The court established that all first appeals under Section 96 of CPC must be posted for admission before the concerned judge, overriding the previous automatic admission practice.

ORDER :

G.R.SWAMINATHAN, J.

This first appeal filed under Section 96 of CPC is directed against the judgment and decree dated 02.03.2024 made in O.S No.88 of 2018 on the file of the V Additional District and Sessions Judge, Madurai District. The defendant is the appellant. The suit was for recovery of money. The long prevailing practice of the Madras High Court is that notice will be issued to the respondents by the Registry after numbering the first appeal. Instead of doing so, the appeal has been listed under the caption “For Admission” before this Bench. The Registry has done so on account of the direction issued by The Hon'ble Mr.Justice N.Sathish Kumar vide order dated 07.03.2025 in A.S No. 148 of 2025. Paragraphs 21 and 22 of the said order read as follows :

“21.On circumspection of the overall parametres discussed hereinabove, coupled with various judgments of High Courts and Supreme Court, it is amply clear that appeals should be posted before the Judge for admission. Thus, in view of the amendment to Order XLI Rule 11, all First Appeals shall be hereafter posted before the concerned Court for admission and it is for the Judge to decide whether the appeal requires to be admitted or there is no merit in the appeal, as the existing Rules or Standing Orders, which are inconsistent with the substantive provisions of the CPC, will not empower the Deputy Registrar of the Registry to number the appeal and call for records.

22.In fine, Registrar Judicial of this Court is hereby directed to issue a circular, instructing the Deputy Registrar and other Registrars to post all the First Appeals for admission only before the concerned Judge having roster henceforth.”

2.The Hon'ble Judge was fully conscious that as per Order II Rule 3 of the Rules of the High Court, Madras, Appellate Side, 1965, the Deputy Registrar is obliged to receive all appeals against original decrees of subordinate courts and issue notice forthwith and listing the first appeals for admission before the court is not envisaged. What impelled the Hon'ble Judge to depart from this procedure and practice is the amendment made to Order 41 of CPC through parliamentary legislation by way of Amendment Act 46 of 1999. The amendment itself was pursuant to the Malimath Committee report which observed that there is no justification for not listing regular first appeals for preliminary hearing or admitting them as of course. The Hon'ble Judge took note of the amendments made to Rules 9 and 11 of Order 41 of CPC which are as follows :

“9. Registry of memorandum of appeal.—(1) The Court from whose decree an appeal lies shall entertain the memorandum of appeal and shall endorse thereon the date of presentation and shall register the appeal in a book of appeal kept for that purpose.

(2) Such book shall be called the register of appeal.”

11. Power to dismiss appeal without sending notice to Lower Court -

(1) The appellate Court 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...”

3. The Hon'ble Judge after citing quite a few decisions of the Hon'ble Supreme Court (U.P.Avas Evam Vikas Parishad vs. Sheo Narain Kushwaha (2011) 6 SCC 456 , Salem Advocate Bar Association, Tamil Nadu vs. Union of India (2005) 6 SCC 344 and Mahadev Govind Gharge vs. Special Land Acquisition (2011) 6 SCC 321 ) rightly concludes that the aforesaid amendment had taken away the right of automatic admission and that every appeal has to be posted before the court under Order 41 Rule 11 of CPC for orders as to admission. No exception can be taken to this conclusion and the approach is, if we may say with respect, well-founded. But that would be the position only if the procedure regarding admission of first appeals filed under Section 96 of CPC is governed by Order 41 of CPC alone.

4.That admittedly is not the case. Order II Rule 3 of the Appellate Side Rules, Madras High Court prescribes a modified procedure.

“R.1. The power and aut