NARAYAN PRASHAD Vs. GANPAT RAMJEE

JUDGEMENT

(1.) THIS appeal under clause 10 of the Letters Patent was placed before us being listed for hearing arguments on the question of admission. Shri P.K. Saxena, learned counsel for the appellant contends that this appeal should be admitted as of right by the Additional Registrar and that there is no jurisdiction available to the Division Bench to hear arguments on merits since it has no power to dismiss it in motion. It is this question which is being disposed of by this order.

(2.) SHRI Saxena relies on rule 3 contained in Chapter v relating to "procedure after presentation" in the High Court Rules and Orders and argues that the provision under Order 41, rule It of the Code of Civil Procedure permitting a dismissal of the appeal at this stage in the motion hearing is superseded in the case of all appeals filed under clause 10 of the Letters Patent. It may be mentioned that this appeal against the decision of a learned single Judge of this Court has been filed without leave of the learned single Judge since no such leave is required in this case. Rule 3 in Chapter v of the High Court Rules and Orders which is the sheet anchor of Shri Saxena's argument is as under: - -

(3.) NO doubt Rule 3 of Chapter V is not happily worded on account of which this argument has arisen. Rule 3 says only "appeals" under clause 10 of the Letters Patent" and not "appeals under clause 10 of the Letters Patent where leave is granted by a single Judge", the latter expression being used in Rule 1 (iii) in Chapter 2. However, we have no doubt that the principle of harmonious construction requires that Rule 3 in Chapter v. should be so read as to include within its ambit only those appeals under clause 10 of the Letters Patent where the leave is granted by single Judge. It is in this manner that rule 1 in Chapter If and Rule 3 in Chapter v. can be given full effect to. The opposite view canvassed by Shri Saxena will result in rendering the latter part of rule 1 (iii) in Chapter II a surplusage as he contends and not only that, it will lead to the further result of bypassing the limitation specifically imposed while delegating the authority to the Additional Registrar. Moreover, rule 1 in Chapter II deals expressly with the powers of the Additional Registrar while Rule 3 in Chapter v. relates only to the procedure after presentation. In deciding a question relating to the power of the Additional Registrar, it is the provisions in Chapter II which are of greater significance as compared to those in Chapter v. and then Rule 2 in Chapter II indicates that the Court's power remains notwithstanding the delegation made in rule 1 and can be exercised on a reference made by the Registrar.