Sri Gautam Paul vs Smt. Radha Rani Roy

Girish Chandra Gupta and Asha Arora, JJ.—The present application for formulating further or other substantial questions of law has been necessitated due to an order dated 27th January 2016 passed by learned Single Judge at the hearing of a second appeal. The appeal was admitted by an order dated 26th August, 2014 by a Bench to which one of us was a party (Girish Chandra Gupta, J.), which is why the matter has been assigned before this Bench. The learned Single Judge was of the opinion that the appeal was to be heard only on the questions of law formulated by the Division Bench in its order dated 26th August, 2014. He also was of the opinion that any further or fresh questions of law or substantial questions of law can only be formulated by the Division Bench. To be precise his views in that regard are as follows:

"The proviso to sub-section (5) of Section 100 of the Code says nothing in that 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. Here the reference to Court regarding power to hear other substantial questions of law not formulated by it must be interpreted keeping in mind Rule 1 in Chapter II of the Appellate Side Rules of this Court. It is the Division Bench of this Court that is to hear, under Order 41, Rule 11 of the Code, a Second Appeal, including a Second Miscellaneous Appeal, for the purpose of admission which purpose is for the formulation of the substantial question(s) of law to be heard, if the appeal is admitted, thereafter by a Single Judge. The said proviso to subsection (5) of Section 100 of the Code requires reasons to be recorded regarding the satisfaction of Court that the case involves other substantial questions of law. Those reasons must necessarily relate to the additional substantial questions of law to be formulated. Such reasons can only be given by the Court, being the Division Bench of this Court, which is empowered to formulate substantial questions of law to be heard in Second Appeals under the Appellate Side Rules of this Court. The question(s) formulated for the purpose of admission of a Second Appeal in this Court is upon hearing by a Division Bench. Any other substantial question of law involved in such Second Appeal, if subsequently raised, such question whether a substantial question of law and involved in the case must be adjudicated upon by a Division Bench also."

The object of hearing an appeal under Order 41, Rule 11 of the Code of Civil Procedure was discussed by one of us (Girish Chandra Gupta, J.), in FMA 2955 of 2002 in the judgment dated 8th September, 2003 wherein the following views were expressed.

"It would thus appear that the subject matter for consideration at the hearing under Rule 11 is whether the appeal raises a triable issue either on facts or on law or on both. Obviously, the discretion to reject the appeal shall be exercised where the appeal does not present a triable issue. This may be compared with provisions which provide for passing a decree summarily where the defendant through his pleading, before filing a written statement, does not present a triable issue. By way of illustration reference can be made to the procedure laid down in Order 37 of the CPC which provides for passing a decree summarily in specified type of suits unless the defendant succeeds in obtaining leave to defend. And the leave to defend shall be granted provided the defendant comes up with a triable issue. Similarly, reference can also be made to the type of suits provided under Chapter 13A of the Original Side Rules of this court where a decree can be passed summarily unless the defandant satisfies the court that he has a good defence to the claim on its merits or discloses such facts as may be deemed sufficient to entitle him to defend. The decided cases have laid down that leave to defend shall be granted provided a triable issue is raised. If any authority is needed reference can be made to the case of Santosh Kumar v. Bhai Mull Singh, reported in AIR 1958 SC 321. Reference can also be made to the case of M/s. Mechale Engineers v. Basic Equipment, reported in AIR 1977 SC 577.

There are thus provisions for decreeing a suit in the absence of a triable issue in certain cases. Similarly, there is provision in Order 41, Rule 11 of the Civil Procedure Code for dismissing an appeal if there is no triable issue. The object is to shorten the litigation wherever it is possible without causing any injustice to any of the parties. Now, the proper way to express is that suits are decreed and appeals are dismissed in the absence of triable issue for ends of justice and for the purpose of extending speedy relief. It would at this stage be profitable to recollect the view expressed by Sir Asutosh Mukherjee, in a Division Bench judgment of this court in the case of Janaki v. Prabhasini, reported in 43 Calcutta 178 at page 184 that by Order 41, Rule 11 of the Civil Procedure Code the Legislature intended to protect the respondent from needless harassment. We have therefore to bear in mind that the provision contained in Order 41, Rule 11 of the Civil Procedure Code is a wholesome provision, the applicability whereof cannot be lightly brushed aside and that it is a hearing of the appeal itself which has been described as a preliminary hearing under Rule 33(b) of Chapter V of the Appellate Side Rules of this Court and this is how this was judicially interpreted in Sasadhar v. Haridhar (supra). Moreover, the fact that what is heard under Order 41, Rule 11 of CPC is the appeal itself will be clearer from a combined reading of the Rule 11A and the sub-Rule(4) of Rule11 of Order 41 of CPC."

It would be clear from the aforesaid views that object of Order 41, Rule 11 is to shorten the litigation wherever it is possible. It is also the object of Order 41, Rule 11 to weed out unmeritorious appeals at the threshold. But once an appeal has been admitted, as in this case, there is a presumption that the Division Bench was satisfied that the appeal involved substantial questions of law once such question was formulated.

Going by the rules, in particular, Rule 1 of Chapter II of the Appellate Side Rules of this Court once a second appeal has been admitted by a Division Bench the appeal is to be placed before a learned Single Judge for final hearing. Naturally, appeal was placed before the learned Single Judge for final hearing. It appears that at such hearing further questions of law were raised by the parties or one of them which the learned Single Judge was competent to formulate under sub-section 5 of Section 100 of the Code Civil Procedure which reads as follows:

"(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."

We appreciate that the learned Single Judge out of deference to the Division Bench hesitated to do so but in law he was entitled to formulate any other substantial questions of law not formulated by the Division Bench if he was satisfied that the appeal involved such question but before he did that he was under an obligation to record reasons for such satisfaction.

It will be open to the learned Single Judge to decide on the question of desirability to formulate further question or questions of law in accordance with the proviso to sub-section 5 of section 100 of the Code of Civil Procedure.

Let the matter be now placed before the learned Single Judge.

Re: CAN 12043 of 2015

This application may also now be placed before the learned Single Judge for hearing. We are told that another application has been made by one of the parties, which is different from the one which we have heard. It is clarified that all such applications are to be heard by the learned Single Judge on their own merits.