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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE SRINIVASAN & THE HONOURABLE MR. JUSTICE ABDUL HADI
Salla Gurusamy Chetty Trust rep. by its Trustee S. Kannan
Versus
Tamil Nadu Arya Vysya Maha Sabha (Madras District) rep. by its Chairman P.L.N. Gupta
Review Application No. 1 of 1996 (O.S.A. SR. No. 1244 of 1996) in O.S.A. No. 326 of 1995
Decided On :Decided On : 18-01-1996
PROCEDURE - REVIEW PETITION - MAINTAINABILITY - COURT'S POWER TO ORDER NOTICE OF MOTION INSTEAD OF ADMITTING APPEAL - RIGHT OF APPEAL NOT DENIED - NO HUMILIATION OR DISGRACE TO APPELLANT - COURT'S INHERENT POWER UNDER SECTION 151 OF CPC - ARTICLE 225 OF THE CONSTITUTION OF INDIA PRESERVES HIGH COURT'S POWER TO MAKE RULES AND REGULATE ITS PROCEDURE.
Fact of the Case:
The appellant filed an appeal against an order passed by a single judge of the High Court granting an injunction restraining the appellant from dealing with the first floor hall of the property in any way detrimental to the benefit conferred on the plaintiff to have meetings and conferences in the first floor hall. The appellant also filed an application for review of the order directing Notice of Motion to the respondent before admitting the appeal.
Finding of the Court:
1. The petition for review is not maintainable as the petitioner cannot be considered a person aggrieved by the order directing Notice of Motion. 2. The order directing Notice of Motion is an order in favor of the appellant and cannot be challenged by an application for review. 3. The appellant has a right of appeal, but the Court is not bound to either admit or dismiss the appeal in limine. 4. Ordering Notice of Motion is a third course that can be adopted by the Court to dispose of the appeal within a short time after hearing both sides. 5. The appellant does not suffer humiliation or disgrace if the Court orders Notice of Motion without admitting the appeal. 6. The Court has inherent power under Section 151 of the CPC to pass a suitable order to prevent the abuse of the process of the Court. 7. Article 225 of the Constitution of India preserves the power of the High Court to make Rules and to regulate its procedure.
Issues: 1. Whether the petition for review is maintainable? 2. Whether the appellant has a right of appeal? 3. Whether the Court is bound to either admit or dismiss the appeal in limine? 4. Whether ordering Notice of Motion is a valid procedure? 5. Whether the appellant suffers humiliation or disgrace if the Court orders Notice of Motion without admitting the appeal?
Ratio Decidendi: 1. A person aggrieved is one who has suffered a legal wrong or injury. In this case, the appellant has not suffered any legal wrong or injury by the order directing Notice of Motion. 2. The right of appeal is not denied to the appellant by ordering Notice of Motion. The Court is only accepting thereby that there is a prima facie case to be considered at the instance of the appellant and it is necessary to hear the respondent for deciding the case satisfactorily. 3. The Court is not bound to either admit or dismiss the appeal in limine. It can also order Notice of Motion to the respondent with a view to dispose of the appeal within a short time after hearing both sides. 4. Ordering Notice of Motion is a valid procedure that is adopted by the Court to facilitate early disposal of the main case itself. It is a rule of convenience, which is helpful mainly to the litigants and incidentally to the Court. 5. The appellant does not suffer humiliation or disgrace if the Court orders Notice of Motion without admitting the appeal. There is no question of any humiliation or disgrace in such cases to the Concerned party.
Final Decision: The petition for review is dismissed.
SRINIVASAN, J.
1. The appeal is against an order passed by a learned single judge of this Court on 14-11-1995 in O.A. No. 512 of 1995 in C.S. No. 637 of 1995 granting an injunction restraining the appellant from dealing with the first floor hall of the property mentioned in the Schedule to the application in any way detrimental to the benefit conferred on the plaintiff to have the meetings and conferences in the first floor hall. When the appeal was posted for admission on 20-12-1995, we ordered Notice of Motion returnable on 18-1-1996, and permitted the appellant to serve notice also privately on the party and the counsel on record for the respondent. The appellant has filed this application for review on 4-1-1996 contending that the procedure adopted by this Court is against law. According to the appellant, the appeal could have been either admitted or dismissed and that there is no provision in the Rules to order Notice of Motion to the respondent and giving him an opportunity to have a say in the matter of admission of the appeal.
2. Before this application was filed, the appellant sought to mention to another Bench to which one of us was a party and contend that the order of Notice of Motion was not valid and the appeal should be posted for admission. That Bench pointed out that there was no question of posting the matter for being mentioned and if the appellant was aggrieved by the grant of Notice of Motion, his remedy was only to seek a review of the said order. The appellant has filed this application stating that there was a direction by the said Bench to him to file the application for review. Obviously, the appellant is under a misapprehension that the Bench gave such a direction. The observation made by the Bench that the remedy of the appellant, if at all, could only be by an application for review and there was nothing to be posted for being mentioned, cannot be construed as a direction to the appellant to file an application for review.
3. When this application was presented, the Registry returned the same on several grounds and also expressed its doubt as to the maintainability of the petition. The appellant re-presented the papers giving his reply to the objections raised by the office. The office put up a note and circulated the papers to us. One of us (Abdul Hadi, J.) expressed his opinion that the petition is not maintainable. Hence, the matter was directed to be posted for orders as to maintainability. Thus, this petition comes before us for orders as to maintainability before it is numbered.
4. The first contention urged by learned counsel for the appellant is that the petition is maintainable, and in any event, it has to be numbered by the office. According to him, the question of maintainability has to be decided judicially by the Court and not by the Registry. It is contended that whether a petition is maintainable or not, it has to be numbered by the Registry and posted before Court for orders as to maintainability. We do not agree with this contention. If a particular petition filed by a party is not sustainable under any of the provisions of law, the Registry can certainly raise an objection as to the maintainability before taking the petition on file. The first stage of any proceeding is presentation. As soon as it is presented, it is entered in the Diary or the Stamp Register under a serial number. After the papers are found to be in order and passed by the Registry, it is given a number and entered in the appropriate register. That stage is known as Filing Stage. It is only at that stage the Court takes the matter on file. The third stage is one of admission. When the matter is posted before Court and it is found fit for admission, the Court passes orders as to admission. Thereafter, notice is issued to the respondent. If on the other hand, the Court decides that there is no case for admission, it is dismissed in limine.
5. In a given case, it is certainly open to the Registry to questio
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