Ramaswamy Reddiar and others vs Chinna Sithammal and others

N.S. Ramaswami, J.—These two civil miscellaneous appeals are against the dismissal of two applications to have two appeals restored. A.S. Nos. 37 of 1971 and 56 of 1971 are connected appeals as they arise out of a common judgment. In A.S. 56 of 1971 there was deficiency of court-fee and the court ordered the same to be paid by 17-2-1973. To that date A.S. 37 of 1971 also stood posted as it is connected with the other appeal. The appellants in both the appeals did not appear on 17-2-1973 and the deficit court-fee had not been paid. Therefore, the counsel reported ''no instructions'' and both the appeals came to be dismissed on that day (17-2-1973). Later, the two applications were filed for having the appeals restored on the ground that the first appellant in A.S. 56 of 1971, who was in charge of the matter, had been laid up and that therefore, proper instructions could not be given to the counsel regarding the payment of court-fee. This case was not accepted by the court below and the applications have been dismissed. These appeals are filed challenging the above said orders of dismissal.

Mr. O.V. Baluswami, the learned counsel for the first respondent in both these appeals who is the contesting respondent, raises a preliminary objection that the appeals do not lie. Reliance is placed on the decision of Natarajan, J., D/- 2-5-1974 in C. M. A. No. 130 of 1973 C. Kalahasti, President of the C. Kalahasti Vs. P.C. Munuswami Chetti, ). That was a case where the first court refused to grant a temporary injunction under Order XXXIX, Rule 1, C. P. Code. Against that order, a civil miscellaneous appeal was filed and in that appeal, a petition for temporary injunction under Order XXXIX. Rule 1, C. P. Code was filed. The appellate court dismissed the said petition. As against that order, an appeal was filed to this court and Natarajan, J., held that the appeal does not lie. It is pointed out that even though an order under O. XXXIX, R. 1. C. P. C. is an appealable order under O. XLIII R. 1, the order having been made by an appellate court, Sub-sec. (2) of Section 104 of the Code applied and that, therefore, the appeal was not competent. On the facts of that case, if I may say so with respect, the decision of Natarajan, J., is unexceptionable. As seen above, the order which was appealed against, though made under Order XXXIX. Rule 1, had been passed in an appeal which itself was one against an appealable order. The appeal before the court which passed the order questioned before Natarajan, J., was really one coming u/s 104, that is an appeal against an appealable order. But, the observations of the learned Judge are sought to be construed as laying down the law that no appeal lies against an order passed in any appeal even though the order is an appealable one, under one or other of the clauses of Order XLIII, Rule 1, C. P. Code. The learned Judge could not have possibly meant it so. If the learned Judge has really stated that an order passed even in a regular appeal coming u/s 96 of the Code is not appealable, it would be purely obiter, for, in the matter before the learned Judge, the order had been passed, not in an appeal coming u/s 96 but in an appeal coming u/s 104.

Section 104 (2) says that no appeal shall lie from any order passed in appeal under the said section. In order to attract Sub-section (2) the appeal should be one falling u/s 104. If the appeal is one u/s 96 and not u/s 104, Sub-section (2) of the latter section is not applicable. If Section 104 (2) is construed otherwise, that is, as applying to appeals coming u/s 96, also the position would be anomalous. Sub-clauses (t) and (u) of Rule 1 of Order XLIII provide for appeals against orders passed under one provision or other of Order XLI, which governs appeals coming u/s 96. The said two sub-clauses cannot possibly refer to any order by a trial court. While clause (t) relates to an order refusing to re-admit (or to re-hear) an appeal (as in the present case), clause (u) relates to an order of remand made by an appellate court under Rule 23 of Order XLI. These two provisions would become meaningless if Sub-section (2) of Section 104 is made to apply to appeals u/s 96. No one can suggest that no appeal lies against an order of remand made under Order XLI, Rule 23.

In the present case, the order of the court below is one under Order XLI, Rule 19 of the Code, made in appeals u/s 96. That order is certainly an appealable one, as per Order XLIII, Rule 1 (t) of the Code. I am quite clear that Sub-section (2) of Section 104 has no application to an order made in an appeal coming u/s 96.

Then, the learned counsel contends that the subject-matter of the appeals being less than Rs. 10,000/-, in value in each case, the appeals ought to have been filed in the District Court, the order being by the court of the Subordinate Judge, Salem. I agree that the appeals do lie to the District Judge, Salem. But the appeals having been entertained in this court, and having been kept pending all these days, I do not think it is necessary to return the appeal memoranda at this stage directing the appellants to represent the same in the court of the District Judge of Salem. Therefore, I heard the appeals on merits.

Even though the appellants had not produced any medical certificate about the illness of the first appellant in A.S. 56 of 1971, the affidavit filed by her in support of the applications has not been seriously challenged. Therefore, it cannot be said that there was no justification at all for the appellants for not having instructed their counsel properly. At the same time, the appellants are certainly guilty of laches as, in spite of the illness of the first appellant, they could have made some arrangements for giving the necessary instructions to the counsel in the matter. Under these circumstances, I think the appeals ought to be restored on terms. Accordingly, the civil miscellaneous appeals are allowed and I.A. 14 of 1973 in A.S. 37 of 1971 and I.A. 15 of 1973 in A.S. 56 of 1971 shall stand allowed on condition that the appellants pay the counsel for the first respondent a sum of Rs. 50/- in each matter within two weeks from this date, failing which the appeals shall stand dismissed with costs.

On restoration of the appeals, the appellants in A.S. 56 of 1971 will have two weeks time for paying the deficit court-fee from the date of restoration. The appeals themselves ought to be disposed of within three months from this date.