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Report No. 79

IV. Preliminary Hearing

5.8. Suggestion to dispense with preliminary hearing not favoured.-

We now turn to the procedure for appeal. Support has been canvassed for the view that we1 should do away with the preliminary hearing of the appeal as contemplated by Order 41, rule 11 of the Code of Civil Procedure and that the only hearing of the appeal should be in the presence of counsel for the respondent after service of notice upon the latter. The reason given in support of the above view is that very few appears are dismissed under Order 41, rule 11 and that in most of the appeals the hearing under Order 41, rule 11 results in the duplication of labour and serves no using purpose. We have given the matter our consideration and are unable to subscribe to the view that the hearing of the appeal under Order 41, rule 11 is without utility.

Experience tells us that quite a number of appeals are dismissed under Order 41, rule 11. In any case, this provision results in the dismissal, in limine, of a number of frivolous appeals. To keep such appeals pending and to dispose them to only after service of the notice upon the respondent and after elaborate hearing would, in our opinion, not only and to the workload of the courts, but would also be subjecting the respondent to needless expense. The fact that in the event of dismissal of the appeal, the appellant can be burdened with costs is not enough to compensate the respondent for the labour, time and money spent by him.

1. Suggestion of High Court Judge, forwarded to the Law Commission.

5.9. Interim relief an important factor in connection with preliminary hearing.-

The matter can also be looked at from another angle. Most in moranda of appeal are also accompanied by applications asking for interim relief. Quite often, the fact that the appeal is admitted operates as a factor with the courts in the matter of grant of interim relief. To have a general provision making it imperative that all appeals which are filed should be disposed of only after notice to the respondent would necessarily act as a temptation for the parties to file appeals, however frivolous, just with a view to seeing an order for interim relief. As the position stands at present, the preliminary nearing of the appeal under Order 41, rule 11, not only results in the dismissal of frivolous appeals, tat also results in the dismissal of applications asking for interim relief sought in such appeals.

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