Andhra HC (Pre-Telangana)
Parbanna (Deceased By L.R'S.) And Ors. vs Veershetty on 1 November, 2002
Equivalent citations: AIR2003AP191, 2002(6)ALT389, AIR 2003 ANDHRA PRADESH 191, (2002) 6 ANDH LT 389 (2003) 2 INDLD 472, (2003) 2 INDLD 472
ORDER P.S. Narayana, J.
1. This second appeal was preferred under Section 100 of the Civil Procedure Code against the judgment and decree of the Additional District Judge, Medak at Sangareddy in A.Section 23 of 1995 modifying the judgment and decree of the District Munsif, Zaheerabad delivered in O.S. 225 of 1998.
2. This appeal was filed with an application to condone the delay of 285 days in C.M.P. No. 16332 of 2002. This Court allowed the said condone delay petition. Hence, the matter has been coming up today before this Court for admission.
3. Sri K. Subramanyam Reddy, learned senior counsel representing the appellants submits that the second appeal was filed with an application to condone the delay in filing this second appeal; that unless and until the application for condonation of delay is condoned, the second appeal cannot be registered and hence in such a case there is no question of following the procedure laid down under Order 41, Rule 9, C.P.C. as amended by the Code of Civil Procedure Amendment Act. 1999, Act 46 of 1999. The learned counsel for the appellants draws my attention to the decision in Jnandasundari v. Madhab Chandra. AIR 1932 Cal 482 and in Manthena Ramanamma v. SPL. Tahsildar, AIR 1976 Andh Pra 81 and also, in Paramasivudu v. Subbanna, AIR 1919 Mad 17. The learned counsel for the appellants draws my attention to Order XLI, Rule 1, Order XLI. Rule 3-A. Order 42. Rule l and also Section 100 of the Code of Civil Procedure, The learned counsel also contends that in the case of presentation of an appeal, whether it is a second appeal or a first appeal, when presented with an application for condonation of delay, the question of following the procedure laid down under the amended provision of Order XLI, Rule 9, C.P.C. does not arise. The learned counsel for the appellants also draws my attention to the characteristics of a regular first appeal and also the peculiar features of a second appeal. The learned counsel further contends that from a close reading of the relevant provisions of C.P.C. it is clear that under the main provision of Section 100. C.P.C. the right and the power of High Court to entertain a second appeal is no way affected by the Introduction of Order XLI. Rule 9, C.P.C. by Act 46 of 1999.
3A. Sri K. Govardhana Reddy, representing the respondent, requests time for filing counter in the matter on the ground that he had already entered appearance. Sri Govardhan Reddy further submits that in view of the different provisions of C.P.C., the procedure applicable in the case of first appeals has to be followed even in the case of second appeals.
Heard both sides.
4. The second appeal has been coming up for admission before this Court. Order XLI, Rule 9, C.P.C. as substituted by Act 46 of 1999 reads as follows :--
"9, Registry of memorandum of appeal:--(1) The Court from whose decree an appeal lies shall entertain the memorandum of appeal and shall endorse thereon the date of presentation and shall register the appeal in a book of appeal kept for that purpose.
(2) Such book shall be called the register of appeal."
5. It is needless to say that Order XLL C.P.C. deals with appeals from the original decrees. Order XLII. C.P.C, deals with ap-
peals from the appellate Court decrees. Or der XLII. Rule 1, C.P.C. dealing with the pro cedure specifies that the rules of Order XLI, C.P.C. shall apply, so far as may be, to ap peals from appellate decrees. The words "so far as may be" assume importance. In view of the said wording, it cannot be said that all the rules of Order XLI, C.P.C. can be made applicable In the case of second appeals and they are applicable only to the extent "so far as may be".
6. Section 100, C.P.C. deals with second appeals Section 100, C.P.C. reads:
"100. Second appeal:-- (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may be under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve any such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reason to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
7. Sub-section (1) of Section 100, C.P.C. under which "an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court if the High Court is satisfied that the case involves a substantial question of law" is very relevant and it is needless to say that every second appeal is presented to the High Court under Section 100 of C.P.C. only. That being so, it cannot be said that Order XLI, Rule 9, C.P.C. as amended by Act 46 of 1999 in any way comes in the way of the High Court either in entertaining a second appeal or operating as a bar to the maintainability of the second appeal, by straightway presenting the second appeal to the High Court under Section 100, C.P.C. Thus it is made clear that as far as second appeals are concerned the question of applying Order 41, Rule 9, C.P.C. does not arise. In my considered opinion the said provision is not applicable in the case of second appeals. Hence irrespective of the fact whether the second appeal is presented with an application to condone the delay or whether the second appeal is presented to the High Court, inasmuch as Order 41, Rule 9, C.P.C. as amended by Act 46 of 1999 is not applicable to the second appeals, the High Court is bound to entertain the second appeal in view of the language of Section 100, C.P.C. and further proceed to decide the second appeal in accordance with the provisions of C.P.C.
8. No doubt, certain contentions are advanced before this Court relating to Order 41, Rule 9, C.P.C. Whether the said provisions have to be considered as mandatory or directory. Since these questions are not germane to the present litigation, I am not inclined to express any opinion relating to these aspects. The Registry of this Court is directed to circulate this order to all the first appellate Courts in the State.
Let the office list the second appeal for admission after two weeks.