Raghava Kurup vs Janardanan and Others

K.S. Paripoornan, J.

The above Second Appeal is preferred by the 3rd defendant in O.S. No. 419 of 1977 of the Munsiff''s Court, Kozhikode u/s 100 read with Order XLII Rule 1 of the Civil Procedure Code. The memorandum of Second Appeal filed on 16-12-1983 was returned by the Office with an endorsement that copies of documents Exts. Bl, B3, B27, B28 and B29 were not filed. Five days were aliowed for filing the copies of the said documents. This is borne out from the endorsement dated 13-1-1984. The papers were returned on 16-1-1984. On 18-1-1984 the appeal memorandum was re-presented by the appellant''s Advocate. A memo dated 17-1-1984 was filed along therewith. It is contended that the requirement to tile copies of the document was inserted in Order XLII Rule 2(2) by Kerala Government Notification No. 23 of 1950, that CPC was amended by Central Act 104 of 1976 with effect from 1-2-1977 and in view of section 97(1) of the CPC Amendment Act 1976 (Act 104 of 1976} any amendment made or any provision inserted in the principal Act by the Stale Legislature or a High Court before the commence-merit of the amendment Act except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by the amendment Act shall stand repealed. It is contended that Order XLII Rule 2(2) as introduced by the Kerala amendment before the commencement of the amending Act is inconsistent with Order XL11 Rule 2 introduced by amending Act 104 of 1976. In so far as Order XL11 Rule 2, as introduced by Central Act 104 of 1976, does not require the presentation of filing copies of documents along with the memorandum of appeal, which are referred to in the grounds of appeal, it is not necessary to produce the copies of such documents. Since this is a matter of procedure, notice was issued to the President, Kerala Advocate Association, Mr. T P. Kelu Nambiar, who argued the matter. I am thankful to him for the assistance rendered in these proceedings. Councel for the appellant Mr. P. N. Krishnankutty Achan was also heard in the matter.The relevant statutory provisions which call for interpretation may be looked into. Order XLII of the CPC as it existed before the amendment Act, Act 104 of 1976, along with the Kerala Amendment Act is to the following effect:

Appeals from Appellate Decrees

Procedure.--The rules of Order XLII(as modified by Order XLIA) shall apply, so far as may be, to appeals from appellate decrees.

Memo to be typed or printed. What to accompany memorandum,--(1) The memorandum of appeal shall be printed or typewritten and shall be accompanied by a certified copy of the decree and judgment of the Appellate Court and unless the Court dispenses therewith a certified copy of the decree and judgment of the Court of first instance.

(2) Copies of documents to be construed.--If any ground of appeal is based upon the construction of a document, a true copy of such document shall be presented with the memorandum of appeal.

Order XLII of the CPC as amended by Central Act 104 of 1976 is as follows:

Appeals from Appellate Decrees

Procedure. The rules of Order XLI (as modified by Order XLIA) shall apply, so far as may be, to appeals from appellate decrees.

Power of 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 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 jn the appeal without the leave of the Court, given in accordance with the provision of section 100.

It is useful to refer to the provisions of Order XLI Rule 1(1) and Order XLI Rule 11(1) of the CPC and section 100 of the Code:

Appeals from Original Decrees

Form of appeal--What to accompany memorandum--(1) Every appeal shall be preferred in the form of a memorandum signed by the appeallant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memo- randum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded:

(Provided that where two or more suits have been tried together and a common judgment has been delivered there for and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment)-

Power to dismiss appeal without sending notice of Lower Court--(lj The Appellate Court, after sending for the record if it thinks fit so.to do, and 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; without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader.

Session "100. Second appeal-

(1) Save as otherwise expressly provided in the body of this Code or 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 exparte.

(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 quest/on 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.

It is clear from a perusal of Order XLII Rule 1 as amended, that the provisions of Order XL1 shall apply so far as may be to appeals from appellate decrees. Order XLI rule 1(1) deals with appeals from original decrees. The memorandum of appeal shall be accompanied by a copy of the decree appealed from and the judgment on which it is founded. It is open to the appellate court, after sending for the records, if it thinks fit so to do, and after hearing the appellant or his pleader to dispose of the appeal. The only question that arises for consideration is, whether Order XLII Rule 2(2) C.P.C. (before amendment by Act 104 of 1976) requiring the furnishing of true copies of the documents to be construed, to be presented with the memorandum of appeal is enforceable and valid? Is the amendment or provision in Order XLII Rule 2, made by the High Court before the Civil Procedure Amendment Act 104 of 1976, is consistent with the provisions of the principal Act as amended by the amendment Act (Act 104 of 1976)? The word "consistent means--fixed: not fluid: agreeing together, compatible: free from self-contradiction: true to principles--(Chambers Twentieth Century Dictionary). Webster''s Third New International Dictionary Volume I, page 484 gives the following shades of meaning for the word "consistent".

marked by harmony, regularity, or steady continuity throughout: showing no significant change, uneveness, or contradiction marked by agreement and concord: coexisting and showing no noteworthy opposing, conflicting, inharmonious, or contradictory qualities or trends: Compatible.

Webster''s New World Dictionary gives the following meaning to the word "consistent":

Holding together firm or coherent: as, consistent soil, agreeing; in harmony in accord; compatible: as, overeating is not consistent with good health, holding to the same principles or practice: as consistent behaviour

E Quoting from Black''s Legal Dictionary the Supreme Court in Basti Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Another, said as follows:

Inconsistent", according to Black''s Legal Dictionary, means ''mutuality repugnant or contradictory; contray, the one to the other so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other''.

In Perumal Pillai v. Parameswaran Nair (1981 KLT 512) the question arose whether the provisions of Order XLII Rule 2(1) before the amendment by Act 104 of 1976, requiring that the memorandum of appeal shall be accompanied by a certified copy of the decree and judgment of the court of first instance was consistent with the provision of Order XLII rule 2 as amended by Act 104 of 1976, came up for consideration. My learned brother Justice Sri. Balaganga-dharan Nair answered the question in the affirmative. The headnote to the decision aptly states the position:

Amendment Act 104 of 1976 came into force on February 1, 1977 and the Kerala High Court amended Rule 2 of Order XLII in 1959. The Kerala Amendment, on the terms of S. 97(1) would stand repealed except in so far as it is consistent with the Code as amended by Act 104 of 1976''. There is no inconsistency between the two; on the other hand there is consistency between them. Order XLII, Rule 1, as amended by Act 104 of 1976, requires the Court at the time of making an order under XLI rule 11 to formulate the substantial question of law as required by S. 100. This function can be satisfactorily and effectively exercised if the judgment of the two courts are before the High Court. The Kerala Amendment stands unrepealed and the petitioner''s contention to the contrary has to be rejected as untenable.

Construed in the light of the above decisions of the Supreme Court and of this Court, it cannot admit of any doubt that- the requirement of furnishing true copies of documents along with the memorandum of appeal provided under Order XLII rule 2(2) is only consistent with the provisions of the CPC Order XLII, Rule 2 as amended. It is the duty of this court to be satisfied when the Second Appeal is posted for admission that "the base" involves substantial question of law. The Court should formulate such question. The appeal shall be heard on the question so formulated. In order to be satisfied as to whether the case involves -substantial question of law, it will be necessary and essential to peruse through the judgment and decree of the appellate court, the judgment and decree of the court of first instance and also to peruse through, atleast the copies of documents, the construction of which called for or warranted discussion in the courts below to arrive at the decision rendered by them and which construction is assailed in the Second Appeal. In many cases, it may not be possible to effectively or satisfactorily decide as to whether the case involves a "substantial question of law" without perusal of the Judgment and decree of the court of first instance and also the relevant documents, the construction of which are in issue, the requirement of production of such documents, the construction of which was in issue before the courts below and which aspect is again high-lighted in the memorandum of appeal before this Court to say that the case involves "substantial question of law", is a provision which is compatible with, or is in agreement with or harmonious with, the provisions of Order XLII rule 2 as amended by Act 104 of 1976. In other words, the provisions of Order XLII Rule 2(2) as it existed in the CPC before Act of 104 of 1976 in Kerala is not inconsistent or not incompatible or self-contradictory with the provisions of Order XLII rule 2 as amended by Act 104 of 1976. In this view of the matter the Office was justified in requiring the appellant to produce the copies of documents--Exts. Bl, B3, B27, B28 and B29--the construction of which are seen highlighted in grounds E, F, G, H, I and P of the appeal memorandum. The arguments to the contrary advanced by appellant''s Counsel, Mr. P. N. K. Achan, are repelled. The appellant is directed to produce the copies of the documents within 10 days from today, as noted in the endorsement dated 13-1-1984. The Office will return the Second Appeal to the appellant for representation after curing the defects. Ordered accordingly