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Husaini Begam v. Collector Of Muzaffar Nagar
Structured Summary of the Opinion (Edge, C.J.)
Factual and Procedural Background
This application is a review of a decree dismissing a first appeal as time-barred. The first appeal had been admitted to the file by Justice Tyrrell. When the appeal was heard by Justices Tyrrell and Mahmood, respondents took a preliminary objection that the appeal was time-barred. Justice Tyrrell found the appellant had shown sufficient cause for delay; Justice Mahmood disagreed and, applying s.575 of the Code of Civil Procedure and s.4 of the Indian Limitation Act, 1877, dismissed the appeal with costs and affirmed the decree below.
The appellant then brought a pauper appeal under s.10 of the Letters Patent to a Division Bench composed of Justices Straight, Brodhurst and Edge. That bench agreed with Justice Mahmood and dismissed the appeal. The present application asks that the Division Bench review that dismissal and its decree.
There was also a preliminary procedural objection by some respondents that the review application was insufficiently stamped (not stamped with one-half the fee leviable on the first appeal). The Court overruled that objection, applying art.5 of Schedule I of the Court-fees Act and holding that the fee to be considered is the fee leviable on the memorandum of appeal in which the decree sought to be reviewed was passed.
Legal Issues Presented
- Whether s.575 of the Code of Civil Procedure applies to the present case (i.e., whether s.575 governs the situation where a preliminary objection is taken that an appeal is time-barred and the Bench of two Judges is divided).
- Whether s.27 of the Letters Patent (providing that, where a Division Bench is equally divided, the opinion of the senior Judge shall prevail) governs the procedure in such a case, or whether it has been superseded by s.575 (and by extension s.647).
- Whether the application for review was properly stamped and, consequently, whether a preliminary objection on court-fees should bar the review (the Court addressed this procedural point and overruled the objection).
Arguments of the Parties
Appellant's Arguments (represented by Pandit Sundar Lal)
- Contended that the Division Bench that decided the appeal to the present Court omitted to consider s.27 of the Letters Patent, and that if s.27 had been applied the appeal would have prevailed.
- Argued that the central question was whether Justices Tyrrell and Mahmood should have proceeded to hear the first appeal on the merits (since Justice Tyrrell—being senior—had held the appellant showed sufficient cause for delay), rather than dismissing it as time-barred under s.575.
- Maintained that s.575 of the Code of Civil Procedure did not apply to the present factual situation and therefore s.27 of the Letters Patent should govern.
Respondents' Arguments (represented by Mr. Ross and Pandit Bishambhar Nath)
- Contended that s.575 of the Code of Civil Procedure had superseded s.27 of the Letters Patent insofar as the High Court's appellate jurisdiction is concerned.
- Relied on two reported authorities (Appaji Bhivrav v. Shivlall Khubchand and Gassami Sri ... v. Purshotam Gassami) and on s.647 of the Code of Civil Procedure to support the submission that s.575 applies and displaces the Letters Patent provision where applicable.
- Raised a preliminary objection that the review application was insufficiently stamped—specifically, that it lacked half the fee leviable on the first appeal—but this objection was overruled by the Court applying art.5 of Schedule I of the Court-fees Act.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Appaji Bhivrav v. Shivlall Khubchand (Bombay case) | Held that the corresponding section of the Bombay Letters Patent was superseded by s.575 of Act X of 1877 so far as cases to which s.575 applied; and that s.575 was extended to miscellaneous proceedings of the nature of appeals by s.647. | The Court acknowledged and accepted the reasoning of the Bombay decision as correct in cases where s.575 properly applies, agreeing that s.575 can supersede Letters Patent provisions but only where it properly and naturally applies. |
| Gassami Sri ... v. Purshotam Gassami (Calcutta case) | The Calcutta Court agreed with the Bombay High Court's view that s.575 supersedes the Letters Patent provision in cases where s.575 is applicable. | The opinion notes that the Calcutta decision aligned with the Bombay decision; the Court observed that in both reported cases s.575 was applicable to the facts. The present Court distinguished the present case as one where s.575 did not properly apply. |
Court's Reasoning and Analysis
The Court analysed the dispute primarily by focusing on whether s.575 of the Code of Civil Procedure applied to the facts of the present case. The Court proceeded in several analytical steps:
- It described the well-established practice of the Court that, when an appeal is called on for hearing, a respondent may take a preliminary objection that the appeal is time-barred. Such preliminary objections are ordinarily decided before any substantive hearing of the appeal; if sustained, there is in truth no appeal before the Court to be heard on the merits.
- It examined the text and structure of s.575. The Court observed that the second paragraph of s.575 provides that if there is no majority concurring in a judgment varying or reversing the decree appealed against, the decree shall be affirmed. The Court reasoned that this paragraph presupposes that the Bench can produce a judgment varying or reversing the decree; where there is no appeal before the Court to be heard (because it is time-barred), there can be no such judgment and therefore no basis for affirmance under s.575.
- The Court considered the respondents' submission that the third paragraph of s.575 imposes a duty on differing Judges to act (by reference to a larger Bench) but rejected this reading. The Court held that the third paragraph applies only where the Bench differ on a point of law, and does not cover cases where the disagreement is over a question of fact (for example, whether the cause of delay was in fact proved).
- The Court illustrated the limits of s.575 by hypothetical examples (e.g., an application under s.545 where two Judges differ on whether "substantial loss may result" if a stay is not granted). In many such situations, s.575 could not operate to produce any order and would create a deadlock unless s.27 of the Letters Patent operated to give the senior Judge's view precedence.
- Drawing these points together, the Court concluded that s.27 of the Letters Patent is displaced by s.575 only in those cases to which s.575 properly and naturally applies. The present case, the Court held, is not one of those cases where s.575 applies.
- On that basis the Court concluded that on the preliminary objection heard by Justices Tyrrell and Mahmood, Justice Tyrrell's view (that sufficient cause for delay had been shown) should have prevailed under s.27. The failure to follow s.27 resulted in a mistake or error apparent on the face of the record sufficient to justify review of the Division Bench's decree.
- The Court also dealt with the stamping objection: it overruled the respondents' submission about insufficient stamping, applying art.5 of Schedule I of the Court-fees Act and holding the relevant fee is that leviable on the memorandum of appeal in which the decree sought to be reviewed was passed.
- Because counsel did not seek further hearing, the Court proceeded to dispose of the reinstated appeal: it set aside the decree appealed against, reinstated the first appeal on the file of pending appeals, and directed that it be heard and decided according to law. The costs of the review application and of the appeal to the Division Bench were ordered to abide the result of the first appeal.
Holding and Implications
Core Holding: The Court granted the application for review, set aside the decree dismissing the first appeal as time-barred, and ordered that the first appeal be reinstated and heard on the merits.
The direct consequences of the decision for the parties are:
- The decree which dismissed the first appeal as time-barred is set aside.
- The first appeal is reinstated on the file of pending appeals and is to be heard and decided according to law.
- The costs of the review application and of the appeal to the Division Bench are to abide the result of the first appeal (i.e., costs to be decided after determination of the first appeal).
Broader implication as to precedent: The Court clarified the principle that s.27 of the Letters Patent is displaced by s.575 of the Code of Civil Procedure only in cases to which s.575 properly applies. The opinion emphasises limiting s.575 to situations where its language naturally fits and warns of procedural deadlocks if s.575 is stretched beyond its proper scope. The opinion did not purport to lay down a novel general rule beyond this interpretive conclusion.
Judges concurring: Straight, J. and Brodhurst, J. (both concurred with Edge, C.J.).
Edge, C.J:— This application for a review of judgment arises in this way. The first appeal in the suit was admitted to the file of first appeals by my brother Tyrrell. When the first appeal came on to be heard by my brother Tyrrell and my brother Mahmood, a preliminary objection on behalf of the respondents to the appeal being heard, that the appeal was time-barred, was taken. My brother Tyrrell was of opinion that the appellant had shown sufficient cause for not presenting the appeal within the prescribed time. My brother Mahmood was of the contrary opinion; and applying the provisions of s. 575 of the Code of Civil Procedure and s. 4 of the Indian Limitation Act, 1877, to the case, the appeal was dismissed with costs as being time-barred. By the decree which was drawn up, the appeal was dismissed with costs, and the decree from which that appeal had been brought was affirmed.
From that decree, or rather from the judgment or order of my brother Mahmood, an appeal was brought by the appellant under s. 10 of the Letters Patent which apply to this Court. The last-mentioned appeal, which was a pauper appeal, was heard by my brother Straight, my brother Brodhurst, and me, and we agreeing with the judgment of my brother Mahmood that the appellant had not shown sufficient cause for not presenting the first appeal within time, dismissed, the appeal to us. This application to us is to review our decree.
Pandit Sundar Lal kindly undertook at our request to assist the Court by arguing the case for the applicant. Pandit Bishambhar Nath for some of the respondents took the preliminary objection that the application for review was insufficiently stamped, in that it was not stamped with one-half the fee which was leviable on he first appeal. We overruled that objection, holding that as the application for review had been presented before the ninetieth day from the date of the decree which we were asked to review, art. 5 of sch. i of the Court-fees Act applied, and that for the purpose of ascertaining the court-fee to be paid on an application to review a decree passed in appeal, the fee which must be considered was the fee leviable on the memorandum of the appeal in which the decree sought to be reviewed was passed, and not the fee which was leviable on the plaint, or, as in this case, on the first appeal.
Pandit Sundar Lal contended that the appeal which we had decided must have prevailed if we had not omitted to consider the provisions of s. 27 of the Letters Patent, and that the question which we ought to have decided was not that which we did decide, namely, that the appellant had not shown sufficient cause for not presenting the first appeal within the prescribed time, but the question whether or not my brother Tyrrell and my brother Mahmood should not have proceeded to hear the first appeal on the merits, as my brother Tyrrell, who was the senior Judge, had decided that the appellant had shown sufficient cause for not presenting the first appeal within time. He contended that s. 575 of the Code of Civil Procedure did not apply to a case like the present, and consequently that s. 27 of our Letters Patent governed the procedure. On the other hand, Mr. Ross for some of the respondents and Pandit Bishambhar Nath for the others, contended that s. 575 of the Code of Civil Procedure had superseded s. 27 of the Letters Patent so far as our appellate jurisdiction is concerned. They relied on Appaji Bhivrav v. Shivlall Khubchand and Gassami Sri 180 Sri Gridhariji Maharaj Tickait v. Purshotam Gassami and s. 647 of the Code of Civil Procedure.
In the Bombay case, the Court held that the corresponding section of their Letters Patent was superseded by s. 575 of Act X of 1877, so far as regards cases to which s. 575 was applicable, and that s. 575 was extended to miscellaneous proceedings of the nature of appeals by s. 647, with which decision I entirely agree. In the Calcutta case, the Court agreed with the view taken by the Bombay High Court in Appaji Bimrav v. Shivlall Khubchand . I may remark that in each of these cases, s. 575 of the Code of Civil Procedure was applicable.
The material words in s. 27 of our Letters Patent are, “and if such Division Bench is composed of two or more Judges, and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges if there shall be a majority; but if the Judges should be equally divided, then the opinion of the senior Judge shall prevail.”
If s. 27 of our Letters Patent applied, my brother Tyrrell and my brother Mahmood should have proceeded to hear the appeal and should not have dismissed the appeal on the ground that it was beyond time.
The real question for us to decide is whether s. 575 of the Code of Civil Procedure applies to this case.
According to the well established practice of this Court, it is pen to a respondent, when an appeal is called on for hearing, to take the preliminary objection to the appeal being heard, that the appeal was time-barred when the memorandum of appeal was presented to the Court for admission on the file, and such preliminary objection is decided upon before the bearing of the appeal is proceeded with. In such cases there is in fact no hearing of the appeal unless and until the Court has overruled such preliminary objection. When such preliminary objection is taken, the question is whether there is before the Court an appeal which con, having exclusive regard to the provisions of the Indian Limitation Act, be heard. When the preliminary objection is sustained, it cannot be said that the appeal has been heard or decided. In such a case, all that can be decided is that there is no appeal before the Court which the Court can hear or decide.
An examination of s. 575, in my opinion, shows that section cannot apply to a case like the present. The second paragraph of that section provides that “if there be no such majority which concurs in a judgment varying or reversing the decree appealed against, such decree shall be affirmed.” In such a case as the present, unless s. 27 of our Letters Patent applies, there could be no judgment at all varying, reversing or affirming the decree. It could not possibly have been the intention of the Legislature that a Court should decree that a decree against which there was by reason of the Indian Limitation Act no appeal for the Court to hear, should he affirmed; in other words, that a Court which, by reason of the Indian Limitation Act, had no jurisdiction to hear the appeal, should nevertheless affirm the decree below.
It was contended on behalf of the respondents that in such a case it would be the duty of the Judges differing to act in accordance with the provisions of the third paragraph of s. 575. I do not see that any such duty is imposed on Judges differing, and if there is any such duty, that paragraph applies only to cases in which “the Bench differ in opinion on a point of law,” in which case only can the Bench, differing in opinion, make such a reference.
Assume, for the purposes of argument, that in the present case my brother Tyrrell and my brother Mahmood were agreed that the cause alleged by the appellant was, if proved, sufficient cause for the appellant not presenting the appeal within the prescribed time, but that whilst my brother Tyrrell was of opinion that the cause alleged was proved in fact, my brother Mahmood was of opinion that it was not in fact proved. In that event, no such reference, as is provided for by the third paragraph of s. 575 could be made, as the Bench had not differed on a point of law.
There are many cases to which, in my opinion, s. 575 could not apply, even with the aid of s. 647. For example, suppose that an application is made to this Court under the first paragraph of s. 545 of the Code of Civil Procedure, and the two Judges, constituting the Bench before which the application is heard, differ in opinion as to whether “substantial loss may result to the party applying for stay of execution unless the order is made.” What is to happen unless s. 27 of our Letters Patent applies? If s. 27 does not apply, the application could neither be rejected nor granted there would be no decree or order to affirm; and there would be no power to refer the question under the third paragraph of s. 575; in fact, the Court, in the exercise of its jurisdiction under s. 545 of the Code of Civil Procedure, would be brought to a dead-lock.
Similar difficulties might arise on an application for a certificate to appeal to Her Majesty in Council and in many other cases.
I am of opinion that s. 27 of our Letters Patent is superseded in those cases only to which s. 575 of the Code of Civil Procedure properly, and without straining language, applies, and that this is not one of those cases. I am consequently of opinion that, on the preliminary objection to the hearing of the first appeal which was taken before my brother Tyrrell and my brother Mahmood, the opinion of my brother Tyrrell should have prevailed, and the hearing of the appeal should have proceeded on the merits according to law. I am also of opinion that, under the circumstances, there is a mistake or error apparent on the face of the record, and that there is sufficient reason for our granting this application for review of our decree and that we should grant this application.
As the counsel and vakils in the case do not desire to be further heard on the re-hearing of the appeal to which this order of mine applies, we now proceed to dispose of the appeal.
For the reasons already stated, I am of opinion that the decree appealed against should be set aside, and that the first appeal in this case should be reinstated on the file of pending appeals, and should be heard and decided according to law, and that the costs of this application and of the appeal to us should abide the result of the determination of the first appeal.
Straight, J.:— I agree.
Brodhurst, J.:— I concur.
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