Banshidhar vs Dayashankar - 2001 Supreme(MP) 376

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2001 Supreme(MP) 376

2001 (2) JLJ 299
J.G. Chitre and A.M. Sapre, JJ.
Banshidhar v. Dayashankar
Letters Patent appeals No. 450-51 of 2000; against the judgments and decrees
passed by the M.P. High Court in First Appeals No. 173-4/98,
arising from the judgment and decree passed by Shri SK. Awasthy,
Additional District Judge, Badwaha, in Civil Suit No. 14-B/96
(New No. 5B/96); Decided on 6. 7.2001.

Advocates:
V.M. Rege and Ku. Anita Jain for appellant; C.S. Sharma and
Y. Rathore for respondent.

Headnote:(1) Letters Patent -- Cls. 10 and 15 -- Civil P.C., 1908 -- O. 41 and O. 42, S 151 -- Division Bench has jurisdiction, power and authority to apply provisions of Code and exercise inherent powers.
        We come to the conclusion that provisions of O.41 and O.42 of the Code do apply to the present matters and do apply to all Letters Patent appeals which are being heard by Division Court of this Court and the Division Court of this Court is having jurisdiction, authority and power to apply the provisions of the Code while deciding the Letters Patent appeals rule-wise, subd`rule-wise and exercising the inherent powers of the Court as envisaged by the provisions of section 151 of the Code. AIR 1974 SC 2048 followed. 1975 JLJ 57 and 1996 JLJ 29 relied on. AIR 1940 Nag. 39 (FB) distinguished. [Para 19
        (2) Civil P.C., 1908 -- O. 41 R. 11(4), S 96 -- Letters Patent Appeal -judgment of Single Bench in first appeal should indicate process of adjudication -- laconic judgment -- Court is at a loss to know the issues -- case remanded for readjudication. AIR 1953 SC 357 and AIR 1974 SC 2048 followed. 1996 JLJ 29 and AIR 1969 Kerala 316 relied on. AIR 1978 SC 1062 distinguished. [Para 18
        (3) Practice (Civil) -- Letters Patent Appeal -- Division Bench can remand matter to Single Bench -- this is prevalent practice. AIR 1953 SC 357 followed. 1975 JLJ 57 and 1996 JLJ 29 relied on. [Para 20
        (4) Letters Patent -- Cl. 10 -- appeal under -- cross-objections can be filed under O.41. R. 22, CPC, 1975 JLJ 57 relied on. [Para 20
        (5) Civil P.C., 1908 -- O. 41 -- provisions under -- apply to LP A. 1975 JLJ 57 relied on. [Para 20
       ¼1½ ysVlZ isVsaV&[kaM 10 rFkk 15&flfoy çfØ;k lafgrk] 1908&vk-41 rFkk 42] /kkjk 151&[kaM U;k;ihB dks lafgrk ds mica/k ykxw djus vkSj varfufgZr ‘kfDr;ksa dk ç;ksx djus dh vf/kdkfjrk] ‘kfDr rFkk çkf/kdkj gSA
       geus ;g fu"d"kZ fudkyk gS fd lafgrk ds vk- 41 rFkk vk-42 ds mica/k çLrqr ekeyksa ij vo‘; ykxw gksrs gSa vkSj mu lHkh ysVlZ isVsaV vihyksa ij Hkh ykxw gksrs gSa ftudh lquokbZ bl U;k;ky; ds [kaM U;k;ky; }kjk dh tk jgh gS vkSj fu;e dh jhfr ls mi&fue dh jhfr ls rFkk lafgrk dh /kkjk 151 ds mica/kksa }kjk rFkk ifjdfYir U;k;ky; dh varfuZfgr ‘kfDr;k¡ ç;qDr djds ysVlZ isVsaV vihysa fofuf‘pr djus esa ml U;k;ky; ds [kaM U;k;ky; dks lafgrk ds mica/k ykxw djus dh vf/kdkfjrk] çkf/kdkj vkSj ‘kfDr çkIr gSA , vkb vkj 1974 ,l lh 2048 vuqlfjrA 1975 ts ,y ts 57 rFkk 1996 ts ,y ts 29 voyafcrA , vkb vkj 1940 ukxiqj 39 ¼iw.kZ U;k;ihB½ çHksfnrA ¿iSjk 19
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       ¼3½ çFkk ¼flfoy½&ysVlZ isVsaV vihy&[kaM U;k;ihB ekeyk ,dy U;k;ihB dks çfrçsf"kr dj ldrh gSa&;g çpfyr çFkk gSA , vkb vkj 1953 ,l lh 357 vuqlfjrA 1975 ts ,y ts 57 rFkk 1996 ts ,y ts 29 voyafcrA ¿iSjk 20
       ¼4½ ysVlZ isVsaV&[kaM 10&vihy&vk- 41 fu-22] fl-ç-la- ds v/khu çR;k{ksi Qkby fd, tk ldrs gSaA 1975 ts ,y ts 57 voyafcrA ¿iSjk 20
       ¼5½ flfoy çfØ;k lafgrk] 1908&vk- 41&ds v/khu mica/k&ysVlZ isVsaV vihy ij ykxw gksrs gSaA 1975 ts ,y ts 57 voyafcrA ¿iSjk 20

Chitre, J. (Oral) -- 1. The appellant is taking exception to the judgments and decrees passed in First Appeals No. 173 and 174 of 1998 by which the learned Single Judge of this Court dismissed both the appeals by passing the order which needs to be quoted for the purpose of better unfolding of the matter:

"Ku. Jyoti Yewatikar, counsel for the appellant.

Shri Sharma, Counsel for the respondent.

After hearing the learned counsel for the parties, the appeal is dismissed under Order 41 Rule 11(4) of Civil Procedure Code."

2. We need not go to the facts of the appeal because we are dealing with the first important point of law which has been agitated between the parties very keenly in a keen context and according to us that goes to the root of the matter and if there is an adjudication of the said controversial point, it would resolve not only the difficulties arising out of these two LPAs, but would be a guideline for other LPAs also travelling on the same ground and on the same challenge put to the judgment and decree. In view of that, both these LP As are being decided finally with the concurrence of the counsel appearing for the parties by this common judgment and order.

3. Shri V.M. Rege, counsel appearing for the appellant in both the appeals, submitted that the Single Bench of this High Court being the last Court of facts is obliged to pass the judgment and order giving good cogent reasoning for the purpose of justifying the findings to be recorded by it and failure in doing it results in miscarriage of justice and frustrates the cause of appellants. He submitted that in view of the correct reading of Order 41 Rule 11 (4) of the Code of Civil Procedure, 1973 (hereinafter referred to as the Code) and understanding the spirit behind it, both the LP As deserves to be allowed and the judgments and the decrees assailed need to be setaside. While substantiating his submissions on this point, he made reference to Clause 10 of the Letters Patent by which the Nagpur High Court was created He submitted further that though Letters Patent is an intra-Court appeal, that does not mean that this Court is without any jurisdiction and power to have the reappraisal of the facts and the resultant controversy involved. He submitted that in view of that also, the impugned judgment and decree needs to be setaside and the appeals need to be allowed. In the alternative, he submitted that if this Court is pleased to do so, the matter can be remanded to the learned Single Bench for the purpose of hearing it on merit and for requesting the first appellate Court to pass a judgment and decree after taking into consideration entire facts, legal principle applicable to the controversy involved and appraisal of oral documentary evidence and then record its reasoned finding on all issues so framed.

4. On this point, Shri Sharma submitted that the provisions of Order' 41 Rule 11 (4) of the Code are not applicable to the High Court and, therefore, the High Court is not expected to provide elaborate reasoning for the purpose of justifying its conclusion and resulting judgment and decree passed by it. He submitted that the objections raised on behalf of the appellants need to be dismissed and the LP As need to be heard on merit completely and fully.

5. We find it necessary to deal with this first aspect and, therefore, it is being adjudicated fully for the purpose of resolving the controversy and putting the debate to rest.

6. In view of the submissions it is necessary to quote provisions of Order 41 Rule 11 of the Code as hereunder:

ORDER XLI

APPEALS FROM ORIGINAL DECREES

11. Power to dismiss appeal without sending notice to lower Court.

(1). ......................

(2).......................

(3).......................

(4) Where an appellate Court, not being the High Court, dismisses an appeal under sub-rule(1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment.

7. Sub-rule (

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2001 Supreme(MP) 376

Cases Referred (5)