JUDGMENT
P.S. Mishra, C.J.
1. When time passes and situations undergo changes, conventions of the Courts and rules of procedure are sometimes stretched and even violated. Every High Court in matters of procedure is given freedom by the laws made by the competent legislature and to seek uniformity of procedure in all the Courts in the country is to seek concurrence of minds of Judges of different Courts of the country, which is possible only when they interact and recognise the wisdom behind a particular procedure, which is followed in any Court. This Court, although created after independence and the Constitution of the Republic of India has inherited and by law made by the Parliament, conferred with the Letters Patent power of the Madras High Court, a Full Bench of this Court in A. Srinath v. APSRTC, 1966 (2) ALT 893 = 1996 (3) ALD 56(F.B.) has accepted that the practice of the Madras High Court applies perforce to this Court. The Full Bench has traced the history of the creation of this Court stating inter alia as follows:
“The history of the creation of this Court goes to the period of King George III of Great Britain when under the Letters Patent dated 26-12-1818 a Supreme Court of Judicature at Madras was established followed by its revocation under the Letters Patent dated 26-6-1862 under which the High Court of Judicature for the Presidency of Madras was created, and reconstituted by the Letters Patent dated 28-12-1865. On creation of the State of Andhra under The Andhra State Act, 1953 (30 of 1953) and the State of Andhra Pradesh under the States Reorganisation Act, 1956 (Act 37 of 1956), this Court has been established as a successor of the power of appeal under Clause 15 of the Letters Patent of the Madras High Court. Ever since its establishment, the Madras High Court has exercised in such Civil, Criminal, Admiralty, Vice-Admirality, testamentary, intestate and matrimonial jurisdiction, original and appellate and all such powers and authorities for and in relation to the administration of Justice as are conferred upon it under the said Letters Patent and/or amendment thereto. This Court has also exercised all the above powers except the ordinary original jurisdiction as spelled out in Clause 12 of the Madras Letters Patent. A Letters Patent power of the Court in Clause 15, however, is common to both the Courts and exclusive to this Court for the territorial jurisdiction of the State of Andhra Pradesh.”
2. The appellate jurisdiction is created with respect to matters, civil and criminal, not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, 1915 or in the exercise of the criminal jurisdiction of one Judge of the High Court or one Judge of any Division Court pursuant to Section 108 of the Government of India Act. The last part of the clause wherein appeal to the Privy Council is preserved, however, stands repealed by the Constitution of India. Section 108 of the Government of India Act, 1915 has been continued by promulgation of Government of India Act, 1935 and by Article 225 of the Constitution of India. Section 108 of the Government of India Act, 1915 reads as follows:
“(1) Each High Court may by its own rules provide, as it thinks fit, for the exercise, by one or more judges, or by division courts constituted by two or more judges, of the High Court, of the original and appellate jurisdiction vested in the Court.
(2) The Chief Justice of each High Court shall determine what judge in each case is to sit alone and what judge of the Court, whether with or without the Chief Justice, are to constitute the several division Courts.”
In other words, Section 108 of the Government of India Act, 1915 provides,
“if rules framed by the Court provide that one or the other original or appellate jurisdiction of the Court would vest in one or more Judges, that would determine whether a certain case would be listed before a single Judge or before a Division Bench of two or more Judges. The Chief Justice shall determine what Judge in each case is to sit alone and what Judges of the Court, whether with or without the Chief Justice, are to constitute the several division Courts.”
3. Clauses 37 and 38 of the Letters Patent respectively provide for regulation of proceedings in civil and criminal cases. Clause 37 reads:
“Regulation of Proceedings:-And we do further ordain that it shall be lawful for the said High Court of Judicature at Madras from time to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty testamentary, intestate and matrimonial jurisdiction, respectively; Provided always, that the said High Court shall be guided in making such rules and orders as far as possible by the provisions of the Code of Civil Procedure, being an Act passed by the Governor-General-in-Council, and being Act No. VIII of 1859, and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India”.
Substituting thus for the High Court of Judicature at Madras, the High Court of Andhra Pradesh in Clause 37 above, this Court has been given the power to make rules and orders for regulating the procedure and practice in civil cases and while making the rules of procedure, the Court would be guided as far as possible by the provisions of the Code of Civil Procedure as amended or altered by the competent legislative authority in India. The above legal position, we need not dilate further, has remained unchanged as the Full Bench of the Court has pointed out in A. Srinath’s case supra perforce Article 225 of the Constitution of India, which provides as follows:
“Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the judges thereof in relation to the administration of Justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution:
Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.”
The Constitution has thus not only saved the inherent jurisdiction of the High Court but also Letters Patent including incorporation of Section 108 of the Government of India Act, 1915 in Clause 15 of the Letters Patent as well as other provisions like Clauses 37 and 38 thereof. Rule making power of the Court for procedure to be followed by it is also referable to Section 122 of the Code of Civil Procedure, 1908 which states:
“High Courts not being the Court of a Judicial Commissioner may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule.”
First schedule of the Code contains in Order 41, rules in respect of appeals from original decrees including how the rule providing for stay of proceedings under a decree or order appealed from, security in case of order for execution of the decree appealed from etc. and in particular Rule 11, power to dismiss appeal without sending notice, is in the following terms:
“Rule 11(1): The Appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader.
(2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.
(3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.
(4) Where an Appellate Court, not being the High Court, dismisses an appeal under Sub-Rule (1), it shall deliver a judgment recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment.”
Rules framed by this Court by virtue of the power conferred upon it under the Letters Patent aforementioned and all other powers enabling it to frame rules of procedure and practice called “The Rules of the High Court of Judicature, Andhra Pradesh, Appellate Side” and in Chapter II thereof, spell out the powers and authorities which are exercisable by the Registrar of the Court and has recognised in Rule 10 thereof that the Registrar’s powers, except such as may, from time to time, be expressly exempted by the Chief Justice, may be exercised by the Deputy Registrar or by the Assistant Registrar, Appellate side. Rule 12 provides, in addition to the powers conferred by other rules, upon the Registrar of the Court, subject to any special or general order made by the Chief Justice, the following duties and powers:
“(i) (1) To receive all appeals, petitions and other proceedings;
(2) To require any memorandum of appeal, petition, application, or other proceedings presented to the Court or to the Registrar to be amended in accordance with the procedure or practice of the Court or to be represented after such other requisition, as the Registrar is empowered to make, has been complied with : Provided that the Registrar shall when so required, refer the matter to the Court.
(3) To admit all appeals against the decrees or orders of Civil Courts and to issue notice to the respondents therein provided that after the admission.
(a) in appeals against original decrees and in appeals under Clause 15 of the Letters Patent from judgments of single Judges passed in appeals from appellate decrees or orders, the Registrar shall issue notice forthwith.
Note:-Other appeals under Clause 15 of the Letters Patent are to be posted before a Bench of Two Judges for orders as to notice under Rule 51(3).
(b) in appeals against appellate decrees he shall take the orders of a Judge whether notice shall issue or the appeal be posted before a Judge for hearing under Rule 11 of Order XLI of the First Schedule of the Code of Civil Procedure, 1908.
(c) in all other appeals he shall determine whether notice shall issue at once or whether the case is to be posted before a Judge for orders, and
(d) in revision petitions he shall take the orders of a Judge as to whether notice shall issue or the petition be posted before a Judge for hearing in the manner prescribed for appeals by Rule 11 of Order XLI of the First Schedule to the Code of Civil Procedure, 1908.
(4) To fix the date of hearing of any interlocutory matter.
(5) To advance the hearing of cases posted as ready on the notice board of the Court.
(6) To determine all cases referred to him under Rule 60-A and, on application made to him by petition, to extend the period prescribed for payment of process-fees, provided the whole period shall not exceed four weeks.
(7) To direct service under Order XLI-A, Rule 5.
(8) On an application being made to him, to direct that any papers referred to in Rule 73 which he considers unnecessary be omitted from the record.
(9) To direct the translation and printing of documents referred to in Rule 85.
(10) To make an order for the supply of copies of-
(a) records duly certified as correct copies;
(b) uncertified printed records; and
(c) rough translations of records which are not printed, under Rules 87 and 88.
(11) To stop at his discretion the issue of all or any other papers to any pleader who has failed to pay any fee or charges due to the Court.
(12) To direct the return of the deposit referred to in Rule 75.
(13) To make an order for change of pleaders (with the consent of the pleader on record).
(14) To require any person or party to file evidence to be given upon affidavit with respect to any application or matter in respect of which he has power to exercise any discretion or to make any order.
(15) To appoint or discharge a next friend or guardian ad litem to a minor (except in cases under appeal to the Supreme Court) and to direct the amendment of the record accordingly.
(16) To enter in the record the name of the representative of a deceased appellant, petitioner or respondent, except in cases under appeal to the Supreme Court;
Provided that contested applications and applications presented out of time falling within Clauses 15 and 16 above shall be posted before a Judge for disposal.
(17) To make an order for leave to search the records of the Court under the rules in that behalf.
(18) To dispose of all applications for copies of judicial records of, or in the custody of, the High Court, presented by persons who are not parties to the proceedings to which such records relate.
(19) To determine whether any accounts which the parties to an appeal to the Supreme Court have not specifically asked to be included are necessary to the appeal.
(20) Omitted.
(21) Omitted.
(22) To make an order for payment of costs of any application heard by him.
(23) To give directions as to the preparation of the record in connected appeals.
(24) To dispense with the affidavit required by Rule 44.
(25) To allow from time to time any period or periods not exceeding ten days in all for filing slips, furnishing information for paying process-fees, or initial printing deposits or for any similar act necessary to make an appeal or a petition complete.
(26) To extend the period mentioned in Order XLI-A, Rule 2, as follows:- (a) If the respondent resides beyond the limits of the State of Andhra Pradesh within the limits of India or Ceylon, to not more than ten weeks.
(27) To extend the time originally fixed for furnishing security or to grant further time when default has been made in furnishing security within the time originally fixed, on an application made to him by petition.
(28) To extend the time mentioned in Rule 60 to four weeks in all from the time of notice on the notice board.
(29) To extend the time prescribed by Rule 79 for a period not exceeding ten days.
(30) To extend the time for making the deposit referred to in Rule 91.
(31) To extend upon good cause for a period not exceeding ten days the time limited by the rules relating to the preparation of the record for filing a list or making a deposit.
(32) To consider and dispose of claims by the unsuccessful party for the cost of unnecessary printing done at the instance of the other party.
(ii) To refer any matter before him to the Court.”
Besides the above, Rule 12-A provides that the Chief Justice may, by general or special order, confer upon the Registrar power to hear and determine the classes of applications which are set forth thereunder. The above leave no manner of doubt that this Court has the power under Clause 37 of the letters patent as well as Under Section 122 of the Code of Civil Procedure to frame rules for regulation of its own procedure and that in exercise of these powers, it has framed rules which includes Rule 12 afore-quoted, which empowers the Registrar of the Court to receive all appeals, petitions and other proceedings and “to admit all appeals against the decrees or orders of Civil Courts and to issue notice to the respondents therein.” We shall presently see that the Appellate Side Rules supplement the provisions of the Code of Civil Procedure particularly Order XLI aforementioned, even if there is any inconsistency between the Appellate Side Rules and the provisions of the Code, the Appellate Side Rules having been formulated pursuant to the Letters Patent power of the Court as well as Under Section 122 of the Code, under which it is permissible to annul, alter or add to any of the rules in the First Schedule of the Code, the rules framed by this Court shall prevail. We have the support of the view in this behalf of the High Court of Judicature at Madras in Tamil Nadu Electricity Board v. R. Srinivasan, and the Full Bench Judgment of this Court in A. Srinath’s case (1 supra).
4. A reference to Section 4 of the Code of Civil Procedure to appreciate the savings of the Letters Patent powers of this Court including the powers under Clause 37 of the Letters Patent to frame rules is relevant in our view because Sub-section (1) of the said Section has clearly contemplated that in the absence of any specific provision to the contrary, nothing in the Code shall be deemed to limit or otherwise affect any special or local law which is in force or any special jurisdiction or power conferred or any special form of procedure prescribed by or under any other law for the time being in force. As the successor Court of the High Court of Madras, as the Full Bench of this Court has pointed out in A. Srinath’s case (1 supra), the practice of the Madras High Court is accepted as the practice of this Court. Eversince its inception, this Court has followed the practice of delegating the power to receive appeals, petitions and other proceedings and to admit all appeals against the decrees or orders of Civil Courts and to issue notice to the respondents through the Registrar of the Court. Rules in this behalf thus are followed in appeals against original decrees and in appeals under Clause 15 of the Letters Patent from judgments of single Judges passed in appeals from appellate decrees or orders as well as in appeals subject to provision that in appeals against appellate decrees, the Registrar is required to take the orders of a Judge of the Court whether notice shall issue or the appeal be posted before a Judge for hearing under Rule 11 of Order XLI of the First Schedule of the Code of Civil Procedure. In all other appeals, the Registrar is empowered to determine whether notice shall issue at once or whether the case shall be posted before a Judge for orders in this behalf. The above power and the duty conferred upon the Registrar of the Court is subject to any special or general order made by the Chief Justice. It is difficult therefore to see any reason why the rules shall not be followed and instead the procedure of posting all appeals for orders for admission before notice be placed before a Judge of this Court. The power conferred upon the Registrar of the Court is not inconsistent with the procedure as prescribed under the various rules under Order XLI of the First Schedule of the Code of Civil Procedure. All appeals are heard by a Judge or by a Division of Two-Judges of the Court after notice and before notice when it is placed before the Judge, as contemplated under the aforementioned Rule 12. Registrar is not given the power to dismiss the appeal, which power, Rule 11 of the Code of Civil Procedure, has preserved for the appellate Court and thus in case of an appeal before this Court by a Judge to whom the work is assigned by the Chief Justice of the Court thus acts as the Court. The words in Sub-Rule (1) of Rule 11 of the Code “the appellate Court, after sending for the record if it thinks fit so to do and after fixing a date for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader” introduced the Court as such or the Judge who constitutes the Court to fix a date for hearing the appellant or his pleader and hearing him accordingly only when after sending for the records he thinks fit to dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader. Hearing the counsel of the appellant or the appellant under Rule 11 thus is contemplated only when the Court thinks that the appeal is fit to be dismissed without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his counsel. Once notice is issued to the respondent, a day for hearing the appeal is fixed and the appeal is heard by the Judge who constitutes the Court on being assigned the work by the Chief Justice, subject to the rules of dismissal of the appeal for appellant’s default, re-admission of appeal dismissed for default, any cross-objection or separate appeal against the very judgment which has been appealed against by the respondent and other ancillary matters.
5. Our discussions above take us to the irresistible conclusion that there is no infirmity in Rule 12 (3) of the Appellate Side Rules and the same is a valid piece of legislation in terms of Clause 37 of the Letters Patent and Section 122 of the Code of Civil Procedure, 1908. A Bench of this Court, however, has noted in CCCA No. 119 of 1997, A.S. Nos. 582 of 1997 and 377 of 1997 as follows:
“A little confusion has arisen as to whether the first appeals filed Under Section 96 of the Code of Civil Procedure can be admitted by the Registrar or they should be placed before a Judge/Judges for admission. If Order XLI Rules 9 and 11 of CPC are properly understood, even for admission, the appeal shall be posted before the Court and the same shall be admitted by the Judges and the ministerial work will be carried out by the Registry, whereas Rule 12(3) of the High Court Appellate Side Rules (rule is extracted) gives power to the Registrar to admit the appeals. Hence, these matters may be placed before the Hon’ble the Chief Justice for necessary instructions.”
Another Bench of this Court in C.M.A. No. 28 of 1997 and batch has however stated as follows:
“Under the Order 41, Rule 11 of the Code of Civil Procedure, the appellate Court after sending for the record, may fix a date for hearing the appeal and may dismiss the appeal without serving notice on the respondent. This is the screening procedure called admission by which the Court can eliminate frivolous or unnecessary appeals where prima facie the appellant has no case which requires the respondent to be called to answer. Considering a similar provision in Order 21 Rule 15 of the Supreme Court Rules, the Supreme Court observed in the case of Sita Ram v. State of U.P., , that it is not obligatory to dispose of all cases summarily at a preliminary hearing as it is an enabling provision, not a compulsive one. In that case, which was a criminal appeal, it was clarified that the admission procedure does not cut down any statutory right of appeal but only canalises that right and it was observed that such an admission procedure is valid. However, so far as the High Court is concerned, the Rule 12 of the Appellate Side Rules provides in Sub-Rule (3) that all appeals against the decrees as well as all appeals under Order 43 Rule (1) are to be admitted as a matter of course by the Registrar. Sub-Rule (b) provides that only in respect of appeals against the appellate decrees that the cases are to be posted before the Judge for admission. It may be noted that under Order 42 Rule (2) CPC there is a requirement of formulating the substantial question of law while making an order under Order 41 Rule 11 which indicates that no appeal against the appellate order is to be admitted as a matter of course.”
The Supreme Court in Sita Ram’ (3 supra) was considering the rule which appeared to clothe the Court with power to shorten the life of an appeal even under Article 134 of the Constitution by dismissing it ex parte summarily and posed the question, “is this abbreviatory power absonant with the appellate scheme envisaged in Article 134 and therefore, excessive or offensive and void, because it does not bear upon the substantive right of appeal but relates to the procedure for hearing and falls squarely within Article 145 (1) (b)? The Supreme Court said: this is the main crux of the debate and answered the question by saying that the appellants have an undeniable right of appeal and then proceeded to examine what are the necessary components of a hearing when such a right is exercised? By expressing their agreement with the view expressed in ‘Final Appeal – A Study of the House of Lords in its Judicial Capacity by Louis Blom – Cooper Qc Clavedon Press, Oxford, 1972’ which states:
“Appeal, as we have stressed, covers a multitude of jurisprudential ideas. The layman’s expectation of an appeal is very often quite different from that of the lawyer and many an aggrieved plaintiff denied his ‘just’ remedy by judge or jury has come upon the disturbing reality that in England a disputed finding of fact can seldom, if every, form the basis of an appeal. Similarly, a Frenchman accustomed to a narrowly legalistic appeal in cessation, subject to subsequent reargument in a Court below, would find little familiarity in the ponderous finality of the judgment of the House of Lords. And a seventeenth century lawyer accustomed to a painstaking search for trivial mistakes in the Court record, which formed the basis of the appeal by writ of error, would bewildered by the great flexibility and increased sophistication of a jurisprudential argument which characterise a modern appeal.”
and finally concluded by saying, “it must be noted that the provision does not make it obligatory to dispose of all cases summarily or at a preliminary hearing. It is an enabling provision, not a compulsive one. The question is whether there is any situation where it can apply at all in the context of Article 134 (1) (a) and (b) and Section 2(a) of the Enlargement Act. If there is a room for operation, the provision can be sustained although confined to such limited situations as a rule of prudence ripening into a rule of law” and “ordinarily, save where nothing is served by fuller hearing notice must go. If every appeal under Article 134(1) (a) and (b) or Section 2(a) of the Enlargement Act, where questions of law or fact are raised, is set down for preliminary hearing and summary disposal, the meaningful difference between Article 134 and Article 136 may be judicially eroded and Parliament stultified. May be, many of the appeals after fuller examination by this Court may fail. But the minimum processual price of deprivation of liberty is a single comprehensive appeal”. The Bench has thus rightly noted that where a summary hearing for formulating the substantial question of law is envisaged under Order 42 Rule 2 read with Sections 100 and 103 of the Code of Civil Procedure, it is the Judge who constitutes the Court on being so nominated by the Chief Justice gives the hearing to the appellant or the Counsel of the appellant in appeals arising from the appellate decrees, but in matters where a compulsory hearing is envisaged both on the question of law and fact in appeal and perusal of the records is a must, the rule that the Court has evolved that there be notice to the parties of the appeal and the appeal be placed for hearing before the Judge and this exercise of issuing notice after admitting the appeal be done by the Registrar of the Court. It is in consonance with the rule of justice and fair play. The Division Bench has, however, considered a further question whether the procedure envisaged under Rule 12 of the Appellate Side Rules of the Court is required in the case of other statutory appeals not falling within the Code of Civil Procedure, and held as follows:
“But the question that we are concerned with is whether such a procedure is required in the case of other statutory appeals not falling within the Code of Civil Procedure. The Registrar appears to have been under the impression that the question of posting for admission being referred only in Sub-Rule (b) and (d) which is with reference to the revision petitions, no other appeal requires to be posted for admission. It is this logic which was applied by the Supreme Court in the case of appeals against the Companies Act in the two cases cited by Sri J. Satyanarayana, Amicus Curiae. The Rule in the Bombay High Court Rules as extracted in the case of Golcha Investment v. S.C. Barna, specifically listed cases of those appeals which shall in the first instance be placed for admission before a Bench, and therefore, the Supreme Court held that other appeals are not required to be posted for admission. We find that this analogy does not apply to the Appellate Side Rules of this Court. This is because the opening words of Rule 12(3) refers only to decrees or orders of the Civil Court. Since this provision does not refer to appeals under other statute, we have to invoke either Sub-Rule (c) or the provisions of the relevant statute itself. If we were to say that Sub-Rule (c) applies to appeals under other statutes, it strikes a discordant note with the main provision of Rule 12(3) inasmuch as Sub-Rule s (a) to (d) can only be read as modifying the main provision and should, therefore, be confined to decrees or orders of Civil Court. If we take it that Sub-Rule (c) will only apply to decrees or orders of Civil Court, then it would appear that the Appellate Side Rules of this Court do not have any rule with regard to the admission of appeals under the other statutes. In our opinion, the Rule has to be read in its entirety and we cannot impute to Sub-Rule (c) something more than what it contains or have recourse to it for meeting a situation for which the Rules do not provide any particular procedure. Since the power of the Registrar to admit the appeal is controlled by the main provision and Rule 12(3) can apply only to appeals and orders under the Code of Civil Procedure, we must hold that appeals arising from any other statute cannot be admitted as a matter of course by the Registrar but must be a placed before the Court for admission.”
The Bench rejected, however, the contention of the appellant that the right of appeal cannot be curtailed and the practice which has been followed by the Court is abundant, would have the effect of curtailing the right of appeal by saying, “all that has happened is that the practice of the Registrar admitting the appeals as a matter of course is found to be without any authority under the Rules. Consequently, the appeals have to be posted before the Court. It would follow that such appeals may be scrutinized by the Court to ascertain whether any condition prescribed by a particular statute is fulfilled. For instance, if there is a condition that some amount has to be deposited or tax to be paid, such a condition would be a statutory modification of the right of appeal and valid as held by the Supreme Court in Vijay Prakash & Jawahar v. Collector of Customs (Preventive), Bombay, and the Court will be bound to enforce that condition. Even if no such condition exists, the Court can always consider whether the appeal is frivolous or vague or without any justification that it will be needless to call upon the respondent to answer the appeal. As observed by the Supreme Court, “even a summary hearing is a hearing because it merely removes an apprehended disability of the Court in summarily dismissing a glaring case where its compulsive continuance, dragging the opposite party, calling up prolix records and expanding on the reasons for the decision, will stall the work of the Court (which is an institutional injury to social justice) with no gain to anyone, including the appellant to keep whom in agonising suspense for long is itself an injustice”. We, therefore, hold that all appeals under different statutes must be placed before the Court for admission and cannot be admitted as a matter of course by the Registrar acting under Rule 12(3) of the Appellate Side Rules.” In his separate observations in the said Division Bench Judgment, Lingaraga Rath, J, has lingering doubts as to the conclusive control of the Registrar of the Court in admitting appeals even if arising from the original decrees, yet, he has limited his observations for the purpose of appeals arising under other laws and particularly in respect of the appeal which was before them Under Section 28 of the Hindu Marriage Act. We have no hesitation in endorsing the view that appeals arising under such statutes which require the hearing before issuing notice to the respondent, by a Judge or a Bench consisting of more than one Judge of the Court, notice in such appeals cannot be issued by the Registrar to the respondent without there being an order of the Court to admit the appeal for hearing the respondent. It would, however, be an exercise to somehow curtail the full-dressed hearing of the matter by the appellate Court, even though there is no such restriction by the statute undetr which the appeal is preferred after all the decrees or orders under all such other statutes are subjected to the rule that they must for admission be placed before a Judge or a Bench consisting of more than one Judge of the Court. Section 28 of the Hindu Marriage Act provides for appeals in these words:
“All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of Sub-section (3) be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction”
Sub-section (2) of Section 28 provides :
“Orders made by the Court in any proceeding under this Act Under Section 25 or Section 26 shall, subject to the provisions of Sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction.”
Sub-section (3) provides, “there shall be no appeal under this section on the subject of costs only”. It is seen from the provisions aforementioned thus, that except that there would be no appeal against costs only, against all decrees made by the Court in any proceeding under the Hindu Marriage Act including orders in proceedings Under Section s 25 and 26 thereof, if they are not interim orders, and every such appeal lies as if it is against a decree of the Court made in exercise of its original civil jurisdiction and lies in the Court to which appeals ordinarily lie from decisions of the Court even in the exercise of its original civil jurisdiction. Rule 12-A of the Appellate Side Rules confers upon the Registrar of the Court power to admit appeals against the decrees or orders of Civil Courts. Section 28 of the Hindu Marriage Act states that all decrees made by the Court in any proceeding under the Act are appealable as decrees of the Court made in the exercise of its original civil jurisdiction. Thus, any appeal Under Section 28 has all trappings of the appeal Under Section 96 of the Code of Civil Procedure which provides in Sub-section (1), “Save where otherwise experssly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeal from the decisions of such Court. &” Section 141 of the Code says, ”the procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable , in all proceedings in any Court of civil jurisdiction. &”This, however, is explained, “in this section, the expression “proceedings” includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.” These provisions leave no manner of doubt that an appeal lies against the judgment and decree of the Court which exercises original civil jurisdiction Under Section 96 of the Code of Civil Procedure and the appeal against any order or decree Under Section 28 of the Hindu Marriage Act is treated on par with the decree of the Court of original civil jurisdiction.
6. From our discussions above, we unhesitatingly conclude that Rule 12(3) of the Appellate Side Rules has no element of any legal infirmity and it embraces all such appeals, which are preferred against the decree or order of Civil Courts including such decrees or orders which are treated for the purpose of appeal as decrees or orders of the Court of original civil jurisdiction. Appeals under the Hindu Marriage Act shall fall under Rule 12(3). However, any such appeal for which special provision is made under any statute and the decree or order against which the appeal is preferred, does not satisfy the requirement of the rule, in the sense that it is not a decree or order of a Civil Court or a decree or order, which, by law is made appealable as the decree or the order of the Civil Court, the Registrar shall have no power to admit and issue notice and the special procedure in this behalf shall be followed. The Registrar of the Court, in any event, is required, in the event of any exception or doubts as to the application of Rule 12, to seek directions of the Chief Justice of the Court and to act in accordance with any special or general order made by the Chief Justice, in respect of any appeal whether it is an appeal under the Code of Civil Procedure or a decree or order which is appealable as a decree or order of the Civil Court. Apprehensions, if any, as to the Registrar’s power in any given situation must always be cleared by reference to the Chief Justice and once the Chief Justice clarifies and issues instructions, it would be deemed the compliance with the matter before the Court, is done.
7. Reference in CCCA No. 119 of 1997 and other cases is answered accordingly and the order in CM. A. No. 28 of 1997 dated 25-7-1997 and batch modified as above. The Registrar is directed to proceed in the appeals accordingly.
8. Before we part with the judgment, we record our appreciation for the assistance at the Bar by the learned Advocate-General and Mr. Nooty Ramamohana Rao, Advocate besides the learned Counsel for the appellants who have given full assistance to the Court in deciding the matter.