BADANABOYINA VEERA NAGESWARA RAO Vs. BADANABOYINA RAMA DEVI

JUDGEMENT

(1.) WHEN time passes and situations undergo changes, conventions of the Courts and rules of procedure are sometimes stretched and even violated. Every High Court in matters of procedure is given freedom by the laws made by the competent legislature and to seek uniformity of procedure in all the Courts in the country is to seek concurrence of minds of Judges of different Courts of the country, which is possible only when they interact and recognise the wisdom behind a particular procedure, which is followed in any Court. This Court, although created after independence and the Constitution of the Republic of India has inherited and by law made by the Parliament, conferred with the Letters Patent power of the Madras High Court, a Full Bench of this Court in A. Srinath v. APSRTC, 1996(2) ALT 893 : 1996(3) ALD 56 (F.B.), has accepted that the practice of the Madras High Court applies per force to this Court. The Full Bench has traced the history of the creation of this Court stating inter alia as follows :

(2.) THE appellate jurisdiction is created with respect to matters, civil and criminal, not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, 1915 or in the exercise of the criminal jurisdiction of one Judge of the High Court or one Judge of any Division Court pursuant to Section 108 of the Government of India Act. The last part of the clause wherein appeal to the Privy Council is preserved, however, stands repealed by the Constitution of India. Section 108 of the Government of India Act, 1915 has been continued by promulgation of Government of India Act, 1935 and by Article 225 of the Constitution of India. Section 108 of the Government of India Act, 1915 reads as follows :

(3.) A reference to Section 4 of the Code of Civil Procedure to appreciate the savings of the Letters Patent powers of this Court including the powers under Clause 37 of the Letters Patent to frame rules is relevant in our view because sub-section (1) of the said section has clearly contemplated that in the absence of any specific provision to the contrary, nothing in the Code shall be deemed to limit or otherwise affect any special or local law which is 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. As the successor Court of the High Court of Madras, as the Full Bench of this Court has pointed out in A. Srinath's case (supra), the practice of the Madras High Court is accepted as the practice of this Court. Ever since its inception, this Court has followed the practice of delegating the power to receive appeals, petitions and other proceedings and to admit all appeals against the decrees or orders of Civil Courts and to issue notice to the respondents through the Registrar of the Court. Rules in this behalf thus are followed in appeals against original decrees and in appeals under Clause 15 of the Letters Patent from judgments of single Judges passed in appeals from appellate decrees or orders as well as in appeals subject to provision that in appeals against appellate decrees, the Registrar is required to take the orders of a Judge of the Court whether notice shall issue or the appeal be posted before a Judge for hearing under Rule 11 of Order XLI of the First Schedule of the Code of Civil Procedure. In all other appeals, the Registrar is empowered to determine whether notice shall issue at once or whether the case shall be posted before a Judge for orders in this behalf. The above power and the duty conferred upon the Registrar of the Court is subject to any special or general order made by the Chief Justice. It is difficult therefore to see any reason why the rules shall not be followed and instead the procedure of posting all appeals for orders for admission before notice be placed before a Judge of this Court. The power conferred upon the Registrar of the Court is not inconsistent with the procedure as prescribed under the various rules under Order XLI of the First Schedule of the Code of Civil Procedure. All appeals are heard by a Judge or by a Division of Two Judges of the Court after notice and before notice when it is placed before the Judge, as contemplated under the aforementioned Rule 12. Registrar is not given the power to dismiss the appeal, which power, Rule 11 of the Code of Civil Procedure, has preserved for the appellate Court and thus in case of an appeal before this Court by a Judge to whom the work is assigned by the Chief Justice of the Court thus acts as the Court. The words in sub-rule (1) of Rule 11 of the Code "the appellate Court, after sending for the record if it thinks fit so to do and after fixing a date for hearing the appellant or his 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 his pleader" introduced the Court as such or the Judge who constitutes the Court to fix a date for hearing the appellant or his pleader and hearing him accordingly only when after sending for the records he thinks fit to dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader. Hearing the counsel of the appellant or the appellant under Rule 11 thus is contemplated only when the Court thinks that the appeal is fit to be dismissed without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his counsel. Once notice is issued to the respondent, a day for hearing the appeal is fixed and the appeal is heard by the Judge who constitutes the Court on being assigned the work by the Chief Justice, subject to the rules of dismissal of the appeal for appellant's default, re-admission of appeal dismissed for default, any cross-objection or separate appeal against the very judgment which has been appealed against by the respondent and other ancillary matters.