JUDGMENT Sushil Harkauli and G.P. Srivastava, JJ.
1. We have heard learned Counsel for the appellant as well as the learned Counsel for the respondents who has appeared on the strength of a caveat.
2. This is an appeal under Section 96 CPC by the defendant against the Judgment and Decree dated 9.12.2004 passed by the Upper Civil Judge (Sr. Div.) Court No. 1 Aligarh, whereby the Suit No. 745 of 1992 for specific performance of a registered agreement for sale of immovable property has been decreed.
3. On merits two arguments have been advanced by the learned Counsel for the appellant.
4. The first argument is that the defendant-appellant had taken the defence that the suit instituted on 25.11.1992 for specific performance of the registered agreement dated 7.9.1988 was barred by limitation.
5. As against this, the respondent has pointed out from the impugned judgment that there was a second registered agreement dated 15.6.1989 between the same parties which mentions that the partition could not take place till then and the promissor (defendant) was in need for more money because of which some extra advance sale consideration was paid by the promisees (plaintiff). In the first agreement, it was contemplated that sale deed would be executed within ten months of the date of giving of registered notice, which could be given only after getting the property partitioned. According to the plaintiff-respondent, since partition could not take place, therefore, the suit was not barred by time.
6. The second and alternative submission of the appellant is that if the partition had not taken place till the date on which the suit was instituted, the suit was premature and could not have been filed till after partition took place.
7. This argument is misconceived. Partition is for the benefit of the purchaser, who otherwise would have to enter in to litigation for getting his undivided share partitioned. If the purchaser is prepared to give up this benefit and wants to purchase undivided share and thereafter pursue the litigation for partition, the promissor cannot have any possible objection to this. Therefore, the suit can not be said to be premature.
8. No other point has been argued so far which would show that the appeal does not merit dismissal under Order XLI, Rule 11 C.P.C.
9. Learned Counsel for the appellant then submitted that this is a regular first appeal under Section 96 CPC, and therefore, it should be admitted by way of an alleged convention, without any hearing under Order XLI, Rule 11 C.P.C. and the matter should be heard only on the question of grant or refusal of interim order. It has also been suggested that the respondent, though present, should not be heard till the appeal has been admitted i.e. after the stage of Order XLI, Rule 11 has been crossed.
10. From the arguments advanced by the learned Senior Advocate representing the appellant, two interesting questions arise. Since each of the questions is likely to arise frequently in future, therefore, we consider it appropriate and also necessary to decide them at this stage.
11. (1) The first question is whether a regular first appeal under Section 96 C.P.C., being an appeal on facts and law both, should be admitted mechanically, without any hearing under Order XLI, Rule 11 C.P.C.
(2) The second question is whether the issue of admission of an appeal is a mater exclusively between the appellant and the Court in which the respondent has no say; and if so, whether the respondent, who has appeared at that stage on the strength of a caveat or otherwise, should be shut out from hearing till after the appeal is admitted and till the stage comes for considering grant or refusal of interim order in the admitted appeal.
The first question:
12. There can be no dispute that the present day situation demands that every possible effort should be made to reduce arrears of litigation. There can also be no dispute that irresponsible, frivolous and mala fide litigation must be weeded out at the earliest. In the case of T. Arivandandam v. T.V. Satyapal reported in AIR 1977 SC 2421 : 1978 ARC 213 the Supreme Court laid down that an activist Judge is the answer to irresponsible litigation, which must be 'nipped in the bud'. To quote:
"We have not the slightest hesitation in considering the petitioner for the gross abuse of the process of the Court repeatedly and unrepentantly restored to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11 C.P.C. taking care to see that ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searching under Order X C.P.C. An activist judge is the answer to irresponsible law suits. The trial Court would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage."
13. In keeping with the above principle of law we are of the considered opinion that Order XLI, Rule 11 C.P.C. for the appellate Court has been enacted for the same purpose and object as Order VII, Rule 11 C.P.C. is for the trial Court. The only difference being that Order VII, Rule 11 can be invoked at any stage, i.e. even after summons have been issued and the defendant enters appearance; while Order XLI, Rule 11 cannot be utilised after issuing notice.
14. A regular first appeal from a decree filed under Section 96 C.P.C. is also subject to Order XLI, Rule 11 C.P.C. Therefore, we have no hesitation in holding that even an appeal under Section 96 C.P.C. must be heard and carefully scrutinized by the appellate Court at the threshold stage of Order XLI, Rule 11 C.P.C. and it is the duty of every appellate Court to dismiss even after regular first appeal under Section 96 CPC at the stage of Order XLI, Rule 11, if it has no merit and does not deserve admission. The only rider in such an event would be that the appellate Court will have to record its reasons with regard to such of the grounds taken in the memo of appeal as have been pressed during arguments. We appreciate that this dismissal may not be possible in an appeal where the question of appreciation of evidence is involved and the record of the trial Court is not available before the appellate Court. But even in such situations, at least where the appellate Court is located in the same district as the trial Court, the trial Court's record should be summoned for the hearing under Order XLI, Rule 11 C.P.C. Before the 1999 amendment in C.P.C. (enforced w.e.f 1.7.2002), Order XLI, Rule 11 contained the words "after sending for the record if it (appellate Court) thinks fit so to do". After the said amendment, these words are not found in Order XLI, Rule 11, but we are of the opinion that this does not preclude the calling for the record as there is no prohibition either expressly or by necessary implication. Procedure is hand-maid to justice. In matters of procedure, what is not prohibited expressly or by necessary implication, is permissible if it advances the cause of justice.
15. Order XLI, Rule 11 C.P.C. is a mandatory provision of the Code of Civil Procedure. No alleged convention or practice can be permitted to over-ride the Statute. Accepting the appellant's submission would amount to holding that Order XLI, Rule 11 does not apply to appeals filed under Section 96 CPC.
16. Order XLI, Rule 11A introduced into the C.P.C. by the 1976 amendment, which mandates the appellate Court to hear every appeal under Order XLI, Rule 11 as expeditiously as possible preferably within 60 days of the filing of the memorandum of the appeal, clearly indicates that a serious duty has been cast upon the appellate Court by Order XLI, Rule 11 CPC to ensure that frivolous meritless appeals do not remain pending for admission or be admitted to clutter the boards of the Courts and such appeals should amicus curie be dismissed at the threshold. The principle of law laid down by the Supreme Court in the case of T. Arivandadam (supra) with regard to frivolous litigation applies with equal, if not greater, force to the hearing of the appeal under Order XLI, Rule 11 C.P.C. It is absolutely essential for every appellate Court to carefully-and thoroughly examine the appeal at that stage for finding out whether the appeal deserves admission or is frivolous and without merit. Therefore, we do not accept the first contention of the learned Counsel for the appellant.
The second question:
17. It has been suggested from the appellant's side the some Courts have taken the view that admission of an appeal is exclusively between the Court and the appellant, and the respondent has' no say in the matter. But even if such a view was taken, it belongs to a time when (a) the Courts in this Country were not so heavily overburdened, (b) the appeals could be taken up for final hearing within a very short time after service of notice upon the respondents, (c) irresponsible, frivolous and mala fide litigation was rare, and (d) there was no provision in the C.P.C. for filing a caveat. The view was subsequently followed in some cases, apparently due to lack of serious contest, and consequently serious consideration, on the issue. No binding precedent supporting the appellant's suggestion has been brought to our notice.
18. Often the mere pendency of litigation, even without grant of an interim order, can cause serious prejudice to the rights of the opposite party. The fact of the pendency of the litigation casts a cloud upon the rights of the opposite parties and can embarrass the opposite parties in several ways. By way of an example, the mere fact of pendency of litigation can reduce the market value of the property in suit. To take another example, the mere pendency of a meritless appeal against a divorce decree, even without interim stay by the appellate Court, causes serious prejudice to the decree holder.
19. Besides, for grant of an interim order, there are three well established considerations, viz. prima facie case, balance of convenience and irreparable loss. The admission of an appeal may well be taken to mean a prima facie case. This will precluded the respondent from challenging the first point i.e. lack of prima facie case, and will confine his opposition only to balance of convenience and irreparable loss.
20. In such circumstances, it would prima facie appear to be gross violation of the principles of natural amicus curie justice to pass the order of admission of an appeal, refusing to hear the respondent though he may be present before the appellate Court at the stage of Order XLI, Rule 11 C.P.C. In our opinion, whenever an order of the Court is likely to adversely affect any interest of any party, the said party, if present, should not be shut out from being heard in opposition to the passing of such order. Refusing to her the respondent, though present, at the stage of Order XLI, Rule 11, would give the appellant an unfair advantage of misstatement or concealment of material facts during oral arguments to secure the admission of the appeal. It is common knowledge that such irresponsible arguments do take place off and on in the present days, either deliberately or due to lack of preparation.
21. In a meritless suit, when the defendant appears in response to the summons, he has the right to apply for rejection of the plaint under Order VII, Rule 11 C.P.C., thereby avoiding the long drawn out procedure in a full fledged trial. But once an appeal has crossed the stage of Order XLI, Rule 11, though without merit, the respondent has no right to ask for summary dismissal. The final hearing of appeals take a lot of time because of the large pendency of cases. Therefore, even if it is assumed for the sake of argument that the respondent cannot oppose the admission at the stage of Order XLI, Rule 11, there is no bar on the Court from taking the assistance of any person as amicus curie for doing justice, and the respondent is obviously the best person for such assistance. It is one thing to say that a litigant should be herd as a matter of right, and it is another thing to say that the Court has no power to take the assistance of such a litigant.
22. We, therefore, hold that if the respondent is present before the appellate Court on the strength of a caveat or otherwise, at the stage of Order XLI, Rule 11 C.P.C., it is open to the appellate Court to seek or take his assistance even at the stage for doing justice in the appeal. In fact, if such assistance is offered by the respondents, it should not be refused by the appellate Court, except for strong reasons which should find place in the order of the appellate Court.
23. Learned Counsel for the appellant has stated that the appellant desires to examine and, if necessary, enclose the statements of witnesses to show that the appeal merits admission under Order XLI, Rule 11 C.P.C. Supplementary affidavit may be filed within a week. List thereafter.
24. Having regard to the law laid down above, we direct the Registrar General to circulate a copy of this order to all judicial officers subordinate to the High Court for their information and guidance. Compliance of this direction should be reported within two months from today.