Vattipalle Eswariah v. Vattipalle Rameswarayya And Others

The Chief Justice.—This Second Appeal has been placed before this Full Bench as it raises the important question whether the Court in dealing with an appeal under O. 41, R. 11 of the Code of Civil Procedure can direct that it be admitted in part only. The appeal arises out of a suit filed in the Court of the District Munsif of Nandalur for the partition of 72 items of property held in common by eight people. The first respondent in the appeal was the plaintiff. A decree for partition was granted by the District Munsif who gave his decision on the claims of the parties to the various items of property. The appellant and the third respondent appealed to the Subordinate Judge of Cuddapah. The Subordinate Judge set aside the allotments of the District Munsif and made fresh allotments. The appellant was dissatisfied with the Subordinate Judge's decision in so far as it related to items Nos. 29, 30, 31, 33, 37 and 38 of the properties and he filed the present appeal, which was placed before Gentle J. on the question of admission. The learned Judge passed an order admitting the appeal only in respect of item No. 30.

In my opinion the learned Judge erred in admitting the appeal only in part. As he considered that there was a question which called for an answer he had no discretion in the matter in view of the wording of O. 41, Rr. 11 and 12(1). R. 11 says:—

“(1) The appellate Court, after sending for the record if it thinks fit so to do, and 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 without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader.

(2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

(3) The dismissal of an appeal under this Rule shall be notified to the Court from whose decree the appeal is preferred.”

Rule 12(1) is in these words:—

“Unless the appellate Court dismisses the appeal under R. 11, it shall fix a day for hearing the appeal.”

By virtue of R. 11 the appellate Court may dismiss the appeal without serving notice on the respondent but if it does not dismiss the appeal summarily, it must, by virtue of R. 12(1), fix a day for hearing “the appeal”. There is nothing in either rule which suggests that the Court may admit the appeal in part.

This question has been raised before in this Court and also in the Calcutta, Bombay and Patna High Courts. It was raised apparently for the first time in the Calcutta High Court. In Lukhi Narain Serowji v. Sri Ram Chandra Bhuiya (1) a Bench of that Court held that it was not competent for a Court of Appeal to restrict the appeal to some specified grounds. Once the appeal is admitted all points in the memorandum are open to the appellant. This decision was affirmed in Janaki Nath Hore v. Prabhasini Dassee (2).

A Full Bench of the Bombay High Court considered the matter in Krishnaji Shrinivasa Jalvadi v. Madhusa Appansa Ladaba . The Court expressed agreement with the view of the Calcutta High Court in Lukhi Narain Serowji v. Sri Ram Chandra Bhuiya and Janaki Nath Hore v. Prabhasini Dassee (3) that it was not open to a Judge to admit an appeal and at the same time to restrict the grounds on which it was to be heard, but it was of the opinion that if the appeal involved questions which were severable the Judge could dismiss the appeal in part and admit it in part under O. 41, R. 11, “just as at the final hearing, the Court may dismiss the appeal in part and allow it in part.” There is nothing in O. 41 which permits of severance and therefore I do not share this opinion. It may be desirable to provide for such a course, but as the question has to be decided on the present wording of O. 41 in my judgment there are only two courses open to the Court, namely to dismiss or admit the appeal as a whole.

In Rekha Thakur v. Ramnandan Rai (4) the Patna High Court saw no objection, if at the time when the appeal is admitted the Court is informed that the appeal will be confined to certain specified grounds only and that the other grounds are abandoned or if it is conceded on behalf of the appellant that grounds other than those specified are not fit to be urged in appeal, to the Court making a note of the fact. Making a note of the fact is quite a different thing from passing a substantive order. Relying on the Calcutta cases the Patna High Court held that an appeal cannot be admitted on a limited ground.

There are two decisions of this Court but neither has been reported. The first decision is Nagalingam Chetti v. Pichu Chetty (5). There Seshagiri Iyer and Kumaraswami Sastri JJ. followed the decision in Lukhi Narain Serowji v. Sri Ram Chandra Bhuiya . It was pointed out that the direction to the appellant to confine his arguments to particular points while placing him at a disadvantage was calculated to interfere with the prerogative of the Bench hearing the appeal and on principle the Court thought that the restriction was unsustainable. The second case is Pyda Suryanarayanamurthy v. Vuppuloori Kamayya Sastry (6) which was decided by Wadsworth J. The learned Judge appears to have accepted the Bombay opinion that an appeal can be dismissed in part provided that there is an express order of dismissal in part. I have indicated that in my opinion this view is not justified by the terms of O. 41, Rr. 11 and 12.

I hold that the appellant is not confined in his appeal to the question raised with regard to item No. 30, but is at liberty to challenge the decree on all the grounds mentioned in his memorandum of appeal.

The Subordinate Judge has omitted to deal with item No. 30 and it is agreed that the appellant is entitled to a one-third share in this piece of property and that the first respondent to a one-sixth share. The appeal, however, fails in respect of the other items. The appellant has omitted to print the whole of the record and from the parts of the record which he has printed he is unable to show that the Subordinate Judge erred in not giving him a greater share in those items. The first respondent has filed a memorandum of objections in respect of items Nos. 32, 34, and 47, but this must also be dismissed as the printed record does not provide material for supporting the objections. The result is that the decree of the Subordinate Court will be modified by granting the appellant a one-third share in item No. 30 and the first respondent a one-sixth share in it. The value of item No. 30 is only Rs. 2-4-0. The appellant has substantially failed and must therefore pay the costs of the third respondent. There will be no order as to costs on the memorandum of objections.

Mockett J.:— I agree.

Krishnaswami Ayyangar J.:— I agree.

Decree accordingly.

N.R.R