Appeal to the Division Bench on the Original Side of the Calcutta High Court

Appeal to the Division Bench on the Original Side of the Court as provided in Chapter XXXI of the Original Side Rule. Rule 2 provides:

“Form of Memorandum.

2. Every memorandum of appeal from the Original Side shall be in Form No.1 and shall be drawn up in the manner prescribed by O. XLI, R.1 of the Code, and shall be presented to the Registrar, accompanied by a copy of the Decree of Order appealed from”. Rules 3, 4, 5 and 29(a) and (b) provide:

“3. The Registrar shall accept and file a Memorandum of Appeal, if it is duly stamped and R.2 has been complied with and if it appears to him to have been presented within the time allowed by the law of limitation. But such acceptance and filing shall not be a bar to any objection that may be taken in respect of any of such matters at the hearing of the appeal.”

“4. When the Memorandum of Appeal is not accepted by the Registrar he shall endorse thereon the date of its presentation and return it to the party or attorney by whom it was tendered. Such Memorandum of Appeal may then be presented to the Appellate Court for admission.”

“5. Application for the admission of a Memorandum of Appeal rejected by the Registrar shall be made to the Appellate Court the earliest opportunity. The Appellate Court on hearing such application may admit or reject the same with or without notice to the respondent. Where it is admitted without notice to the respondent such admission shall not be a bar to any objection that may be taken at the hearing of the appeal in respect of its admissibility.”

“29(a). The Appellate Court, or, if such courts be not sitting, a judge sitting on the original side of the High Court may, upon application and upon sufficient cause being shown, enlarge the time prescribed by these rules for doing any act to be done under these provisions. An application for enlargement of time must ordinarily be made before the expiration of the prescribed time and must be supported by an affidavit, and also by a certificate of the Registrar, showing the dates on which any acts prescribed by these rules were done.”

(b) The Appellate Court, or the Judge as aforesaid may also upon application and upon sufficient grounds verified by affidavit, exempt the parties or any of them from the operation of the whole or any part of these rules and may make such special order as shall appear desirable with regard to any matter with which these rules are concerned.”

Vis-a-vis these rules we have now to consider the provisions of O.XLI of the CPC for filing of appeals from original decrees. The relevant part of R.1(1) is set out as follows:–

“1(1). Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the Judgment on which it is founded.”

14. The Division Bench of this (Court) in Smt. Annada Sundari Saha Vs. Monoharan Saha and Others, had held that (at p.370 of AIR):

“There is a long standing practice of this court to grant such exemption but to a limited extent. It is granted conditionally upon the appellant’s undertaking to court, inter alia, to file the certified copy of the decree or order appealed from, within the period of limitation. That time old practice has the force of law under Chapter 40, Rule 3 of the Original Side Rules as set out above. In other words, the appellant is allowed to file the memorandum of appeal without the certified copy of the decree or order appealed from but if ultimately it is found at the hearing of the appeal or earlier that he has allowed the time to expire and has failed to file such certified copy of the decree or order appealed from within the period of limitation, after excluding the time required by the department concerned to make it ready for filing thereof within the meaning of S. 12(2) of the Limitation Act, 1963, then the appeal would be incompetent. Under such circumstances, the question of limitation will arise, because it was allowed to be filed subject to the question of limitation.”

Vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly

Sadar Ali and Others Vs. Doliluddin Ostagar, and In Re: Vasudeva Samiar alias Vasudeva .

In the said case, the Constitution Bench has culled out the principles in para 23 which reads as follows:–

“23. From the decisions cited, above the following principles clearly emerge:

(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force care preserved to the parties thereto till the rest of the career of the suit.

(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date of the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

(v) This vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary intendment and not otherwise.”

10. Thus, it clearly emerges that right of appeal is a substantive right. The vested right of appeal can be taken away only by a subsequent enactment, if so provides expressly or by necessary intendment and not otherwise. Thus, while examining the retrospectivity, it is advisable to know the object behind introducing of provision in the statute justice Malimath Committee examined the issue of further appeal against the judgment of the Single Judge exercising the first appellate jurisdiction. Committee recommended for suitable amendment of Section 100-A of the CPC with a view to provide that further appeal in this regard shall not lie. The Committee also recommended for suitable enactment by Parliament for abolition of appeal to Division Bench against the decision and order rendered by the Single Judge of the High Court in a proceeding under Article 226 or 227 of the Constitution of India. However, by Amendment Act of 2002, appeals to Division Bench under Articles 226 and 227 of, the Constitution of India have been restored Section 10 of the C.P.C. (Amendment) Act, 1999 has abolished the appeal against the judgment of Single Judge of the High Court in all cases. The net result of Amendment Acts of 1999 and 2002 is that where an appeal from original or appellate decree where order is heard and decided by Single Judge of the High Court, no further appeal shall lie to Division Bench of High Court. In the amending Act, the words “no further appeal shall He” is of great significance. It clearly means that no further appeal shall be entertained in respect of appeal filed after the cut off date. Looking to the object of introducing the provision, any other interpretation would be anathema to the provision. Reading the words “heard and decided” and the words “no further appeal shall lie” con-jointly, clearly indicates that vested right of appeal has been taken away by the Legislature from the cut off date i.e., 1-7-2002. It is in consonance with the intention of the Legislature to curtail the second appeal in the third Court. The Legislature in its wisdom has considered the right of appeal to a singular one. Thus, the Legislature has expressly stated that no further appeal shall lie after the appeal has been heard and decided against the judgment and decree of original Court. Thus, we are of the view that the substitution of Section 100-A of the CPC does not permit the Division Bench to entertain special appeal against the judgment and decree of the learned Single Judge rendered in first appeal after the cut off date i.e., 1-7-2002.

Audi alteram partem

“The right of audi alteram partem is a valuable right recognised even under the India Constitution. See Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, , wherein it is held, the principle of the maxim which mandates that no one should be condemned unheard; is a part of rule of natural justice. We have already held that such right of hearing conferred by a statute cannot be taken away even by Courts.”

Equity Appeal

In common law cases the appellate court could ordinarily review only rulings of law. In equity cases, on the other hand, the appellate court could review findings of fact as well as conclusions of law. The significant thing about common law pleadings in error was that their scope was so limited that they did not bring about a review of the merits of the judgment. The appellate court did not pass on whether or not the judgment below was fair or just, nor on what the correct judgment should have been. Instead, the sole question was, Did the trial judge commit an error? The function of an appellate court in reviewing equity cases, on the other hand, is not to search the record for errors of law, but to examine the result in the light of the evidence to see if justice has been done. Thus, the equity doctrine is in accord with the modern theory that the primary purpose of review is to see that justice is done in the individual case.

Whether a suit is instituted by an adult or a minor they stand on the same footing

Supreme Court in Kakumanu Peda Subbayya and Another Vs. Kakumanu Akkamma and Another, . Repelling the argument that an adult can bring about a division in status as he will be in a position to express his opinion clearly and unambiguously but a minor cannot express the same, the Supreme Court held that a suit filed by a next friend on behalf of minor would bring about a severance as effectively as it is done by a suit instituted by an adult plaintiff. The Supreme Court held as follows: Continue reading

Partition means

Supreme Court in Kakumanu Peda Subbayya and Another Vs. Kakumanu Akkamma and Another, . Repelling the argument that an adult can bring about a division in status as he will be in a position to express his opinion clearly and unambiguously but a minor cannot express the same, the Supreme Court held that a suit filed by a next friend on behalf of minor would bring about a severance as effectively as it is done by a suit instituted by an adult plaintiff. The Supreme Court held as follows: Continue reading

Casanova

A characterless person having the quality of charming women

Example :

  1. The appellants have attacked his character. An attempt has been made, and which we regard to be too crude and in bad taste, to show that he is a Casanova of sorts. Barring suggestions to that effect, there is nothing of substance to bring home the charge.
  2. The appellants have attacked his character. An attempt has been made, and which we regard to be too crude and in bad taste, to show that he is a Casanova of sorts. Barring suggestions to that effect, there is nothing of substance to bring home the charge.
  3. The appellants have attacked his character. An attempt has been made, and which we regard to be too crude and in bad taste, to show that he is a Casanova of sorts. Barring suggestions to that effect, there is nothing of substance to bring home the charge.