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Report No. 79

IV. Summary Dismissal of First Appeals

8.11. Dismissing preliminary hearings.-

Reverting to the chronological stages in the appellate process, we would like to deal with the dismissal of appeals at die preliminary hearing under Order 41, rule 11 of the Code of Civil Procedure1 Under Order 41, rule 11(4), inserted in 1976, where an appellate court, not being the High Court, dismisses an appeal, it shall deliver a judgment recording in brief its grounds for doing so. The Law Commission had, in the its 54th Report2 recommended that the mandate which subsequently came to be contained in Order 41, rule 11, sub-rule (4) should be applicable not only to the subordinate courts, but also to the High Courts when dealing with first appeals. This recommendation of the Law Commission, in so far as the High Courts are concerned, does not appear to have been incorporated in the statute when necessary amendment was made in the Code of Civil Procedure in 1976.

1. Order 41, rule 11(4), Code of Civil Procedure, 1908.

2. Law Commission of India, 54th Report, paras. 41.13 to 41.15.

8.12. Change needed as to regular first appeals.-

We have given the matter our consideration and are of the opinion that so far as regular first appeals in the High Courts against final judgments of trial courts are concerned, there should be a rule, making it imperative that when the High Court dismisses such appeals under Order 41, rule 11, Code of Civil Procedure, it should do so by a brief order giving reasons for the dismissal of the appeal at the preliminary stage. The High Court, when it decides a regular first appeal against the final judgment, has to record its findings, both on questions of fact and law, and its findings on questions of fact are final.

The normal rule is that an appeal which raises triable issues for court of appeal should not be dismissed in limine. The Supreme Court also, in one of the cases,1 expressed the view that when a first appeal raises triable issues, it should not be dismissed in limine. To give effect2 our recommendation made above, necessary amendment should be made in Order 41, rule 11, Code of Civil Procedure, 1908. At the same time, we would like to emphasise the fact that the need for a brief order giving short reasons for dismissal should arise only in regular first appeals. It would not be necessary for the High Court to record such an order in the case of second appeals or appeals against orders.

1. M.T. Vetale v. Sugandha, AIR 1972 SC 1932 (1933), para. 4.

2. Amendment of Code recommended.

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