Substantial question of law
While entertaining the second appeal it is to be kept in mind that the first appellate Court is the final Court of fact findings and pure findings of fact remain immune from challenge before the High Court in second appeal. Now after the enforcement of the Amendment Act 1976, the first appellate Court is also final Court of law in the sense facts remained impugned from challenge before the High Court in second appeal. Now after the enforcement of the Amendment Act 1976, the first appeal is also final Court of law in a sense that its decision on question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of first appellate Court even on question of law unless such question of law be a substantial question of law (See AIR 2001 Supreme Court 965, Rajeshwari Vs. Puran Indoria, , Rajeshwari v. Puran Indoria).
Now the question arises what is the substantial question of law. It is settled law that the scope of the jurisdiction for the question of law framed at the time of the admission is limited to the substantial question of law as to which would constitute substantial question of law it is also settled that a point of law which admits of no opinions may be a proposition of law but cannot be a substantial question of law.
To be a substantial question of law a question of law must be debatable, not previously settled by the law of the land or a binding principle and must have material bearing on the decision of the case, if answered other way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case, there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by the Court of facts and it must be necessary to decide that substantial question of law for just and proper decision of the case.
Under Order XLI, Rule 11 of CPC
- Stay of execution under Order XLI, Rule 5 of CPC
Second Appeal Section
|Tender of Second Appeal||SAT|
|Civil Second Appeal||SA|
|Second Appeal (SA) Section||07|
Part III – Appeals from Appellate Decrees or Orders
56. The paper – books in all appeals from appellate decrees or orders will consist of the following papers:
(a) the judgment of the first court;
(b) the judgment of the lower appellate court;
(c) any judgment or orders of remand passed in the case either by the lower appellate court in appeal or by the High Court on second appeal;
(d) the memorandum of second appeal;
(e) a front leaf containing the number of the cause; the names of the Judges of the two courts below; the names of the parties and of their advocates; the date of the institution of the suit; the date of the judgment of the first court; the date of the judgment of the lower appellate court; the date on which the appeal was filed and the date on which the appeal was decided.
Note : 1. If any ground taken in a memorandum of appeal necessitates a reference to the plaint, written statements or any documents other than those mentioned above the appellant shall , at the time of the preliminary hearing under Order XLI, Rule 11, Civil Provide for the use of the court not in the English language, typewritten copies of translations thereof and such documents shall from part of the paper-book . If he fails to provide such copies he shall not be heard in regard to such ground or grounds except with the leave of the court.
If at the time of the preliminary hearing under Order XLI, Rule 11, Civil Procedure Code, the court directs that the Pleadings or any documents other than those mentioned in this rule be included in the paper-book the appellant shall include in the paper-book such pleadings or documents or, if the said pleadings or documents are not in the English language, translations thereof.
If any respondent considers that reference is necessary to the pleadings or to any other documents and the same have not been included in the paper-book , he shall prepare two type-written copies of the said pleadings or documents or of the translations of the same, if they are not in the English language, for the use of the court at the time of hearing and shall serve one copy on the advocate for the appellant, within a week after inclusion of the appeal in the General Warning list
57. The paper – book shall be neatly typed on white durable paper of foolscap size with a margin of two inches and shall be typed in double spacing.If in any case a printed paper – book is prepared, the printing shall be done in accordance with the directions contained in Rule 1 of this Chapter.The Registrar may decline to accept any paper – book which has not been prepared in accordance with these Rules.
59. When an appeal has been admitted under Order XLI, Rule 11, Civil Procedure Code, and the records, called for under the provisions of Rule 31, Chapter V of these Rules, have arrived the Officer – in – Charge of the Judicial Department shall serve a notice in Form No. 30 (Civil), Appendix Ion the advocate authorised – by the appellant to prepare the paper – book under Rule 58 informing him of the arrival of such records and calling upon him to file, before the expiry of thirty days from the date of receipt of such notice by the advocate, two copies in cases exceeding [Rs. 5,000] Further amendment by Notification No. 2808-G, dated 25.3.1969. in value and one copy (in other cases where a paper – book has been specially directed to be prepared) of the paper – book for the use of the Court prepared in accordance with Rule 56 accompanied by sufficient number of copies for service on all the appearing respondents and upon the Deputy Registrar of the Court, if the latter has been appointed a guardian ad litem of a minor respondent, and a certificate to the effect that the paper – book has been compared with the original papers. The copies supplied for the use of the Court shall tally as to paging, etc., with the copies used by the advocates for the appellant, the respondents and the Deputy Registrar, at the final hearing.
In the event of any respondent(s) or set(s) of respondents appearing or the Deputy Registrar being appointed guardian ad litem of minor respondents after copies of the paper – books have been filed in accordance with the above – mentioned notice, a supplementary notice in Form No. 31 (Civil), Appendix I, shall be given to the advocate authorised by the appellant to prepare the paper – book.
Note : 1. when an appeal not exceeding Rs. 5,000 has for any reason to be heard by a Division Bench of two judges or more the appellant may be required to file the necessary number of additional copies for the use of the Court.
The Notice mentioned in the first paragraph of this rule shall be served after the dates fixed for the appearance of the respondents have expired.
60. An advocate authorised under Rule 58 to prepare the paper – book on behalf of the appellant shall be afforded all reasonable access to the original record in order to enable him to prepare the paper – book and to correct his copies where necessary and make translations, but shall not be entitled to remove such original record from the Court’s office or to make copies of any documents other than those to be included in the paper – book under Rule 56 of this Chapter. Certified transcripts of papers shall be furnished to him, if he so desires, upon payment of the usual charges.
(a) Such advocate shall himself deal with the original records made over to him, and is hereby prohibited from entrusting them to the care of any other person.
(b) Such advocate shall be permitted to utilise the services of one Reader or Muharrir to assist him in comparing the manuscript of the paper – book with the original record. He must, however, himself be present and continuously in possession of the records and on his leaving the office the records must be returned to the officer of the Court in charge and the work of preparing the paper – book must at once cease, the Reader or Muharrir leaving with his employer.
(c) If a certified copy of a map has to be compared with the original such advocate shall be allowed to utilise the services of a draftsman, who will be allowed access to the records on the same terms as the Reader or Muharrir.
61. The respondent shall at the time of entering appearance deposit with the accountant the sum of Rs. 7 in full payment of the costs of the paper – book:Provided that in cases in which there was an order of remand passed by the lower appellate court and in which the previous judgments (original and appellate) will have to be included in the paper – book the charge for the paper – book to the respondent will be Rs. 8 instead of Rs. 7 as in other cases:
Provided further that in a case of.batches of analogous appeals the charge shall be regulated as follows:Rs. 7 or 8, as the case may be, for the first appeal, Re. 1 per appeal for the next four appeals and 50 paise for every appeal thereafter, the additional charge for analogous appeals not exceeding Rs. 8 in any case.No charge shall be made for the copy, if any, served on the Deputy Registrar of the Court as guardian ad litem of a minor respondent.The appellant on his filing the requisite number of paper – books shall be entitled to withdraw the amount or amounts deposited by the appearing respondent or respondents. The application for withdrawal shall be made in Form No. 32 (Civil), Appendix I.
If a respondent requires additional copies of the paper – book, he shall deposit Rs. 7 per copy with the accountant of the Court and the appellant shall be at liberty to withdraw the same upon production of an acknowledgment of receipt of paper – book from the respondent.
Note : 1. where analogous appeals have been presented in separate batches each batch of such appeals presented by the same appellant, or by the same advocate representing different appellants, shall be considered as a separate batch of analogous appeals and the charge in respect of paper-book shall be calculated for each batch of such appeals separately.
In the case of single appeals presented by different advocates or appellants in person, the charge for paper-book shall be calculated as provided in this rule for each such separate appeal, notwithstanding that such appeals may be analogous to others.
62. In the event of the appellant failing to file the paper – book within the time prescribed in Rule 59 the Officer – in – Charge of the Judicial Department shall lay the matter before the Registrar, who may, in suitable cases, extend the period for filing the paper – book, or may at once cause the appeal to be set down before the Division Bench for orders. If the appellant fails to satisfy the Court as to the delay, the appeal may be dismissed for want of prosecution, or the Court may pass such other order as it may deem proper.
63. When a case is ready for hearing the Officer – in – Charge of the Judicial Department shall include it on the General Warning List in Form No. 15 (Civil), Appendix I, a copy of which shall be displayed on the notice board of the appeal section concerned, and a copy sent to the Bar Association’s Library, for information. This will be considered as sufficient notice to the advocate concerned that the case is ready for hearing.
Part IV – Appeals from Original Orders
64. The rules for the preparation of paper – books in appeals from original decrees [valued] under Rs. 20,000 or valued at Rs. 20,000 or more, shall apply, respectively, to every first appeal from an order of the like value passed by a subordinate court not being an order under Order XLI, Rule 23 [or Rule 23A] of the [Civil Procedure] Code, with the following modifications:
(A) That Part I of the paper – book shall contain the following papers:
(a) the relevant portions of the order – sheet;
(b) the application or proceeding on which the order appealed from was passed;
(c) the petition, if any, filed in answer;
(d) the order appealed from;
(e) the memorandum of appeal; and
(f) in cases falling under clauses (ii), (iii) and (vi) of section 39(1) of the Arbitration Act, 1940, the award in respect of which the order appealed from was made and in cases falling under clauses (iv) and (v), ibid the arbitration agreement in respect of which the order appealed from was passed.
In this Part shall also be included the following papers when their inclusion is necessary for the purpose of the appeal, provided that the Registrar may, upon application being made to him, direct that any paper or part of a paper shall not be included in this Part:
(a) The evidence, oral or documentary, which may have been taken or put in with reference to the application or proceeding, and which is necessary for the decision of the appeal;
(b) Any other papers to which reference may be necessary for the decision of the appeal.
(B) That the appellant’s list shall be delivered to the Officer – in – Charge of the Judicial Department within one week after the service of notice of the arrival of the records.
(C) That the respondent’s list shall be delivered to the Officer – in – Charge of the Judicial Department within one week of the service upon him of notice of the filing of the appellant’s list.
65. In appeals from remand orders under Order XLI, Rule 23, [or Rule 23A], Civil Procedure Code, the paper – book shall be prepared and supplied to the parties in accordance with the rules relating to the preparation of paper – books in appeals from appellate decrees.
General Rules for Applications and Affidavits Applications
1. Applications to the High Court shall be in the English language.
1A. Documents in vernacular enclosed with applications and affidavits will be required to be translated by the Official Translator/Interpreter as and when directed by the Court.
Applications relating to the following matters should bear a court – fee stamp of Rs. 2
|Subject||Details||Under what rule||Whether affidavit necessary|
|Court – fees||1. Refund of court-fees paid in excess.||Section 13, Court-fees Act, Rule 2(4), Chapter II, of these Rules.||Affidavit not necessary.|
|2. Time to put in requisite court – fee and refiling of Memo. of Appeal after period of limitation.||Clauses (3), (4) and (5) of Rule 18, Chapter V of these Rules.||Affidavit necessary.|
|Minors||3. Substitution of parties (including minors).||Order XXII, Rules 3(1) and 4(1), Civil Procedure Code, and Rule 2(5), Chapter II of these Rules.||Ditto.|
|4. Appointment of guardian ad litem.||Order XXXII, Rules 3(2), Civil Procedure Code, and Rule 2(6), Chapter Chapter II of these Rules.||Affidavit necessary.|
|5. Amendment of Memo of Appeal on a minor attaining majority.||Rules 26 and 28, Chapter V of these Rules.||Affidavit necessary except in case of application by appellant when based on affidavit already filed by respondent.|
|6. Cancellation of Deputy Registrar’s appointment as guardian ad litem.||Order XXXII, Rule 11, Civil Procedure Code, and Rule 2(6), Chapter II, read with Rule 29, Chapter V of these Rules.||Affidavit necessary|
|6A. Representation of minor in case of non – appearance of the guardian.||Rule 29A, Chapter V of these Rules.||Affidavit necessary,if directed.|
|Notice||7. Substituted service.||Order V, Rule 28, Civil Procedure Code, and Rule 2(4), Chapter II of these Rules.||Ditto.|
|Paper – book||8. Relaxation of Rule 53(a), Chapter IX of these Rules.||Rule 8, Chapter IX of these Rules.||Ditto.|
|Supreme Court||9. Transmission of orders of Supreme Court to lower courts for execution and for preparation certificates of costs.||Rule 4, Chapter VI of these Rules read with Article 1 of Schedule II of the Court – fees Act.||Affidavit not necessary.|
|10. Printing of part only of the record.||Rule 5, Order XII of the Supreme Court Rules, 1950.||Affidavit not necessary.|
|11. Revival or substitution or addition of parties.||Rule 6, Order XV of the Supreme Court Ruels, 1950.||Affidavit necessary.|
|12. Acceptance of securities other than cash or Government securities.||Rule 41, Chapter VI of these Rules.||Ditto.|
|13. Refund of securities.||Article 1 of Schedule II of the Court – fees Act.||Affidavit not necessary.|
|14. Conversion of securities from one form into another.||Note to Rule 41, Chapter VI of these Rules.||Ditto.|
|15. Exclusion from or inclusion in transcript record to Supreme Court of papers.||Rule 30(3)(b), Chapter VI of these Rules.||Ditto.|
|Records||16. Return of documents during pendency of appeal.||Rules 2(10), Chapter II of these Rules, Order XIII, Rule 9, Civil Procedure Code.||Affidavit not necessary.|
|17. Requisition for records from lower courts relating to cases other than the appeals pending in this Court.||Rules 19 and 21, Chapter IV of these Rules.||Ditto.|
|18. Return of exhibits to affidavit or verified petition.||Rule 34(i), Chapter IV of these Rules.||Affidavit not necessary (if document to be returned is original document).|
|General||19. Exemption from production of more than one copy of the judgment in analogous appeals and from payment of a separate set of ex – timating fee for application for leave to appeal to the Supreme Court filed by the same party against the same judgment of this Court.||Order XLI, Rule 1(1), Civil Procedure Code, Rule 3, Chapter V, Rule 2(18), Chapter II and Rule 11, Chapter VI, of these Rules.||Affidavit not necessary.|
|20. Cancellation of Vakalattiama.||Rule 72, Chapter V of these Rules.||Affidavit necessary unless Advocate who accepted theVakalatnama signifies his willingness to retire from case.|
|21. Amendment of Memorandum of Appeal consequent on the death of a party including a party whose heirs are already on record.||Order XXII, Rules 3 and 4, Civil Procedure Code, and Rule 25, Chapter V, read with Rule 2(7), Chapter II, of these Rules.||Affidavit necessary.|
|Decree||22. Transfer of a decree for execution in an appeal or other proceeding arising out of Article 226 of the Constitution of India.||Section 39, read with Order XXI, Rule 6, Code of Civil Procedure, Rule 20, Chapter IV of these Rules.||Affidavit necessary.|
|Government Pleader||23. Application by the Government Pleader for causing a note of his authority to prosecute or contest an appeal or cross – objection or a revisional application on behalf of a public officer in the employ of the Central or the State Government, or of the authority of any other Pleader, to be entered in the appropriate register.||Order XXVII, Rule 8 of the Code of Civil Procedure and Rule 12, paragraphs 2, 3 and 4, Chapter V, read with Rule 2(27) of Chapter II of these Rules.||Affidavit not necessary.|
2. In every application presented to the High Court there should be stated, immediately after the cause title, the section and statute under which the application is made, the date of the order complained of, and whether the subject – matter of the suit, out of which the application arises, does or does not exceed Rs. 5,000 in value:
Provided that in every application for contempt it shall be stated at the top that the jurisdiction invoked is “Special Jurisdiction” of the court and that the subject – matter is “Contempt of Court.”
2A. Every application for revision shall be produced before the Commissioner of Affidavits at the time – an affidavit in support of it is made, and that officer shall satisfy himself that the application is sufficiently stamped and shall certify accordingly.
3. Every application to the High Court relating to an appeal pending before the court shall be filed with the Assistant Registrar (Court) concerned at least 24 hours before the sitting of the court before which it is proposed to move the application, or of the Registrar if the application is entertainable by him. Such applications shall be listed for hearing on the next motion day. No such application which has not been duly listed will be entertained by the court or the Registrar, unless in the special circumstances of the case the court or the Registrar otherwise directs.
4. Every application to the High Court, if founded on any statement of fact, shall set out the material facts, matters and circumstances on which the applicant relies.
5. When an application is made to the court or to the Registrar in any matter in which any previous application was made to the court or to the Registrar to the same effect, or with the same object, or with a similar object, the fact of such application having been made and the order passed thereon shall be clearly stated in the application.
6. Every such application shall be neatly typed on stout paper of foolscap size with a margin of two inches and shall contain about 20 lines in each full page. The application shall be divided into paragraphs and numbered consecutively and only one side of the paper shall be used.7. The facts stated in such application shall be verified by the solemn affirmation of the applicant or by an affidavit to be annexed to the application.
8. Every application shall be signed and dated either by the applicant or declarant or his advocate.
9. It will not be necessary to set out in the application or in the affidavit any document which is part of a record present in the High Court; nor will it be necessary to produce any affidavit of any facts found by the High Court or any of the lower courts in the course of the suit or proceeding out of which the appeal arises :
provided that such finding has not been reversed on appeal; but the application shall state shortly all facts upon which it is intended to rely, and shall ‘give the number, letter, title or other description of all documents on the record present in the High Court, to which it is intended to refer.
10. In the case of an application relating to a matter which is or has been before the High Court, the High Court File, together with the application, shall be placed before the court or the Registrar at the time of the hearing of the application. When the applicant desires that any documents in a record present in the High Court other than those contained in the High Court File, shall be produced at the hearing in order that they may be referred to by the court, he shall at the time of filing the application give notice to produce them to the Assistant Registrar (Court) concerned. Unless by a special order of the court or the Registrar, documents will not be produced from the record room or the office during the sitting of the court.
11. In all cases in which service of notice on the opposite party is necessary, if such notice has not been duly served, the hearing of the application (except in cases of urgency) shall be postponed unless the parties entitled to notice are present and willing to proceed at once. In all cases the parties opposing the application shall be at liberty to apply for a postponement in order to answer the affidavits or for any other good and special cause.
12. The fee for the issue of the notice on the opposite party, shall be paid into court within seven days from the date of granting the application:
Provided that no order shall be passed to receive such fee when tendered out of time, except upon an application setting forth the reasons for condoning delay:
Provided further that in cases in which the court fixes a returnable date, the fee for the issue of the notice shall be paid into court by the end of the day following that on which the application is granted. If such fee is not deposited within the time stated in this proviso, the petitioner shall, at the time of depositing the fee, supply therewith the necessary number of copies of the petition and its enclosures.
Note : In fixing a returnable date, time should be allowed for making the necessary number of copies of petions and encloures and following minimum period of time for service of notice:
(1) Five days within the municipalities of Calcutta and Howrah, and
(2) Ten days within the other districts of West Bengal.
13. Any party opposing the grant of an application or showing cause against a rule, who may desire to bring before the court any facts not contained in, or admitted by, the application or affidavit of the opposite party, shall do so by an affidavit containing, in the form of a narrative, the material facts on which he relies.
14. No affidavit in answer shall ordinarily be read which have not been filed with the proper officer of the court 24 hours before the sitting of the court or the Registrar on the date fixed for the hearing of the application.
15. No affidavit shall ordinarily be read at the hearing of any appeal, application or other proceeding unless a copy thereof has been served upon the other party or his advocate 24 hours before such hearing:
Provided that this rule shall not apply to urgent motions or applications or to motions or applications made ex party.
16. Every application for stay of execution under Order XLI, Rule 5, Civil Procedure Code, shall specifically state that it is made under that rule, and it shall be accompanied by an affidavit stating specifically the facts upon which the application is based; the date of the decree or order the stay of execution of which is desired; the date of the order, if any, for execution or sale; the date, if any, fixed for the sale and, the facts necessary to enable the court to be satisfied of the matters mentioned in Order XLI, Rule 5, sub – clause (3) of the Code.
17. Every application for security under Order XLI, Rule 6 or 10, shall state specifically under which rule it is made, and shall be accompanied by an affidavit stating specifically the facts upon which the application is based.
Dismissed for default
18. Every application for the readmission or restoration of an appeal or application, dismissed for default of appearance, shall be accompanied by an affidavit stating the circumstances in which such default was made, and whether or not the party whose appeal or application was dismissed had, previously to such dismissal, engaged an advocate to conduct the appeal or application.
19. Every application for an order to a subordinate court to forward any record, document or paper shall state –
(a) the court in which such record, document or paper is;
(b) the record in which such document or paper is;
(c) the date of the document or paper; and
(d) such other information as may be necessary for the purpose of identifying such record, document or paper.
20. Every application for transfer of a decree under section 39, read with Order XXI, Rule 6, Code of Civil Procedure, in an appeal or other proceeding arising out of Article 226 of the Constitution of India, shall state specifically under which rule it is made, and shall be accompanied by an affidavit, stating specifically the facts upon which the application is based, and also certified copy of the decree, the execution of which is sought for.
21. Every such application shall bear the court – fee stamps leviable under Article 1(d)(ii) of Schedule II of the Court – fees Act, 1870, as amended by Bengal Act IV of 1922, and shall be accompanied by a certificate signed by an Advocate that in his opinion such record, document or paper is requisite and material for supporting or opposing the appeal or other proceeding:
Provided that an application for calling for a record or what was already made a part of a record of the case which has given rise to the proceedings in this court in connection with which the application is made need not bear a stamp.
22. Every affidavit to be used in a Court of Justice shall be instituted “In the Court of ……………………… at ………………,” naming such court.
23. If there be a cause in court, the affidavit in support of, or in opposition to, an application respecting it shall also be instituted in the cause.
24. If there be no cause in court, the affidavit shall be instituted “In the matter of the petition of ………………………….”.
25. Every affidavit containing any statement of fact shall be divided into paragraphs, and every paragraph shall be numbered consecutively and, as nearly as may be, shall be confined to a distinct portion of the subject.
26. Every person, other than a plaintiff or defendant in a suit in which the application is made, making any affidavit, shall be described in such a manner as will serve to identify him clearly, that is to say, by the statement of his full name, the name of his father, his profession or trade, and the place of his residence.
27. When the declarant in any affidavit speaks to any fact within his own knowledge, he shall do so directly and positively using the words “I affirm (or ‘make oath’) and say”.
28. When the particular fact is not within the declarant’s own knowledge, but is stated from information obtained from others, the declarant shall use the expression “I am informed,” and if such be the case, should add “and verily believe it to be true”, and he must also state the source from which he received such information. When the statement rests on facts disclosed in documents or copies of documents procured from any Court of Justice or other source, the deponent shall state what is the source from which they were procured, and his information or belief as to the truth of the facts disclosed in such documents. Copies of documents (other than those on the record of the case) to which it is intended that reference should be made at the time of hearing shall be annexed to the affidavit and shall be marked as an exhibit and shall bear the certificate of the Commissioner before whom the affidavit is made.
29. Every person making an affidavit, if not personally known to the Commissioner, shall be identified to the Commissioner by some person known to him, and the Commissioner shall specify at the foot of the application or of the affidavit (as the case may be) the name – and description of him by whom the identification is made, as well as the time and place of the identification, and of the making of the affidavit.
Every pardanashin woman verifying an application or making an affidavit in the manner specified in the preceding rules and every such application or affidavit shall be accompanied by the affidavit of identification of such woman made at the time by the person who identified her.
30. If any person making an affidavit shall be ignorant of the language in which it is written, or shall appear to the Commissioner to be illiterate, or not fully to understand the contents of the affidavit, the Commissioner shall cause the affidavit to be read and explained to him in a language which both he and the Commissioner understand, either doing so himself, or causing another person to do so in his presence.
When any affidavit is read and explained as herein provided, the Commissioner shall certify in writing at the foot of the affidavit that it has been so read or explained; and that the declarant seemed perfectly to understand the same at the time of making the affidavit.
31. In administering oaths and affirmations to declarants, the Commissioner shall be guided by the provisions of the Oaths Act, X of 1873. The following Forms are to be used:
I swear that this my declaration is true, that it conceals nothing, and that no part of it is false, so help me God.
I solemnly declare that this my declaration is true, that it conceals nothing, and that no part of it is false.
32. If an officer of the court has been appointed a Commissioner to administer oaths or affirmations and also to interpret affidavits filed under this Chapter, the following Form of Affirmation should be used:”Solemnly affirmed before me this day. I certify that I read over and explained the contents to the declarant and that the declarant seemed perfectly to understand them.”
33. Fees. – No fee is allowed for taking affidavits or affirmations in the Court house, but fees are allowed to Commissioners for taking such affidavits or affirmations elsewhere.
34. (i) No document being an exhibit to an affidavit or verified petition or forming the materials for any application shall be given back unless the document be an original document in which case it may be taken back on an order of the Registrar, a certified copy of the original document being retained in the file.
(ii) When any such document is itself a certified copy it shall not be returned:
Provided that the Registrar may, in exceptional cases, and upon an application supported by an affidavit setting out the grounds upon which the return is asked for order the return thereof upon such conditions as he thinks fit.
General Rules of Procedure
1. The provisions of Chapter IV shall apply, as far as may be, to every memorandum of appeal, to every memorandum of objection under Order XLI, Rule 22 or 26, Civil Procedure Code, and to every application for revision.
1A. Where a particular period has been prescribed by these rules for the doing of anything and the action to be taken is such that the party or his advocate is required to work in the offices of the court, the prescribed period shall be reckoned exclusively of the day or days on which the offices of the court are closed.
2. Every memorandum of appeal and of cross-objection shall be drawn up in the manner prescribed by Order XLI, Rule 1, Civil Procedure Code. Every such memorandum of appeal and of cross – objection and every application for revision shall, immediately below the title, have endorsed on it “First Appeal”, “Second Appeal”, “Appeal from Order”, or “Revision”, as the case may be, and shall state –
(a) the name and full postal address with Pin Code Number of each appellant or applicant;
(b) the name of each person whom it is proposed to make a respondent or opposite party with full address with Pin Code Number including the Munsifi in which such person resides;
Note : In suitable cases the Registrar may dispense with the furnishing of particulars relating to the Munsifi.
(c) the court in which, and (i) in the case of first appeals the name of the Judge by whom the decree or order referred to was made, (ii) in the case of second appeals the name of the presiding officer of the Lower Appellate Court as well as that of the court of first instance;
(d) the date when and the number and year of the suit or proceeding in which such decree or order was made;
(e) the ground or grounds numbered seriatim of objection to the decree or judgment appealed from, without any argument or narrative;
(f) the value of the appeal:
Provided that in every case in which an appeal or cross-objection is preferred to this court and the valuation, for the purposes of court – fees, or the court – fee paid, varies from that of the trial court, in the case of First Appeals, or from that of either the trial court or the lower appellate court, in the case of Second Appeals, the advocate shall, at the time of filing the appeal, add below the valuation in the memorandum of appeal a short explanatory note setting forth the reasons for the variation, giving, if necessary, references to the certified copies of the judgment and decree, and mentioning the relevant pages thereof, which are filed with the memorandum of appeal. Any omission to make this note shall be forthwith reported to the Registrar, who may direct that the note be made within a specified period according to the circumstances of each case or direct that the matter be laid before a Division Bench:
Provided further that in the case of a First Miscellaneous Appeal under section 142(3) of the Calcutta Municipal Act, 1923 or the corresponding section or sections of the Calcutta Municipal Act, 1951, the value of the appeal to be stated in the memorandum shall be the difference between the annual values, upon and in respect of which relief was claimed in the Court of Small Causes.
(g) in the case of an appeal, whether the suit in which the appeal is made has already been before the Court on appeal; and
(h) in the case of an appeal from an original decree or an appellate decree, which of the respondents (to be shown, below the names of the parties, by the serial number of each in the decree appealed from) did not appear to contest the suit or appeal at its final hearing, and their total number. Any omission to make this note shall be forthwith reported to the Registrar for orders.
Note : It is desirable that a separate line should be allotted to the name of each party to an appeal.
2A. In the case of First and Second Appeals from decrees in which the note given in the memorandum of appeal by the filing advocate under clause (h) of Rule 2 of this Chapter, discloses that the number of respondents to the appeal who did not appear in the lower court is five or more, excluding minor or lunatic respondents, the office shall put up the same on the Lawazima List of the Registrar immediately or as soon as possible after the registration of the First Appeal, or after the admission of the Second Appeal under Order XLI, Rule 11 of the Civil Procedure Code, 1908, as the case may be, with the necessary office note, so that the Registrar may, in exercise of his powers under Rule 2(26) of Chapter II of these Rules, pass suo motu the order under Order XLI, Rule 14(3) of the Civil Procedure Code in the presence of the advocate for the appellant, for dispensing with service of notice of appeal on the respondents who had not appeared in the court below.
3. Where more than one appeal is preferred from a judgment governing more than one case, the Registrar may dispense with the filing of more than one copy of the judgment and direct analogous hearing of the appeals.
4. In the case of -(1) appeals from orders of the lower appellate courts remanding cases for retrial; and
(2) appeals from the orders of the lower courts made on remand by the High Court, there shall be added at the foot of every memorandum of appeal a note to the following effect:
Note : This appeal is from an order of the lower appellate court, dated ……. remanding the case for re-trial under section…….Civil Procedure Code.
This appeal is from an order of the lower appellate court (or the court of first instance, as the case may be) made on remand by the High Court, in Appeal No. ………………. of …………………… dated the ………………….. in which this appellant was appellant or respondent (as the case may be).
5. In the event of any omission on the part of the advocate to append to the memorandum of appeal a note in the terms required by Rule 4, it shall be the duty of the Registrar to bring such omission to the notice of the Division Bench before which the appeal is pending.
Documents to be attached with the Memo
6. A memorandum of appeal to the High Court against the decree or order passed in appeal by any court subordinate to it shall be accompanied by copies of the judgment and decree or order of both the lower courts, and, if filed by an advocate of the High Court shall bear a certificate under his hand at the foot of the petition in the following Form: -I, A. B., Advocate for the abovenamed ………………………….. do hereby certify that, in my judgment, the ground (or if there be several, each of the grounds) of appeal in the above petition presented by me on behalf of the said …………………………. is a good ground of second appeal.
Dated, the …………………………….. day of :
Provided that in the case of an appeal against a decree or order passed after remand by this court, copies of judgment or decree of the lower courts passed before the case was remanded need not be furnished.
7. Every party who files an appeal in person shall insert in his memorandum of appeal, or otherwise give in writing to the Deputy Registrar, an address at which notices and other processes in the appeal may be served upon him; and any notice or other process sent to such address by registered letter shall be presumed to have been duly served upon such party.
8. No memorandum of appeal from an appellate decree or from an original or appellate order presented in person by any party to the appeal shall be registered without an order of the Division Bench before whom the party presenting the appeal shall appear in person.
9. In the case of an application for revision, the application shall be accompanied by certified copies of each of the following documents:
(i) the judgment, decree or order to which the application relates;
(ii) if the judgment, decree or order to which the application relates was a judgment, decree or order delivered by a court sitting in appeal, the copies of the judgment, decree or order of the court of first instance.
In case of Defective Memo
10. (1) When a memorandum of appeal is not in proper form and/ or is not accompanied by the necessary copies of papers, the Registrar may allow time within which such memorandum must be amended, and/or the necessary papers filed, or may lay the same before the Division Bench for orders.
(2) If a memorandum of appeal is presented for admission without copies of the judgment and decree or order appealed from, it shall forthwith be returned to the advocate or party presenting it. If such copies are filed after the period of limitation has expired the memorandum shall be presented direct to the Division Bench. In case of an appeal from appellate decree or order, copies of the judgment and decree or order of the court of first instance shall be filed along with the Memorandum of Appeal. If such copies are not so filed, the appeal shall not be placed on the monthly list for hearing under Order XLI, Rule 11 of the Civil Procedure Code, until they are filed.
Grounds taken in Memo
11. If in a memorandum of appeal the ground is taken that there is in fact on the record no evidence or admission to support the decree, such memorandum shall state sufficiently the material finding in support of which there is no evidence or admission on the record.
12. Every memorandum of appeal (other than a memorandum of appeal from an appellate decree filed by a party to the appeal in person) or memorandum of objection under Order XLI, Rule 22, or 26, Civil Procedure Code, shall be presented in the High Court to the Deputy Registrar or such other officer as the Registrar may appoint for the purpose by the appellant in person, or by his recognised agent, or by an advocate appointed under the provisions of Order III, Rule 4, Civil Procedure Code, or by some person appointed in writing by such advocate to present the same.In the case of any appeal, cross – objection or revisional application prosecuted or contested on behalf of Government, the Government pleader [which expression means, in relation to a proceeding to which the Central Government is a party, such pleader as the Central Government may appoint, whether generally or specially, for the purpose of Order XXVII of the Code of Civil Procedure and in relation to a proceeding concerning the State Government, the Government pleader as defined in clause (7) of section 2 of the same Code or such other pleader as the State Government may generally or specially appoint for the purpose of Order XXVII of the Code] (vide Rule 8B, ibid), who is deemed to be the recognised agent of the Government under Rule 2 of that Order, need only intimate to the court, at the time of presenting a memorandum of appeal or of cross – objection or a revisional application, or when entering appearance on behalf of Government as respondent or opposite party in any such proceeding, that he represents the Government in the said proceeding.
No stamped power or Vakalatnama is required to be filed.Where the Central or the State Government undertakes to prosecute or contest any proceeding before the court on behalf of a public officer employed under it in his official capacity, the Government pleader (within the meaning of the expression as set out in the foregoing paragraph) representing the particular Government shall, at the time of presenting any memorandum of appeal or of cross-objection or any revisional application, or on or before the date fixed in the notice for the officer concerned to appear and answer as respondent or opposite party as the case may be, file an application to the court, in accordance with the provisions of Rule 8 of Order XXVII, for causing a note of his authority in that behalf to be entered in the appropriate register; and the Registrar, upon such application being placed before him for orders, shall if he is satisfied that the application fulfils the requirements of Rule 8 of Order XXVII cause a note to be entered accordingly. In the absence of any such application, the consequences provided in Rule 8(2) of the said Order shall follow.The name or names of such other pleader or pleaders, if any, as are intended to be authorised to act under the directions of the Government pleader in any proceeding before this court, may be intimated to the court in the application mentioned in the paragraph immediately preceding, and where no such application is required to be filed, in a separate application to be dealt with by the Registrar, who shall thereupon cause a note of such authority to be duly recorded.The date of presentation to the Deputy Registrar or such other officer as the Registrar may appoint as provided for in paragraph one shall be deemed to be the date of presentation for the purpose of limitation.
13. Except as provided in Rule 14 of this Chapter, no memorandum of appeal, no memorandum of objection under Order XLI, Rule 22 or 26, Civil Procedure Code, no application for review, and no application for leave to appeal in forma pauperis shall be presented for admission unless the same bears an office report as to limitation of time; and, when a stamp is required, as to the sufficiency or otherwise of the stamp; or, in the case of a stamp of which the sufficiency cannot be ascertained, that the report as to the sufficiency of the stamp will be made on the receipt of the record or after further enquiry. Such report shall ordinarily be endorsed on the memorandum or application and returned by the Stamp Reporter before 4 p.m. on the day on which such memorandum or application was made over to the Stamp Reporter for examination.If the report of the Stamp Reporter on the memorandum of appeal or cross – objection is that the prescribed period of limitation has expired, such memorandum shall be returned to the party filing it, who may present the same to the Division Bench.In cases in which it may not be possible for the Stamp Reporter to return the memorandum of appeal or application on the day on which such memorandum or application was made over to him for examination, the time taken by the Stamp Reporter in preparing his report shall be excluded from the prescribed period of limitation.
14. On the first day on which the High Court reopens after the annual long vacation a memorandum of appeal or objection under Order XLI, Rule 22 or 26, may be presented to the Deputy Registrar or such other officer as the Registrar may appoint for the purpose, and an application for leave to appeal in forma pauperismay be presented to the Division Bench, without the office report, as required by the preceding rule:Provided that all memoranda of appeal or objection as aforesaid which was presented for admission on the reopening date after the High Court’s annual vacation shall be dealt with in accordance with the provisions of Rule 18 of this Chapter, after the Stamp Reporter has recorded his report.
15. Applications for review and memoranda of appeals from appellate decrees or from original or appellate orders filed by parties to the appeal in person shall be presented direct to the Division Bench concerned after the report prescribed in Rule 13 above has been obtained.Applications for revision shall be presented to the court with the certificate from the Commissioner of Affidavits prescribed by Rule 2A of Chapter IV and shall exhibit the particulars required by Rule 2 of that Chapter.
Leave to appeal in forma pauperis
16. Applications for leave to appeal in forma pauperis shall be presented with the report of the Stamp Reporter in open Court to the Division Bench concerned in accordance with the provisions of Order XLIV, Civil Procedure Code.
17. The officer to whom the memorandum is presented under Rule 14 of this Chapter shall endorse on every such Memorandum the date of the presentation and shall send the same to the Stamp Reporter. The Stamp Reporter, if the memorandum is not barred by limitation and is sufficiently stamped and complies with the provisions of these Rules, shall record a Report to that effect and shall, after the Officer – in – Charge of the Judicial Department has scrutinised the Memorandum and has satisfied himself that the stamps have been properly punched and defaced under the Rules and that there are no obvious defect –
(a) in the case of an Appeal from an Original Decree, an Appeal under the Workmen’s Compensation Act, an Appeal from an Order under Article 226 of the Constitution [an Appeal under the Indian Railways Act, 1890 (Act 4 of 1890), an Appeal under the Motor Vehicles Act, 1988], an appeal preferred under section 37(I)(b) of the Arbitration and Conciliation Act, 1996 thereby setting aside an arbitral award under section 34 of the said Act, a First appeal against a “deemed decree” provided in any statute, if the said “deemed decree” is not passed in execution proceedings, admit it and cause it to be registered and Notice to issue to the Respondent,
(b) in the case of an Appeal from an Appellate Decree or an Appeal from an Order, other than an Appeal under the Workmen’s Compensation Act, an appeal from an order under Article 226 of the Constitution, [an appeal under the Indian Railways Act, 1890 (Act 4 of 1890), an Appeal under the Motor Vehicles Act, 1988] and first appeal against deemed decrees passed in execution proceedings, second appeal against deemed decree, all appeals under section 39 of the Arbitration Act, 1940, all other appeals under section 37 of the Arbitration and Conciliation Act except the appeals preferred under section 37(1)(b) thereby setting aside an arbitral award under section 34 of the said Act admit it, cause it to be registered, and posted to a Bench for hearing under Order XLI, Rule 11, Civil Procedure Code, and
(c) in the case of a memorandum of Objection under Order XLI, Rule 22 or 26, Civil Procedure Code, admit it and cause it to be registered.]
18. (1) If there is a reasonable doubt as to the amount of court – fee leviable on any memorandum of appeal which an advocate or a party desires to present, he shall apply to the Registrar, as Taxing Officer, for his decision as to the court – fee payable, and the Registrar shall pass an order accordingly and fix a period within which the requisite court – fee must be paid.If the requisite fee is not paid within the period fixed, the case shall be laid before the Division Bench for orders.
(2) If the Stamp Reporter, on a memorandum being presented to him, finds that it has been insufficiently stamped, he shall make a note thereon as regards the deficiency and shall return it, with as little delay as possible, to the advocate or the party presenting it. If the advocate or the party refiles it having supplied the deficit court – fees, within the prescribed period of limitation, the Stamp Reporter shall record a note to that effect on the memorandum which shall then be admitted.
(3) The advocate or the party to whom a memorandum is returned under clause (2) may apply to the Registrar for time to put in the requisite court – fee. On such application being made the Registrar, if he is satisfied that the insufficiency of the court – fee was due to a mistake on the part of the applicant as to the court – fee payable, may fix a period within which the additional court – fee must be paid. In other cases or when the requisite fee is not paid within the period fixed, the Registrar shall lay the matter before the Division Bench for orders.
(4) If a memorandum which has been returned under clause (2) and for filing which no time under clause (3) has been fixed is refiled, sufficiently stamped, after the period of limitation has expired, it shall be presented direct to the Registrar and the latter may pass an order for the admission thereof or lay it before the Division Bench for orders according as, in his opinion, a case as to mistake as referred to in clause (3) has been made out or not.
(5) An application made under clause (3) or a memorandum of appeal refiled under clause (4) must be accompanied by an affidavit explaining the insufficiency, unless the insufficiency is due to a mistake which is apparent on the face of the papers filed.
19. The Stamp Reporter or the Assistant Registrar (Court), as the case may be, must see that section 30 of the Court – fees Act is strictly complied with and that no document requiring any court – fee stamp is filed or acted upon in any proceeding either before the court or its offices, until the stamp has been effectively cancelled.
20. In any case in which a memorandum has been returned for amendment under the orders of the Registrar, it shall be the duty of the Deputy Registrar to attest the amendment by his signature.
21. If a memorandum bears a note that a report as to the sufficiency of the stamp will be made on the receipt of the record, the Deputy Registrar or such other officer as the Registrar may appoint shall note thereon the date of presentation and shall retain it pending the receipt of the report.
22. Every memorandum retained under the provisions of Rule 21 shall, immediately after the receipt of the record, be examined by the Stamp Reporter, who shall endorse on it his report as to the sufficiency of the stamp and shall thereupon proceed in the manner provided in Rules 17 and 18 above.
23. Whenever the Stamp Reporter finds that a document which ought to bear a stamp under the Court – fees Act, 1870, has been through mistake or inadvertence received, filed or used in the court without being properly stamped, he shall report the fact to the advocate who presented such document. Such advocate shall at once initial the report and shall within one week thereafter, or within such further time as the Taxing Officer may allow, note on it whether he accepts or disputes the accuracy thereof. If such note is not made within such time, it shall not be open to such advocate to dispute the accuracy of the report.
24. If a memorandum which has been dealt with under Rule 18 above is duly stamped or amended under Rule 20 within the time fixed by the Registrar or the court, as the case may be, the Registrar or the court shall admit it and cause it to be registered. If such memorandum is not duly stamped or amended within the time allowed, the court may reject such memorandum or pass such other order relating thereto which it may consider proper.
Amendment of the memorandum of an appeal
25. An application supported by an affidavit shall be filed for an order for amendment of the memorandum of an appeal consequent on the death of a party including a party whose heirs are already on the record:
Provided that where such amendment relates to a matter in respect of which an order has already been obtained in the court below but has not been incorporated in the decree of that court, no application shall be necessary but an affidavit setting out the particulars will be sufficient.
26. If a respondent who was described as a minor in the decree to be appealed from has attained majority before the appeal is preferred, and the appellant impleads him as a major in the memorandum of appeal, the same shall be accompanied by an affidavit stating the said fact.27. Where the Deputy Registrar is appointed guardian ad litem of mincer respondents under Order XXXII, Rule 4(4), Civil Procedure Code, the appellant, at whose instance such appointment is made, shall, within 21 days, deposit with the Accountant of the court the sum of [Rs. 68 or Rs. 34, as the case may be], together with the cost for Court – fee stamp for the Vakalatnama to be filed on behalf of the Deputy Registrar as cost to enable the Deputy Registrar to appoint an advocate on his behalf, and shall within the same time file in court an Indemnity Bond in favour of the Deputy Registrar.
Note : In rules arising out of appeals in which the Deputy Registrar is appointed guardian ad Iitem of Minor respondents no fresh Indemnity Bond should be insisted on if the Indemnity Bond filed in the appeal contains a statement that it also extends to any rule or rules arising therfrom.
28. If a respondent, who was described as a minor in the memorandum of appeal, appears as a major he shall, when making such appearance, file an affidavit stating the fact that he has attained majority together with the date when he did so. On such affidavit being filed, the appellant, unless he disputes the fact of the respondent attaining majority, shall file an application, which need not be verified, for amending the memorandum of appeal, and thereupon the memorandum of appeal shall be amended accordingly. If no such affidavit is filed by such respondent, he shall be precluded from appearing as a major and the appellant shall be required to put in the costs, etc., for the, appointment of the Deputy Registrar as guardian ad litem of the said respondent:
Provided that it shall always be open to the appellant to ask for such amendment on making an application supported by an affidavit for the purpose.
29. Where in an appeal or other proceeding the natural guardian of a minor respondent or opposite party, upon being duly served with notice, does not appear in due time and the Deputy Registrar is appointed guardian ad litem, the natural guardian shall not be allowed to appear unless he files an application supported by an affidavit making out sufficient ground for the removal of the Deputy Registrar as required by Rule 11 of Order XXXII of the Civil Procedure Code. Notice of such application shall be duly served by the applicant upon the Deputy Registrar and if an order is made removing the Deputy Registrar it shall be made subject to the payment by the natural guardian of any cost that the Deputy Registrar may have incurred as guardian ad litem in respect of advocates’ fees, etc.
29A. Where, in an appeal or other proceedings, the natural guardian of a minor respondent or opposite party, upon being duly served with notice, does not appear in due time, and the appellant or petitioner, as the case may be, desires that the same representation of the minor may continue as in the lower court, his advocate shall file an application, supported, if so directed, by an affidavit, for an appropriate order in the matter, stating inter alia whether there was separate contest on behalf of the said minor in the court below and/or whether his interests are identical with those of the appearing respondents or opposite parties.
30. On any court day on which no Bench is or has been sitting, any memorandum of appeal or application which might be barred by time, and which is entertainable only by a Bench, may be presented to the Deputy Registrar or, in his absence from court on that day, to an Assistant Registrar on the Appellate Side of the court, who shall certify thereon that such application was on that day presented to him:
provided always that no such presentation to the Deputy Registrar or an Assistant Registrar shall be of any effect unless such application be presented to a Bench on the next subsequent day on which a Bench is sitting.
31. When an appeal from an original decree or an appeal under the Workmen’s Compensation Act, or an application for revision has been admitted and registered, or, in the case of appeals from appellate decrees and appeals from orders, other than an order under the Workmen’s Compensation Act, when the court has passed an order to the effect that the appeal will be heard, it shall be the duty of the Deputy Registrar to send a notice [see Form Nos. 1 and 2 (Civil), Appendix – I] immediately to the court from whose decision the appeal is preferred, or the application is made, and to call for the transmission, ordinarily within seven days, of the record and all material papers:Provided that in every appeal from an interlocutory order made in a suit and coming under Order XLIII, Rule 1, Clauses (q), (r) and (s), Civil Procedure Code, only copies of the application for attachment before judgment, for the issue of an injunction, or for appointment of a receiver, with affidavits and the petitions of objections thereto with affidavits and copies only of the orders relating to the matter should be called for, and that such copies should be prepared by the court below at Government expense:
Provided further that if either the appellant or any of the respondents requires any other papers to be called for, he should file a list of such papers in the court below within a time to be fixed by that court and also deposit in that court, the costs of preparation of copies of such papers to be estimated by that court within a time to be fixed by that court:Provided further that the court below will make suitable orders for compliance with its orders and send to this court copies of such papers within a reasonable time:
Provided also that none of the parties will be entitled to refer at the hearing of the appeal, to any paper not sent as aforesaid to this court by the court below except with the leave of this court:Provided further that the Registrar, Appellate Side, may, in a special case, make any other order in regard to the calling of records from the court below.
Note : Records of execution cases sent up in appeal to the High Court shall Invariably be accompanied by all the papers with in the lower Courts whether original or appellate, including the decree which is the subject of the execution procedings.
31A. When calling for the record and material papers under the preceding Rule, the Deputy Registrar shall draw the attention of the lower court to Note I to Rule 537 of the Civil Rules and Orders relating to the transmission of cumbrous and bulky exhibits and shall call for such of them, if any, as have been directed by the court or the Registrar to be called for.
Note : Parties or their advocates desiring bulky exhibits to be called for in cases other than appeals from Original may apply to the Registrar before a case has appeared in the daily Cause List, and to the court thereafrer, for an order under this Rule, setting forth sufficient grounds in support of the application; such application when made to the Registrar need not be stamped or verified but should comply with Rule 6 of Chapter IV of these Rules.
31B. (i) When calling for the record of a contested or uncontested suit or case for Probate or Letters of Administration, or for revocation of the same, the attention of the District Judge or, District Delegate shall be drawn to the Note to Rule 412(1) of the Civil Rules and Orders, Volume I, as amended by Circular Order No. 18 (Civil) of 1939.
(ii) Before a ‘will’ as called for in connection with any appeal or case pending in this court at the instance of a party, such party shall deposit with the accountant of the court with challans in the prescribed form, a sum, to be assessed by the office, sufficient to cover all the necessary expenses for transmission and retransmission thereof by registered post with acknowledgement due, and the requisition calling for the ‘will’ shall contain a certificate that such sum has been deposited.
(iii) Upon receipt of a ‘will’ the Deputy Registrar shall take all necessary precautions for the safe custody and preservation of the ‘will’ until the same is returned by registered post, with acknowledgement due, to the. District Judge. or District Delegate from whom it was received.
32. Whenever it shall be impossible for the lower court to comply with the requisition within the time stated such court shall report the reason of its inability and shall ask for such further time as may be necessary.
32A. (i) Exhibited documents or other papers returned to the parties in the court below, and not received with the lower court’s records, may be filed in this court by the party to whom they were returned, at any time before the appeal is placed on the general list, and in case of appeals from original decrees or orders, before the list is prepared for purposes of the paper – book. The preparation of the paper – book or hearing of the appeal shall, on no account, be delayed for non – filing of the exhibits.
(ii) If such documents and papers are not filed by the party who received therm back, within the time mentioned above, he shall not be allowed, except with the permission of the court and subject to such terms as the court may think fit to impose, to use them for purposes of, his case during the hearing of the appeal.
(iii) If such documents and papers are not filed by the party who received them back, and the other party wants to use them in support of his case, it shall be open to the latter to make an application to the Registrar, at any time before the appeal comes on the Daily List, and the Registrar may, on such application, make an order directing the party, whose documents they are, to file them in court within such time as may be fixed by him.
(iv) If the documents and papers are not filed by the party in pursuance of the order of the Registrar mentioned above, it shall be open to the party who requires these documents to use certified copies of them if they are registered, and plain copies in his possession, if not registered, during the hearing of the appeal. The cost of obtaining certified copies of the documents shall, subject to any direction to the contrary given by the court, be borne by the party who failed to produce the original documents.
33. The fee for the issue of the notice to the respondent under Order XLI, Rule 14, Civil Procedure Code, shall be paid into court by the appellant: –
(a) in the case of appeals from original decrees and appeals under the Workmen’s Compensation Act, 1.The words within square brackets have been added by Notification No. 2372-G, dated the 25th April, 1966 – File No. 4R – 22/65.[the Indian Railways Act 4 of 1890 and the Motor Vehicles Act 4 of 1939] within four weeks of the date of registration of the appeals, notice whereof shall be given by being entered in a list in Form No. 14 (Civil), Appendix I, which will be displayed outside the Appeal Section concerned and a copy sent to the Bar Association’s Library. This shall constitute sufficient notice of the date of registration of the appeal;
(b) in the case of appeals from appellate decrees and appeals from orders, other than those which are dismissed at the preliminary hearing under Order XLI, Rule 11, Civil Procedure Code and other than appeals under the Workmen’s Compensation Act, [the Indian Railways Act 4 of 1890 and the Motor Vehicles Act 4 of 1939] within 30 days of the date on which the court passes an order admitting the appeal.
Note : Process-fee requried for the issue of notice on substituted parties shall be filed within a fortnight from the date of substitution and the process-fee for the issue of fresh notice shall be filed within one week from the date of the order directing the issue of such notice. In either case notice forms duly filled in shall accompany the Process-fee.
33A. The fee for the issue of notice under Order XLI, Rule 22(3) shall be paid, together with the necessary copies of cross objection, within one week from the date of the registration of the memorandum of cross – objection notice whereof shall be given in the manner prescribed in Rule 33(a) above.
34. (1) The appellant within thirty days from the registration of the memorandum of appeal, notice whereof shall be given in the manner stated in Rule 33(a) above, shall, in the case of appeals from original decrees, deposit with the accountant, in one instalment, the sum of Rs. 50 if the appeal does not exceed Rs. 10,000 in value; Rs. 75, if such appeal exceeds Rs. 10,000 in value but does not exceed Rs. 15,000; and Rs. 100 if such appeal exceeds Rs. 15,000 in value.(2) In the case of first appeals from orders passed by a subordinate Civil Court (including orders under section 47, Civil Procedure Code) and in appeals under the Indian Railways Act 4 of 1890 and the Motor Vehicles Act 4 of 1939 the appellant shall, at the time of paying the fee for the issue of the notice to the respondent under Order XLI, Rule 14, Civil Procedure Code, deposit the sum of Rs. 30 towards the cost of the preparation of the paper – book in the Appeal.
Note : When tendering money in the accounts section the advocate shall certify that the amount tendered is the full amount of initial deposit after reduction or otherwise, and the money shall not be received if this certificate is not given.
35. (1) Whenever it is necessary under these Rules to issue a notice to a respondent under Order XLI, Rule 14, Civil Procedure Code, the appellant shall, simultaneously with the filing of the fee, for the issue of such notice, file printed forms of such notices, duly filled up in the prescribed Form No. 3 (Civil), Appendix I, the date of appearance and the date of the notice being left blank.
Note : 1. The Form shall contain the full address of each respondent including the Munsifi within which he resides [vide Rule 2(b)].
- To enalbe a return of service to be submitted there shall be supplied a separate copy of the notive for each Munsifi within which service is to be effected; it shall contain manes of all respondents residing in such Munsifi.
(2) The information entered in the forms must be filled up in the vernacular (or in English if the respondent to be served is a European or a resident of Calcutta) in a bold, clear and easily legible handwriting.(3) The date fixed for appearance will be inserted in the Form and the notice will be dated and signed by an officer of the High Court.(4) The necessary number of the printed forms of notice in the prescribed form will be supplied to the appellants, or their advocates, free of cost on application to the Forms Clerk.(5) The Registrar may, in his discretion, direct in any particular case that the forms of notice be entirely filled up in the office of the court.
36. If the fee for the issue of the notice to the respondent be not paid into court in the manner provided by Rule 33, or the deposit required under Rule 34 be not made within the time allowed by that Rule, or if the notice forms, duly filled up, be not filed as provided in the last preceding Rule, the appeal shall be placed before the Registrar who may, in his discretion, either grant further time for making such payment, or deposit, or filing the notice forms, or direct the appeal to be placed before the court for orders.37. If the process – fee be paid and the notice forms be filed within the period prescribed by Rules 33 and 35, or within the further period allowed by the Registrar or the court, the notice in the prescribed form shall at once issue on the respondent.
38. If such respondent resides within the jurisdiction of the court from whose decree or order the appeal is preferred, the notice to such respondent shall be sent to the presiding officer of such court together with the proceeding of the High Court calling for the record.
39. Notice for service on respondents or opposite parties residing in any district other than that from which the appeal, application, etc., comes, shall be sent by the Deputy Registrar to the proper court in the district in which such notice is to be served. If, however, the opposite party, or any of the pal ties to be served, resides in the same district but outside the jurisdiction of the court from which the appeal, application, etc., comes, the notice shall be sent for service to the court within whose jurisdiction the party resides, if known; if not known, then to the court from which the appeal or application comes, directing the latter to forward it to the proper court within the jurisdiction of which the notice is to be served. The court which serves any notice shall in every case make its return of service, or of the failure of service (as the case may be), direct to the High Court.
39A. Where the jurisdiction within which a party resides is not known the notice in respect of such party shall be accompanied by a duplicate copy for the purpose of return of service.
40. On receipt of the proceedings of the High Court, transmitting the notices of appeal or application, the lower court shall cause their service without the payment of any further fee and without any further action by the appellant:Provided that the appellant or applicant or some one employed by him, may, in any particular case if he so desires, accompany the serving officer for the purpose of facilitating the service of the processes.
41. The time allowed for service of the notice shall be specified therein by the Deputy Registrar in accordance with the time – table in Rule 46 and shall commence from the date on which it is despatched, which shall, in general, be the day on which the process – fee is deposited and the notice forms are filed.
42. The lower courts shall issue all notices immediately on receipt thereof and in their returns of service shall, in every instance, insert (a) date of receipt of notice; (b) date of delivery to the serving officer; and (c) date of receiving it back from him.
43. It shall be the duty of the lower court to cause the notice to be served in sufficient time before the date fixed, and, if such service be impracticable, to state, when returning it to the High Court, the reasons thereof. The lower court shall satisfy itself that a valid service has been made, or that there has been a failure of service, and shall certify such opinion with the reasons in case of failure of service. The certificate shall be accompanied by the return of service, or of failure to serve the notice, and the declaration of the serving officer specifying the fact and mode of service or the reason for non – service.
44. The date to be fixed for the hearing of the appeal shall be the 21st day after the date on which the time for the service of notices expires, provided that if such day be a Sunday or holiday, the first open day next following shall be the date fixed for the hearing.
45. In an appeal in which more than one respondent is to be served with the notice under Order XLI, Rule 14, Civil Procedure Code, the Deputy Registrar, in fixing the time for the hearing of the appeal, shall fix the 21st day after the day fixed for the service of the notice of appeal on the respondent for whom the longest period is allowed under the following rule.
46. The following time – table shall be observed:
|District||Number of days allowed for service of notice of appeal on the respondent|
|The Municipalities of Calcutta and Howrah||10 days|
|All Districts of West Bengal (excluding the Municipalities of Calcutta and Howrah)||21 days|
47. When in an appeal or other proceeding the court orders a notice to show cause to issue, such notice shall ordinarily be issued to all parties to such appeal or other proceeding and to any person whom it is proposed to make a party. If the person to whom the notice is to issue is a minor, a person of unsound mind, or other disqualified person, it shall also be issued to the guardian or next friend of such person.
47A. A copy or an additional copy, as the case may be, of every notice issued in applications under Articles 226 and 227 of the Constitution in which the State or any officer of the State has been made a party, shall be sent to the Superintendent and Remembrancer of Legal Affairs.
48. In every case in which an appeal has been admitted, the Registrar shall cause paper – books to be prepared in accordance with the provisions of Chapter IX: .
Provided that unless specially directed, no paper – book shall be prepared in second appeals heard by a single Judge.
49. As soon as the paper – book has been prepared in accordance with the provisions of Chapter IX, and the appeal is otherwise ready for hearing, it shall be entered in the General Warning List and notice thereof shall be published in the manner prescribed in Rule 63 of Chapter IX of these Rules:
Provided that, unless there is a special order to the contrary, no appeal shall be entered in the Monthly Cause List until the expiry of fourteen days from its entry in the General Warning List of Appeals ready for hearing.
50. The Deputy Registrar shall, on the last Saturday of each month, cause to be prepared and posted on the Notice Board of the court a list of cases which are ready for hearing during the following month. This list shall be called “The Monthly Cause List”.
51. From the Monthly Cause List the Deputy Registrar, subject to any special orders passed by the Judges or by the Registrar under Rule 57 of this Chapter, shall each day cause to be prepared and pasted on the Notice Board of the court a list of the cases to be taken up by each Bench on the following day. This list shall be called “The Daily Cause List”, and a copy of it shall be submitted to each Judge.
52. The Daily Cause List for the days on which the Registrar sits shall include a list of the cases which will be taken up by him.
53. If on the date fixed for the hearing of any appeal, application or other matter, it appears that the requisite notices have been served, and the matter is otherwise ready for hearing, the matter may be disposed of; if not disposed of, it shall come on for disposal in the ordinary course, and no notice of any date fixed for hearing shall be given other than its inclusion in the Daily Cause List.
54. A case which is part – heard shall, unless otherwise ordered by a Bench, be placed first in the Daily Cause List for the day on which the Bench which has partly heard such case next sits for the disposal of that class of business.
55. Subject to Rule 54, a case which is specially fixed for a particular day before a particular Bench shall be placed at the head of the list for that day.
56. The cases in the Daily Cause List shall, unless the Bench otherwise directs, be called on and disposed of in their order on the list.57. Any person desiring that a case shall not be placed in the Daily Cause List for any particular day or days may, after notice to the opposite party, appeal to the Registrar, and thereupon the Registrar may, subject to the proviso to Rule 2(19), Chapter II, order that such case shall not be placed in the Daily Cause List for any such day or days.
58. Appeals from orders shall have precedence over other appeals in preparation for hearing and shall, when ready, be put up for hearing as soon as possible.
59. When an order has been made under Order XLI, Rule 23 or 25, Civil Procedure Code, the Deputy Registrar shall make a note of the same in a register to be kept for the purpose, and he shall bring to the notice of the Registrar any case in which the subordinate court has not made a return to the order of remand within four months, or within such time as may have been specially ordered.
60. On receipt of the finding of a lower court in a case referred under Order XLI, Rule 25, Civil Procedure Code, the Deputy Registrar shall notify to the advocates of the parties that any objection to such finding must be filed within one week from the date of the service of the notice.
61. Whenever by an order of a Division Bench, the decree or order of a lower court is modified or reversed, or costs are fixed in any special sum not specified in the judgment, as soon as the decree or order has been drawn up, it will be the duty of the Assistant Registrar (Court) concerned to cause a notice to be issued to the advocates concerned or to the parties, if acting in person, stating that such decree or order has been drawn up and that it may be perused by any party or his advocate within one week from the date of the issue of the notice.
62. When such notice has been issued, any party or his advocate may, before the expiry of the time prescribed in Rule 61, peruse the decree and either sign it or state his objection to the Judge or Judges, or one of them who delivered the judgment; or if such Judge or Judges has or have ceased to be a Judge or Judges of the court, or be absent on leave, then before such Judge or Judges as the Chief Justice may appoint for that purpose.
63. (1) Should no objection be filed on or before the date specified in the notice, the Assistant Registrar (Court) shall submit the decree to the Judges for signature.
(2) In drawing up decrees of this court dismissing with costs appeals by minors, the Assistant Registrar (Court) should be careful to make the next friend of the minor liable for such costs, unless the court otherwise orders.
(3) In cases where a minor is a respondent and the decree of the court below is reversed or altered, it shall be the duty of the Assistant Registrar (Court) to call the attention of the Division Bench to that fact, in order that special directions may be given as to the payment of costs.
64. A copy of the judgment and of the decree passed by the High Court, disposing of an appeal shall be certified by the Deputy Registrar and forwarded by him to the court which passed the decree appealed from, in the manner prescribed by Order XLI, Rule 37, Civil Procedure Code.
65. Every decree and order made by the High Court shall be drawn up in the English language.
66. In an appeal or other proceeding arising out of Article 226 of the Constitution of India, the certificate of non – satisfaction of decree under Order XXI, Rule 6(b), Code of Civil Procedure, shall be drawn up in Form No. 33 (Civil) (Appendix I).
67. Except when the Registrar otherwise directs, the records of the lower courts shall be sent down as soon as possible after the case has been disposed of.
68. No advocate shall receive instructions from any person other, than an advocate, an attorney, an enrolled mukhtar of the court, or the party himself, or a person holding a general power – of – attorney from him, or his servant or relation, or a pleader of the mufassal court, specially authorised in writing in that behalf. Where there are more parties than one, and they appear by separate vakalatnamas, the vakalatnama of one may be received from any other similarly authorised, but if they appear by one and the same vakalatnama, it may be received from any one of them, or from a person duly authorised by any of them, without special authority from the others. When any vakalatnama is filed by an advocate, he shall endorse on the back of it the name of the person from whom it is received, and if such person is not the client himself, or an advocate, attorney, or enrolled mukhtar, shall state the nature of the authority, with date, of that person.
69. When an advocate retained to appear for any party to an appeal is prevented by sickness or engagement in another court, or for any other sufficient cause, from appearing and conducting the case of his client, he may appoint another advocate to appear in his place, so that his client may not be unrepresented at the hearing, but such advocate shall not so appear unless he shall have first obtained the special permission of the Division Bench, or the Registrar, as the case may be.
70. In any case in which the party employing an advocate, or his agent, after due notice fails to pay the amount of the estimated costs for preparing briefs necessary to enable the advocate to conduct the case properly, the advocate or advocates, after notice to such party or his agent, or by leave of the court, may withdraw from the case.
71. An advocate may also, for any other sufficient cause, or after such notice to his client as may enable him to appoint another advocate by leave of the court, but not otherwise, and on such terms as the court may order as to refunding any fees he may have received, withdraw from the further conduct of the case.
72. A party desiring to cancel a vakalatnama filed by him in any appeal or other proceeding in this court must file a duly stamped and verified application for the orders of the court unless the advocate who accepted the vakalatnama signifies his willingness to retire from the case, in which case the application need not be verified.
73. The Deputy Registrar shall endorse the date of receipt on all vakalatnamas and mukhtarnamas in all cases in the High Court in its appellate jurisdiction.
74. The Deputy Registrar shall bring to the notice of the Registrar any wilful neglect on the part of any advocate or mukhtar attached to the High Court to attend at his office.
75. In every civil matter in which the court directs an order to be issued immediately, the Assistant Registrar (Court) shall at once draw up the order in the prescribed form [see Form No. 5 (Civil), Appendix – I] and after obtaining the signature of the Judges thereto, send it forthwith to the Deputy Registrar or the Officer – in – Charge of the Judicial Department as the case may be, for issue without waiting for the formal order or the judgment to be signed. The Deputy Registrar or the Officer – in – Charge of the Judicial Department shall issue the order upon payment of such fee as may be chargeable:Provided that if it is not possible to obtain the signature or signatures of the Judge or Judges on the day on which the order is passed, the matter should be brought immediately to the notice of the Registrar. If one Judge of a Bench has signed the order, the substance of it shall be communicated to the lower court, immediately, with a note that the copy of the order proper will follow.
76. The Stamp Reporter shall bring to the notice of the Deputy Registrar any irregularity committed by the lower courts in the preparation and endorsement of certified copies of the decrees of their courts, and the Deputy Registrar shall submit his report of such irregularity to the Registrar.
77. For purposes of this Chapter, appeals against orders of the Calcutta Improvement Tribunal shall be treated as appeals from original decrees.
78. Requisitions made under Order XIII, Rule 10, Civil Procedure Code for the production of records of cases pertaining to, and in the custody of, other High Court or courts subordinate to such other High Courts should be addressed to such High Courts.
79. Whenever production of any document from the custody of the Parliament, or a State Legislature, or a committee thereof and/or evidence of any officer in the Secretariat of the Parliament, or of the State Legislature or evidence of any officer of a committee thereof is required in a case pending before this court, a letter of request in the prescribed form [see Form No. 34 (Civil) Appendix – I] shall be issued instead of a summons in ordinary Form.
80. In all cases where Court Fee References are decided by the Registrar as the Taxing Officer (except where the State Government is a party appellant) copies of the decisions of the said Taxing Officer shall be sent immediately to the Board of Revenue, West Bengal for information and necessary action, if any.
Rules regarding caveats
81. Every caveat intended to be lodged under section 148A of the Code of Civil Procedure, 1908, shall be drawn up in the manner prescribed in Form 35 (Civil) (Appendix I) and filed in the Central Filing Section of the appellate side of this court.
82. Every caveat under section 148A shall be accompanied by a postal receipt in proof of despatch of notice of the caveat by speed post or registered post with acknowledgement due to the person by whom the application has been or is expected to be made in respect of which the caveat is being lodged under sub – section (1) of section 148A:
Provided that in a case where caveat is lodged in a pending proceeding instituted through an advocate the caveator shall also annex to his caveat a receipt showing service of such Caveat upon the said learned advocate.
83. (i) Every caveat shall contain the following particulars:
(a) name and full postal address of the person lodging caveat;
(b) name of the applicant in respect of whose application the caveat is intended to be lodged and the full postal address of such applicant;
(c) the court by which the decree or order referred to in the caveat was passed together with the number and the year of the suit or proceeding in which the decree or order was passed;
(d) particulars of the proceeding of the High Court, in case the caveat is being lodged in a pending proceeding with reference to which the caveat is being lodged;
(e) value of the suit or proceeding; and
(f) a statement that the notice of the caveat had been served on the person by whom the application in respect of which the caveat is being lodged has been or is expected to be made.
(ii) Every caveat shall bear requisite court – fee stamp.
(iii) Every caveat shall be signed and dated either by the person lodging the caveat or his advocate.
(iv) When a caveat is being lodged through an advocate a vakalatnama executed by the caveator and accepted by the said advocate shall be annexed to the caveat and such a vakalatnama will remain in force for the purpose of appearance on behalf of the caveator in the proceeding instituted and in all matters arising therefrom or connected therewith.
84. When a caveat is not in proper form or is otherwise defective, the court may allow the defect to be removed within such time as the court may direct.
85. (i) All caveats in respect of applications expected to be made in any proceeding to be instituted shall be entered in the appropriate register to be maintained and the said register shall contain the following particulars:
(a) serial number;
(c) name of caveator with address;
(d) the name of the applicant with address;
(e) number and nature of the proceeding to be instituted;
(f) valuation of the proceeding;
(g) number and year of the suit or other proceeding in which the order or decree had been passed and with relation to which the application is expected to be made;
(h) the court which passed that decree or order; and
(i) all caveats in respect of applications made or expected to be made in any proceeding pending shall forthwith to be incorporated in the records of that proceeding and the fact of the lodging of such caveat shall be recorded in the order – sheet under the date and signature of the superintendent of that department dealing with the said proceeding.
86. Notwithstanding anything contained in any other rules –
(i) every application other than those specified in Rule 7 hereunder shall be filed in the Central Filing Section of the appellate side of this court and the said application shall contain a statement whether the applicant had been served with the notice of the caveat or not and if so, whether the applicant had furnished the caveator with a copy of the application and also with copies of any paper or document which have been or may be filed in support of the application;
(ii) on receipt of such an application the office shall with reference to the register of caveats or the order – sheet in case of pending proceedings, forthwith make an endorsement thereon as to whether any caveat had been lodged in respect of such an application and unless otherwise directed by the court shall serve notice thereof by registered post at the cost of the caveator; provided that where the caveat had been lodged through an advocate such service may be effected through the advocate;
(iii) subject to any direction by the court, every application in respect of which a caveat has been lodged shall be placed in the Daily Cause List for hearing not before the expiry of 7 days from the date of the issue of the registered notice under clause (ii) hereof;
(iv) inclusion of such an application in the Daily Cause List shall constitute service of notice upon the caveator under sub – section (3) of section 148A of the Code of Civil Procedure;
(v) every application in respect of which no caveat has been lodged shall forthwith be listed for hearing with necessary endorsement referred to in clause (ii) hereof.
87. The provisions in Rule 86 shall not, however, apply to any of the following applications :
(1) an application for refund of court – fees paid in excess; (2) an application for time to put in requisite court – fee and refiling of memo of appeal after the period of limitation; (3) an application to the Taxing Officer to determine the court – fee payable; (4) an application for substitution of the heirs and legal representatives on the death of a party including one for substitution on setting aside abatement; (5) an application to record as assignment creation or devolution.of an interest in a pending proceeding; (6) an application for amendment of a memo of appeal or of a petition on a minor attaining majority; (7) an application for appointment of a guardian ad litem or cancellation of such an appointment or for representation of the minor in case of non – appearance of the guardian; (8) all applications relating to (a) service of notice including those for substituted service and dispensing service, and (b) sub poena; (9) all applications relating to inspection of records; requisition of records of obtaining information and copies of records; (10) an application for return of documents or exhibits; (11) an application for exemption from production of more than one copy of the judgment in analogous appeals and from payment of separate set of estimating fees and for direction for analogous hearing; (12) an application for cancellation ofvakalatnama or an application by an advocate for leave to withdraw from further conduct of the case; (13) all applications under Order 27, Rule 8 of the Code of Civil Procedure and the rules relating thereto; (14) an application for amendment of the memo of appeal or for taking additional grounds or additional evidence; (15) all applications relating to preparation of the paper – book and of the records in an appeal to the Supreme Court and for direction for early hearing; (16) all applications relating to Lawazima matters including applications for restoration of an appeal or a rule dismissed or discharged for default; (17) an application under Order 44, Rule 1, where there is no prayer for an interim order; (18) all applications regarding matters connected with appeals to the Supreme Court where there is no prayer for an interim order; (19) an application for leave to sue the receiver or to execute a decree against the property lying in the hands of a receiver; (20) an application for extension of time fixed by the court; (21) all applications which under these rules are to be dealt with by the Registrar not specifically provided for hereinbefore; (22) all applications for vacating interim orders; (23) an application under Article 226 of the Constitution; and (24) any other application in respect of which the court exempts compliance with requirement of Rule 86.
88. A caveat shall form part of the proceeding in connection with which the same is lodged. A caveat in respect of which no application is filed within the time prescribed by sub – section (5) of section 148A of the Code of Civil Procedure shall be deposited in the Record Department and be preserved for one year.
89. Every caveat lodged shall be accompanied by the stamped postal cover for registration for issue of notice under Rule 86(ii) which should be returned to the caveator in case the notice under Rule 86(ii) is not required to be issued.