VENKATESWARLU Vs. SATYANARAYANA

JUDGEMENT

(1.) The Order of reference was delivered by the Hon'ble Mr. Justice Bhimasankaram. This appeal does not exceed Rs. 1,500/- in value. It is objected by Mr. B. V. Subrahmanyam, the learned Advocate for the appellant, that the appeal, not having been referred to a Bench by a single judge under Rule 1 of the Appellate Side Rules, cannot be heard by us. The question raised is one which is, in our opinion, of considerable importance. We may also note that several cases of this character have been disposed of by Division Benches. We,therefore, desire ro refer the following two questions to a Full Bench. 1. Is a Bench of two judges competent to hear a first appeal not exceeding Rs. 7,500/--in value, when it is not referred to it by a single judge under Rule 1 of the Appellate Side Rules ? 2. In any case, what is the effect of the hearing of such an appeal by a Bench without objection having been taken by the parties to such hearing ? This appeal will, therefore, be posted before the Hon'ble Chief Justice for directions as regards the constitution of a Full Bench. Opinion of the Full Bench. Viswanatha Sastry, J: The following questions have been referred to us : 1. Is a Beach of two judges competent to hear a first appeal not exceed- ing Rs. 7,500/- in value, when it is not referred to it by a single judge under Rule 1 of the Appellate Side Rules ? 2. In any case, what is the effect of the hearing of such an appeal by a Bench without objection having been taken by the parties to such hearing ? The answer to these questions depends on the construction of Rules 1 and 2 of the Appellate Side Rules of the High Court which, so far as they are now relevant, run as follows : Rule 1 (3) (c): "The following matters may be heard and determined by one Judge : Provided that the Judge before whom the matter is posted for hearing may, at any time, adjourn it for hearing and determination by a Bench of two Judges: Every appeal from an original decree when the value of such appeal does Rs. 7,5007- Rule 2 (2) (a): "The following matters may be heard and determined by a Bench of to Provided that if both Judges agree that the deteruination involves a they may order that the matter or the question of law, be referred to a * * * Every appeal from the decree or order of a civil court except those mentionet It was sought to be argued for the respondent that the Appellate have been framed for administrative convenience and are in the domestic rules regulating (he internal management of the business of Court and should not be construed as if they were statutory provision ing or taking away jurisdiction. For the appellant it was argued Appellate Side Rules having been made by the High Court under authority took effect as if they were part of the statute and should be in the same manner. The power to frame rules regulating its practice and procedure on the High Court under Parliamentary enactments and the Letters f preserved by Article 225 of the Constitution, corresponding to Sec. 22 Government of India Act, 1935 which takes us back to Sections 106 a of the Government of India Act, 1915. Sec. 108 of the Govt. of India 1915, corresponds to sections 13 and 14 of the High Courts Act 186. unnecessary to reproduce these statutory provisions or clauses 36 and the Letters Patent. Suffice it to say that these provisions empower the Court to make rules for regulating the practice of the Court and to by its own rules for the exercise, by one or more judges or by division constituted by two or more judges, of the original and appellate jurisdis vested in the High Court. The Chief Justice of the High Court is the to determine which judge is to sit alone and which Judges are to const the several division courts. The Appellate Side Rules having been mad the High Court under statutory authority referred to above, if they a meaning and effect inconsistent with the Acts authorising them or if are in excess of the powers conferred thereunder or if they contravene provisions of other enactments, they are protanto, ultra vires. Otherwise the have the force of Jaw and are binding on all the Judges of the Court as the by a Full Bench of the Madras High Court in District Magistrate of Trie drum v. M. Mappillai ' affirmed by the Judicial Committee in Mammen pillai v. District Magistrate of Trivandrum a. See also Shaikh Mastan Saheb Balarami Reddi ". Judge-made rules have to be interpreted in the same way enactments of the legislature and words and expressions occurring in the rules have to be construed according to the ordinary meaning of the Englies language unless there is something in the context which shows that the ought not to be so construed. See Lord Esher M, R. in Gebruder Naf v. Ploton. In Danfordv. Mc. Anuity , where Judge-made rules fell to be construed, Lord O' Hagon said :

(2.) It is only where a Judge has no inherent jurisdiction over the subject-matter of a suit or appeal that the parties cannot, by their consent, convert the proceedings into a proper judicial process. There are numerous authorities which establish that when in a suit, appeal or other proceeding which the Judge is competent to try, the parties without objection go to trial on the merits, they cannot subsequently dispute his jurisdiction on the ground that there were irregularities in the initial procedure, which if objected to at the time, would have led to the suit or appeal being heard elsewhere. If the court has inherent jurisdiction, an objection to the irregular exercise of jurisdiction may be waived by the parties and the decree or order passed by the Court could not be challenged as a nullity. Though Sec. 15, C. P. C. directs that a suit shall be instituted in the Court of the lowest jurisdiction competent to try it and though O. 7 R. 10 empowers a court to return a plaint at any stage of the suit to be presented to the court in which the suit should have been instituted, still it has been held that if a suit triable by a court of a lower grade is tried and decreed by a court of a higher grade, the decree is perfectly valid. The reason is that Sec. 15, C. P. C. lays down a rule of procedure and not of jurisdiction and there is no ouster of the jurisdiction of the superior court in such cases. Ratan Sen v. Suraj Bhau, Matra Mondal v. Hari-, Krishnaswami v. Kanakasabhai Mohini Mohan v. Kunja Behari, Nidhilal v. Mazhar, Dakore Temple Committee v. Shankerlal. The position is similar where an appeal whose value is not over Rs. 7,500/- is heard and decided by a Division Bench of two Judges under Rule 2 of the Appellate Side Rules without a reference by a single Judge under Rule I. Sec. 99, C. P. G. provides that no decree shall be reversed or substantially varied in appeal on account of any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the Court. It has been held by the Judicial Committee that this rule is of general applicationand " proceeds upon a sound principle and is calculated to promote justice." Muhammad Hussain Khan v . Kishva Nandan Sahai. The rule applies with much greater force where the parties raise no objection on the ground of any irregularity in the proceedings but agree to the appeal being heard by a Bench of two Judges instead of by a single Judge under Rule I. As already observed, there is no inherent incompetence or lack of jurisdiction in the Division Bench consisting of two Judges to hear and decide the appeal. Rules 1 and 2 of the Appellate Side Rules are rules of procedure apportioning the work among Judges having the same powers and jurisdiction. Rule 2 says that a Bench of two Judges may hear every appeal from the decree or order of a civil court except those mentioned in Rule 1. So far as the exception is concerned, it is a matter of direction that the matters enumerated in Rule I need not be heard by a Division Bench of two Judges. There is no hard and fast rule by which one can say whether a provision is directory or mandatory with an implied nullification for disobedience. Lord Penzance in Howard v. Bodlington said :

(3.) It was suggested by the appellant that a valuable right toprefe Patent Appeal from the decision of a single Judge would be lost to the if Rules 1 and 2 are construed as I have done. This argument has stance whatever. If a litigant gets his appeal heard by a Bench of the without being subjected to the expense and delay of a hearing before Judge and a further appeal under the Letters Patent and a hearing Bench of two Judges, he gains an advantage to which he would not be if Rule 1 had baen strictly followed. The right of the appellant is the High Court and invoke its interposition to redress the error of the below and this right is not touched, His right of further appeal Supreme Court if he has the right, is also not prejudicially affected by a Bench hearing the appeal in the first instance instead of by way of a Patent Appeal. There is no vested right in a litigant that his appeal be heard by a single Judge and not by two Judges of the High Court as a Bench.