Madras High Court
V.S.Chandrasekaran vs R.Uma on 25 April, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
A.S.(MD)No.5 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.04.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
and
THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN
A.S(MD)No.5 of 2025
and
CMP(MD)No.300 of 2025
V.S.Chandrasekaran ... Appellant / Sole defendant
Vs.
R.Uma ... Respondent / Plaintiff
Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code, to set
aside the judgment and decree dated 02.03.2024 made in O.S No.88 of 2018
on the file of the V Additional District and Sessions Judge, Madurai District.
For Appellant : Mr.T.Antony Arulraj, Advocate
Amici Curiae : Mr.T.R.Rajagopalan, Senior Counsel
Mrs.N.Krishnaveni, Senior Counsel
Mr.V.Raghavachari, Senior Counsel
Mr.Srinath Sridevan, Senior Counsel
Mr.Sricharan Rangarajan, Senior Counsel
Mr.H.Lakshmi Shankar, Advocate
1/18
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A.S.(MD)No.5 of 2025
ORDER
(Order of the Court was made by G.R.SWAMINATHAN, J.)
This first appeal filed under Section 96 of CPC is directed against the
judgment and decree dated 02.03.2024 made in O.S No.88 of 2018 on the file
of the V Additional District and Sessions Judge, Madurai District. The
defendant is the appellant. The suit was for recovery of money. The long
prevailing practice of the Madras High Court is that notice will be issued to the
respondents by the Registry after numbering the first appeal. Instead of doing
so, the appeal has been listed under the caption “For Admission” before this
Bench. The Registry has done so on account of the direction issued by The
Hon'ble Mr.Justice N.Sathish Kumar vide order dated 07.03.2025 in A.S No.
148 of 2025. Paragraphs 21 and 22 of the said order read as follows :
“21.On circumspection of the overall
parametres discussed hereinabove, coupled
with various judgments of High Courts and
Supreme Court, it is amply clear that appeals
should be posted before the Judge for
admission. Thus, in view of the amendment to
Order XLI Rule 11, all First Appeals shall be
hereafter posted before the concerned Court
for admission and it is for the Judge to
decide whether the appeal requires to be
admitted or there is no merit in the appeal,
as the existing Rules or Standing Orders,
which are inconsistent with the substantive
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provisions of the CPC, will not empower the
Deputy Registrar of the Registry to number
the appeal and call for records.
22.In fine, Registrar Judicial of this
Court is hereby directed to issue a circular,
instructing the Deputy Registrar and other
Registrars to post all the First Appeals for
admission only before the concerned Judge
having roster henceforth.”
2.The Hon'ble Judge was fully conscious that as per Order II Rule 3 of
the Rules of the High Court, Madras, Appellate Side, 1965, the Deputy
Registrar is obliged to receive all appeals against original decrees of
subordinate courts and issue notice forthwith and listing the first appeals for
admission before the court is not envisaged. What impelled the Hon'ble
Judge to depart from this procedure and practice is the amendment made to
Order 41 of CPC through parliamentary legislation by way of Amendment Act
46 of 1999. The amendment itself was pursuant to the Malimath Committee
report which observed that there is no justification for not listing regular first
appeals for preliminary hearing or admitting them as of course. The Hon'ble
Judge took note of the amendments made to Rules 9 and 11 of Order 41 of
CPC which are as follows :
“9.Registry of memorandum of appeal.—(1)
The Court from whose decree an appeal lies
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shall entertain the memorandum of appeal and
shall endorse thereon the date of
presentation and shall register the appeal in
a book of appeal kept for that purpose.
(2) Such book shall be called the register of
appeal.”
11. Power to dismiss appeal without sending
notice to Lower Court -
(1) The appellate Court after fixing a day
for hearing the appellant or his pleader and
hearing him accordingly if he appears on that
day may dismiss the appeal...”
3.The Hon'ble Judge after citing quite a few decisions of the Hon'ble
Supreme Court (U.P.Avas Evam Vikas Parishad vs. Sheo Narain
Kushwaha (2011) 6 SCC 456, Salem Advocate Bar Association, Tamil
Nadu vs. Union of India (2005) 6 SCC 344 and Mahadev Govind Gharge
vs. Special Land Acquisition (2011) 6 SCC 321) rightly concludes that the
aforesaid amendment had taken away the right of automatic admission and
that every appeal has to be posted before the court under Order 41 Rule 11 of
CPC for orders as to admission. No exception can be taken to this conclusion
and the approach is, if we may say with respect, well-founded. But that would
be the position only if the procedure regarding admission of first appeals filed
under Section 96 of CPC is governed by Order 41 of CPC alone.
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4.That admittedly is not the case. Order II Rule 3 of the Appellate Side
Rules, Madras High Court prescribes a modified procedure.
“R.1. The power and authority which under
these or other rules or the practice of the
Court are exercisable by the Registrar may be
exercised by the Deputy Registrar or the
Assistant Registrar of the Appellate Side or
such other officers as the Chief Justice may
specify. The Chief Justice may, by general or
special order, specify the power and authority
exercisable by such officers.
R.2. Where any duty to be discharged under
these rules or any enactment or any rules made
thereunder is a duty which has heretofore been
discharged by any officer, such duty shall,
unless or until otherwise ordered, continue to
be discharged by the same officer or by such
other officer as the Chief Justice may by
order direct. Where any new duty is to be
discharged; the proper officer to discharge
the same shall be such officer as Chief
Justice may from time to time appoint.
R.3. In addition to the powers conferred by
other rules, the Registrar shall have the
following duties and powers, subject to any
special or general order made by the Chief
Justice:
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Provided that the Registrar may in his
discretion refer any proceeding before him for
the decision of the Court;
Provided also, that, at the request of any
party, the Registrar shall post the matter
before the Court -
(1) to receive appeals, petitions and other
proceedings;
(2) to require any memorandum of appeal,
petition, application or other proceeding
presented to the Court or to the Registrar to
be amended (or rectified) in accordance with
the procedure or practice of the Court.
(3) (i) In appeals against (a) original
decrees of subordinate Courts; (b) final
judgments in original suits disposed of by the
High Court in the exercise of its original
jurisdiction; and (c) under Clause 15 of the
Letter Patents from the Judgment of single
judges passed in appeals from appellate
decrees or orders, where the certificate
provided for in Order IV Rule 28 has already
been obtained, the Registrar shall issue
notice forthwith.
(ii) In all miscellaneous appeals other than
appeals under Order XLIII, Rule 1 (u) of the
Code, the Registrar may direct the issue of
notice forthwith or post any such appeal
before the Court for orders.
(iii) In all appeals under Clause 15 of the
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Letters Patent from judgments of Single
Judges, other than those specified in Rule
3(3)(i) [(b) and], (c), the Registrar shall
post them before the Court for orders.
(iv) In appeals against appellate decrees,
miscellaneous appeals under Order 43 Rule 1(u)
of the Code and miscellaneous second appeals,
the Registrar shall take the orders of the
Judge whether notice to the respondent shall
issue. If the Judge direct that the appeal be
posted for hearing under Order XLI Rule 11 of
the Code, the Registrar shall post the appeal
for hearing subject to the provisions of Order
I Rule 2(5)(c) of these rules.
(v) In civil revision petitions the Registrar
shall take the orders of a judge whether
notice shall issue and shall post the petition
for hearing in the manner prescribed for
appeals by Order XLI Rule 11 of the Code, if
so directed.
(4) To fix the date of hearing of any civil
revision petition under Order IV Rule 26.
(5) To fix the date of hearing of any
application under Order IV Rule 38.
(6) To determine all cases referred to him
under Order VII Rule 8.
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(7) To order the supply to parties to a
proceeding
(i) records duly certified as correct copies;
(ii) uncertified printed, cyclostyled or typed
records; and
iii) translations under Order VIII Rule 17.
(8) To stop at his discretion the issue of all
or any papers to any practitioner who has
failed to pay any fee or charges due to the
Court.
(9) To require any person or party to file an
affidavit in any proceeding before him.
(10) To call for a further deposit, when the
deposit already made by the appellant in an
appeal to the Supreme Court is not sufficient
to defray the cost of preparing the records.
(11) To order repayment of the unexpected
balance of charges deposited for the
preparation of the record in any proceeding.
(12) To give directions as to the preparation
of the record in connected appeals.
(13) To give directions as to the
apportionment of costs of the preparation of
the record in appeals to the Supreme Court
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consolidated under Order XII Rule 6 of the
Supreme Court Rules.
(14) To extend the period mentioned in Order
XLI-A Rule 2 of the Code as follows: (i) if
the respondent resides beyond the limits of
Tamil Nadu but within India to not more than
eight weeks. (ii) if the respondent resides
outside India to not more than ten weeks.
(15) To consider and dispose of claims by a
party for the cost of unnecessary printing
done at the instance of the opposite party.
(16) To dispense with service of notice on
respondents under the proviso to Order XLI
Rule 14 (1) of the Code on an application by
an appellant or petitioner.
(17) To make an order for payment of costs of
any application heard by him.”
Obviously, there is an inconsistency between Order 41 Rules 9 and 11 of CPC
as interpreted by the Hon'ble Supreme Court and Order II Rules 1 to 3 of the
Appellate Side Rules of the Madras High Court. His Lordship Mr.Justice
N.Sathish Kumar is of the view that since the Appellate Side Rules were
framed prior to the 1999 amendments to Order 41 of CPC, they have to give
way. We respectfully disagree with the said view.
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5.The Appellate Side Rules, 1965 were issued by the Madras High
Court under the provisions of Section 122 of the Code of Civil Procedure,
1908. The Hon'ble Supreme Court in the decision reported in (2011) 15 SCC
330 (Malthesh Gudda Pooja v. State of Karnataka) considered the question
if there was any inconsistency between the Rules made by the High Court
under Section 122 of CPC and Order 47 Rule 5 of CPC. Even while holding
that there was no inconsistency between the two, the Hon'ble Supreme Court
clarified the legal position in the following terms :
“10.The Rules made under Section 122
cannot be inconsistent with the body of the
Code (that is, sections in the Code), but
can be inconsistent with any of the rules
in the First Schedule to the Code. As the
Rules under Section 122 can alter or add
any rule in the First Schedule to the Code,
the provisions of Chapter 3 Rule 5 of the
High Court Rules will prevail over Order 47
Rule 5 of the Code.”
In fact, the Hon'ble Supreme Court only affirmed the prevailing position. Our
attention was drawn by Shri.H.Lakshmi Shankar, learned counsel to the
decision of the Division Bench of the Madras High Court in The Tamil Nadu
Electricity Board, rep.by its Chairman, Mount Road, Madras -2 v.
R.Srinivasan (1991 SCC OnLine Mad 384) wherein also it was held that if
there is any inconsistency between the Appellate Side Rules and the
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provisions of the First Schedule of the Code, the Appellate Side Rules having
been formulated pursuant to powers under Section 122 of the Code shall take
precedence.
6.Section 2(18) of CPC defines “Rules” as follows “
' “rules” means rules and forms contained in the First
Schedule or made under Section 122 or Section 125” '
Thus, the provisions in First Schedule partake the character of only Rules
notwithstanding the fact that they were enacted by the parliament. Merely
because they owe their origin to a parliamentary enactment, they would not
acquire a status superior to the Rules made by the High Court under Section
122 of CPC. The Appellate Side Rules rank higher in the hierarchy. This is too
well settled and does not admit of any doubt. The Hon'ble Supreme Court in
Ispat Industries Limited vs. Commissioner of Customs (2006) 12 SCC
583 quoting Kelsen held that in every legal system, there is a hierarchy of laws
and whenever there is conflict between a norm in a higher layer in this
hierarchy and a norm in a lower layer, the norm in the higher layer will prevail.
When thus the Appellate Side Rules would rank superior and prevail over the
Rules in the First Schedule of the Code at all times, the fact that some
amendments were made to First Schedule subsequent to the making of the
Appellate Side Rules is of no consequence.
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7.The learned Judge had relied on the decision of the Hon'ble
Jharkhand High Court in Bishnu Bhagat vs. Pushpa Devi reported in AIR
2006 Jhar 117. No doubt, the said decision holds that the Rules of the High
Court of Jharkhand cannot prevail over the requirement of Order 41 Rule 11 of
the Code. Two comments have to be made here. The Madras High Court is a
chartered High Court. The Appellate Side Rules can be traced not only to
Section 122 of CPC but also Clause 37 of the Letters Patent. Secondly,
Bishnu Bhagat cannot be said to be good law in the light of the decision of
the Hon'ble Supreme Court in Malthesh (supra).
8.The learned Judge also placed reliance upon the decision of the
Hon'ble Division Bench of Allahabad High Court reported in 2005 SCC
OnLine All 148 (Moti Lal v. Bhagwan Das). In this decision, only two issues
had arisen for consideration. The first question was whether a regular first
appeal under section 96, C.P.C., being an appeal on facts and law both,
should be admitted mechanically, without any hearing under Order XLI, Rule
11, C.P.C. And the second question was whether the issue of admission of an
appeal is a matter exclusively between the appellant and the Court in which
the respondent has no say; and if so, whether the respondent, who has
appeared at that stage on the strength of a caveat or otherwise, should be
shut out from hearing till after the appeal is admitted and till the stage comes
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for considering grant or refusal of interim order in the admitted appeal. The
interplay between the Rules framed by the High Court under 122 and Order
XLI, Rule 11 was not discussed.
9.The learned Judge relied on the decisions of the Division Bench of the
Karnataka High Court in T.S.Channegowda s. Sri H.Thopaiah (ILR 2015
Kar 2809) and M.C.Mohammed vs. Gowramma and ors (ILR 2006 Kar
4584. But in both the decisions, the interplay between the Rules framed by
the High Court and Order 41 Rule 11 was not discussed.
10.Another decision on which reliance has been placed by the learned
Judge is that of the Division Bench of the Calcutta High Court in Nilmoni
Mazumdar vs. Smt.Sanghamitra Maumdar (2002 SCC OnLine Cal 394). In
the said decision, the question that arose was whether an appeal under
Section 28(2) of the Hindu Marriage Act is required to be set down for hearing
under Order 41 Rule 11 CPC. The learned Judges answered the question in
the affirmative. The said decision does not contain any proposition that the
appellate side rules are to be read as subservient to the provisions in the First
Schedule. On the other hand, it has been specifically held therein that the
appellate side rules have all the authority of a legislation or statutory law under
the provisions of the Charter Act, Clause 36 of the Letters Patent, Section 122
of CPC and under Article 225 of the Constitution.
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11.It is relevant to mention here that the Appellate Side Rules of the
Madras High Court open thus :
“Under the provisions of Section 122 of the Code of Civil
Procedure, 1908, and all other powers hereunto enabling
and with the previous approval of the Government of Madras,
the High Court hereby issues the following rules to apply, so far
as may be practicable, to all proceedings taken on the
Appellate Side of the High Court, Madras, in suppression of the
existing rules of the High Court, Madras, Appellate Side...”
12.Shri.Shrivatsav N, the learned counsel points out that the Hon'ble
Calcutta High Court in Atish Kumar Mukherjee vs. Nitish Kumar Mukherjee
(2022 SCC OnLine Cal 2529), while dealing with Order XLI Rule 11 and the
relevant provisions of delegation to the Registrar under Calcutta High Court
Appellate Side Rules notes that the rules which permit the Registrar to admit
appeals is incompatible with Order 41 CPC. The court noted that since the
rules are statutory, the matter needed to be referred to the Rule Committee to
consider the observations of the court and to recommend if it so deems fit, any
amendment to the said rule. It held that as long as the said rules are not
declared invalid, they are deemed to be valid.
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13.It is true that in Managing Director, Thanthai Periyar Transport
Corporation vs. Karthiyayini (AIR 1995 Mad 102), the Hon'ble Division
Bench observed that where in an appeal arising out of a regular suit, there is
delay in filing the said appeal and an application is filed for excusing the said
delay, Order 41 Rule 3(A)(3) CPC would preclude the court from granting an
interim stay for execution of decree, until the court, after hearing under Rule
11 of Order 41 CPC, admits the appeal for being heard. Again, this decision
cannot be relied upon to upset the settled practice of this Court because in
this case also, the efficacy and applicability of the Appellate Side Rules were
not gone into or considered. On the other hand, the Full Bench decision in
M.Ranka v. Justice P.S.Mishra (1994) Vol 2 Mad LJ 110), the procedure
governing any proceeding in the High Court was delineated as follows :
“In every proceeding in this Court, there are four stages:
(1) Presentation, (2) Filing, (3) Admission and (4) Final hearing.
Whenever any proceeding is presented, the Registry enters the
same in the Stamp Register or General Diary. The serial number
of the proceeding represents the number of the proceeding
presented in the year. In this Court, matters presented on the
Original Side are entered in the register called Diary and the
serial number is known as Diary Number. In fact, this petition is
bearing Diary No. 14283/92. On the appellate Side, the registers
are called Stamp Register and Unstamped Register.
....
Then the Registry scrutinises the papers and if the requirements
of the rules are satisfied, they will be passed and taken on file. At
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that stage, they will be entered in the registers separately kept
for each class of proceeding.
....
Taking the case on file by assigning a number to the proceeding
does not tantamount to admission of the case. After the
proceeding is taken on file, some matters are posted before
Court for admission and some matters are admitted by an
Official in the Registry according to the Rules, for example,
an appeal under S. 96, Code of Civil Procedure, is admitted
by the Deputy Registrar automatically after it is taken on file.
Similarly, a Civil Suit is admitted by an Officer in the Original
Side.”
14.It may be noted that the Appellate Side Rules of the Madras High
Court which were in force before being repealed by the 1965 Rules spoke of
the duty and power of the Registrar “to admit all appeals against the decrees
or orders of civil courts and to issue notice to the respondents therein...” In
the 1965 Rules, the word “admit” is conspicuously absent. We do not propose
to go into the issue if the Registrar retains the power to admit the appeals filed
under Section 96 of CPC. The only issue posed for consideration is whether
after numbering the said appeals, they have to be listed for admission before
the Court. Our answer is in the negative.
15.Having held so, we have to necessarily observe that the Rule
Committee can take a call and decide to amend Order II of the Appellate Side
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Rules so as to bring it in conformity with the amendments made to Order 41 of
CPC. Till such amendment is done to the Appellate Side Rules, the existing
practice in the matter of admission of first appeals under Section 96 of CPC
shall continue and they need not be listed for admission before the court
concerned.
16.We deeply appreciate the assistance rendered by the learned Amici
Curiae, namely, Mr.T.R.Rajagopalan, Senior Counsel, Mrs.N.Krishnaveni,
Senior Counsel, Mr.V.Raghavachari, Senior Counsel, Mr.Srinath Sridevan,
Senior Counsel, Mr.Sricharan Rangarajan, Senior Counsel, the learned
counsel Mr.H.Lakshmi Shankar, Ms.Prarthana Ramesh, Ms.Ananya
Pattabhiraman and Mr.N.Shrivatsav.
[G.R.S., J.] [M.J.R., J.]
25.04.2025
Index : Yes / No
Internet : Yes/ No
SKM
To:
1.V Additional District and Sessions Judge,
Madurai District.
Copy to:
1.The Registrar (Judicial),
Madurai Bench of the Madras High Court, Madurai.
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G.R.SWAMINATHAN, J
and
M.JOTHIRAMAN, J.
SKM
and
25.04.2025
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