Madhya Pradesh High Court
Food Corporation Of India And Anr. vs Munnilal Singh And Anr. on 15 July, 2002
Equivalent citations: AIR2003MP66, [2003(4)JCR320(MP)], AIR 2003 MADHYA PRADESH 66, (2003) 2 MPLJ 290, (2003) 3 CIVLJ 440, (2003) 1 JAB LJ 233, (2003) 4 JCR 320 (MP)
JUDGMENT K.K. Lahoti, J.
1. Defendants have filed present appeal challenging the judgments and decrees passed by the Courts below by which suit filed by the respondent No. 1/ plaintiff was decreed for Rs.15.400/-.
2. Short facts of the case are that plaintiff entered into an agreement with appellants for transportation of goods from Itarsi Railway station to the godowns of appellants. For this purpose respondent No.1 submitted a guarantee through respondent No.2 New Bank of India. Contention of the plaintiff was that he has completed the work as per conditions of the agreement and was entitled for refund of bank guarantee and in spite of several requests, appellants have not refunded the guarantee amount. On these grounds suit was filed for recovery of Rs.16,900/-.
3. Appellants denied the claim contending that plaintiff has committed breach of the agreement. He has not transported 120 bags of sugar in time to godown of defendant at Pipariya and there was delay in transporting the aforesaid sugar. He has misused stock of sugar resulting loss to the appellants and, in consequence, the bank guarantee was forfeited. Respondent bank contended that it was unnecessarily made party. There is defect of misjoinder of party. Apart. from this, as per condition of bank guarantee, plaintiff is not entitled for refund of amount of bank guarantee and plaintiff is under obligation to return the bank guarantee after due discharge from appellants.
4. Learned trial Court framed issues and after recording the evidence, decreed the suit.
5. It is pertinent to mention that the valuation of suit in the trial Court was Rs. 16,900/- and it was a money suit for recovery of the amount.
6. Aggrieved by judgment and decree of the trial Court, appellants preferred appeal. Plaintiff also preferred cross objection, but the learned lower appellate Court dismissed both the appeal and cross-objection, and judgment and decree passed by the trial Court was affirmed.
7. This appeal was filed on 28-10-1998. On 11-11-1998 this Court issued notice to the respondent and case was directed to be listed for hearing on admission on December, 3. 1998. Thereafter the case was listed for orders on admission and IA No. 7067/ 98 for stay, but the records of the Courts below were not received. On 28-1-1999 service report of respondent No.2 was awaited. so the case was adjourned. Thereafter the case was listed on 10-2-1999. On that date prayer for stay was rejected and it was directed that appellants will deposit the decretal amount, within a month from that date, respondent No. 1 will withdraw the amount on his furnishing security to the satisfaction of the trial Court. On 31-3-1999 the case was listed for hearing on interim application but the case was adjourned. Thereafter, the case was listed on 3-7-2002 for hearing on admission.
8. At the time of hearing, learned counsel appearing for respondent No. 1 raised a preliminary objection that present appeal has not been admitted and in view of amendment in Code of Civil Procedure, in Section 102 of the Code, this appeal is not maintainable as the valuation of this appeal and the suit is less than Rs.25.000/-.
9. Learned counsel for the appellants submits that in this appeal this Court has already applied mind and also issued notice to the respondents. In the Code of Civil Procedure, there is no provision for issuing notice to the respondent prior to framing substantial question of law and in the circumstances, the order dated 11-11-1998 will be deemed to be an order of admission of appeal.
10. Shri R. P. Jain, learned counsel present in Court, has also intervened in the case and supported the argument advanced on behalf of appellants. Learned counsel submits that the amendment in Code of Civil Procedure was made subsequently to filing of appeal. Right of appellants was available on the date when suit was filed. In the circumstances second appeal filed within time and on the date of filing of appeal, appeal was not barred. In the circumstances, this appeal is maintainable. Apart from this, learned counsel also submits that when notice has already been issued to other side and other party has appeared, the appeal may be finally heard.
11. Alternate submission made by Shri R. K. Gupta, learned counsel for the appellants, is that in the interest of Justice, this appeal may be permitted to be converted into revision.
12. To appreciate the rival contention of the parties, it is necessary to quote certain provisions of Code of Civil Procedure in this regard. Earlier S. 102 was as under:
"102. No second appeal in certain suits.--
No second appeal shall lie in any suit of the nature cognizable by Court of Small Causes, when the amount or value of the subject matter of the original suit does not exceed three thousand rupees."
By Code of Civil Procedure (Amendment) Act. 2002, Section 102 substituted as under :
"102. No second appeal in certain No second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees."
Vide notification dated 6th June, 2002 No. SO 604 (V), the Central Government appointed 1st day of July, 2002 as the date on which provisions of the Code of Civil Procedure (Amendment) Act, 2002 came into force. In the circumstances, the newly substituted Section 102 by Code of Civil Procedure (Amendment) Act, 2002 came into force with effect from 1st July 2002 and the second appeal from any decree, when the subject matter of the original suit was for recovery of money not exceeding twenty-five thousand rupees, will be barred.
13. Now the question remains whether any appeal which was pending on 1-7-2002 will be governed by the aforesaid Section 102 of the Code of Civil Procedure. Code of Civil Procedure (Amendment) Act. 2002, under Section 16 provides for repeal and savings. The relevant provision is Section 16(2)(a). which reads as under :
"16(2) Notwithstanding that the provisions of this Act have come into force or repeat under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1887,
(a) the provisions of Section 102 of the principal Act as substituted by Section 5 of this Act. shall not apply to or affect any appeal which had been admitted before the commencement of Section 5; and every such appeal shall be disposed of as If Section 5 had not come into force;"
The aforesaid clause provides that the appeals which are pending on 1-7-2002 and already admitted before commencement of Section 5 (substitution of Section 102) are to be disposed of as if Section 5 has not come into force. The word 'admitted' is not used in the Code of Civil Procedure. In Order 41 under heading "Procedure on admission of appeal", Rule 9 onwards upto Rule 37 are given. The relevant rule is Rule 11 which read as under :--
"11. Power to dismiss appeal without sending notice to lower Court. - (1) The Appellate Court 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.
(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.
(4) Where an Appellate Court, not being the High Court, dismiss an appeal under Sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment."
Though under Rule 11 word "admit" is not used but when this rule is seen with Section 100 and Order 42 of Code of Civil Procedure, position becomes clear. Section 100 reads as under :
"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 lie 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 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 reasons 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."
To appreciate S. 100{4), it is necessary to read Order 42. Rule 2 of the Code of Civil Procedure, which reads as under :--
"2. Power of the Court to direct that the appeal be heard on the question formulated by it. At the time of making an order under Rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by Section 100 and in doing so. the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of Section 100."
While giving harmonious construction to Section 100, Order 41, Rule 11. Order 42 Rule 2, Code of Civil Procedure, if all these three provisions are read together then the appeal in which a substantial question of law is not formulated, cannot be heard finally and every such appeals in which the substantial question of law is not involved, then the appeal will be dismissed under Order 41, Rule 11, Code of Civil Procedure, and then there is no question of final hearing of the appeal. The essential requirement for further proceeding when the appeal is not dismissed under Order 41, Rule 11, Code of Civil Procedure is formulation of substantial question of law. Until and unless Court is satisfied that in the appeal any substantial question of law is involved such appeal cannot be entertained. In the circumstances. if in a second appeal substantial question of law is not formulated then it cannot be heard finally. In the circumstances, the formulation of substantial question of law is sine qua non. To give effect to Section 102. newly amended, it can reasonably be held that until and unless substantial question of law is formulated, an appeal cannot, be deemed to have passed through the stage of Order 41, Rule 11, Code of Civil Procedure. In the circumstances, intention of legislature in Section 102 is that when the substantial question of law is formulated as required under Section 100. and Order 42. Rule 2 of the Code, appeal shall be deemed to be admitted. If before this. Court has Issued notice to the other side, it is in the stage of determining whether in the appeal any substantial question of law is involved or not. Thereafter, the Court will either formulate such substantial question of law and the appeal will proceed further, otherwise appeal shall be dismissed. Only after admission of appeal, provision of Rule 16 of Order 41 will apply. In the circumstances, the word 'admitted' used in Section 16(2)(a) of the Code of Civil Procedure (Amendment) Act, 2002 will mean that Court after hearing the appeal on formation of substantial question of law and is satisfied that the substantial question of law is involved and formulates such substantial question of law then only appeal would be deemed to have been "admitted". Merely the Court issued notice to other side in the process of admitting the appeal, it cannot be said that the appeal is admitted. In the circumstances, if an appeal is not admitted before 1-7-2002, the saving clause would not apply and the bar created under Section 102 of the Code of Civil Procedure would apply.
14. Another contention of the learned counsel for the appellant is for permission to convert the appeal into civil revision. To appreciate this contention, it is necessary to consider the relevant provisions for necessary contents in memo of second appeal and memo of revision. As per Sub-rule (2) of Rule 1 of Order 41. memo of appeal shall set forth, concisely and under distinct heads. the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively. In second appeal, memo of appeal shall concisely set forth substantial question of law involved in appeal. In the aforesaid circumstances, the contents for memo of appeal in second appeal are based on different requirements, while the memo of revision has to contend the facts of the case and specific averments that the Court either have exercised jurisdiction not vested in it by law or have failed to exercise a jurisdiction so vested, or have acted in the exercise of its jurisdiction illegally or with material irregularity, without such averments in memo of revision it will be incomplete, and the revisional Court may not entertain a revision. In the circumstances, memo of appeal and memo of revision are based on different requirements. In the circumstances. memo of appeal cannot be treated as a memo of revision. Similar is the position under Order 41, Rule 3 of the Code. If the memorandum of appeal is not drawn up in the manner prescribed under Rule 1 of Order 41, Code of Civil Procedure, the memo of appeal shall be rejected or returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there. In the circumstances, it will not be just and proper to convert the memo of appeal into revision. However, appellants who had filed present appeal much before of the amendment in Section 102. Code of Civil Procedure, can be permitted to withdraw this appeal with liberty to file a revision or other proceeding as they choose in accordance with law. If the appellants find that the order is revisable as per Section 115, Code of Civil Procedure, they may file such a revision before the Court by taking all the grounds as required for revision, by drafting appropriate memorandum of revision within a period of one month. In abovesaid peculiar circumstances their revision will not be dismissed on the ground of limitation and will be heard and decided in accordance with law. But this appeal cannot be permitted to convert into civil revision,
15. Learned counsel for the appellants prayed that the appellants have paid court-fee which may be refunded to them. In the Code of Civil Procedure (Amendment) Act. 2002, there is no such provision directing refund of court-fee. Even in the Code of Civil Procedure (Amendment) Act. 1999. Section 34 inserted a new Section 16 in the Court Fees Act. 1870. in which the refund of Court-fee is provided only in case when the Court refers the parties to the suit to any one of the mode of settlement of dispute referred to in Section 89 of the Code of Civil Procedure, 1908 the plaintiff shall be entitled to a certificate from the Court authorising him to receive back from the Collector, the full amount of the fee paid in respect of such plaint, but no such provision has been made when the appeal is held to be not maintainable. In the circumstances, the provision of Court-fees Act can be seen. The refund of court-fee is envisaged in Sections 13, 14 and 15 of the Court-fees Act. 1870. Under Section 13 of the Court-fees Act, the refund of court fees of memorandum of appeal can be ordered in the circumstances when an appeal or plaint, which has been rejected by the lower court on any of the grounds mentioned in the Code of Civil Procedure, is ordered to be received or if a suit is remanded in appeal, on any of the grounds mentioned in Section 35 (now Order 41, R.23 of the Code) of the same Code, for a second decision by the lower Court, the appellate Court is authorised to grant the appellant a certificate for refund. Section 14 provides refund of court-fee on application for review of judgment and Section 15 provides for refund of court-fee where the Court reverses or modifies its former decision on the ground of mistake. But, in the present case, the right of appeal which was available prior to 1-7-2002 has been taken away by the Code of Civil Procedure (Amendment) Act, 2002 without making any such provision of refund of court-fee. In the circumstances, prayer made by the learned counsel for the appellants for refund of court-fee cannot be accepted.
16. However, in the interest of justice, appellants are permitted to withdraw this appeal with a liberty to file a revision or any other proceeding which may be available to them under the law. This appeal is not maintainable and is permitted to be withdrawn with no order as to costs.