N.K.VAKIL - (1.) This is a second appeal by the plaintiffs against the order of the District and Sessions Judge Sorath Junagadh dismissing their First Appeal under Order 41 rule 11 clause (1) Civil Procedure Code.
(2.) The plaintiffs had filed a suit against the original State of Saurashtra under sec. 92 of the Civil Procedure Code for the relief that certain immovable properties which plaintiff No. 1 had by a wakfnama handed over for the benefit of one Islamia Girls School at Junagadh be made use of for another object mentioned in that very wakfnama as the original object had failed and for framing a scheme. Various grounds were set forth in support of this prayer but they are not necessary to be stated herein. The State had contested the plaintiffs suit on various grounds and the trial Court came to the conclusion that none of the grounds urged by the plaintiffs entitled them to the reliefs that they had claimed and dismissed the suit with costs. The plaintiffs had filed the suit in their capacity as trustees of the said wakf or public charitable trust and as stated above had sought for a scheme regarding those properties. Being aggrieved by the decision of the trial Court the plaintiffs appealed to the District Judge at Junagadh and set forth various grounds in the appeal. The learned District Judge it appears decided to exercise jurisdiction under Order XLI rule 11 and passed the following order:- Heard L.A. Shri Virani; Summarily dismissed under Order 41 rule 11(1) Civil Procedure Code. L.A. Virani has argued all points raised in memo of appeal. 7th November 1958. The original plaintiffs therefore have filed this second appeal on various grounds. At the hearing the learned advocate Mr. S. M. Shah on behalf of the appellants raised a preliminary point of law and urged that the learned District Judge had erred in not writing a judgment and recording his reasons while dismissing the appeal under his summary powers. The order is therefore not in accordance with law and must therefore be set aside. In support of this preliminary point Mr. Shah relied upon the decision in Hanmant Rukhmaji v. Annaji Hanmant 15 B.L.R. p. 765 a Full Bench decision of the Bombay High Court. It was submitted that this being a decision before the 1st May 1960 it is binding on this Court. In the said decision it was held that in dismissing an appeal under Order 41 rule 11 of the Civil Procedure Code the appellate Court should write a judgment as required by Civil Circular No. 51 of 1890. It may be mentioned that there is Civil Circular No. 410 in the Circulars in force which is in substance equivalent to Circular No. 51 mentioned in this old decision of the Bombay High Court. That circular is as follows :- 410 When an appeal is dismissed summarily under Order XLI rule 11 of the Civil Procedure Code the Court shall record a brief judgment stating the reasons for dismissal. A formal decree should also be drawn up in such a case. In the case of Hanmant v. Annaji reference was made to the Full Bench because in the case of Tanaji Dagde v. Shankar Sakharam I. L. R. 36 Bombay 116 a Division Bench of that Court took the view that in dismissing an appeal under Order 41 rule 11 of the Civil Procedure Code (Act 5 of 1908) it was not obligatory upon the Lower Appellate Court to write a judgment while the previous practice as upheld by the Bombay High Court in several reported cases was that even while dismissing the appeal under summary powers the District Judge was bound to write a short judgment giving reasons. Thus a conflict of decisions had arisen and hence the reference. Before the Full Bench on behalf of the appellant it was urged that the lower Appellate Court should have written the judgment as provided in Civil Circular No. 51 even while dismissing the appeal under Order 41 rule 11. Reliance was placed on some of the older decisions of the High Court. While on behalf of the other side reliance was placed on the above mentioned case of Tanaji Dagde v. Shankar Sakharam I. L. R. 36 Bombay 116. It was urged that the provisions of rule 11 of Order 41 were different from those of sec. 551 of the Civil Procedure Code 1882 inasmuch as rule 11 contained the words after sending for the record if it thinks fit so to do which were not in sec. 551. The alteration showed that the appellate Court need not write a judgment if it agreed with the subordinate Judge. The provisions of Rule 31 did not apply to summary disposals under rule 11. They applied only to the hearing after notice to the respondent. It was conceded that the Civil Circular No. 51 was specific on the point but it was argued that it must give way when it conflicts with the legislative provisions of the Civil Procedure Code. Scott C. J. while delivering the judgment observed that the reference was made on the ground that the decision in Tanaji Dagde v. Shankar Sakharam seemed to conflict with the previous practice of the Court as appearing from various decisions of that High Court. He further observed that there was much to be said for the reasoning in Tanaji Dagde v. Shankar Sakharam upon the materials which were then before that Court. But the Court did not appear to have had in mind the existence of Civil Circular No. 51 which was published in 1890 under the provisions of the High Courts Act. That circular provided that when an appellate Court dismissed an appeal under sec. 551 of the Code of Civil Procedure a judgment should be written and a formal decree drawn up. He further observed that there was nothing in the new Code of Civil Procedure which introduced any change in the law except in so far as the rules commencing with rule 9 of Order XLI are headed Procedure on admission of appeal. That change was not sufficient to abrogate the rule published under the High Courts Act which was quite consistent with the provisions of the Code. The said rule in the Civil Circulars was the basis of all the Bombay Judgments above referred to except the one reported in 36 Bom. p. 116. They were therefore of opinion that the practice laid down in that Circular must still be observed by the Courts of the Presidency subject to the superintendence of the High Court. Justice Beaman who was a party to the decision of Tanaji Dagde v. Shankar Sakharam observed as follows:- Had we nothing more to do have than give a true construction of Order XLI then notwithstanding the conflicting decisions which have been cited to us. I should certainly have adhered to the view expressed by my brother Hayward in which I concurred in Tanaji Dagde v. Shankar Sakharam. I think too that what that case authorized is desirable and right to be done as tending to relieve a hard worked moffusil judiciary from a heavy burden of clerical work which must in many cases at least be practically superfluous. But in view of the Circular order which has been mentioned I feel that so long as that Circular order stands and has the force of law I ought to concur and therefore I do concur in the judgment which has just been pronounced by My Lord the Chief Justice. Shah J. did not write a separate judgment but only concurred in the judgment delivered by Lord Chief Justice. It is obvious that this Full Bench decided that the lower Court had erred in not writing a judgment according to law and that even while dismissing the matter under Order 41 rule 11 the lower Appellate Court should have written a judgment as provided in Civil Circular No. 51 and as he had not done so it was not a judgment in accordance with law.
(3.) Mr. G. M. Vidyarthi the learned Assistant Government Pleader appearing on behalf of the State however urged that the decision in 15 B. L. R. p. 765 was not binding on this Court. The first ground for this submission according to him was that Their Lordships in the said Full Bench decision appeared to have treated the Civil Circular as having the force of law which it has not. Secondly Their Lordships had found the reasoning in 36 Bom. 116 (Tanaji v. Shankar Sakharam) to be consistent and strong and if they were to interpret the provisions of rules 11 and 31 of Order 41 by themselves they would have endorsed the view taken in Tanajis case. But as in Tanajis case attention to the circular No. 51 was not at all drawn and as it was believed that the Civil Circular had the force of law and as the old practice was also there they came to the conclusion that the District Judge should write a judgment even while deciding the appeal under Order 41 rule 11. Mr. Vidyarthi urged that the later decisions of the same High Court have laid down that all the rules made by the High Court and incorporated in the High Court Civil Circulars have not the force of law and as Circular No. 410 was not made under any enactment it cannot have the force of law. He further argued that as this Circular conflicts with rule 11 of Order 41 which was made under the provisions of an enactment the circular cannot have precedence over the said rule.;