this Court in V.S.Chandrasekaran’s case, then certainly, the view taken in Prema’s case cannot be found fault with. However, if the judgment of the Supreme Court or that of a Division Bench of this Court was on some other point and did not directly decide the issue on the scope of admission under Order XLI Rule 11, then the later judgment cannot be held to be per incuriam.
116. As we have just now crossed the near times of war, we will not be found fault with for referring to a weaponised version of this doctrine. Per incuriam is like a nuclear weapon which is not to be launched in a casual manner. It is a tool available to a Judge to be utilized when the precedent that has been cited before him is so very against the principle of law that has been settled by the Supreme Court, or on the face of it is contrary to extant rules and regulations. In such cases, it can be used to refrain from following the judgment delivered in ignorance of the correct state of affairs. It is certainly not a tool to void a binding precedent and to reinforce one’s view. It is hence, we are constrained to discuss the authorities referred to by the learned Single Judge in order to hold that the view taken by the learned Single Judge in Prema’s case, that the judgment of the Division Bench is per incuriam in light of the judgments referred to by him in paragraph No.37, might not lay down the correct position of law.
Discussion of Case Laws
Jamal Uddin Ahmad -Vs- Abu Saleh Najmuddin [(2003) 4 SCC 257]:
117. Jamal Uddin Ahmad case was an appeal before the Supreme
Court arising out of an order passed in an election petition under Sections 80 & 81 of the Representation of Peoples Act, 1951. In the said proceedings, the appellant before the Supreme Court, had filed an application before the High Court raising a preliminary objection as to the maintainability of the election petition and sought for dismissal of the petition under Section 86 of the aforesaid Act for non-compliance with Section 81 of the Act. The objection was overruled by the designated Judge, against which, the appeals were preferred to the Supreme Court. While dealing with Sections 80, 81 & 86 of the Representation of the Peoples Act, the Supreme Court held that receiving the cause or a document and making it presentable to a Judge for the purpose of hearing or trial, etc., are administrative and ministerial in nature and they can be discharged by the Registry. The Court held that judicial functions are inalienable and cannot be delegated to the Registry. The Division Bench in V.S.Chandrasekaran’s case, nowhere held that power to hear or dispose of the appeal, which is judicial in nature can be exercised by the Registry of the High Court. Interpreting the Appellate Side Rules of the Madras High Court, the Division Bench held that the procedure laid down in Karupuchetty’s case need not be followed and in fact, in paragraph No.14 of V.S.Chandrasekaran’s case, the Division Bench had held that in the 1965 Rules, the word ‘admit’ is conspicuously absent and therefore, they are not going into the issue. A reading of Prema’s case shows as if the Division Bench had held that the Registrar can exercise judicial powers. We have searched in V.S.Chandrasekaran judgment to see if any such observations were indeed made. Unfortunately, we could find none. Therefore,
the view of the learned Single Judge that the judgment in V.S.Chandrasekaran’s case is contrary to Jamal Uddin case might not be the correct conclusion.
Mahadev Govind Gharge -Vs- Land Acquisition Officer (2011) 6 SCC
321)
118. The issue presented before the Supreme Court in this case was on the interpretation of Order XLI Rule 22 of the Code of Civil Procedure.
119. A reference had been made under Section 18 of the Land Acquisition Act and had been answered by the reference Court. An appeal had been filed before the High Court by the Government. The Karnataka High Court had “admitted the appeal” and had directed the matter to be heard after the Lower Court records were received. Thereafter, an application was filed by the claimant under Order XLI Rule 22 together with an application to condone the delay in filing the cross objection. The High Court dismissed the appeal preferred by the State and granted interest to the land owners. Aggrieved by the said orders, appeals were presented to the Supreme Court which raised the following issues:
“8. Before this Court, the landowners in their appeal (Civil Appeal No. 5094 of 2005), raised the following contentions:
The limitation period of one month, prescribed under Order 41 Rule 22, would not begin to run till an actual date was fixed for hearing by the High Court and notice of it was served on the cross-objectors i.e. the landowners.
(a) The powers of an appellate court are very wide under Order 41 Rule 33 and relief could be granted to the landowners even under the said provision.
(b) The landowners had shown sufficient cause for the delay.
(c) Land of the landowners was compulsorily acquired and the court was duty-bound to award just compensation to the landowners.
9. The State, in its appeal (Civil Appeal No. 5113 of 2005), contended as follows:
(a) The High Court wrongly dismissed the appeal by relying on MFA No. 3278 of 2001 since there was absence of evidence to show that the land in question and the land covered by the said judgment were similar in all respects.
(b) The High Court erred in awarding interest from the date of the award and the same was contrary to Section 28 of the Act.”
120. Whether a first appeal must be listed for admission was never a matter of issue before the Supreme Court. From paragraph no.39 onwards, the Supreme Court made a difference between hearing the appeal at a preliminary stage / admission stage and final hearing. The Supreme Court never held, interpreting Order XLI Rule 11 of the Code of Civil Procedure, that the Courts must list the first appeals for a preliminary hearing and thereafter admit them as in the case of a second appeal and only then, proceed for final hearing. The Court held that an appellate Court including the High Court has power under Order XLI Rule 11 to dismiss the appeal ex parte. It is one thing to say that the appellate Court has the power to dismiss the appeal without hearing the respondent at a preliminary stage and another to interpret Order XLI Rule 11 to mean that the provision operates like a level crossing gate, which the appeals have to go through, from the stage of numbering to the stage of final hearing.
Devi Theatres -Vs- Viswanatha Raju, [2004 (7) SCC 337]:
121. The learned Single Judge has relied on the Devi Theatre’s case in order to conclude that Order XLI Rule 11 contemplates an admission procedure. In Devi Theatre’s case, a regular appeal had been preferred by Devi Theatres to the High Court of Karnataka at Bangalore. The learned Judge who dealt with the appeal passed the following order:
“Admit. Subject to the condition the appellant deposits
Rs.75,000/- within a period of eight weeks, failing which the appeal stands dis- missed without further orders of the Court.”
The Supreme Court in Para 5 of the order observed as follows: –
” Admission of the appeal subject to the condition of deposit of some amount is not envisaged in the provision as contained under Section 96 read with Order XLVI Rule 11. The deposit of money would obviously have no connection with the merits of the case, which alone would be the basis for admitting or not admitting the case under Section 96 of the Code of Civil Procedure.”
122. The Supreme Court did not peg the process of admission to Order
XLI Rule 11 as has been done by the learned Single Judge, but pegged it to Section 96. We have already pointed out that under Section 96, there is no question of any admission procedure. Reading it with Order XLI Rule 1, a Court has to entertain an appeal. In fact, a careful perusal of the judgment shows that the Supreme Court had interfered with the orders of the High Court, which imposes a restriction on the right of appeal and hence, this judgment is not a proposition that there is a preliminary hearing under Order XLI Rule 11. Hence, this judgment too cannot be treated to have laid down an “admission” procedure for an appeal under Section 96.
Bolin Chetia -vs- Jagadish Bhuyan, [2005 (6) SCC 81]:
123. As far as the Bolin Chetia’s case is concerned, we are unable to see how the said judgment can be made applicable to a regular appeal. The issue presented before the Supreme Court was whether the Supreme Court had the power to summarily dismiss an appeal filed under Section 116-A of the Representation of the People Act, 1951. The proposition of law laid while answering such an issue cannot be used for interpreting Section 96 of the Code of Civil Procedure. Furthermore, the Supreme Court had not framed the Rules for filing and hearing of appeals under the Representation of the People Act of 1951 as is clear from Para No.7 of the said judgment. It was also pointed out that a practice exists in the Supreme Court of placing all statutory appeals including appeals under Section 116A of the Representation of People Act for hearing on admission before the Court, unless and otherwise specifically provided by the Rules. These aspects show that the Supreme Court held that the law, the Rules as well as the practice of that Court constrained them to reach the conclusion that they did. It is relevant to point out that in para no. 23 of the said judgment, the Supreme Court held that its inherent power to summarily dismiss the appeal has not been taken away. The power inheres in the Court by virtue of its very existence. This cannot be interpreted to mean that the principles practiced in the Supreme Court, which are applicable to all statutory appeals, should be made applicable to regular appeals preferred under Section 96 of the Code.
Moti Lal -Vs- Bhagwan Das, [2005 SCC OnLine All 148]:
124. The reference to judgment arising out of Allahabad High Court in Moti Lal case, in our view, is totally misplaced. The Allahabad High Court has framed Rules in the year 1952. Rule 9 of Chapter 11 of the Allahabad High Court Rules provides as under:
“Hearing under Order XLI Rule 11 of CPC: If the Bench be- fore which the motion is made for admission of an application or memorandum of appeal or petition finds that it is accompa- nied by necessary papers, if any, and if it is otherwise in order and has been presented within time,
(a)in the case of a First appeal (other than execution First appeal) or a memorandum of objections made on order admitting it and directing notice to be issued (b)in the case of any appeal admit it and after admitting it—
(i) i f it deems fit, hear it the same day under Rule 11 of Order- XLI, of the Code and if it is not dismissed under that Rule, direct that notice be issued; or
(ii) direct that the appeal be put up for hearing under
Rule 11 of Order-XLI of the Code on a future date;
(c)in the case of an application, pass such order as
may be considered proper:
Provided that nothing contained in this rule shall;
i) preclude such Bench from hearing any First appeal, if consented to by the appellant, under Rule 11 of OrderXLI of the Code the same day or directing that it be put up for hearing under that rule on some future date; or
ii) require such Bench to direct notice of an application or memorandum of objections to be issued where notice of such application or memorandum of objections has already been served on the other party or his Advocate.”
125. A perusal of this Rule shows that in the Allahabad High Court, a procedure has been prescribed for hearing of regular appeals under Order XLI Rule 11. It further reveals that a Bench hearing a regular appeal other than Execution First Appeals makes an order admitting it and directing the issuance of notice. Therefore, there is a mandate under these Rules to admit the appeals. A judgment rendered under a dispensation governed by such rules cannot be equated with another, which does not have such specifications.
126. At this stage, we will take note of the Full Bench of the Allahabad
High Court in Razia Sultana and another v. Mohd. Furqan, 2005 SCC
Online All 106. The issue that had been presented before the Full Bench are as follows:
“(1) Whether an order that the appeal will be heard amounts to admission to (SIC) appeal under Order XLI Rule 9 of the CPC and Chapter XI, Rule 9 of the Rules of the Court?
(ii) Whether Officer could admit the appeal without there being any order of the court purporting to be an order of the court?”
127. The Full Bench after a discussion of the Allahabad High Court Rules as well as the Code of Civil Procedure answered the two questions as follows:
“Our answer to the two questions referred to us is as follows;
1) Where the appeal is otherwise in order and no defect is report- ed, and has been accepted by the Registrar of the Court, the order under Order-XLI, Rule 11 of C.P.C., and where the appeal upon hearing the appellant or his Counsel is not dismissed, the order that the appeal will be heard, amounts to admission of the appeal.
2)The Registrar of the Court can accept the
memorandum of appeal, and if there is no defect, or where the defect has been re- moved after giving time to the appellant or his Counsel the appeal is to be admitted. In other cases, he shall list the case before the Court. The Registrar cannot dismiss the appeal. The Bench Secretary has no authority to admit the appeal or to treat the appeal to be admitted, without there being any order of the Court to that effect”
This, in our view, lays down the correct provision of law.
Salla Gurusamy Chetty Trust -Vs- Tamil Nadu Arya Vysya Maha Sabha,
[(1996) 1 LW 266]:
128. Here too the Division Bench which dealt with the case did not deal with the situation under Order XLI Rule 11. The issue presented before the Division Bench was whether an application filed for review is maintainable in an appeal in which notice of motion had been ordered by the Division Bench. The scope of Order XLI Rule 11 of Code of Civil Procedure was never a subject matter of issue before the Court.
129. In so far as the judgement in S.P.Khanna’s case (1976 Tax L.R.
1740 Bom- bay) is concerned, it was not an appeal under Section 96 read with
Order XLI of the Code of Civil Procedure. It was an appeal which was filed under Section 483 of the Companies Act, 1956. It was urged by the learned counsel for the appellant before the Division Bench that by virtue of the judgement the
Supreme Court in M/s.Golcha Investment Vs. Shanti Chandra Barna, [AIR
(1970) SC 1350], an appeal presented under Section 483 of the Companies Act read with Rule 966A of the Bombay High Court Rules does not give room for the Court to dismiss the appeal at the admission stage. It was in light of this sub- mission that the observations came to be made in paragraphs Nos. 5 and 6, which has been extracted by the learned single Judge. In fact, in paragraph No.7, the learned Judge clarified the position as follows:
“Presentation of appeals under Section 483 of the Act and the matters of procedure and akin are governed by Chapter VI of the Bombay High Court Appellate Side Rules, 1960, which deal with Letters Patent ap- peal. Section 483 permits an appeal which is governed as if it is an ap- peal in Letters Patent being from the order of the single Judge and to the Bench of this Court, because of the phraseology used in that Section. Rule 3 in Chapter VI specifically provides that as the appeals are to be placed for admission before the Division Bench, and Rule 5 makes provisions of Order XLI of the Code of Civil Procedure applicable to these appeals. Expressly, therefore, in these Rules, the stage of admission of the appeal by the Bench is indicated and that would therefore suffice to indicate that the Court can exercise all the powers which the Court of appeal exercises at the stage of admission of the appeal, including the one leading to the decision that the appeal deserves to be dismissed and is not one fit to go in for a final hearing.”
130. This makes it clear that the Rules of the Bombay High Court contemplated an admission procedure for Letters Patent appeal, and that was made applicable to Company appeals also. Hence, the said judgment cannot be held to have laid down a position of law that there is an admission procedure for regular appeals preferred under Section 96 read with Order XLI Rule 11 of the Code of Civil Procedure read with Order XLI Rule 1 of the Code of Civil Procedure.
131. We have painstakingly gone through each of the judgments referred to in paragraph No.37 of Prema’s case, in order to point out that even if these judgments were referred to by the Division Bench in V.S.Chandrasekaran’s case, they would not have operated as a binding precedent on the issue which the bench was dealing with. We recall and reiterate the settled position of law that a judgment of the Court is only an authority for a specific legal proposition it actually decides, and not for the general principles or broader interpretations that might be inferred from the case. The binding portion of the judgment is the ratio which is a legal principle or a reason for the decision. Observations or statements made in a judgment that are not essential to the decision are mere obiter and do not act as binding precedents. A decision is only a precedent for a specific position of law it decides. It cannot be relied upon for principles that it was not called upon to ad- dress. Hence, the view of the learned Single Judge in
Prema’s case that the judgment of the Division Bench in
V.S.Chandrasekaran’s case had been rendered per incuriam of the judgments cited therein, does not lay down the correct position of law.
132. A survey of the case laws both under the Code of Civil Procedure as well as under other statutes shows that the litigants attempted to push through an argument that the Courts do not have the power to dismiss the appeal at the initial stage. The Supreme Court has pointed out in Bolin Chetia’s case that due regard must be given to the practice of that Court as to whether a statutory appeal must be entertained or not. It further held that irrespective of the fact that an appeal lies, the appellate Court has the power to dis- miss the same. The power of dismissal is not the same as the power of admission. Admission means that a Court decides, as a matter of course, whether the appeal deserves con- sideration at a later date. Order XLI Rule 11 of the Code of Civil Procedure in our view is an exception in first appeals, and is a rule when it comes to second appeals and revisions.
Application of the ratio laid down in Gnanasoundari’s case to this case
133. Insofar as the judgment in Gnanasoundari and others -VsG.Vijayakala and others (2023 (6) MLJ 135) is concerned, it was not a case of conflict between the Appellate Side Rules and the Code of Civil Procedure. It was a case where the Parliament had amended Order XLI Rule 14. The amended rule was contrary to the amendment made by this Court earlier. Hence, referring to Section 97(1) of Act 104 of 1976, this Court held that the amendment made under Section 122 will have to give way to the amendment made by the Parliament. To compare that judgment with the present situation is to compare a chalk and cheese. Furthermore, we are given to understand that the judgment in Gnanasoundari’s case has not attained finality and it is a subject matter of reference to a Full Bench of this Court and is pending consideration.
Application of the principle of Curcus Curiae Est Lex Curiae
134. The learned Single Judge has construed that the Deputy Registrardoes not have the power of admission. A careful reading of the Rules shows the Registrar does not admit an appeal. He merely issues notice to the respondents. An act akin to the party serving notice on the proposed respondents, as contemplated by the Statement of Objects and Reasons of the 1999 amendment. This is because for a regular appeal, there is no admission procedure. The Registrar while dealing with all Memorandum of Appeals has been directed to follow the procedure or practice of the Court (See, Order II Rule 3(2)). This is the statutory reiteration of the well-settled principle of Roman Law: Curcus Curiae Est Lex Curiae. Unless and until Rules are there to the contrary, the practice of the Court is the law of the Court. This is because, every Court is the guardian of its own records and the master of its own practice. Where a practice is convenient, except in cases of extreme necessity and emergency, one must adhere to it because, it is the practice. This should be followed even though no reason can be assigned for it; for inveterate practice in law generally stands upon principles found in Justice and Conscience (See, Jamaludeen Ahmed -Vs- Abu Salal Najmuddin (2003 (4) SCC 257)). We merely adopt the reasoning of a Division Bench of this Court in Maxworth Orchards India Limited -Vs- B.Ravi Babu (2023 (5) MLJ 344). Unless and until, the practice is specifically overruled by a statute, the practice of the Court should be continued. As we have not been able to find amended Order 41 Rule 11 as having changed the practice of this Court drastically, we hold the practice of this Court of notice being issued on the appeals being numbered should continue.
135.A reading of the judgments in all three cases namely, Karupuchetty @ Vaiya- puri (died) -Vs- Papathi in (A.S.NO.148 of 2025 dated 07.03.2025), V.S.Chandrasekaran -Vs- R.Uma (A.S.(MD).No.5 of 2025 dated 25.04.2025) and Prema -Vs- Nallasellam (A.S.No.586 of 2025 dated 29.04.2025), points out that the concentration in all the three judgments was on the scope and content of Order XLI Rule 11 of the Code of Civil Procedure, vis-à-vis, the Appellate Side Rules framed by this Court. None of the judgments gave much importance to Section 96. The provision which governs the filing and manner of disposal of the first appeal is Section 96 and not Order XLI. When Section 96 has not imposed any conditions of admission, to control that provision by referring to the schedule in our view might not be the correct perspective.
136. We can look at it in another way also. Order XLI survives because of
Section 96 and not vice versa. The right to file an appeal will exist as long as Section 96 exists. If Order XLI were to be deleted and Section 96 alone were to be retained in the Code, still an appeal would lie. On the contrary, if Section 96 were to be repealed and there exists Order XLI alone, an appeal cannot be sustained.
137. We have already seen from above that the first appeal is not a mere matter of procedure, but is a right conferred by the legislature. We add the term ‘conferred’ by the legislature, because while the right of appeal is not inherent in a litigation, but once conferred, it creates a valuable right in a litigant.
138. Before we reach of the conclusion, we have to reiterate the Code of Civil Procedure operates across the bar. If the new procedure as proposed by the learned Single Judge is adopted, then across the State of Tamil Nadu, nah! across the country new procedure of arguing for “admit” will be introduced not only before the High Court but also be- fore the Subordinate Courts and District Courts. Such a drastic change in procedure should be formulated, discussed and enacted by the Parliament. It cannot be brought about by way of judgment of a court. The court, being the user of the Code of Civil Procedure, cannot lay the manner of user when the Code itself cannot contemplate the same.
Decision:
139. In the light of the above discussion, the view taken by the Judgment in Karupuchetty @ Vaiyapuri v. Papathi and others in AS.No. 148 of 2025 dated 07.03.2025 and Prema v. Nallasellam in A.S.No.588 of
2025 dated 29.04.2025 are over- ruled. The Registry shall continue to adhere to the Appellate Side Rules and issue notice on the appeals being presented and registered. It shall not post the appeals for admission as directed in the aforesaid judgments. If the court so directs, it shall list the appeal for hearing under Order XLI Rule 11.
140. List the appeals before the learned Single Judge tomorrow i.e., on
23.05.2025 for appropriate orders.
(G.R.SWAMINATHAN, J.) & (V.LAKSHMINARAYANAN, J.)
22.05.2025
Index : Yes/No
Neutral Citation : Yes/No Speaking Order / Non-speaking order
KST/NL/KRK
G.R.SWAMINATHAN, J.
AND V.LAKSHMINARAYANAN, J.
KST/NL/KRK
A.S.Nos.617,618,619 and 621 of 2025
22.05.2025
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