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  • G.P Murdeshwar, for the appellants. I submit that there are no provisions under the Code for partial admission of an appeal. The appeal is admitted as a whole or rejected as a whole. The pertinent provisions of the Civil Procedure Code on the point are Order XLI, rules 11 and 12. Rule 11 provides that the appellate Court “may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent”. Rule 12 goes on to provide: “Unless the appellate Court dismisses the appeal under rule 11, it shall fix a day for hearing the appeal.” Under these provisions when the appeal is once admitted, the whole case is open to argument. If an appeal is admitted on some points only, then the appellant is without remedy on the remaining points.
  • Ramnath Shivlal, for respondent. Under Order XLI, rule 11 of the Code of Civil Procedure, the Court has power to dismiss an appeal summarily. It means that the Court has power to decide all the points raised in the memorandum of appeal on the materials before it. If it is satisfied that the judgment of the lower Court is right, it can reject the whole appeal without giving any reasons for dismissal. In exercise of this power, the Court can at the time of admission admit the appeal only as regards a certain point or certain points and reject the rest of the appeal. The Court means by that order that only that particular point or particular points require reconsideration. So this is a case in which there is a final decision as regards certain points and that decision is not open to reconsideration.
  • [Beaumont, C.J Supposing there is a case in which two separate properties are in question and are dependent on two distinct titles. Could not the Judge dismiss the appeal as regards one property, if the appeal be unsustainable on any ground, while admitting it as regards the other?]
  • Strictly speaking, rule 11 does not permit such a course. But even if such course be permissible, the order of dismissal should be in express terms, so that the appellant may be able to pursue such further remedy as may be open to him in law. In this case, there is no order of dismissal as regards survey No. 57, and the case of the plaintiff as regards both properties was supported by a common title.
  • The Calcutta High Court has held that when an appeal is admitted, the whole appeal and not any selected ground is open to discussion: Lukhi Narain Serowji v. Sri Ram Chandra Bhuiya and Janaki Nath Hore v. Prabhasini Dasee.
  • It is true that there have been some cases in this Court in which appeals have been restricted to particular grounds; but a practice which is in contravention of the law even if such practice be the practice of the High Court cannot make lawful that which is unlawful: Balkaran Rai v. Gobind Nath Tiwari.(3)
  • Second appeals are allowed only on questions of law and there is nothing unusual if an appeal is admitted on one or more questions of law arising in the case. It is the duty of the Judge to see at the time of admission that an appellant does not through inadvertence or otherwise seek admission of an appeal by stating in his memorandum of appeal grounds more than those mentioned in section 100 of the Civil Procedure Code: Rudr Prasad v. Baijnath.
  • The provisions relating to appeals in the Criminal Procedure Code are similar in their terms and yet it is the practice of this Court in criminal cases to admit appeals to reconsider the decision of the lower Court on a question of sentence. A similar practice obtains in civil cases to admit appeals only on some of the points arising in a case.
Judges
  • Sir John Beaumont, C.J
  • Mr. Tyabji
  • Mr. N.J Wadia, JJ.
Acts
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Attorney(S)
  • G.P Murdeshwar, for the appellants. I submit that there are no provisions under the Code for partial admission of an appeal. The appeal is admitted as a whole or rejected as a whole. The pertinent provisions of the Civil Procedure Code on the point are Order XLI, rules 11 and 12. Rule 11 provides that the appellate Court “may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent”. Rule 12 goes on to provide: “Unless the appellate Court dismisses the appeal under rule 11, it shall fix a day for hearing the appeal.” Under these provisions when the appeal is once admitted, the whole case is open to argument. If an appeal is admitted on some points only, then the appellant is without remedy on the remaining points.
  • Ramnath Shivlal, for respondent. Under Order XLI, rule 11 of the Code of Civil Procedure, the Court has power to dismiss an appeal summarily. It means that the Court has power to decide all the points raised in the memorandum of appeal on the materials before it. If it is satisfied that the judgment of the lower Court is right, it can reject the whole appeal without giving any reasons for dismissal. In exercise of this power, the Court can at the time of admission admit the appeal only as regards a certain point or certain points and reject the rest of the appeal. The Court means by that order that only that particular point or particular points require reconsideration. So this is a case in which there is a final decision as regards certain points and that decision is not open to reconsideration.
  • [Beaumont, C.J Supposing there is a case in which two separate properties are in question and are dependent on two distinct titles. Could not the Judge dismiss the appeal as regards one property, if the appeal be unsustainable on any ground, while admitting it as regards the other?]
  • Strictly speaking, rule 11 does not permit such a course. But even if such course be permissible, the order of dismissal should be in express terms, so that the appellant may be able to pursue such further remedy as may be open to him in law. In this case, there is no order of dismissal as regards survey No. 57, and the case of the plaintiff as regards both properties was supported by a common title.
  • The Calcutta High Court has held that when an appeal is admitted, the whole appeal and not any selected ground is open to discussion: Lukhi Narain Serowji v. Sri Ram Chandra Bhuiya and Janaki Nath Hore v. Prabhasini Dasee.
  • It is true that there have been some cases in this Court in which appeals have been restricted to particular grounds; but a practice which is in contravention of the law even if such practice be the practice of the High Court cannot make lawful that which is unlawful: Balkaran Rai v. Gobind Nath Tiwari.(3)
  • Second appeals are allowed only on questions of law and there is nothing unusual if an appeal is admitted on one or more questions of law arising in the case. It is the duty of the Judge to see at the time of admission that an appellant does not through inadvertence or otherwise seek admission of an appeal by stating in his memorandum of appeal grounds more than those mentioned in section 100 of the Civil Procedure Code: Rudr Prasad v. Baijnath.
  • The provisions relating to appeals in the Criminal Procedure Code are similar in their terms and yet it is the practice of this Court in criminal cases to admit appeals to reconsider the decision of the lower Court on a question of sentence. A similar practice obtains in civil cases to admit appeals only on some of the points arising in a case.
Judges
  • Sir John Beaumont, C.J
  • Mr. Tyabji
  • Mr. N.J Wadia, JJ.
Acts
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Smart Summary

    Krishnaji Shrinivas Jalvadi v. Madhusa Appansa Ladaba

    The judgment of the Court was delivered by

    Beaumont, C.J:—

    This case has been referred to us by Mr. Justice Tyabji in order to determine what the effect was of an order made by Mr. Justice Barlee on the hearing of an appeal under rule 11 of Order XLI, Civil Procedure Code. The appeal related to two survey numbers and Mr. Justice Barlee's order was that notice should issue as to one of the survey numbers; but be said nothing about the other survey number.

    Mr. Murdeshwar for the appellants contends that it is not open to the Court on hearing an appeal under rule 11 of Order XLI to deal with the appeal piecemeal. He says that it must either be admitted or dismissed. We have inquired as to the practice which exists in this Court and we understand that it has been the practice in hearing appeals, under rule 11 of Order XLI. Civil Procedure Code, at times to admit an appeal in part only, and at times to restrict the grounds on which an appeal is admitted, but the legality of the practice has not been considered. We are not prepared to go quite as far as Mr. Murdeshwar and to hold that an appeal must be admitted in whole or rejected in whole. It seems to us that if an appeal is severable it is open to the Judge, hearing the appeal under rule 11, to dismiss it in part and admit it in part; just as at the final hearing the Court may dismiss the appeal in part and allow it in part. For instance if an appeal relates to two survey numbers which are held under distinct titles, we do not see any objection to the Court dismissing the appeal as to one of the survey numbers, and directing notice to issue as to the other survey number. But we agree with the views of the Calcutta High Court expressed in Lukhi Narain Serowji v. Sri Ram Chandra Bhuiya (1911) 15 Cal. W.N 921 and Janaki Naih Hore v. Prabhasini Dasee (1915) 43 Cal. 178 at p. 185 that it is not open to a Judge hearing an appeal under rule 11 of Order XLI to admit it and at the same time to restrict the grounds on which the appeal is to be heard. For instance, if a defendant appeals and challenges the title of the plaintiff decreed in the lower Court (a) under the Indian Limitation Act, and (b) under the Indian Registration Act, the Judge may possibly think that there is nothing in the one point, but something in the other. But, in our opinion, if he admits the appeal, he is not entitled to direct that it is to be argued only on the question of limitation or only on the question of registration, and that the other point is not to be argued. We can Page: 410see no justification in rules 11 and 12 of Order XLI for any such order as that.

    In the present case Mr. Justice Barlee did not dismiss the appeal as to one survey number; he said nothing about it but admitted the appeal as to the other survey number. In our opinion, it is open to the appellants to challenge the finding of the lower Court as to both survey numbers.

    Order accordingly.
    J.G.R

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    Krishnaji Shrinivas Jalvadi v. Madhusa Appansa Ladaba
    (Aug 17, 1933)