Madras High Court
Gnanasoundari vs G.Vijayakala
Author: R.Subramanian
Bench: R.Subramanian
CMP.No.11577 of 2022
THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Delivered on
25.09.2023 20.10.2023
CORAM:
THE HONOURABLE MR JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MRS JUSTICE R.KALAIMATHI
C.M.P.Nos.11577 of 2022, 9810 & 9808 of 2020, 21161, 21162, 21163 &
21165 of 2023
and
Cros.Obj.No.60 of 2022 in
A.S.No.812 of 2020
1.Gnanasoundari
2.G.Vijaya Kumar ...Petitioners
Vs.
1.G.Vijayakala
2.L.Tamilselvi
3.G.Prabavathy
4.K.Jayachandran
5.Panneerselvan
6.Parimala
7.Amsa ...Respondents
Prayer: Civil Miscellaneous Petition filed under Section 151 of C.P.C.,
seeking to the 2nd petitioner / 2nd respondent to sell 2.00 acres of land in
Survey No.41, Sub-divided as Survey No.41/1B (part of item 9 in Schedule
A-1) which is subject matter of the suit in O.S.No.13 of 2013 on the file of
the Additional District Judge, Tiruvallur.
1/31
https://www.mhc.tn.gov.in/judis
CMP.No.11577 of 2022
For Appellant : Mr.K.S.V.Prasad
For Respondents : Mr.M.S.Subramanian for R1 & R2
Mr.S.Gunaseelan for R3
Mr.A.R.Suresh for R4
R5 - No Appearance
R6 to R8 - Notice dispensed with
Mr.S.Parthasarathy
Senior Counsel - Assisting the Court
Mr.S.Sivashanmugam for MBA
Mr.R.Krishnakumar or MHAA
ORDER
(Order of the Court was made by R.SUBRAMANIAN, J.) When these petitions were listed before us, the learned counsel for the appellant Mr.K.S.V.Prasad sought to give up respondents 4 to 8 in the appeal on the ground that he had not sought for partition of 'E' Schedule properties, which have been purchased by the said respondents. This was objected to by the learned counsel for the contesting respondents, Mr.M.S.Subramanian, pointing out that the plaintiff / appellant had, in the plaint, alleged that the value of the 'E' Schedule property must be taken into account while dividing the properties. When we pointed out that giving up 2/31 https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022 the respondents 4 to 8 cannot be without prejudice to the contentions of the appellants, the learned counsel would submit except the 4th respondent in the appeal, all others have remained exparte before the Trial Court and therefore, notice to them, in the appeal, may be dispensed with under the proviso to Order 41, Rule 14(1) of C.P.C., inserted by way of Madras Amendment with effect from 17.11.1976.
2.It was pointed out at the Bar that the Madras Amendmennt, which was introduced on 17.11.1976 runs counter to the provisions of the Code as amended by Act, 104 of 1976. Therefore, by virtue of Section 97(1) of the Amending Act namely, Act 104 of 1976, the said proviso introduced by way of the Madras Amendment, which is inconsistent to Sub-Rule 4, Rule 14 of Order 41 would stand repealed. Therefore, the power of the Court to dispense with notice to persons, who remained exparte before the Trial Court in the main appeal itself is doubtful.
3.Since we also entertained a doubt regarding the inconsistency or otherwise of the provisions as well as the date from which, they were 3/31 https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022 introduced and considering the importance of the issue, we had issued notices to all the major Bar Associations namely, Madras High Court Advocates' Association, the Madras Bar Association, the Women Lawyers' Association and the Law Association, requiring them to assist the Court in resolving the issue. We had also requested Mr.S.Parthasarathy, learned Senior Counsel to assist us in resolving the issue.
4.Upon service of notice as directed by us, representatives of various Law Associations had made their submissions on 25.09.2023. Upon hearing the learned counsel, who had appeared for the parties, respective Bar Associations and the Amicus, we find that the following points emerge for determination:-
i) Whether the proviso to Sub-Rule 1, Rule 14 of Order 41 of C.P.C., is inconsistent with Sub-Rule 4, Rule 14 of Order 41 inserted by way of Act, 104 of 1976.
ii) If our answer to Point No.1 is in the affirmative, what will be the effect of Section 97(1) of Act 104 of 1976 on the Proviso.4/31
https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022
5.Before elaborating further on this issue, it will be of use to extract the relevant provisions of Order 41, Rule 14 before its amendment by Act, 104 of 197, which reads as follows:-
"R.14. Publication and service of notice of day for hearing appeal.
(1) Notice of the day fixed under rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the Appellate Court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice.
(2) Appellate Court may itself cause notice to be served.- Instead of sending the notice to the Court from whose decree the appeal is preferred, the Appellate Court may itself cause the notice to be served on the respondent or his pleader under the provisions above referred to."
6. By way of Section 87(6) of the Amending Act, 104 of 1976, Sub-Rule 3, 4 & 5 were introduced and after the amendment, Rule 14 of Order 41 reads as follows:-
5/31
https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022 "(3) The notice to be served on the respondent shall be accompanied by a copy of the memorandum of appeal.
(4) Notwithstanding anything to the contrary contained in sub-rule (1), it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the Appellate Court, unless he has appeared and filed an address for the service in the Court of first instance or has appeared in the appeal.
(5) Nothing in sub-rule (4) shall bar the respondent referred to in the appeal from defending it."
7.The proviso to Sub-Rule 1 of Rule 14 was inserted by way of Madras Amendment in exercise of powers under Section 122 of C.P.C. The said proviso reads as follows:-
Madras (Pondicherry) "Insert the following as proviso to sub-rule(1):
"Provided that the Appellate Court may dispense with service of notice on the respondents, who have remained absent, against whom the suit has proceeded exparte in the Court from whose decree the appeal is preferred or who have been declared absent by the said Court. (P.Dis.No.221 of 1976) - T.N.Gaz, 17.11.1976, Pt.III, S.2 p.108)."6/31
https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022
8.The Government Order inserting the proviso in G.O.Ms.No.153 was issued on 01.09.1976 and it reads as follows:-
7/31
https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022 8/31 https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022
9.By virtue of the Madras Amendment, the Appellate Court is empowered to dispense with notice in the main appeal itself, on the respondents, who have remained absent and against whom the suit has proceeded exparte before the Trial Court. Sub-Rule 4 of Rule 14 of Order 41 inserted by Amending Act, 104 of 1976 limits the power of the Court to dispense with notice on the respondents, who have remained exparte before the Trial Court only in proceedings incidental to the appeal and not in the main appeal itself. To this extent, there is definitely an inconsistency between the Madras Amendment and the Central Enactment. Therefore, we have necessarily to conclude on Point No.1 that there is an inconsistency between the Madras Amendment and the Central Enactment.
10.Adverting to the second point, Section 97(1) of Act 104 of 1976 provides for repeal and savings. Section 97(1) reads as follows:-
"97.Repeal and savings.-
(1) Any amendment made, or any provision inserted in the principal Act by State Legislature or a High Court before the commencement of this Act shall except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed."9/31
https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022
11.Of course, Sub-section 2 of Section 97 makes certain exceptions to the general repeal made by Sub-section 1. The provision under consideration does not come within the exceptions. The exception relating to Section 97 of the Amending Act is found in Clause 2 of the Sub-section 2 and it reads as follows:-
"The provisions of Order 41 of the 1st schedule as amended by Section 97 of this Act shall not apply to or affect any appeal pending immediately before the commencement of the said Section 97 and every such appeal shall be disposed of as if the said Section had not come into force."
12.This exception carved out cannot be applied to the appeal before us. Therefore, the effect of Section 97(1) is that any High Court amendment or a State Amendment made prior to commencement of Act, 104 of 1976 will stand repealed, if it is found to be inconsistent with the amended provisions. The date of commencement therefore, assumes significance. Act 104 of 1976 became operative with effect from 10.02.1977 and it received the President's assent on 09.09.1976. The Madras 10/31 https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022 Amendment was introduced on 01.09.1976 vide G.O.Ms.No.153 and published in the Tamil Nadu Public Gazette on 17.11.1976 and it was made operative from 17.11.1976.
13.During the course of arguments, a reference was made to Article 254 of the Constitution of India and it was pointed out that if a existing law made by the State Legislature relating to a subject in List 3 of Schedule 7 to the Constitution of India becomes inconsistent with a subsequently enacted Central Law it would be void to the extent of the inconsistency and it would be still open to the State Legislature to re-enact the law and reserve it for President's assent. Upon such assent being granted, the State law would prevail in the State de hors the inconsistency with the Central Law.
14.Reliance was also placed, in respect of the above preposition, on the judgment of the Hon'ble Supreme Court in P.T.Rishikesh and another Vs. Salmabegum reported in 1995 (4) SCC 718. In the said judgment, the Hon'ble Supreme Court had examined the effect of the U.P. 11/31 https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022 Civil Laws (Reforms and Amendment) Act, 1976 and after referring to the dates on which, the two laws namely, Code of Civil Procedure (Amendment), Act 104 of 1976 & U.P. Civil Laws (Reforms and Amendment) Act, 57 of 1976 were made, and the dates on which the President's assent was given to both these enactments and the date on which, they were brought into force, the Hon'ble Supreme Court pointed out the difference between the date on which, the law was made and the date on which, the law commenced. The Hon'ble Supreme Court also noted that repugnancy should be decided on the date on which, the law was made and not on the date on which, the law commenced.
15.The Hon'ble Supreme Court also pointed out that since the U.P.Civil Laws (Reforms and Amendment) Act, 1976 which was enacted on 13.12.1976 was reserved for consideration, it received Presidents' assent on 13.12.1976 and was published in the Gazette on 31.12.1976 and brought into force with effect from 01.01.1977. On the other hand, the Amending Act 104 of 1976 received the President's assent on 09.09.1976 and was published in the Central Gaztette on 10.12.1976 and became operative with 12/31 https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022 effect from 01.02.1977. The Hon'ble Supreme Court concluded that the date of President's assent would be date on which, the law is made and held that since the U.P. law received the President's assent on 13.12.1976 i.e., after 09.09.1976, the date on which, Act 104 of 1976 received the President's assent, the same would be later law and therefore, it would prevail in the state of Uttar Pradesh, despite being inconsistent of the provisions of the Act 104 of 1976. In doing so, the Hon'ble Supreme Court observed as follows:-
“17.Section 97(1), with a marginal note “repeal and savings”, envisages that any amendment made or any provision incorporated in the principal Act by a State Legislature or a High Court before the commencement of the Central Act shall, except insofar as amendment or provision is consistent with the provisions of the principal Act as amended by the Central Act, stand repealed. The emphasis as rightly stressed by Shri Parag is “any amendment to CPC made by the State Legislature or a provision by the High Court” before the ‘commencement’ of this Act stood repealed. It is to be noted here that the Central Act is an Amending Act, not a repealing and consolidating statute to supplant the principal Act, namely, Act 5 of 1908. Since CPC is a concurrent subject, Parliament and the Legislature of a State or a High Court in 13/31 https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022 respect of orders in the Schedule are competent to enact or amend CPC respectively. In fact several local amendments made to CPC before the commencement of the Central Act do exist. Pursuant to the recommendation made by the Law Commission of India to shorten the litigation, Parliament made the Central Act to streamline the procedure. It is true that inconsistency in the operation of the Central and the State law would generally arise only after the respective Acts commenced their operation. Section 3(13) of the General Clauses Act defines ‘commencement’ to mean the day on which the Act or Regulation comes into force. The Founding Fathers were cognizant to the distinction between making the law and commencement of the operation of the Act or Regulation. Article 254, clauses (1) and (2) and in a way Section 97 of the Central Act are also alive to the distinction between making the law and commencement of the law. In Collins English Dictionary, at p. 889 ‘make’ is defined to mean, to “cause to exist”, “to bring about” or “to produce”. In Black's Law Dictionary, 6th Edn. at p. 955, ‘make’ is defined as “to cause to exist … to do in form of law; to perform with due formalities; to execute in legal form; …”. The verb ‘made’ in Article 254 brings out the constitutional emanation that it is the making of the law by the respective 14/31 https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022 constituent legislatures, namely, Parliament and the State Legislature as decisive factor. Commencement of the Act is distinct from making the law. As soon as assent is given by the President to the law passed by Parliament it becomes law. Commencement of the Act may be expressed in the Act itself, namely, from the moment the assent was given by the President and published in the Gazette, it becomes operative. The operation may be postponed giving power to the executive or delegated legislation to bring the Act into force at a particular time unless otherwise provided. The Central Act came into operation on the date it received the assent of the President and shall be published in the Gazette and immediately on the expiration of the day preceding its commencement it became operative. Therefore, from midnight on the day on which the Central Act was published in the Gazette of India, it became the law. Admittedly, the Central Act was assented to by the President on 9-9-1976 and was published in the Gazette of India on 10-9-1976. This would be clear when we see the legislative procedure envisaged in Articles 107 to 109 and assent of the President under Article 111 which says that when a Bill has been passed by the House of the People, it shall be presented to the President and the President shall either give his assent to the Bill or withhold 15/31 https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022 his assent therefrom. The proviso is not material for the purpose of this case. Once the President gives assent it becomes law and becomes effective when it is published in the Gazette. The making of the law is thus complete unless it is amended in accordance with the procedure prescribed in Articles 107 to 109 of the Constitution. Equally is the procedure of the State Legislature. Inconsistency or incompatibility in the law on concurrent subject, by operation of Article 254, clauses (1) and (2) does not depend upon the commencement of the respective Acts made by Parliament and the State Legislature. Therefore, the emphasis on commencement of the Act and inconsistency in the operation thereafter does not become relevant when its voidness is required to be decided on the anvil of Article 254(1).
Moreover, the legislative business of making law entailing with valuable public time and enormous expenditure would not be made to depend on the volition of the executive to notify the commencement of the Act. Incompatibility or repugnancy would be apparent when the effect of the operation is visualised by comparative study.”
16.The Hon'ble Supreme Court also pointed out that if a subsequently made Central Law or an Amendment made by the Parliament 16/31 https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022 to the existing law is found to be inconsistent with the said law which had received the assent of the President, both the Central Law and the State Law cannot co-exist and the state law would became void to the extent of inconsistency unless the State Legislature re-enacts the law and under Article 254 (1) of the Constitution of India and reserve it for the assent of the President and such law receives the assent of the President. The contention that it will be the commencement of the law that would matter was rejected by the Hon'ble Supreme Court.
17.In the case on hand, the Madras Amendment is not a law made by the State Legislature, it is an amendment by the High Court in exercise of the power conferred on it under Section 122 of C.P.C., which reads as follows;-
"122.Power of certain High Courts to make rules.-
High Courts (not being the Court of a judicial Commissioner)) may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to 17/31 https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022 all or any of the rules in the First Schedule."
Therefore, the repugnancy test may not be the correct test.
18.We will have to examine the issue on the language of Section 97(1) and the effect of the said provision. Section 97(1) is clear in its terms. It lays down that any amendment carried out by a High Court in exercise of the powers under Section 122 before the commencement of Act 104 of 1976 shall stand repealed, if they are found to be inconsistent with the provisions of the Principal Act namely, Act 5 of 1908 as amended by this Act namely Act 104 of 1976. We have extracted the provisions of Rule 14 of Order 41 as they stood prior to and after Act, 104 of 1976. We have also held that the proviso inserted by the High Court with effect from 17.11.1976 vide G.O.Ms.No.153 dated 01.09.1976 runs inconsistent with Sub-Rule 4 of Rule 14 of Order 41, which was introduced by Act, 104 of 1976. Therefore, in terms of Section 97, the proviso would stand repealed.
19.It will also be useful to refer to the some of the judgments that considered the effect of Section 97(1) of Act 104 of 1976. In Aboobacker Babu Haji and others Vs. Edakkode Pathummakutty Umma and others 18/31 https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022 reported in AIR 2002 Ker 313, a Division Bench of the Kerela High Court had considered the effect of Section 97(1). After referring to the judgment of the Hon'ble Supreme Court in P.T.Rishikesh and Another Vs. Salma Begum refered to supra the Division bench had held that the test of repugnancy under Article 254 would not apply to a Rule made by the High Court in exercise of its powers under Section 122. It also referred to the judgment of the Hon'ble Supreme Court in Ganpat Vs. II-Additional District Judge, Balia reported in AIR 1986 SC 589 wherein, the scope of Section 97(1) was examined in detail. Finally, the Division Bench ruled that though State or High Court have the power to amend the Sechedule to the Code of Civil procedure, amendments made prior to commencement of Act 104 of 1976 would stand repealed, if they are found to be inconsistent with the provisions of Act 5 of 1908 as amended by Act 104 of 1976. The Bench however, held that since the amendments to the Order 34 were made by the Kerela High Court after the commencement of Act 104 of 1976, they would not be hit by Section 97(1) of the Amending Act, 104 of 1976.
20.In Ganpat Vs. II-Additional District Judge, Balia reported in 19/31 https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022 AIR 1986 SC 589, the Hon'ble Supreme Court considered the effect of Section 97(1) of the Amending Act and it held as follows:-
"The principal Act referred to in section 97 is the Code. By the Amending Act several amendments were carried out to the Code on the basis of the recommendations of the Indian Law Commission which had considered extensively the provisions of the Code before it submitted its 54th Report in 1973. By the time the Law Commission took up for consideration the revision of the Code, there were in force in different parts of India several amendments to the Code which had been effected by the State Legislatures or by the High Courts. The subject of civil procedure being in Entry 13 of List III of the Seventh Schedule to the Constitution, it is open to a State Legislature to amend the Code insofar as its State is concerned in the same way in which it can make a law which is in the Concurrent List. Section 122 of the Code empowers the High Courts to make rules regulating the procedure of civil courts subject to their superintendence as well as rules regulating their own procedure. These rules no doubt must not be inconsistent with the body of the code. But they can amend or add to rules in the First Schedule to the Code. Section 129 of the Code which is overlapping on section 122 of the Code to some extent confers power on the Chartered 20/31 https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022 High Courts to make rules as to their original civil procedure. As mentioned earlier, before the Amending Act came into force on February 1, 1977 many of the provisions of the Code and the First Schedule had been amended by the State Legislatures or the High Courts as the case may be and such amended provisions had been brought into force in the areas over which they had jurisdiction. When the Amending Act was enacted making several changes in the Code Parliament also enacted section 97 providing for repeals and savings and the effect of the changes on pending proceedings.
In paragraph 4 of the above decision, it was stated thus:
“The object of S.97 of the Amening Act appears to be that on and after Feb.1, 1977 throughout India wherever the Code was in force there should be same procedural law in operation in all the Civil Courts subject of course to any future local amendment that may be made either by the State Legislature or by the High Court, as the case may be, in accordance with law. Until such amendment is made the Code as amended by the Amending Act alone should govern the procedure in Civil Courts which are governed by the Code.”
21.In Khaleel Vs. Aranjikkal Jamal Muhammed and others 21/31 https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022 reported in (2018) 1 KLJ 463, a Single Judge of the Kerela High Court has considered the question and after referring to the judgment in Ganpat Vs. II-Additional District Judge, Balia as well as P.T.Risikesh and another Vs. Salma Begum referred to supra pointed out that the conclusion of the Hon'ble Supreme Court reached in P.T.Risikesh regarding the date of commencement and the date of making of the law was affirmed by a Constitution of Bench in State of Kerela and others Vs. M/s. Mar Appraem Kuri Co. Ltd., and another reported in (2012) 7 SCC 106. The learned Single Judge also examined the scope of Section 97(1) of the Amending Act, 104 of 1976 and held that any State Amendment that runs counter to the provisions of the Principal Act as amended by Act, 104 of 1976 would stand repealed.
22.Same question was considered by a Single Judge of the Bombay High Court in Sadiq Ali Vs. Manu Narang reported in AIR 1985 Bom 274 wherein, the amendments made by the Bombay High Court to Order 21 Rule 98 on 30.09.1966, were considered by the Court. The Bombay High Court in exercise of the power under Section 122 of C.P.C., 22/31 https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022 had amended certain provisions of Rule 98, Order 21 by a notification dated 30.09.1966. Thereafter, the amending Act 104 of 1976 came into force. Again, the Bombay High Court made several amendments to the first schedule of the C.P.C., by a notification dated 05.09.1983 and one such amendment was the amendment to Rule 98 of Order 21 of C.P.C. When the question arose as to which of the rule should prevail, it was held that the amendment introduced in 1966 would stand repealed by virtue of Section 97(1) of Act 104 of 1976 and the amendments introduced in 1983 would still be valid, since they were done after 01.02.1977 namely, the date of coming in to force of the Act 104 of 1976. In doing so, the learned Judge observed as follows:-
"8. As a result of section 97 of the Amending Act, certain consequences necessarily follow. In the first place, all the amendments that had been made in the Code of Civil Procedure including the sections and the rules by a State Legislature, which were inconsistent with the provisions of the principal Act as amended by the 1976 Act, were rendered ineffective. That is, in my opinion, the clear purpose of section 97 of the Amending Act. Similarly, as section 97 says, any amendment made or any provision inserted in the principal Act by a High Court before the commencement of the Amending Act shall, except in so far as such amendment or 23/31 https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022 provision is consistent with the provisions of the principal Act as amended by the Amending Act, stand repealed. No High Court, in exercise of the powers conferred upon it by section 122 of the Code, could have amended the body of the Code consisting of the sections because such power had not been given to the High Courts. Section 122 of the Code empowered the High Court only to amend the First Schedule of the Act, namely, that part containing, the rules. When, therefore, the Parliament provided by section 97 that any amendment made or any provision inserted in the principal Act by High Court shall stand repealed to the extent of the inconsistency with the principal Act as amended, it necessarily meant, as far as the High Court is concerned, only the First Schedule which alone could have been amended by the High Court in exercise of power contained in section 122 of the Act. Despite the use of the words, therefore, “the principal Act” contained in section 97, in so far as the High Courts are concerned, the words “the principal Act” necessarily meant only the First Schedule to the Code and not the sections part of the Code.
9. If this is the correct interpretation, then the rules framed by the Bombay High Court in the year 1966 in so far as they were inconsistent with the rules as enacted by the Parliament by the Act of 1976 would be rendered ineffective with effect from 1st February, 1977. It cannot be said that by virtue of the provisions contained in sections 127 and 128 of the Code and despite the provisions contained in section 97 of the Amending Act of 1976, those rules of the Bombay High Court, which were inconsistent with the Act as amended by the Act of 1976, could continue to survive after 1st February, 1977.24/31
https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022
10. The point has become debatable because the petitioners have raised a contention that rule 98 of Order 21 as it was framed by the Bombay High Court in the year 1966 is not consistent with the body of the Code though it may be inconsistent with rule 98 as enacted by the Central Parliament by the Amending Act of 1976. It has been urged on behalf of the petitioners that rule 98 of Order 21 as framed by the High Court in 1966 continued to exist despite section 97 of the Amending Act and despite the fact that it was inconsistent with rule 98 of Order 21 as enacted by the Parliament by the Amending Act of 1976. I have already mentioned earlier that this cannot be the result of a proper analysis and understanding of section 97 of the Amending Act. If the contention of the petitioners is accepted, then certain words contained in section 97 of the Amending Act would be rendered superfluous. The argument of the petitioners is based upon an interpretation of the words “the principal Act” which, according to them mean only the body of the Code and not the rules contained in the First Schedule of the Code. This interpretation cannot be accepted because it would render, as mentioned above, certain words used in section 97 redundant — a possibility which cannot be countenanced in the interpretation of any Act of a legislature. Section 97 of the Amending Act speaks of any amendment made or any provision inserted in the principal Act by a State Legislature. The State Legislature could conceivably make amendment not only in the body of the Code but also in the First Schedule of the Code. Is it possible to accept that only those amendments made by the State Legislature in the body of the Code were covered by section 97. The answer must be in the negative. If the intention of the Legislature was to provide for the amendments made only in the body of the Code, then it could 25/31 https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022 have used those words and not the plenary words “the principal Act”. I have already indicated earlier that the words “principal Act” have a particular connotation and that connotation is to be understood in the context of an Amending Act. There cannot be a principal Act except in the context of an Amending Act. The words “principal Act” therefore, in section 97 must necessarily mean the entire Code and not merely the body of the Code which includes the sections."
23.The Constitution Bench of the Hon'ble Supreme Court in Pankajakshi (dead) through legal representatives and others vs. Chandrika and Others reported in (2016) 6 SCC 157 while concluding that the judgment of the Hon'ble Supreme Court in Kulwant Kaur Vs. Gurdial Singh Mann reported in (2001) 4 SCC 262 does not state the law correctly on the impact of Section 97(1) held that as follows:-
25. We are afraid that this judgment in Kulwant Kaur case [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262] does not state the law correctly on both propositions. First and foremost, when Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 speaks of any amendment made or any provision inserted in the principal Act by a State Legislature or a High Court, the said section refers only to amendments made and/or provisions inserted in the Code of Civil Procedure itself and not elsewhere. This is clear from the expression “principal Act” occurring in Section 97(1). What Section 97(1) really does is to state that where a State Legislature makes an amendment in the Code of Civil 26/31 https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022 Procedure, which amendment will apply only within the four corners of the State, being made under Schedule VII List III Entry 13 to the Constitution of India, such amendment shall stand repealed if it is inconsistent with the provisions of the principal Act as amended by the Parliamentary enactment contained in the 1976 Amendment to the Code of Civil Procedure. This is further made clear by the reference in Section 97(1) to a High Court. The expression “any provision inserted in the principal Act” by a High Court has reference to Section 122 of the Code of Civil Procedure by which High Courts may make rules regulating their own procedure, and the procedure of civil courts subject to their superintendence, and may by such rules annul, alter, or add to any of the rules contained in the First Schedule to the Code of Civil Procedure.
24.Therefore, once it is found that the amendment introduced by the State Legislature or the High Court in exercise of powers under Section 122 are shown to be an inconsistent with the provisions of the Principal Act as amended by Act 104 of 1976 and the same would stand repealed to the extent of the inconsistency. Since Section 97 of Act 104 of 1976 does not place any fetters on the power of the High Courts under Section 122 to frame rules it would be open to the High Court to re-introduce the same provision by way of a subsequent amendment as was done by the Bombay High Court and such amendment, which is re-introduced would prevail 27/31 https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022 within the State.
25.We must also point out, the judgment of this Court in Narayanaswamy Naidu and Another Vs. Ramamoorthy reported in (2007) 2 MLJ 1344 wherein, Hon'ble Mr.Justice K.Venkatraman had held that the proviso being inconsistent with the amended provisions would stand repealed and dispensing with notice can be done only in a proceeding incidental to the appeal and not to the main appeal itself. The same view was expressed by Hon'ble Justice K.Ramaswamy as a judge of the Andhra Pradesh High Court in Magadri Satyanarayana Vs. B.Jayaramarao and Others reported in AIR 1990 AP 160. Even as early as in 1944, in Bacha Rowther Vs. Chidambaram reported 1945 Mad 86, a Division Bench of this Court had held that proceeding with the appeal exparte by applying the proviso to Rule 14 of Rule 41 is undesirable and attempt to serve atleast some of the respondents must be made.
26.In view of the foregoing discussion, the following conclusions 28/31 https://www.mhc.tn.gov.in/judis CMP.No.11577 of 2022 emerge:-
The proviso to Rule 14, Order 41 of C.P.C., inserted by way of Madras Amendment, being inconsistent with Sub-Rule 4 of Rule 14 of Order 41 inserted by Act 104 of 1976 would stand repealed on and from 01.02.1977. We hasten to add that it would still be open to the High Court to re-introduce the amendment as done by Bombay High Court.
27.In view of the above conclusions, the Appellate Court will not have the power to dispense with notice in the main appeal itself on some of the respondents on the ground that they remained exparte before the Trial Court. We direct the Registry to list the appeal and the connected petitions filed in the appeal for hearing before the appropriate Bench.
28.We place on record our appreciation and gratitude to Mr.S.Parthasarathy, learned Senior Counsel, who assisted us, at our request.
(R.S.M.,J.) (R.K.M.,J.)
20.10.2023
kkn
29/31
https://www.mhc.tn.gov.in/judis
CMP.No.11577 of 2022
Internet:Yes
Index:Yes
Speaking
Nuetral Citation : Yes
R.SUBRAMANIAN, J.
and
R.KALAIMATHI, J.
KKN
C.M.P.No.11577 of 2022, 9810 & 9808 of 2020,
21161, 21162, 21163 & 21165 of 2023
and
Cros.Obj.No.60 of 2022 in
A.S.No.812 of 2020
30/31
https://www.mhc.tn.gov.in/judis
CMP.No.11577 of 2022
20 .10.2023
31/31
https://www.mhc.tn.gov.in/judis