V.S. CHANDRASEKARAN Vs. R. UMA

JUDGEMENT

(1.) This first appeal filed under Sec. 96 of CPC is directed against the judgment and decree dtd. 2/3/2024 made in O.S No.88 of 2018 on the file of the V Additional District and Sessions Judge, Madurai District. The defendant is the appellant. The suit was for recovery of money. The long prevailing practice of the Madras High Court is that notice will be issued to the respondents by the Registry after numbering the first appeal. Instead of doing so, the appeal has been listed under the caption "For Admission" before this Bench. The Registry has done so on account of the direction issued by The Hon'ble Mr.Justice N.Sathish Kumar vide order dtd. 7/3/2025 in A.S No. 148 of 2025. Paragraphs 21 and 22 of the said order read as follows :

(2.) The Hon'ble Judge was fully conscious that as per Order II Rule 3 of the Rules of the High Court, Madras, Appellate Side, 1965, the Deputy Registrar is obliged to receive all appeals against original decrees of subordinate courts and issue notice forthwith and listing the first appeals for admission before the court is not envisaged. What impelled the Hon'ble Judge to depart from this procedure and practice is the amendment made to Order 41 of CPC through parliamentary legislation by way of Amendment Act 46 of 1999. The amendment itself was pursuant to the Malimath Committee report which observed that there is no justification for not listing regular first appeals for preliminary hearing or admitting them as of course. The Hon'ble Judge took note of the amendments made to Rules 9 and 11 of Order 41 of CPC which are as follows :

(3.) The Hon'ble Judge after citing quite a few decisions of the Hon'ble Supreme Court (U.P.Avas Evam Vikas Parishad vs. Sheo Narain Kushwaha (2011) 6 SCC 456, Salem Advocate Bar Association, Tamil Nadu vs. Union of India (2005) 6 SCC 344 and Mahadev Govind Gharge vs. Special Land Acquisition (2011) 6 SCC 321) rightly concludes that the aforesaid amendment had taken away the right of automatic admission and that every appeal has to be posted before the court under Order 41 Rule 11 of CPC for orders as to admission. No exception can be taken to this conclusion and the approach is, if we may say with respect, well-founded. But that would be the position only if the procedure regarding admission of first appeals filed under Sec. 96 of CPC is governed by Order 41 of CPC alone.