BISHNU BHAGAT Vs. PUSHPA DEVI

JUDGEMENT

(1.) The instant appeal has been placed before this Bench for deciding a question as to whether first appeal arising out of original decree is necessary to be placed for hearing under Order 41 Rule 11 of the Code of Civil Procedure.

(2.) The instant appeal has been filed challenging the judgment and decree passed by the Additional District Judge, Simdega in Judicial Separation Case No. 9/95 dismissing the case filed by the petitioner/appellant under Section 10 of the Hindu Marriage Act.

(3.) When the appeal was listed before the Bench for admission a question arose as to whether the appeal ought to be sent up for admission in terms of Order 41 Rule 11 of the Code pf Civil Procedure or it should automatically be taken on file by the Registrar of this Court in exercise of power conferred under Rule 205 of the High Court of Jharkhand Rules. A Bench of this Court (P. K. Balasubramanyan, CJ as he then was) answered the question by order dated 2-8-2004 holding that the appeals, whether it be under the Code of Civil Procedure or under any Special enactment, have to be sent up for admission before the Bench in terms of Order 41 Rule 11 of the Code of Civil Procedure notwithstanding the powers conferred on the Registrar by Rule 205 of the High Court of Jharkhand Rules, 2001. The learned Court held that the combined effect of Rules 11 and 11A of Order 41 is that any appeal filed has to be preliminarily heard by a Judge and order has to be passed on it either issuing notice or admitting the appeal. Even the unfettered right of appeal under Section 96 of the Code of Civil Procedure would be governed or curtailed by what is contained in Rules 11 and 11A of Order 41 of the Code of Civil Procedure.