Calcutta High Court
Raj Kumar Rowla vs Manabendra Banerjee And Ors. on 27 March, 2007
Equivalent citations: AIR2007CAL154, 2007(2)CHN752, AIR 2007 CALCUTTA 154, 2007 (4) ALL LJ NOC 715, 2007 (5) ABR (NOC) 752 (CAL), 2007 AIHC NOC 407, (2007) 4 ICC 404, 2007 (4) ALJ (NOC) 715 (CAL.) = AIR 2007 CALCUTTA 154, 2007 A I H C 407 2007 (5) ABR (NOC) 752 (CAL.) = AIR 2007 CALCUTTA 154, 2007 (5) ABR (NOC) 752 (CAL.) = AIR 2007 CALCUTTA 154
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
JUDGMENT Kalyan Jyoti Sengupta, J.
1. The above appeal was preferred against an order of injunction passed in a Miscellaneous Case No. 1941 of 2005 filed in the learned City Civil Court at Calcutta for restoration of the suit. The respondent Banerjee filed a suit in the City Civil Court at Calcutta some times in the year 2002 challenging a consent decree. The said suit was dismissed for default on or about 19th August, 2006. In order to restore the suit the aforesaid Misc. Case was filed. In the said Misc. Case an application under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure was made and the impugned order was passed thereon. In terms of the earlier order dated 6th December, 2006 the appeal and the application filed in connection therewith were decided to be heard together on 31 st January, 2007 and indeed it was heard on that day and on that date none appeared for respondent. This Court passed an order on 31st January, 2007 setting aside the order impugned with a direction to the learned Court below for hearing the said application under Order 39. Rules 1 and 2 of the Code of Civil Procedure de novo upon affidavit. Thereafter the respondent, Manabendra filed an application for recalling of the aforesaid order dated 31st January 2007. This Court upon hearing the learned Counsel for the parties decided that the order dated 31st January 2007 would not be given effect to till further hearing is taken and if it is found that there is any serious objection to this appeal on merit both on law and on fact then the order would be recalled and the appeal would be heard de novo. Hence the matter is heard on the aforesaid understanding.
2. Mr. S.P. Roychowdhury, learned Senior Advocate with Mr. Aniruddha Chatterjee learned Advocate has taken preliminary point of maintainability of the appeal. He contends that the appeal does not lie as the order appealed against, was passed on an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure in the Misc. Case under Order 4. Rule 9 of the Code of Civil Procedure.
3. He contends that even applying Explanation to Section 141 of the Code, substantive portion of the Code is not applicable in the proceeding under Order 9, Rule 9 of the Code, consequently provision for preferring appeal under Order XLIII being substantive part of the Code is not applicable. According to him, only the procedural portion of the Code can be applied in this proceeding. In support of his argument he has cited an unreported decision of the Division Bench of this Court in the case of Sachin Prasad Mukherjee v. Pampa Kumar and Ors. rendered in case of FMAT No. 1881 of 2006 with CAN No. 3791 of 2006.
4. This legal position has been settled and decided by the Supreme Court in a Judgment .
5. Mr. A. Kar learned Advocate appearing with Mr. Saptangshu Bose contends that the unreported decision has been rendered without taking note of another decision rendered earlier by a Division Bench in case of Sushil Kumar De and Anr. v. Chhaya De and Ors. reported in (2004) 1 CHN 1.
6. According to him, by virtue of the provision of Section 141 with Explanation, when the provisions of Order 39, Rules 1 and 2 of the Code of Civil Procedure has been made applicable by the learned Trial Judge sequelly provision for preferring appeal as provided under Order XLIII of the Code is automatically applicable. Any order passed under provisions of Order 39, Rules 1 and 2 is made appealable under this portion of the Code. Therefore, as a matter of course the appeal will have to be preferred and the appellant has no choice. Provisions for preferring appeal against order has been provided broadly under Section 104 of the Code of Civil Procedure wherein it is stipulated amongst other that an appeal shall lie from any order made under the Rules from which an appeal is expressly allowed by the Rules. Rule means the schedule namely entire provisions of the order of the Code.
7. He contends that in Sushil Kumar De case (Supra) it has been observed by the Division Bench of this Court that proceeding under Order 9 of the Code has to be regulated and guided by provisions of the Code by virtue of Section 141 thereof as if it were a suit. The Division Bench in this case has taken note of the earlier decision of the Division Bench of this Court rendered in case of Mahendra Nath .
8. Since the Division Bench in the case of Sachin Prasad without taking note of earlier decision of the Division Bench as quoted above and without discussion had held that appeal does not lie, the same is not binding upon this Bench. This Bench should lay down the law regarding appealability in case of this nature.
9. In view of the contention and rival contentions of the parties it seems to us the point fallen for our consideration is as follows:
10. Whether by virtue of Section 141 with Explanation entire provisions of the Code of Civil Procedure is applicable in the proceedings under Order IX of the Code or not? And further whether provisions of Orders 39 and 43, Rule 1(r) are procedural part or not?
11. To appreciate this question we set out the provisions of Section 141 of the Code in its entirety:
141. Miscellaneous proceedings:- The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
Explanation - In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.
12. The language of the said Section is very clear to hold that procedure portion provided in this Code with regard to suit shall be followed and not the substantive portion. The Division Bench in Sushil Kumar De's case in paragraphs 12 and 13 has observed as follows:
12. It is incorrect in our opinion, to construe the phrase in a limited way and give the word procedure, occurring there, a limited meaning. It is incorrect to construe that word only to mean the so-called procedural part of the Code of Civil Procedure, and hold that only that part is made applicable to the other proceedings but not the substantive part of the Code. The Code itself is a Code of Civil Procedure. It contains matters of substantive right which are not matters of mere procedure, as ordinarily understood. But the 'procedure provided in this Code' is a phrase which refers to the entirety to the Code and not merely to a part of it.
13. If it were the case, that Section 141 makes only the 'mere procedure of the Code applicable to proceedings other than suits, and the right to appeal being a substantive right, Section 141 cannot by its language, confer such a right, then the grant of Probate would also not be appealable. But clearly it is appealable. Thus, Section 141 also ropes in the provisos of appealability.
13. Upon careful reading of the aforesaid decision it appears to us that Their Lordships recognized that the entire provision of the Code of Civil Procedure is not procedural part and the same contains substantive part also. However, Their Lordships were of the view that the word "procedure" used should be construed liberally not re-strictively. While observing so Their Lordships held that order dismissing an application for restoration of a suit is appealable order meaning thereby the appealability provision in the Order XLIII has been made applicable in the proceedings under Order 9 of the Code. Mr. Roy Chowdhury urges that this decision should be held per incurium, as the same is contrary to Supreme Court decision . We think it cannot be done so easily unless deep enquiry is made considering impact of Supreme Court pronouncement.
14. The later unreported Judgment of the Division Bench however, has clearly held that ad interim order of injunction passed in the proceeding under Order 9. Rule 9 of the Code is not appealable under Order XLIII, Rule 1 of the Code of Civil Procedure, relying on the above Supreme Court decision . This division Bench Judgment without any detailed discussion and without having had any advantage of reading earlier decision held so. We think when there is no discussion in reference to the earlier Division Bench judgment holding contrary to decision of the later Division Bench Judgment, both the decisions can legitimately be avoided for the reasons stated hereunder. We can proceed without following ratio of any of the decisions in this context or referring the same to larger Bench as there are gray areas left for independent decision, by both the judgments.
15. The earlier Division Bench, of course, did not take note of the decision of the Supreme Court therein the Supreme Court held : "Section 141 makes applicable to other proceedings by this provision of the Code which deal with procedure and not those which deal with substantive rights". So this decision (High Court) to this extent cannot be binding effect.
16. The Supreme Court has discussed and held that the entire provision of the Code is not procedural part. It contains both substantive and procedural part. This judgment has not discussed as to whether the provision of Order 39 and Order 43. Rule 1(r) of the Code of Civil Procedure is a procedural part or substantive part. In the Supreme Court Judgment it is decided that the provisions of Section 86(1) read with Section 87B of the Code are not procedural part but substantive one. Therefore, in a proceeding under Section 14 read with Section 17 of Arbitration Act, 1940 (since repealed) the provision of Section 86(1) and 87B of the Code cannot be applicable as the same is not a procedural part but substantive one.
17. In Sushil Kumar De Case the Hon'ble Judges did not decide at all as to whether the provision of Order 39 and entire part of Order 43 is a procedural part or not. Therefore, we are to analyze having regard to the text of Order 39 and Order 43, Rule 1(r) whether the same is a procedural or substantive part of the Code. No other authority has been cited at the bar nor we have been to lay our hands on any authority despite best effort in this regard.
18. What is procedural law and what is the substantive one has to be found out by the Court having regard to the provisions made therein. Salmond on Jurisprudence in its XII Edn. in Chapter 15 page 461 has laid down a test how it can be ascertained:
In view of the fact that the administration of justice in its typical form consists in the application of remedies to the violations of rights, it may be suggested that substantive law is that which defines the rights, while procedural law determines the remedies. This application, however, of the distinction between Jus and remedium is inadmissible, For in the first place, there are many rights (in the wide sense) which belong to the sphere of procedure; for example a right of appeal, a right to give evidence on one's own behalf, a right to interrogate the other party, and so on. In the second place rules defining the remedy as much a part of substantive as are those which define the right itself....So in the civil law the rules as to the measure of damages pertain to the substantive law, no less than those declaring what damage is actionable; and rules determining the classes of agreements which will be specifically enforced at all. To define procedure as concerned not with rights, but with remedies, is to confound the remedy with the process by which it is made available.
What, then, is the true nature of the distinction? The law of procedure may be defined as that branch of law, which governs the process of litigation. It is the law of actions - jus quod ad actiones partinent - using the term action in a wide sense to include all legal proceedings, civil or criminal. All residue is substantive law, and relates, not to the process of litigation, but to its purposes and subject matter. Substantive law is concerned with the ends, which the administration of justice seeks procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relation to courts and litigant in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated.
So far as the administration of justice is concerned with the applications of remedies to violated rights, we may say that the substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other.
Although the distinction between substantive law and procedure is sharply drawn in theory, there are many rules of procedure, which, in their practical operation, are wholly or substantially equivalent to rules of substantive law. In such cases the difference between these two branches of the law is one of form rather than of substance.
19. In our view in addition to the above legal principle the substantive law is the law which deals with rights, obligation and liabilities which are recognized and/or enforced by the Court of law and the method and mode by which such rights are recognized or liability or obligation is enforced can be termed as procedural law, The Court while determining this substantive right has to take various course of action and such course of actions is taken in order to achieve finality in the matter of determination, In other words, if result of the administration of justice yields lasting effect and nothing more is required to be decided, then subject matter of adjudication by the Court of law is termed substantive law but if any provision of the law empowering the Court to do anything in course of adjudication is for temporary effect and period and the same merges with final determination, cannot be said anything but procedural law. It is true right of appeal wherever provided under the statute is a substantive part of the law but sometimes this substantive right is also engrafted in the procedural law. Now we are to examine whether provision for appeal against order in the Code is substantive part or procedural part of the Code. The provision of the Code is really meant for adjudication of the civil disputes as provided in Section 9 of the same and such decision reaches finality ordinarily at trial, some times in appeal if the matter is taken to appeal Court that needs adjudication of Court in substantive law. In course of adjudication Civil Court has to take certain measure as per provision of Sections 75 and 94 of the Code. The provision for granting order of injunction really emanates from the provision of Section 94 Clause (c). Section 94 of the said Code is provided as follows:
94. Supplemental proceedings.- In order to prevent the ends of justice from being defeated the Court may, it if is so prescribed,-
(a) and (b) ...
(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold.
20. The language of Order 39, Rules 1 and 2 is clearly plain to hold that the order passed thereunder has got the effect till the disposal of the suit or until further order. The aforesaid provision is really an enabling provision and this power has been vested in Civil Court alone and it is not a matter of right of the litigant who can bring wrong thing to the notice of the Court and it can take action unlike a substantive right where a litigant as a matter of course can approach the Court and if it is established before the Court that such right exists in his or her favour then Court is bound to recognise and enforce such right, For example provision of Section 38 of Specific Relief Act enables litigant to get relief of perpetual injunction under certain situation, The distinction between provisions for granting injunction by the Court under Section 38 and Order XXXIX of Code is appreciably discernible, and to be found in Section 37 of the Specific Relief Act, 1963 that reads as follows:
37. Temporary and perpetual injunctions.-- (1) Temporary injunctions are such as to continue until a specified time, or until the further order of the Court, and they may be granted at any stage of a suit, and are regulated bv the Code of Civil Procedure Code, 1908 (5 of 1908) (2) A. perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.
21. By the above provision the legislature advisedly described the provision of Code governing to deal with temporary injunction is regulatory method, in contradistinction to the provision of substantive law.
22. Upon conjoint reading of the aforesaid Section 94 and Rules 1 and 2 of Order XXXIX of the Code of Civil Procedure we are of the view that these provisions are procedural part of the Code of Civil Procedure as this has been provided to enable the Court in aid and assistance of the final adjudication of lis.
23. The provisions of Order 43 in our view in its basic sense is a substantive part namely the right of appeal in general but because of its own nature one cannot say that it is a substantive portion in its entirety. Sometimes substantive right is also used in the matter of procedure. It is settled position of law that the appeal is a continuation of a particular original proceeding. Undisputedly the provisions of Order 39 is an incidental and/or interlocutory proceeding and such proceeding has got effect of continuity leading to appeal. Order passed under Order 39, Rules 1 and 2 of the Code of Civil Procedure has been made appealable and it is provided though separately, in order XLIII, but essentially has to be read as being incorporated in Order 39 itself. In other words, provision of Order 43, Rule 1(r) has to be treated as part of Order 39 and consequently has to be treated as procedural part of the Code. We therefore conclude that some times substantive right pertakes the character of the procedural right and vice versa in the Court, There are other provisions, which in form is a procedural part but in substance it is a substantive portion of the Code, Namely the provision of res judicata though in form is a procedural part but it becomes a substantive portion of the Code when the same is taken in the defence and Court has to recognize and accept and decide the question of res judicata. Similarly, the provisions of Sections 80, 86 and 87(B) are though in form is a procedural part, these are essentially a substantive part of the Code.
24. That apart "Procedure provided in this Code" as used in Section 141 of the Code denotes that there is no right of appeal from an order passed in a "proceeding" contemplated by this section unless statutes governing such proceedings provides for appeal. So, since there is a right of appeal against an order under Order 39, Rules 1 and 2 as specifically provided in Order XLIII, Rule 1(r), appeal is not barred. Reference may be made in this context to the cases of Hara v. Murari reported in AIR 1922 Cal 572, Habibar v. Saidunnessa and Birendra v. Monorama .
25. We therefore, hold that the order passed by the learned Court below in the Misc. Case under the provision of Order 39, Rules 1 and 2 of the Code of Civil Procedure is appealable. We are thus unable to accept the contention of Mr. Roychowdhury and hold that the contention of Mr. Kar has substantial force. Now the appeal is to be heard on merit again.
26. Xerox plain copy of the operative portion of this judgment, if applied for, be given to the parties.
Arun Kumar Bhattacharya, J.
27. I agree.