KRISHNAJI SHRINIVAS JALVADI Vs. MADHUSA APPANSA LADABA (NO2)

JUDGEMENT

(1.) This case has been referred to us by Mr. Justice Tyabji in order to determine what the effect was of an order made by Mr. Justice Barlee on the hearing of an appeal under Rule 11 of Order XLI, Civil Procedure Code. The appeal related to two survey numbers and Mr. Justice Barlee's order was that notice should issue as to one of the survey numbers ; but he said nothing about the other survey number.

(2.) Mr. Murdeshwar for the appellants contends that it is not open to the Court on hearing an appeal under Rule 11 of Order XLI to deal with the appeal piece-meal. He says that it must either be admitted or dismissed. We have inquired as to the practice which exists in this Court and we understand that it has been the practice in hearing appeals, under Rule 11 of Order XLI, Civil Procedure Code, at times to admit an appeal in part only, and at times to restrict the grounds on which an appeal is admitted, but the legality of the practice has not been considered. We are not prepared to go quite as far as Mr. Murdeshwar and to hold that an appeal must be admitted in whole or rejected in whole. It seems to us that if an appeal is severable it is open to the Judge, hearing the appeal under Rule 11, to dismiss it in part and admit it in part; just as at the final hearing the Court may dismiss the appeal in part and allow it in part. For instance if an appeal relates to two survey numbers which are held under distinct titles, we do not see any objection to the Court dismissing the appeal as to one of the survey numbers, and directing notice to issue as to the other survey number. But we agree with the views of the Calcutta High Court expressed in Lukhi Narain Serowgy V/s. Sri Ram Chandra Bhuiya (1911) 15 C.W.N. 921 and Janaki Nath Hore. V/s. Prabhasini Dasee (1915) I.L.R. 43 Cal. 178, 581 that it is not open to a Judge hearing an appeal under Rule 11 of Order XLI to admit it and at the same time to restrict the grounds on which the appeal is to be heard. For instance, if a defendant appeals and challenges the title of the plaintiff decreed in the lower Court (a) under the Indian Limitation Act, and (b) under the Indian Registration Act, the Judge may possibly think that there is nothing in the one point, but something in the other. But, in our opinion, if he admits the appeal, he is not entitled to direct that it is to be argued only on the question of limitation or only on the question of registration, and that the other point is not to be argued. We can see no justification in Rules 11 and 12 of Order XLI for any such order as that.

(3.) In the present case Mr. Justice Barlee did not dismiss the appeal as to one survey number ; he said nothing about it but admitted the appeal as to the other survey number. In our opinion, it is open to the appellants to challenge the finding of the lower Court as to both survey numbers.