Thakur Sukhpal Singh vs Thakur Kalyan Singh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 469 of 1960

Decision Date: 02/05/1962

Coram: Raghubar Dayal, J.L. Kapur, K.C. Das Gupta

In this matter, the Supreme Court heard an appeal titled Thakur Sukhpal Singh versus Thakur Kalyan Singh, decided on 2 May 1962. The judgment was authored by Justice Raghubar Dayal, with Justices J. L. Kapur and K. C. Das Gupta forming the bench. The parties were identified as the petitioner, Thakur Sukhpal Singh, and the respondent, Thakur Kalyan Singh. The citation for the decision is recorded as 1963 AIR 146 and 1963 SCR (3) 733, and the relevant procedural provisions were taken from the Code of Civil Procedure, 1908, Order 41, rules 16, 30, 31 and 32.

The appellate record shows that the appellant’s appeal was scheduled for hearing before the High Court on four separate occasions over the span of approximately one year. On the final scheduled hearing, the counsel representing the appellant informed the court that he had received no instructions to act on the appellant’s behalf. The appellant, who was present in the courtroom, requested a further adjournment in order to arrange payment of court fees and to procure new counsel. The High Court declined the request for an adjournment. Subsequently, when the appellant expressed his inability to address the court, the High Court dismissed the appeal on the ground of default. The appellant contested this dismissal, arguing that the High Court was obligated to determine the appeal on its merits based on the material that had been placed before it.

The Supreme Court held that the High Court possessed the authority to dismiss an appeal without venturing into a merits‑based examination. The Court explained that an appellate tribunal is bound only to consider the submissions that are actually made by the appellant. If the appellant fails to make any submissions, the appellate court is not compelled to examine the record in detail; it may simply note that the appellant has not raised any points to show that the judgment and decree under appeal are erroneous. In support of this principle, the Court referred to the decision in Mt Fakrunisa v. Moulvi Izarus, AIR 1921 PC 55, and endorsed the view expressed in Mathura Das v. Narain Das, ILR 1940 All 220. The Court also mentioned Sangram Singh v. Election Tribunal, Kotah, Bhurey Lai Baya, (1955) 2 SCR 1, and noted that the authorities Baldeo Prasad v. Kunwar Bahadur, (1912) ILR 35 All 105; Syed Mohammadi Husain v. Mt Chandro, AIR 1937 All 284; and Barkat Ali v. Gujrat Municipality, AIR 1937 Lah 691 were not approved.

Justice Kapur, speaking for himself and Justice Dayal, affirmed that the High Court was correct in refusing the application for adjournment. The Court observed that the appellant had been afforded ample time and opportunity to engage counsel. The decision to grant or deny an adjournment rests within the discretionary jurisdiction of the trial court, and the Supreme Court ordinarily refrains from interfering with such discretionary orders.

Justice Das Gupta, however, expressed a dissenting view. He asserted that the High Court erred in refusing the adjournment because the counsel engaged by the appellant had declined to address the court, making it virtually impossible for the appellant to secure another advocate on short notice and for that advocate to present the case before the Court. Justice Das Gupta further argued that it was unreasonable to expect a layperson to argue the appeal unaided. While acknowledging that an appellate court should not lightly disturb the discretion exercised by a lower court in denying a prayer for adjournment, he warned that interference is justified when the refusal is not in the interests of justice.

The Court noted that interference with a lower court’s refusal is justified only when the refusal is not in the interests of justice. The matter before the Supreme Court was Civil Appeal No 469 of 1960, taken by special leave from the judgment and decree dated 5 January 1965 of the former High Court of Madhya Bharat, Gwalior, in Civil First Appeal No 11 of 1950. Counsel for the appellant were K L Gosain, P W Sahasrabudhe and A G Ratna Parkhi. The judgment was delivered on 2 May 1962, the opinion of Kapur and Dayal JJ being delivered by Justice Dayal, while Justice Das Gupta pronounced a separate judgment. Justice Dayal framed the appeal by special leave against the decree of the Madhya Bharat High Court dated 5 January 1955 and posed the question whether an appellate court must decide an appeal on its merits from the record when the appellant appears but does not address the court. The appellant’s first appeal against the respondents came up for hearing before the High Court on 4 January 1955. At that hearing Mr Mungre, who was instructed as counsel for the appellant, stated that he had received no instructions to represent the appellant. The appellant did not contest this statement, and his application for an adjournment was subsequently rejected. Because the appellant was not prepared to address the court, the High Court dismissed the appeal, relying on the decision in Mitthura Das v Narain Das (1) for default and awarded costs. The appellant contended that the High Court lacked jurisdiction to dispose of the appeal without first considering the trial‑court proceedings and the memorandum of appeal, and that his right to a merits‑based determination was not dependent on his addressing the court. He relied on Order XLI, rules 30, 31 and 32 of the Code of Civil Procedure to support his position. The Supreme Court rejected this contention, observing that Order XLI, rule 16 of the Code prescribes the procedure to be followed when an appeal has not been dismissed under sub‑rule (1) of rule 11 of the same order. Rule 16 reads: “(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 the 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.” From sub‑rule (1) it follows that the appellate court has a duty to hear the appellant in support of the appeal, but this duty does not prevent the court from deciding the appeal when the appellant makes no submissions showing that the judgment under appeal is erroneous. The court is not required to compel the appellant to address it; it may, at

In this case, the Court explained that the appellate Court must first give the appellant a chance to present his arguments and thereby afford him an opportunity to address the appeal. When the appellant fails to take that opportunity, the appellate Court is nevertheless empowered to determine the appeal on the material before it. Sub‑rule (2) further provides that the appeal may be dismissed without hearing the respondent if the appellate Court is not convinced that the judgment under appeal is erroneous. Counsel for the appellant accepted these procedural propositions but argued that, even in the absence of any submission by the appellant, the Court is obliged to examine the record and the judgment appealed from and to reach an independent conclusion on the correctness of that decision. To support this view, counsel relied on Rule 32 of Order XL, which mandates that the appellate judgment be in writing and must state (a) the points for determination, (b) the decision thereon, (c) the reasons for the decision, and (d) where the decree is reversed or varied, the relief to which the appellant is entitled, and that the judgment be signed and dated by the judge or judges concurring.

The appellant’s counsel urged that the Court cannot fulfill the requirements of Rule 32 until it has examined the entire record, including the contested judgment, and identified the specific points that require determination. According to this reasoning, the matters to be addressed in the judgment must arise when the parties raise disputed points before the appellate Court. If no such points are articulated for consideration, the appellate judgment cannot refer to any points for determination, and consequently there can be no decision on those points nor reasons for a decision. This situation arises when the appellant does not address the Court and submits no material opposing the lower‑court decision. Although the memorandum of appeal contains certain grounds of objection to the decree, it lacks the detailed argument or narrative required by Sub‑rule (2) of Rule OXL. Those grounds cannot substitute for the points for determination contemplated by Rule 31. When objections are raised in the memorandum but not argued at the hearing, they cannot be treated as points for determination and are properly omitted from the judgment. It is therefore the appellant’s duty to raise specific points against the appealed judgment and to furnish reasons challenging its correctness; the appellant cannot merely list objections and expect the appellate Court to decide them after a mere review of the record. The appellate Court is not authorized to infer points for determination on its own and then render a decision without such submissions.

Regarding the matters raised, the Privy Council in the case of Mi. Fakrunisa v. Moulvi Izarm (1) held that “in every appeal it is incumbent upon the appellants to show reason why the judgment appealed from should be disturbed; there must be some balance in their favour when all the circumstances are considered, to justify the alteration of the judgment that stands. Their Lord‑ships are unable to find that this duty has been discharged.” The Court accepts this observation and affirms that the appellant bears the responsibility of demonstrating that the judgment under appeal is erroneous for specific reasons. Only after the appellant has satisfied this burden may the appellate Court summon the respondent to answer the contention, and only then can the appellate judgment fully address all the matters enumerated in rule 31 of Order XI of the Code of Civil Procedure. The Court further referred to the decision in Sangram Singh v. Election Tribunal, Kotah, Bhurey Lal Baya (2) at page 8, wherein it was stated that “a code of procedure must be regarded as such: it is procedure, something designed to facilitate justice and further its ends… Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.” (1) A.I.R. 1921 P.C. 55, 56. (2) (1955) 2 S.C.R. 1. Consequently, the provisions of rule 31 should be interpreted sensibly and should require the inclusion of particular details in the judgment only when the appellate Court has actually been presented with specific points for determination. In the present case no such points were raised because the appellant failed to address the Court at all. The construction of rule 31 is supported by rule 30 of Order XI, which provides: “The Appellate Court, after hearing the parties or their pleaders and referring to any part of the proceeding, whether on appeal or in the Court from whose decree the appeal is preferred to which reference may be considered necessary, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders.” It is important to note that this rule does not impose on the appellate Court an obligation to refer to any part of the proceedings of the lower Court. The appellate Court may, after hearing the parties and their pleaders, refer to any portion of those proceedings that it deems necessary, exercising its discretion. The Court is competent to deliver its judgment after considering the submissions of the parties or their pleaders. Accordingly, where the appellant submits nothing for consideration, the appellate Court is empowered to decide the appeal without any reference to the lower court’s proceedings.

In this case the Court observed that the appellate Court could decide the appeal without referring to any material of the lower courts if the appellants had not raised any point that would demonstrate an error in the judgment or decree under appeal. The Court then referred to section 423 of the Criminal Procedure Code, which prescribes the procedure that an appellate Court must follow when disposing of criminal appeals. Sub‑section (1) of that provision requires the appellate Court to first obtain the case record, if it is not already before the Court, to peruse that record, and then to hear the appellant or his pleader, the Public Prosecutor, and, where applicable, the accused when the appeal is brought under section 411A(2) or section 417. After such perusal and hearing, the Court may dismiss the appeal if it finds no sufficient ground for interference, or may pass any other appropriate order. Accordingly, the appellate Court is bound to render its final order only after it has examined the record and heard the parties before it. The Court emphasized that merely hearing the appellant or his pleader and the Public Prosecutor without reviewing the record is insufficient; the record must be perused before any decision is made. The Court noted that this requirement differs from the provisions of Rule 30 of Order XXI of the Code of Civil Procedure, which does not expressly mandate such perusal. The legislative intent behind the requirement, as reflected in Rule 31, appears to be to ensure that parties understand the reasons for the decision that went against them, thereby enabling them to decide whether to pursue a further appeal or a revision. Without knowing the decision and its reasons, parties cannot make an informed choice, and even if they have no intention of appealing, they must be satisfied that the Court has considered the matter properly. Another purpose of the rule is to allow a higher appellate Court or a revisional court to comprehend why the lower courts reached a particular conclusion, which aids those courts in their own analysis. Consequently, the Court held that when a contention is raised by the appellant before the first appellate Court, there is no need to raise the same contention before a subsequent appellate Court, and thus the requirement to draft a full judgment under Rule 31 does not arise. The Court further observed that this issue has been examined by several High Courts with divergent views. For example, in Baldeo Prasad v. Kunwar Bahadur, one of the two appellants appeared at the hearing, but in the absence of counsel he sought an adjournment, which was denied; when asked to address the Court he refused, stating he had nothing to say, leading the appellate Court to dismiss the unsupported appeal. The other appellant, Musammat Ram Piari, sought restoration of his appeal, which was also denied. Both appeals were taken to the High Court, which allowed them and held that the learned District Judge erred in requiring a non‑legal appellant to argue his case, a demand that was practically impossible. The High Court observed that the request for adjournment clearly indicated the appellant’s intention not to abandon the appeal, and that the inability to argue should not have justified dismissal. The High Court stressed that the appellant needed to have his grounds of appeal considered on their merits, a step that the lower court had failed to take.

In the first appeal, the appellant, without the presence of counsel, requested an adjournment which the appellate court refused. When the judge then asked the appellant to address the court, the appellant responded that he had nothing to say, and consequently the appellate court dismissed the appeal on the ground that it was unsupported. The second appellant, Musammat Ram Piari, filed an application seeking restoration of his appeal, but this request was also denied. Both of these appeals were subsequently taken to the High Court, which set aside the lower courts’ decisions and allowed the appeals. In doing so, the High Court observed that the learned District Judge had erred. It held that demanding a non‑legal appellant to argue his own case was practically impossible, and that the appellant’s request for adjournment clearly demonstrated that he did not intend to abandon his appeal but rather wished to press it, as recorded in (1912) I.L.R. 35 AU 105. The High Court further noted that the mere inability of the appellant to argue did not justify the District Judge’s dismissal, and that the judge was obliged, under those circumstances, to examine the grounds of appeal and decide the matter on its merits, which he had failed to do. While this order was sound on general principles, the High Court did not attempt to ground it expressly on the provisions of the Code of Civil Procedure. The judgment then referred to the decision in Syed Mohammadi Husain v. Mt. Chandro, where Justice Niamatullah stated that after refusing an adjournment, a lower appellate court must decide the appeal before it. He explained that a pleader’s inability to argue does not relieve the court of its duty to apply its mind to the facts and determine the case on its merits, and that a court may not dismiss an appeal for “want of prosecution” merely because the appellant or his pleader cannot argue, because the court must proceed according to Order 41, Rules 30 and 31 of the Civil Procedure Code. That case concerned an appeal dismissed for want of prosecution and examined whether the appellate court was correct in doing so when the appellant was present but unable to argue. However, that decision did not clarify how to comply with Rules 30 and 31 of Order 41 when the appellant submits no material for the court’s consideration. The earlier decision was later overruled by a Division Bench of the Allahabad High Court in Mathura Das v. Narain Das, reported in A.I.R. 1937 All. 284, 285 and 1937 All. L.R. 439, a ruling that the Madhya Bharat High Court relied upon. The Mathura Das case held that, in such situations, it is sufficient for a court to issue an order of dismissal for default, which does not necessarily indicate a default of appearance but rather a default of proof. The judgment also mentioned that similar observations were made in Barkat Ali v. Gujarat Municipality, echoing the reasoning found in Baldeo Prasad v. Kunwar Bahadur.

The Court observed that the judgment under appeal made no reference to the provisions of the Code of Civil Procedure, and that the reasoning appeared to be based solely on a general observation that “the case is an important one from the point of view of all concerned and it is not desirable that a case of this description should go practically in default.” The Court noted that such a basis finds little support in the Code of Civil Procedure and that the Privy Council has spoken against it. Consequently, the Court found it difficult to uphold the view that, even where no arguments are urged and no reasons are presented against the correctness of the lower Court’s decision, an appellate Court should independently examine the record to determine whether the judgment is right or wrong. Accordingly, the contention advanced by the appellant that the High Court was obliged to decide the appeal after reviewing the case record and the judgment below, and that it must have complied with the provisions of rule 31 of O. XLI C.P.C., was rejected. The Court also considered the appellant’s argument that the High Court should not have dismissed his application for an adjournment dated 4 January 1955. It observed that granting an adjournment lies within the discretion of the trial Court and that such discretionary orders are ordinarily not subject to review in an appeal under Article 136 of the Constitution. Moreover, the petition for special leave did not cite this issue among its grounds of appeal, and there were no special reasons for the Court to intervene on it. The order under appeal provided sufficient reasons for refusing the adjournment. The appellant had sought the adjournment on the ground that he could not arrange payment of fees to his counsel or give instructions because he received notice of the hearing only three days before the scheduled date. This application was not part of the record before this Court. The High Court judges were of the opinion that the appellant had adequate time to instruct his counsel and to make the necessary payment. The appeal had been scheduled for hearing on 23 February 1954, almost a year before the date on which the adjournment was refused. Between 23 February 1954 and 4 January 1955, the case was also listed for hearing on 5 April and 4 May 1954. In view of these circumstances, the appellant should have completed his instructions to counsel before 23 February 1954, which he failed to do, and he had not completed them even by 4 January 1955. The Court therefore concluded that the discretion exercised by the High Court was not capricious or arbitrary and warranted no interference.

The Court below had not acted in any capricious or arbitrary manner, and consequently its exercise of discretion was not subject to interference. Accordingly, the Court found no merit in the appeal and ordered its dismissal, directing that costs be awarded. Justice Das Gupta then addressed the principal question of law raised by the parties, namely whether an appellate court is bound to decide an appeal on its merits based solely on the material placed before it when the appellant is present at the hearing but does not address the Court. After considering the reasoning set out in the judgment of his learned brother, Justice Raghubar Dayal, he concluded that the answer to that question was in the negative. Nevertheless, Justice Das Gupta recognised that the appellant had made an additional submission, alleging that the refusal of his request for an adjournment on 4 January 1955 resulted in a denial of justice. The respondents had correctly emphasized that the conduct of proceedings before a trial court must be left to that court, and that an appellate court should not lightly disturb the discretion exercised by a lower court in refusing a prayer for adjournment. Yet Justice Das Gupta warned that to hold that an appellate court must never interfere with a lower court’s refusal of an adjournment would reduce the law to a rigid formula, and that justice cannot be achieved by applying formulas alone. He observed that the circumstances surrounding the appellant’s request for adjournment were unusual. After a series of adjournments in the appeal before the High Court—some sought by the appellant, some by the respondents, and some caused by the court’s own workload—the appeal finally came up for hearing on 4 January 1955. On that day, the appellant’s counsel, who had also acted as counsel before the High Court, informed the court that he had no instructions to represent the appellant because he had not received his fees and therefore was unwilling to argue the case. The appellant, who was present in person, apparently admitted his inability to pay the fees and sought a short period of time to make the necessary arrangements. The High Court refused the request for time and appears to have asked the appellant whether he would present the case himself. The appellant declared that he was unable to address the Court. Justice Das Gupta noted that when a party‑engaged counsel declines to address the court on behalf of his client, it becomes practically impossible for the client to secure another counsel at that moment, and ordinarily impossible for any newly retained counsel to address the Court immediately. He further expressed the view that it was not reasonable, in his opinion, to expect that a lay client should be

The Court observed that requiring the appellant, who was not a lawyer, to present oral arguments in his own appeal under the present circumstances amounted to asking for the impossible. It held that it would be neither fair nor just to expect a lay client to argue the appeal when the counsel who had been engaged by the client suddenly withdrew from the case. The Court emphasized that the principles of justice required that, even if only for a short period, the client be given an opportunity to retain new counsel before being required to address the Court.

The Court further stated that the High Court’s refusal to grant the appellant’s request for time to engage fresh counsel and its insistence that the appellant argue the case himself did not serve the interests of justice. In view of the unusual facts of the present case, the Court decided to allow the appeal and to remand the matter back to the High Court for a proper hearing of the appeal before it. Accordingly, following the view expressed by the majority, the Court dismissed the appeal and ordered costs.