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1951 Supreme(Nagpur) 131
HIGH COURT OF NAGPUR
V R Sen, P P Deo
TUKARAM – Appellant
Versus
RADHABAI – Respondent
Second Appeal No. 69 of 1946
Decided on : 18-12-1951
B R Mandlekar, S N Kherdekar, Advocates
A Court of appeal has the power to admit an appeal in part and dismiss it as to the rest, where there are distinct subject-matters in the appeal.
Headnote:
APPEAL - ADMISSION - SEVERABILITY - COURT'S POWER TO ADMIT IN PART AND DISMISS IN PART - CODE OF CIVIL PROCEDURE, ORDER 41, RULES 11 AND 12.
Fact of the Case:
The Plaintiff-Appellant claimed possession of the property in suit on the basis of title. Alternatively, he claimed that he had a right of way over a specified portion of the premises in dispute. He failed in both the Lower Courts. The subject-matter in second appeal were thus the main claim for possession and the alternative claim of easement right.
Finding of the Court:
The Court held that where there are distinct subject-matters in the appeal, it is open to the Court to admit a part and dismiss the rest. The Court will give reasons for dismissing the appeal.
Issues: Whether it is open to a Court of appeal to admit an appeal in part and dismiss it as to the rest.
Ratio Decidendi: The Court relied on the provisions of Order 41, Rules 11 and 12 of the Code of Civil Procedure, which do not prohibit the course followed by the Bombay High Court in Krishnaji v. Madhusa (1934 58 ILR(Bom) 406 (FB)). The Court also observed that there has been a practice of several judges in this Court to restrict the hearing of the appeal to certain grounds.
Final Decision: The Court answered the question referred to it in the affirmative, holding that it is open to a Court of appeal to admit an appeal in part and dismiss it as to the rest.
1. The question that is referred to us for opinion is:
Whether it is open to a Court of appeal to admit an appeal in part and dismiss it as to the rest.
2. The order passed on the date of hearing (4-4-1946) fixed for admission of this appeal runs thus:
The question of title is concluded by concurrent finding of fact in the lower Courts. There is no title deed. So the matter is one of fact. That part of the appeal is dismissed. I admit the appeal on grounds Nos. 3, 4, 7 and 8 only. The rest of the grounds will be deleted and the prayer will be modified. I admit the appeal. Let a date for hearing be fixed in office and notice be issued to the Respondent.
Sd. Vivian Bose, Judge
The Plaintiff-Appellant claimed possession of the property in suit on the basis of title. Alternatively he claimed that he had a right of way over a specified portion of the premises in dispute. He failed in both the Lower Courts. The subject-matter in second appeal were thus the main claim for possession and the alternative claim of easement right.
3. The learned Counsel for the Appellant submits that Rules 11 and 12 of Order 41, Code of Civil Procedure, speak of dismissing, or fixing a date of hearing of, an appeal and do not contemplate dismissal of a part of the appeal and admission as regards the rest. It is therefore submitted that since the appeal was not dismissed under Rule 11(1) it must be deemed to have been admitted in whole, and the order dated the 4th April 1946 being ultra vires must be ignored. The Counsel relies on - Eswariah v. Rameswarayya, 1940 ILR(Mad) 785, which is referred to in the order of reference, as a clear authority for the view that the Court cannot admit an appeal in part. A similar view is taken in - Lukhi Narain v. Sri Ram Chandra,1911 15 CalWN 921, - Janaki Nath Hora v. Prabhasini Dasee, 1915 43 ILR(Cal) 178 and - Rekha Thakur v. Ramnandan Rai, 1936 AIR(Pat) 7.
4. The relevant rules of Order 41, Code of Civil Procedure, are:
11. (1). The appellate Court...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.
12. (1). Unless the appellate Court dismisses the appeal under Rule 11, it shall fix a day for hearing the appeal.
13. (1). Where the appeal is mot dismissed under Rule 11, the appellate Court shall send notice of the appeal to the Court from whose decree the appeal is preferred.
14. (1). Notice of the day fixed under Ruler 12 shall be affixed in the appellate Courthouse, and a like notice shall be sent by the appellate Court to the Court front whose decree the appeal is preferred and shall be served on the Respondent or his pleader....
5. An appeal is or (the?) removal of a cause from an inferior Court to the superior Court for the purpose of testing the soundness of the decision of that Court. An unrestricted right of appeal is provided by Section 96 and a restricted one by Section 100, Code of Civil Procedure. The decision of the lower Court from which appeal is taken may be severable regarding the subject-matter, the parties and the points involved, or may be unseverable. If there are two distinct subject-matters, for example, possession and mesne profits which are allowed to be joined under Order 2, Rule 4, Code of Civil Procedure, or where there are two different causes of action which are allowed to be joined under Order 2, Rule 3, against the same Defendant or same Defendants jointly, or where distinct causes of action may be tried together with the leave of the Court, they are no doubt distinct and severable subject-matters of suit. In a suit against a mortgagor and the subsequent transferees, the claim may be severable as regards the amount, the parties and properties and particularly when there is a minor Defendant or when the integrity of the mortgage is broken. When a composite suit may be embarrassing, Order 2, Rule 6, Code of Civil Procedure, provides:
Where it appears to the Court that any causes of a
