The Appellate Side Rules of The High Court at Calcutta-Chapter-2[Benches]

CHAPTER II

Constitution of the Benches and Powers of the Benches and of the Registrar

[1. All appeals (other than First Appeals), reference or revisions in respect of the order or decrees of any subordinate Civil Court or of the Rent Controller or Tribunal or any other Authority established by any other law for the time being in force and amenable to the revisional or appellate jurisdiction of the High Court shall be heard by a Single Judge.]:

Provided that all appeals from Original Orders made by the subordinate trial court arising out of suits and proceeding shall be heard by a Division Bench:

Provided further that all Second and Miscellaneous Appeals required to be heard under Order 41, Rule 11, C.P.C. for the purpose of admission shall be heard by a Division Bench consisting of two or more Judges as the Chief Justice may think fit:

Provided also that on the requisition of any Division Bench, or whenever he thinks fit, the Chief Justice may appoint a special Division Bench, consisting of three or more Judges, for the hearing of any particular appeal, or any particular question of law arising in an appeal, or of any other matter:

Provided also that where at any stage of the hearing of an appeal, application or other matter it appears to the Judge that it involves a substantial question of law as to the interpretation of the Constitution of India, he shall send the appeal, application or other matter to the Division Bench taking such cases for disposal.(2) No appeal shall lie from any order passed in appeal under this section.

[1A. All Transfer Applications under section 24 of the Civil Procedure Code shall be heard by a single Judge.]

2. In addition to the powers conferred upon him by other rules the Registrar shall have the following duties and powers in relation to civil and criminal matters:(1) To receive an appeal under [Clause] 15 of the Letters Patent from the judgment of a Division Bench, and to issue notices as soon as the appeal is registered.(2) To receive an appeal under [Clause] 15 of the Letters Patent from the judgment of the Judge sitting singly, and to post it for hearing.(3) To receive an appeal from the decree or order of a subordinate Civil Court, and in the case of Second Appeals and Appeals from Orders, if in order, to post them for hearing under Order XLI, Rule 11, and, in the case of Appeals from Original Decrees, to issue notices as soon as the appeal is registered.(4) To dispose of all matters relating to court – fees (other than appeals the subject – matter of which is the amount of court – fee payable) and to the service of notices or other processes:

Provided that all rules, in which there has been default in paying process – fees within the time allowed in Rule 12, Chapter IV of these Rules, shall be laid before the Bench which issued them, or if the Judges composing that Bench are no longer sitting together, before the senior of the two Judges and in his absence before the junior, to be dealt with by that Judge and the Judge who happens to be sitting with him:

Provided further that in the event of both Judges who issued the rule being absent or otherwise unable to deal with it, the rule shall be laid before the Division Bench taking Lawazima matters:Provided also that a rule issued by a Judge sitting singly in which there is default in paying process fees, shall be laid before the Judge who issued the rule, if he is sitting singly and taking rules at the time the default occurs; otherwise it shall be laid before the Division Bench taking Lawazima matters.(5) To dispose of all matters relating (i) to the substitution of the heirs of parties provided no question of limitation arises, (ii) to the representation of minor parties when there is no dispute as to guardianship, and (iii) to applications under Order XXII, Rule 10, C.P.C., to record an assignment, creation or devolution of an interest during the pendency of an appeal, provided that such assignment, creation or devolution is not disputed.(6) To dispose of all matters relating to the appointment, removal or discharge of next friends or guardians ad litemof minors of persons of unsound mind:

Provided that a next friend or a guardian ad litem, as the case may be, shall not be removed except on a written and stamped application supported by an affidavit and on notice to the person sought to be removed, and also with notice to such party or parties as the Registrar in his discretion directs.(7) To require any memorandum of appeal, petition, application or other proceeding, presented to the court or to the Registrar to be amended in accordance with the procedure or practice of the court.(8) To call for records from subordinate courts.(9) To dispose of requisitions by subordinate courts for records and documents.(10) To receive and dispose of an application for the return of a document.(11) To require any person or party to file an affidavit with respect to any application or matter in respect of which he has power to exercise any discretion or to make any order.(12) To stop at his discretion the issue of all or any papers to any person who has failed to pay any fee or charges due to the court.(13) To dispose of all applications for copies of records, whether presented by parties or persons who are not parties to the proceedings to which such records relate.(14) To decide the question of the necessity for transcribing and printing any accounts, not specifically applied for by the parties to an appeal to the Supreme Court.(15) To call for a further deposit when the deposit already made by the appellant in an appeal to the Supreme Court is not sufficient to defray the cost of preparing the record, and to fix the time within which such further deposit shall be made.(16) To order payment of the interest accruing on Government Promissory Notes deposited under Order XLV, Rule 7, Civil Procedure Code, and to order the refund of any unexpended balance under Order XLV, Rule 12, of the Code.(17) To dispose of all Lawazima reports relating to the preparation of paper – books, and to hear all applications in any of the above matters.(18) To deal with and hear applications to dispense with more than one copy of the judgment, under Order XLI, Rule 1 of the Civil Procedure Code and Chapters V and VI, Rules 3 and 11, respectively, of these Rules and direct analogous hearing of appeals.(19) Subject to the provisions of Rule 57 of Chapter V of these Rules to deal with an application to the effect that a case be not placed on the Daily Cause List for a particular day or days: Provided that where a case is on the Daily List of a particular Bench which is sitting, any application for its removal from that list shall be made to the Court and not to the Registrar.When, however, an application has to be made to remove a case from the Daily List of a Bench which is not sitting on the day when the application has to be made, or from the ‘Blank List’ on a day when that list is not being taken, such applications shall be made to the Registrar.(20) To deal with all matters relating to the service, non – service and defect of service of the court’s notices in criminal cases.(21) To deal with all matters relating to the substitution of legal heirs of deceased parties in all criminal cases wherein such substitution may be necessary.(22) To deal with all defects in vakalatnamas in criminal cases.(23) To deal with applications for copies in criminal cases, where such copies are not ordinarily granted without the permission of the court.(24) To deal with, and dispose of, all petitions of appeals in criminal cases wherein appeals may not be preferred to this court.(25) To record an order of abatement of all appeals and applications after the expiry of the statutory period, provided that he shall not be entitled to entertain applications of parties for the revival or abatement of any appeal or other proceeding.(26) To deal with and pass orders on matters referred to in Order XLI, Rule 14(3) of the Code of Civil Procedure.(27) To dispose of applications under Order XXVII, Rule 8 of the Code of Civil Procedure for causing a note (to be entered in the appropriate register) of the Government Pleader’s authority to prosecute or contest a proceeding in this court on behalf of a public officer in the employ of Government, or an application for causing a note (to be duly recorded) of the authority of any other pleader to act under the directions of the Government pleader in any proceeding before this court on behalf of Government or of any public officer in its employ.

2A. Nothing in Rule 2 shall be deemed to authorize the Registrar to make an order of dismissal of an appeal for default or for any reason or to determine disputed questions of representation under Order XXII, Rule 5, Civil Procedure Code, or to pass final orders on contested applications for the appointment and removal of next friends and guardians ad litem, or on contested applications under Order XXII, Rule 10, C.P.C.

2B. The Registrar may delegate to the Deputy Registrar or to an Assistant Registrar any function with which he is vested under Chapters IV and V and VIII to XIII except those referred to in clauses (5) to (7), (10), (11), (14) to (19) and (25) of Rule 2. He may also refer any matter under Rule 2 to the Court for orders.3. Applications entertainable by the Registrar shall be presented to him, and not to the Bench.All such applications shall be made in writing, on paper of foolscap size with a margin of 2 inches, and shall, if not typewritten, be legibly written.

4. In the absence of the Registrar, or whenever the Chief Justice so directs, his powers and duties under clauses (4) to (7), (10), (11) and (14) to (19) of Rule 2 of this Chapter shall be performed by a Judge or Judges, and the powers which he is authorised to delegate shall be performed by the Deputy Registrar or other officer of the court.

Note : Wherever the words “Deputy Registrar” occur in any of the Appellate Side Rules, they shall be held to include the Deputy Registrar and any other officer of the court to whom the Registrar may have delegated the authority to exercise the function mentioned in the Rule.

5. (a) A Division Bench for the hearing of an appeal under clause (15) of the Letters Patent from the judgment of a Judge sitting singly on the Appellate Side, who has decided an appeal under the 1st proviso of Rule 1 of this Chapter, shall consist of two Judges, other than the Judge from whose judgment the appeal is preferred.

(b) [Omitted].

(c) A Division Bench for the hearing of appeals under clause (15) of the Letters Patent from the judgment of a Judge sitting on the Original Side of the High Court, shall consist of two or more Judges as the Chief Justice may determine.

6. [Deleted].[

7.All civil appeals to the High Court against any order of any authority or tribunal or any appellate authority or tribunal, as the case may be, provided for in any statutes, enactments or rules other than those specified in the Schedule referred to in proviso (i) of Rule 1 Chapter II irrespective of valuation and all applications relating thereto, unless otherwise provided in such statutes, enactments or rules, shall be heard by a Division Bench in the Appellate Side.]

8. Applications under section 115, Civil Procedure Code, for revision of orders of the Calcutta Presidency Small Cause Court shall be heard by a single Judge.

9. (1) A Division Bench for the hearing of cases on appeal, reference, or revision in respect of the sentence or order of any Criminal Court shall consist of two or more Judges.[(2) All appeals, reference or revision in respect of sentence or order of any Criminal Court shall be heard by a single Judge:Provided, however, that the following matters shall be placed before a Division Bench consisting of two or more judges:

(i) All appeals or reference relating to an order of sentence of death and sentence of rigorous imprisonment for a period exceeding 7 years and all appeals from order of acquittal from offences where the sentence may be of death, imprisonment for life or any term of imprisonment exceeding 7 years.

(ii) All bail applications pertaining to Terrorist and Disruptive Activities Act, Narcotic Drugs and Psychotropic Substances Act, 1986 and Foreign Exchange Regulation Act;

(iii) All bail applications at the pre-conviction stage involving offence where sentence may exceed imprisonment for 7 years;

(iv) Bail applications relating to appeals involving a sentence of death or imprisonment for life or imprisonment for a period exceeding 7 years;

(v) Anticipatory bail applications under section 438, Cr.P.C.]

[9A. Transfer applications under section 407 of the Criminal Procedure Code shall be heard by a single Judge.]

10. A Division Bench for the hearing of applications relating to, or arising out of, proceedings in any subordinate court (Civil, Criminal or Revenue) under section 195 or section 476, Criminal Procedure Code, shall consist of two Judges.

11. (1) Whenever the court shall be of opinion that there are reasonable grounds for holding that any Pleader or Mukhtar has been guilty of any misconduct rendering such Pleader or Mukhtar liable to be dealt with under the provisions of the Legal Practitioners Act, XVIII of 1879, the court may institute a proceeding by the issue of a rule calling on such Pleader or Mukhtar to show cause why he should not be so dealt with.(2) Any proceeding taken in the High Court against any Pleader or Mukhtar under the provisions of sections 12 and 13 of the Legal Practitioners Act, XVIII of 1879, as amended by Acts IX of 1884 and XI of 1896, and any report made against any Pleader or Mukhtar to the High Court under the provisions of section 14 of the same Act by the Presiding Officer of any subordinate court, or of any Revenue Office, in which the Pleader or Mukhtar is practising, shall, subject to any direction by the Chief Justice, be taken before, or considered by, the Division Bench of the High Court for the time being hearing appeals, from appellate decrees and such Division Bench shall also have power to call for any record under the provisions of section 14 of the same Act and to pass orders thereon.(3) All such matters arising in respect of Pleaders or Mukhtars practising in the Calcutta Court of Small Causes or the Metropolitan Magistrates’ Courts shall, subject to any direction by the Chief Justice, be taken before, or heard by, the Division Bench for the time being hearing appeals from appellate decrees.(4) The senior Government Pleader may, at the discretion of the Judges of the Bench, be desired to appear in, or to conduct, any proceeding taken before them under the Legal Practitioners Act.

12. [Deleted].

13. A Full Bench appointed for any of the purposes mentioned in Chapter VII, Rules 1 to 5, shall consist of five Judges or three Judges as the Chief Justice may appoint.

14. The business of the Supreme Court Section on the Appellate Side of the High Court shall be laid before the Division Bench presided over by the Chief Justice or such other Bench as the Chief Justice may direct, except in the case of appeals in suits instituted on the Original Side of the High Court.

14A. (1) All cases transferred to the High Court by subordinate court under Article 228 of the Constitution of India shall after service of notice on the parties, be laid before the Division Bench presided over by the Chief Justice for determination whether such cases involve a substantial question of law as to the interpretation of the Constitution. All applications under the said Article for transferring such cases to the High Court shall also be moved before the Bench presided over by the Chief Justice.(2) If the court is satisfied that the case so transferred involves a substantial question of law, the case shall be laid before such Bench as the Chief Justice may direct. The Bench so constituted shall thereupon, after service of notice on the parties, proceed to determine, in the first instance, whether the point of law can be decided without entering into questions of fact. If in the opinion of the Bench, the question of law involved in the case can be decided without disposing of the whole case, then it will give its decision on such point after such hearing as it may consider necessary and thereafter the records of the lower court, together with the opinion of the Bench, shall be transmitted back to the lower court for disposing of the case in accordance with law.(3) If the Bench appointed by the Chief Justice is of opinion that the question of law as to the interpretation of the Constitution of India cannot be decided without hearing the whole case, then it will send back the record to the Chief Justice with its opinion and the case will thereafter be heard by a single Judge to be nominated by the Chief Justice and the procedure laid down by the Code of Civil Procedure and the Criminal Procedure Code for the hearing of cases transferred from districts to the High Court for disposal will be followed.

15. Every petition under Order XLV, Rule 2, Civil Procedure Code, in respect of any decree passed by this Court in its Appellate Jurisdiction in the case of an appeal from the Original Jurisdiction, shall be presented to the Division Bench for the hearing of appeals from the Original Jurisdiction, but every such petition may be heard by a Division Bench consisting of two Judges.

16. (a) The time within which a decree of a District Court may not, under section 17 of the Indian Divorce Act, be confirmed shall be six months from the pronouncing thereof.

(b) Rules 3, 4 and 5 of Order 46, Civil Procedure Code, shall apply to references under section 9 of the Indian Divorce Act, and the practice and procedure for the setting down of such references for hearing shall be the same as obtained in the case of references made under section 113 and Order 46 of the said Code, provided always that every such reference shall be laid before the Chief Justice for his direction as to the Bench by whom it shall be heard.

[17. * * *][18. * * *][19. Applications under section 5(1) of the West Bengal Court Fees, Act, 1970 for revision of orders of the Registrar as the Taxing Officer of the High Court, Appellate Side shall be heard either by the Chief Justice or by such Judge of the High Court as the Chief Justice shall appoint either generally or specially on that behalf.][20. Notwithstanding anything contained in these Rules, a single Judge may, during vacation, when Division Bench is not sitting, by a special assignment, issue Notice or Rule, as the case may be, in any matter of an emergent nature, Civil or Criminal, or under the Constitution, and may pass such interim orders regarding stay, injunction, bail and other interim reliefs as prayed for, if he deems fit to do so, making the Rule or the Notice returnable before the Division Bench.]