Gaurav Shankar vs Aviva Life Insurance Company ...
2014 Latest Caselaw 9010 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 2								      A.F.R.
 

 
Case :- FIRST APPEAL No. - 75 of 2013
 

 
Appellant :- Gaurav Shankar
 
Respondent :- Aviva Life Insurance Company India Pvt.Ltd.And Ors.
 
Counsel for Appellant :- Navneet Mishra,Amit Mishra,Sushil Kumar Mishra
 

 
Hon'ble Devi Prasad Singh,J.

Hon'ble Ashok Pal Singh,J.

(By Justice Ashok Pal Singh)

1. Sri Navneet Mishra, learned counsel for the appellant submits that he has approached the office to deposit the requisite fee but he was informed that unless Court passed some order no steps can be taken for summoning of record. In pursuance of order passed by this Court on 20.11.2014 office has submitted a report on 22.11.2014 stating that the record may be summoned only after deposition of requisite fee.

2. To resolve the controversy in hand it is necessary to make a perusal of Rules 1, 2 and 5 of Chapter XII of Allahabad High Court Rules, 1952 which read as under:

Rule 1. Issue of notice and requisition for record.--Where an order has been made directing notice of an appeal, revision or reference to issue the office shall take immediate steps to cause notice thereof to be served on such persons as are indicated in Rule 9 and shall also give notice thereof to the Court from whose decree or order the appeal or revision has been presented or by which the reference has been made. The office shall, not directing otherwise, also send a requisition to such Court asking it to transmit within ten days of the receipt of such requisition all material papers in the case or if so directed, a part thereof unless such record has already been received.

Provided that in second appeal an appeal from an order or revision papers need not be summoned unless directed otherwise or until the case is likely to be listed before the Court for hearing.

Provided further that in an appeal from order or revision directed against an interlocutory order, the record shall not be summoned unless the Court directs otherwise. In such cases, the parties may file an affidavit annexing to it copies of documents and/or evidence on which they wish to rely at the hearing.

A notice of the receipt of the record in every case, except a First Appeal to which Rule 7, Chapter XIII of these rules applies, shall be exhibited on the notice board as soon after its receipt as possible.

Provided further that in case any ad interim stay order has been passed by the Court on an application such stay order shall be attached with the notice to the opposite party.

Rule 2. When record not to be requisitioned at once.--When a record or a portion thereof is required from a Subordinate Court in an appeal or revision from an interlocutory order while proceedings in the case are pending in that Court, it shall not be sent for at once and only information of the fact that all material paper in the case would be sent for when actually required shall be sent and that Court shall submit the papers immediately on receipt of intimation that the appeal or revision is ready for hearing:

Provided that the papers shall not be summoned unless specially directed by the Court:

Provided further that when a record or a portion thereof has been summoned at the special request of a party or otherwise during the pendency of such appeal or revision for disposing of any interlocutory matter, it shall be sent back to the Court concerned as soon as possible and recalled only when the appeal or revision is ready for hearing.

A case shall not ordinarily be listed for hearing before the expiry of two weeks after the receipt of the record under this or the next preceding Rule.

Rule 5. No party entitled to summon record without payment of requisite cost.-- Except as provided in Rule 1 and 2, no record shall be summoned from another court at the instance of a party unless the cost of summoning such record, if any, have been previously paid by such party.

A plain reading of the aforesaid Rules makes it clear that the first and substantive part of Rule 1 provides the procedure to be followed by the office where an order has been passed for issue of notices in an appeal, revision or reference. In such a circumstance no option has been left with the office unless otherwise directed except to send a requisition to the subordinate Court for transmitting the record within 10 days of the receipt of the requisition unless such record has already been received.

3. As is evident from its first proviso which deals with second appeal, an appeal from order or a revision where order has been passed for issue of notice unlike the first part the office has been refrained from summoning the record unless it has been directed to do so or the matter is likely to be listed for hearing. It appears that obvious reason for including this proviso was that it was not thought proper to cause any unwarranted interference in the proceedings which may still be going on before the subordinate court despite the first appeal from order or a revision having been filed. As regard the second appeal, it is well known that in the ordinary course of proceedings therein necessity of record of the subordinate court arises only at the time of final hearing.

4. Similarly it is clear from the second proviso that as regards an appeal from order or revision against an interlocutory order where notice has been directed to be issued the office has been refrained from summoning the record unless so directed. The obvious reason for doing so is also to keep the proceedings before the lower court continued so that no hindrance is caused in its proceedings for want of the record. In the ordinary course, such matters can be decided on affidavits without calling for the record of lower court.

It may be noticed that both the first and second proviso are overlapping in their scope to some extent as regard to appeal from an order or a revision. But the distinguishing feature between the two is that while second proviso deals with those matters which have arisen out of interlocutory orders first proviso deals with all such matters which may not be arising out of interlocutory orders.

5. A perusal of Rule 2 makes it clear that it also provides strength to what has been said above. It specifically directs the office not to call for the record at once from a subordinate court in an appeal or revision from an interlocutory order where the original proceedings of the case are pending. In that eventuality it prescribes only an information to be sent to the subordinate Court to make it stand-by for sending the relevant record whenever required. A close reading of Rule 2 combined with second proviso to Rule 1 would indicate that in ordinary course such matters are to be decided on the basis of copies of documents/evidence annexed with their affidavits by the parties concerned. Yet there may be cases where court may desire looking into the record of the lower court for its own satisfaction. An order for summoning of the record in such an eventuality may be passed either suo-moto by the Court or on the special request of a party. In case the order is passed suo-moto it will be obligatory for the office to issue a requisition but in case where the record is being summoned at the instance of a party the case will fall under the scope of below discussed Rule 5.

6. Now coming to Rule 5 it is clear from its title as well as from its opening words that this rule is an exception to Rule 1 & 2. Under Rule 1 and 2 record is to be requisitioned by the office on its own subject to exceptions given therein, but under this rule where the record as an exception is being requisitioned at the instance of a party then cost of summoning the record has to be previously paid by such party. As already discussed above it may cover those cases where the record is being requisitioned in an appeal or revision from an interlocutory order at the special request of a party.

7. Reliance has been placed by the registry to Rule 5 which provides that no party shall be entitled to summon record without payment of requisite cost. Rule 5 itself indicates that deposition of mandatory cost shall be an exception to Rule 1 and 2. Once Rule 5 uses the word "except as provided in Rule 1 and 2", then office may not proceed on its own to direct the litigant to deposit cost in violation of statutory mandate as contained in Rule 1 and 2 of the Rules of the Court.

8. It is well settled proposition of law that no provision or word in statute is to be read in isolation. The statute has to be read as a whole and in its entirety. While interpreting the rules, it should be read word by word para by para and the rule as a whole.

According to Maxwell, a construction which would leave without effect any part of a statute will normally be rejected. Hon'ble Supreme Court by catena of judgment held that while interpreting any section of a statute, every word and provision should be looked into in context to which it is used and not in isolation vide 2002 (4) SCC 297 Grasim Industries Limited v. Collector of Customs; 2003 SCC (1) 410 Easland Combines v. CCE; 2006 (5) SCC 745 A. N. Roy v. Suresh Sham Singh and 2007 (10) SCC 528 Deewan Singh v. Rajendra Prasad Ardevi.

9. In view of above, defence set up by the office in its note that the appellant has not deposited the cost in the present appeal hence notices were not sent seems to be not sustainable. Since, it is a first appeal, it was incumbent upon the office to issue notice in terms of Rule 1 and 2 ignoring the mandate of Rule 5.

10. We summarise the procedure with regard to issuance of notice and deposition of cost in terms of rules in question as under:-

(i) For an appeal, revision or reference falling under Rule 1 and 2 (supra) it shall be necessary for the office to send requisition for the record in case there is no otherwise direction by the Court. No cost shall be payable by the party for getting the record requisitioned.

(ii) In an appeal from order or revision against an interlocutory order where any order for issuing notice has been passed or not, no requisition is to be sent for the record by the office, unless otherwise directed. In case the record is being requisitioned, on the order passed at the instance of a party then unless otherwise directed cost for summoning the record shall be previously paid by such party.

(iii) In an appeal from an order or revision, not arising from an interlocutory order, where even an order for issuing notice has been passed, no requisition is to be sent for the record by the office, unless otherwise directed or the case is likely to be listed for hearing. Similar will be the position in second appeal where order for issuing notice has been passed. No cost is to be paid by any party.

(iv) In an appeal or revision from an interlocutory order where proceedings in the case before subordinate court are pending, the record shall not be requisitioned by the office at once, unless so directed. Only an information is to be sent by the office to that court that material papers are to be sent when actually required in the concerned appeal or revision. Consequence as given in rule (ii) would follow in case record is being requisitioned on an order passed on special request of a party.

(v) In cases where record is being summoned at the instance of a party, the same cannot be requisitioned by the office unless cost has already been paid for summoning the record by such party.

11. In view of the above, let a circular be issued by Senior Registrar of this Court communicating the Registry of this Court with regard to the effective implementation of Rules, 1, 2 & 5 of Chapter XII of Allahabad High Court Rules, 1952 in the light of the directions given hereinabove. Bar Association of the High Court may also be communicated accordingly. This order may be circulated/issued within two weeks from today.

Subject to above, the appellant's counsel may take steps for summoning of the record within two weeks.

Order Date :- 24.11.2014

IrfanUddin/Madhu