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  • Dawson-Miller, C.J
  • Adami, J.
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Smart Summary

Opinion Summary — Appeal under Clause 10, Letters Patent

Factual and Procedural Background

This opinion concerns an appeal brought under Clause 10 of the Letters Patent. The appeal was referred to a Bench of the Court under Rule 2 and Rule 16, Chapter 7 of the High Court Rules. The Court has for some time followed a practice of treating such appeals in the same manner as cases posted to a Bench for hearing under Order 41, Rule 11 of the Code of Civil Procedure (as applied by local rules). The appellant challenged this long-standing practice, contending that it was not justified by the Letters Patent, the High Court Rules, or the Code of Civil Procedure and that the Court therefore lacked jurisdiction to deal with the appeal in that manner.

Legal Issues Presented

  1. Whether the Court may lawfully deal with appeals under Clause 10 of the Letters Patent by the procedure historically followed (i.e., treating them in the same way as appeals under Order 41, Rule 11), in particular by hearing the appellant without first serving notice on the respondent in all such cases.
  2. Whether the High Court Rules (notably Rule 16, Chapter 7; Rule 3, Chapter 8; and Rule 4, Chapter 8) and the Letters Patent, or alternatively the Code of Civil Procedure, authorize delegation of interlocutory or preliminary judicial duties to the Registrar and the specific procedural practice challenged by the appellant.
  3. Whether the adoption of the Court's practice denies the appellant the right of appeal given by the Letters Patent and therefore renders the Court's exercise of that procedure an act without jurisdiction.

Arguments of the Parties

Appellant's Arguments

  • The procedure historically followed by the Court (treating Clause 10 Letters Patent appeals as under O. 41, R. 11) is not justified by the High Court Rules, the Letters Patent, or the Code of Civil Procedure.
  • Because the Letters Patent grant a right of appeal without prescribing procedure, and (so it was argued) the Code of Civil Procedure applies only to appeals from subordinate courts, there is said to be no procedural basis for summary dealing with such appeals; doing so allegedly denies the appellant the right of appeal and is therefore beyond the Court's jurisdiction.
  • It was further contended that the practice involves extra expense for appellants who must appear more than once (i.e., two appearances where the respondent is later called), and that this additional cost renders the practice objectionable.

The opinion records that the appellant's advocate (vakil) did not present the jurisdictional argument in a highly technical or fully precise form; no separate detailed account of respondent arguments was provided in the opinion.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court's reasoning proceeds from statutory and rule-based sources set out in the Letters Patent and the High Court Rules, and addresses each element of the appellant's challenge:

  1. Delegation of duties under the Letters Patent and High Court Rules: The Court noted that the Letters Patent empower the Court to make rules delegating both judicial and non-judicial business and duties to the Registrar. The rules of this Court have delegated certain judicial duties (otherwise performed by a Bench or a single Judge) to the Registrar, a system the Court considered justified by the practical results and time-saving benefits.
  2. Specific rules governing Registrar duties and scheduling: The opinion cites the content of the relevant rules:
    • Rule 16, Chapter 7: directs the Registrar, after satisfying himself as to time, stamping and rule compliance, in first appeals to admit them and issue notice; in appeals under Clause 10 Letters Patent to order them placed before a Bench to which such appeals are assigned; and in other appeals to admit and either issue notice or place them before a Bench under O. 41, R. 11.
    • Rule 3, Chapter 8: provides that when the appeal is to be heard under O. 41, R. 11, or is an appeal under Clause 10 Letters Patent, an early date shall be fixed for hearing the appellant or his pleader.
    From these provisions the Court concluded that the practice followed—treating Clause 10 appeals in the same manner as appeals under O. 41, R. 11—is plainly contemplated by the rules.
  3. On admission and service of notice: The appellant challenged the practice on the ground that appeals under Clause 10 are not admitted by the Registrar before being placed before a Bench and contended that until admitted the Court could not proceed. The Court answered that the Bench itself admits such appeals and calls upon the appellant or his pleader to proceed without serving notice on the respondent; if the appellant fails to make out a case, the Court dismisses the appeal without calling the respondent, analogous to O. 41, R. 11 procedure.
  4. Interpretation of Rule 4, Chapter 8: The appellant relied on R. 4, Ch. 8, to say that once admitted notice must be served before proceeding. The Court read R. 4 together with the other rules and held that R. 4 contemplates only cases where the appellant has been heard under R. 3 and the Court desires to hear the respondent before final disposal; if the appeal is dismissed on the appellant's argument, there is no further role for R. 4. The Court concluded that the rules authorize the historic practice.
  5. On the contention that no procedure is prescribed by Letters Patent or the Code: The appellant argued broadly that because Letters Patent grant the right of appeal without prescribing procedure, and the Code applies only to subordinate courts, the Court had no power to adopt the summary procedure. The Court found this argument unpersuasive. Even if Order 42 of the CPC (applying Order 41 rules to certain appeals) did not apply, the High Court Rules themselves couple Clause 10 appeals with O. 41, R. 11 procedure, and thereby indicate the intended practice. The Court emphasized that the hearing of the appellant or his pleader under the rules "undoubtedly constitutes an appeal" and that if the appellant fails to persuade the Bench in the respondent's absence, it is difficult to see how the presence of the respondent would assist.
  6. On alleged extra expense: The Court rejected the contention that the practice is objectionable because it sometimes requires the appellant to appear twice, calling that an insufficient ground to challenge jurisdiction. The Court explained that the practice conserves judicial time and litigants' expense in the aggregate, especially in appeals from appellate decrees (where facts are not in issue and questions are mainly of law).
  7. Equity and procedure where rules are silent: The Court added that even if no specific procedure existed in the Code or Rules, the Court would be bound to act according to justice, equity and good conscience, applying procedural rules for materially similar cases—again supporting the lawfulness of the practice followed.
  8. Conclusion of analysis: The Court held that the objection to the procedure was "not sustainable." After directing the appellant's pleader to argue the case, the Bench concluded on the merits that the appealed case could not possibly succeed.

Holding and Implications

Holding: The appeal was DISMISSED.

Implications, as reflected in the opinion:

  • The Court validated the long-standing practice of treating appeals under Clause 10, Letters Patent, in the same manner as appeals under Order 41, Rule 11, as authorized by the Letters Patent and the High Court Rules (notably R. 16, Ch. 7 and R. 3, Ch. 8), and by the Court's duty to act according to justice where the rules are not specific.
  • The rules under which the Court acted have received sanction from the Governor General in Council and the Local Government and therefore have the force of law (as stated in the opinion).
  • On the merits, the particular appeal before the Bench was found to have no prospect of success and was dismissed. The opinion records that Adami, J. agreed with this conclusion.

This summary is drawn exclusively from the text of the provided opinion and does not add facts, citations, or implications beyond what the opinion itself states.

Show full summary ...

    Jagdis Chandra Das v. Chandra Mohan Das .

    Dawson-Miller, C.J:— This appeal under Cl. 10, Letters Patent, has been referred to a Bench of this Court under R. 2 and 16, Ch. 7 of the High Court Rules. The practice in this Court, which has been followed in such cases since the Court was constituted, has been for the Bench before which the appeal comes to deal with it in exactly the same way as cases posted to a Bench for hearing under O. 41, R. 11, and until now this practice, which has much to recommend it, has never been questioned. It is now contended however that this procedure is not justified either by the rules of this Court or by the Letters Patent or by the Code of Civil Procedure and that in fact the Court is acting without jurisdiction in so dealing with the case.

    2. Under the Letters Patent the Court has power to make rules for delegating judicial as well as non-judicial business and duties to the Registrar, and by the rules certain judicial duties which are performed by a Bench or a single Judge in other High Courts have been so delegated. The adoption of this system has been amply justified by the results, and the saving of the time of the Court, which would otherwise have been occupied in doing business of an interlocutory or preliminary character which can equally well be performed by the Registrar, has been so manifest that other High Courts are, I understand, taking steps to adopt the same procedure.

    3. The duties of the Registrar with regard to appeals under Cl. 10, Letters Patent, are to be found in Ch. 7, Rr. 2 and 16 and Ch. 8, R. 4 of the rules of this Court. By R. 16, Ch. 7 the Registrar having satisfied himself that the memorandum of appeal is within time and is sufficiently stamped and is otherwise in compliance with the rules, is directed in the case of first appeals to admit them and issue notice to the respondent, in the case of appeals under Cl. 10, Letters Patent, to order them to be placed before a Bench to which such appeals are assigned, and in the case of all other appeals to admit them and either issue notice to the respondent or place them before a Bench under O. 41, R. 11. R. 3, Ch. 8, provides that when the appeal is to be heard under O. 41, R. 11, or is an appeal under Cl. 10, Letters Patent, as early a date as possible shall be fixed for hearing the appellant or his pleader.

    4. It is clear from this rule that the practice contemplated in appeals under Cl. 10, Letters Petent, is the same as that prescribed by O. 41, R. 11 of the Code, and this is the practice which has all along been followed and which is now for the first time in the history of this Court called in question.

    5. In support of the contention that the Court has no power to deal in this manner with appeals of this nature, it is pointed out that whereas in appeals from original decrees and in all other appeals except appeals under Cl. 10, Letters Patent, the Registrar is directed to admit them, those under Cl. 10 are not admitted before being placed before a Bench and that until admitted, the Court cannot deal with them as appeals either under the procedure prescribed by O. 41, R. 11, or indeed in any other manner. But the short answer to this is that the Bench itself admits them and then calls upon the appellant or his pleader to proceed without serving notice on the respondent and if no case is made out why the appeal should be allowed, the Court dismisses it without calling upon the respondent, acting exactly as in cases under O. 41, R. 11. It is however urged that by R. 4, Ch. 8 of the Court's Rules when an appeal under the Letters Patent has been admitted, notice must be served on the respondent or his pleader before the appeal can proceed. If this rule stood alone, there might be something to be said in favour of this argument and it may be that the rule is not very happily worded. But reading it in conjunction with the other rule already referred to, it is quite clear that R. 4, Ch. 8, contemplates only those cases in which the appeal is admitted and the Court, having held the appellant or his pleader under R. 3, desires to hear the respondent before finally disposing of the appeal. It is obvious that if the appeal is dismissed there is nothing more to be done under R. 4, which can no longer apply, and I am satisfied that the rules contemplate and authorize the procedure which has been followed since the Court was constituted. The rules have received the sanction of the Governor General in Council and of the Local Government and have the force of law.

    6. It would be sufficient to rest my judgment here and say the case is concluded by the rules, but for the fact that some time was occupied in arguing that the question is really one of jurisdiction and that the Court has no jurisdiction to try appeals of this nature in the manner which it has adopted. The argument was not put very clearly or scientifically by the learned vakil for the appellant but as I understand it, it is this; that the Letters Patent grant a right of appeal to the High Court from a judgment of a single Judge of this Court, except in certain specified cases which are not material to the present discussion; that no procedure is prescribed by the Letters Patent for hearing such appeals and the Code of Civil Procedure applies only to appeals from subordinate Courts. There is therefore no special procedure provided for appeals of this nature and in such cases to deal with appeals summarily, as the procedure provided by O. 41, R. 11 has been described, is denying the appellant the right of appeal given by the Letters Patent which the Court has no right to do. I confess I have some difficulty in following this argument. Assuming, without deciding that O. 42 of the CPC, which applies the rules of O. 41, including R. 11, to appeals from appellate decrees (which the present is) has no application to appeals under Cl. 10, Letters Patent, then no special procedure is laid down governing the Court in such cases, except in so far as the High Court Rules provide. Now the High Court Rules, as already pointed out, although they do not set out in detail the procedure to be adopted in such cases, clearly indicate that procedure by coupling appeals under Cl. 10, Letters Patent, with those under O. 41, R. 11, and directing a date to be fixed for hearing the appellant or his pleader. This hearing of the appellant or his pleader undoubtedly constitutes an appeal and the Court considers any arguments that may be put forward in support of the appeal by the appellant to whom the right of appeal is granted. If the appellant in the absence of his opponent fails to convince the Court that the judgment appealed against should be set aside or varied it is difficult to see how the presence of his opponent would assist him in obtaining this result or how he suffers any injury by his absence. If on the other hand, the argument shows that the appeal is one of substance requiring to be answered by the respondent the case is in effect adjourned for the respondent to appear.

    7. It was contended that two appearances by the appellant in cases where the respondent is called on involved extra expense and I suppose the argument is that, therefore the practice is objectionable. This however is hardly a ground for challenging the Court's jurisdiction and in any case the suggestion is based upon an entire misconception. Although the Court has power under the Code to hear both first and second appeals without serving notice on the respondent, this Court does not in practice exercise that power in the case of first appeals, for the reason that the benefit to be derived from such a procedure is not so manifest in first appeals where questions of fact as well as law have to be considered and it has been found more expeditious in the long run to hear such appeals only after serving notice upon the respondent to appear. In appeals from appellate decrees, however where the findings of fact cannot be questioned, the questions for determination in the great majority of cases require no lengthy argument and a short discussion as a rule is sufficient to enable the Court to come to a conclusion as to whether the appeal ought to succeed or not. If the Court should have a clear view that the appeal cannot succeed, it is entitled to dismiss it without calling upon the respondent. If on the other hand, the case is one of doubt or difficulty requiring the presence of the respondent, then notice is served upon him and in due course he appears. But the appellant must in any case appear in order to get his appeal admitted, and the extra time occupied in argument in those cases where the Court wishes to hear the respondent before coming to a decision is a trifling consideration compared with the extra delay and expense that would result in the long run if in all such cases the respondent were called upon to appear. The argument therefore on the ground of extra expense is manifestly purely illusory, when one remembers that taking all the cases together the procedure results in a considerable saving both of the time of the Court and of the pocket of litigants.

    8. In conclusion I should like to point out that even if no procedure were provided either by the Code or by rules of this Court or elsewhere, it would be the duty of the Court to proceed accordingly to the well known rule which enjoins upon it the necessity, where no specific rule exists, of acting according to justice, equity and good conscience. Applying the rules of procedure laid down by the Code to cases not specifically mentioned but in all material respects similar to those mentioned seems to me to be not only in accordance with equity and justice but, in the particular case before us, the course best calculated to meet the ends of justice and I therefore hold that the objection is not sustainable, and having directed the appellant's pleader to argue the cases before us we have come to the conclusion in this case that the appeal cannot possibly succeed and ought to be dismissed.

    9. Adami, J.:— I agree.

    V.S/R.K

    10. Appeal dismissed.

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    Comments

    Jagdis Chandra Das v. Chandra Mohan Das .
    (Jun 14, 1919)