2002 (9) TMI 880 - HC - Indian Laws

Court denies respondent's right to be heard pre-question formulation, emphasizing rights during appeal hearing

Surinder Kaur Rai Versus Jyoti Ranjan Banerjee And Others

Surinder Kaur Rai Versus Jyoti Ranjan Banerjee And Others - 2002 (4) CHN 685 Issues Involved:1. Whether the respondent is entitled to be heard at the initial stage of formulation of substantial questions of law by the High Court.Issue-wise Detailed Analysis:1. Entitlement of the Respondent to Be Heard at the Initial Stage:The primary issue addressed was whether the respondent has the right to be heard at the initial stage when the High Court formulates the substantial questions of law for admitting an appeal. The respondent's counsel argued that the respondent should be heard at this stage to prevent any potential prejudice to the respondent's rights, which have already been crystallized in the judgment and decree of the First Appellate Court. He contended that under Order 41 Rule 11 of the Civil Procedure Code (C.P.C.), there is no express bar preventing the respondent from arguing that no substantial question of law is involved in the case at this stage.Conversely, the appellant's counsel argued that a proper reading of Order 41 Rule 11 and Order 41 Rule 12 with Section 100 of C.P.C. indicates that the respondent has no right to be heard at the initial stage of formulation of substantial questions of law. The respondent's right to address the court arises only after the formulation of the question and during the hearing of the appeal. Even though the respondent may have lodged a CAVEAT, it only enables him to argue on interim orders post-admission of the appeal, not at the initial formulation stage.For a comprehensive understanding, the court examined Section 100 and Order 41 Rule 11 and Rule 12 of C.P.C. Section 100(1) specifies that an appeal to the High Court from a decree passed by a subordinate court can only be entertained if the High Court is satisfied that the case involves a substantial question of law. Sub-section (3) mandates that the memorandum of appeal must precisely state the substantial question of law involved, and Sub-section (4) requires the High Court to formulate the question if it is satisfied that such a question exists. These provisions do not reference the respondent at this stage.Reference to the respondent is made in Sub-section (5) of Section 100, which allows the respondent to argue that no substantial question of law is involved, but this opportunity is given only at the hearing of the appeal. Order 41 Rule 11 allows the appellate court to dismiss the appeal ex parte without serving notice to the respondent. The respondent's involvement is mentioned in Rule 12, which provides for fixing a date for hearing the appeal if it is not dismissed under Rule 11, allowing the respondent sufficient time to appear and answer the appeal.The court concluded that both Order 41 Rule 12 and Section 100(5) explicitly provide the respondent the right to argue that no substantial question of law is involved only at the hearing stage, not during the initial formulation of the question by the court. The court also referenced Maxwell's Interpretation of Statutes, which supports the consistent use of the term 'hearing' to mean the hearing of the appeal post-admission.The court also considered Mulla's commentary on Section 100 of the Code and the Supreme Court's decision in Kshitish Chandra Purkait v. Santosh Kumar Purkait, which supported the view that the respondent's right to challenge the involvement of a substantial question of law arises after the High Court has admitted the appeal.The respondent's counsel argued that there is no express bar against hearing the respondent at the formulation stage and that inherent powers of the court could allow such a hearing. However, the court held that inherent powers cannot override express provisions of the Code, and specific provisions made in the Code for dealing with particular situations exhaust the scope of the court's powers in those situations.The court noted that the long-standing practice of not hearing the respondent at the formulation stage is consistent with the statutory provisions and should not be departed from. The court emphasized that when the meaning of the words in the statute is clear, it is not the duty of the courts to speculate on supposed intentions.In conclusion, the court held that at the initial stage of formulation of substantial questions of law, the respondent has no right of being heard. The contentions of the respondent's counsel were overruled, and the appeal was taken up for hearing under Order 41.