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.