Narayan Chandra Saha and another Vs. Jatindra Chandra Saha and others, 52 DLR (HCD) (2000) 5

Case No: Civil Revision No. 2252 of 1998

Judge: Md. Abdur Rashid ,

Court: High Court Division,,

Advocate: M Shamsul Alam ,,

Citation: 52 DLR (HCD) (2000) 5

Case Year: 2000

Appellant: Narayan Chandra Saha and another

Respondent: Jatindra Chandra Saha and others

Subject: Procedural Law,

Delivery Date: 1999-10-28

 
Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
 
Present:
Md. Abdur Rashid J
 
Narayan Chandra Saha and another
………………..Petitioners
Vs.
Jatindra Chandra Saha and others
………………..Opposite Parties
 
Judgment
October 28, 1999.
 
Code of Civil Procedure (V of 1908)
Order VIII rule 1 & Order XLI rule 12
Right to appear and answer an appeal as given under rule 12 is completely different from that to contest a suit by filing a written statement under rule 8(1) of the Code. The Appellant Court fell in serious error of law in equating both the rights as same and in allowing the opposite parties to file written statement for the first time in appeal. …. (10)
 
Lawyers Involved:
Promila Biswas with Ms Nahid Sultana, Advocates—the Petitioners.
M Shamsul Alam, Advocate—For the Opposite Party Nos. 1-2.
 
Civil Revision No. 2252 of 1998.
 
JUDGMENT
 
Md. Abdur Rashid J.
 
This Rule was obtained by the plaintiff against order dated 14-05-98 passed by the Subordinate Judge, First Court, Brahmanbaria in Title Appeal No. 21 of 1985. By the impugned order the Appellate Court accepted the written statement filed for the first time in the appeal by the opposite parties No.1 and 2 who were originally impleaded as pro forma defendants No. 6 and 7 in suit.
 
2. The suit being Title Suit No.22 of 1982 was instituted in the court of 2nd Munsif at Brahmanbaria by the petitioner as plaintiff for a declaration that the notice dated 06-02-82 issued by the vested property authorities asking him to surrender the possession of schedule-B land is illegal, without any lawful authority and not binding on him. The suit was contested by opposite parties Nos.3 and 4 and Nos. 5 to 7 who were defendants No.1 to 5 in the suit by filing two sets of written statements. The suit was dismissed on contest by the learned Munsif by his judgment and decree dated 29-12-84.
 
3. The petitioner preferred the appeal against the said decree before the learned District Judge at Brahmanbaria. The appeal was then transferred to the said court of Subordinate Judge at Brahmanbaria for disposal.
 
4. It appears that the opposite parties No.1 and 2 filed a written statement for the first time in appeal with a verified application for acceptance of the same contending, mainly that they did not receive any summons of the suit and, as such, they could not appear and file the written statement in the trial Court. The petitioner opposed the said prayer by filing a written objection contending, inter alia, that no relief was prayed for in the suit against the said opposite parties and that the appellate Court had no authority to accept such written statements that there is no provision in the Code as to whether the ‘answer to the appeal’ should be oral or written. In such view of the matter, the appellate Court accepted the written statement and rejected the objection of the petitioner by the impugned order.
 
5. Mrs. Promila Biswas with Ms Nahid Sultana, the learned Advocates appearing for the petitioners, submits that the appellate Court had no jurisdiction to accept the written statement. On the other hand, Mr. Shamsul Alam, the learned Advocate for the opposite party Nos.1 and 2 submits that as the respondents are entitled to answer the appeal’ under rule 12 (2) of Order 41 of the Code, the acceptance by the appellate Court below of the written statement does not call for any interference. Alternately, he also submits that if there was any illegality in accepting the written statement, then, the written statement filed could be treated as a written submission on behalf of those respondents.
 
6. Order 41 of the Code provides in detail the procedure for presenting, admission, notice, hearing, etc. of an appeal from a decree. Rules 9 to 15A of Order 41 of the Code provide for the procedure for admission of an appeal and rules 16 to 29 provide for hearing of appeal. Rule 12 of the Code reads as follows:
 
“1. Unless the appellate Court dismisses the appeal under rule 11, it shall fix a day for hearing of the appeal.

2. Such day shall be fixed with reference to the current business of the Court, the place of the respondent, and the time necessary for the service of the notice of appeal, so as to allow the respondents sufficient time to appear and answer the appeal on such day.”

Rule 16 provides as hereunder,
 
“1. On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of appeal.

2. The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such, case the appellant shall be entitled to reply.”
 
7. On plain reading of provisions of rule 12, it becomes clear that the appellate Court is required to fix a day for hearing the appeal unless it dismisses the appeal and in fixing such day, sufficient time should be given to the respondent to appear and answer the appeal’ on such day. The phrase ‘to appear and answer the appeal’ admits of one simple construction, requiring the respondents to appear on the day fixed for hearing of the appeal under rule 16 (2) and answer the points raised by the appellants in support of their appeal. So, rule 12 does not, in any way, empower and/or authorise the appellate Court either to allow a respondent to file a written statement for the first time in appeal or to accept such written statement.
 
8. In the instant case before us the learned District Judge transferred the appeal to the learned Subordinate Judge for hearing and disposal of the appeal. The appeal was definitely transferred after it was made otherwise ready for hearing. In course of hearing the respondents against the appeal under rule 16, the learned Subordinate Judge may allow them to file the submissions in writing in summing up their arguments. But such written submission must be based on the evidence and materials already on record.
 
9. On the other hand, what should be the contents of a written statement, and how, where and when it should be filed, etc, have been in detail provided in Order 8 of the Code. Moreover, a written statement is the averments of the defendant in answer to the plaint either in denial of the plaint case or admitting the plaint in part or whole and constitutes his defence in the suit. The written statement is to be filed in the trial Court according to the provisions of Order 8 rule (1) of the Code.
 
10. In view of the above provisions of law, it should be clear that right ‘to appear and answer an appeal’ as given under rule 12 is completely different from that to contest a suit by filing a written statement under rule 8(1) of the Code. So, the appellate Court fell in serious error of law in equating both the rights as same and in allowing the opposite parties No.1 and 2 to file their written statement for the first time in appeal and in accepting the same for the appellate Court does not have such power. The impugned order of the appellate Court was, therefore, passed in excess of its jurisdiction and that has resulted in an error occasioning failure of justice and, as such, is liable to be set aside and is accordingly, set aside. The application of the opposite parties No.1 and 2 dated 27-02-95 before the Appellate Court for acceptance of their written statement ought to be rejected and is accordingly rejected.
 
11. For the reasons as stated above, the above Rule is made absolute, but without any order as to cost.
 
The order of stay granted by this court at the time of issue of the Rule hereby stands vacated. Let the appeal be heard and disposed of as early as possible.
 
Ed.