The Province Of Bombay vs Western India Automobile ... on 9 September, 1948
= (1949) 51 BOMLR 58
Showing the contexts in which not a party to the suit appealappears in the document
3. Now, as far as the Province of Bombay is concerned, it was not a party to the petition, although under the direction of the learned Judge notice was served upon the Province of Bombay, and pursuant to that notice the Province of Bombav appeared before the learned Judge and submitted its point of view before the Court; and a preliminary point is taken that inasmuch as the Province of Bombay was not a party to the petition, it is not competent for the Province of Bombay to prefer an appeal from the decision of the learned Judge. The Civil Procedure Code does not in terms lay down as to who can be a party to an appeal. But it is clear, and this fact arises from the very basis of appeals, that only a party against whom a decision is given has a right to prefer an appeal. Even in England the position is the same. But it is recognised that a person who is not a party to the suit may prefer an appeal if he is affected by the order of the trial Court, provided he obtains leave from the Court of Appeal. Therefore, whereas in the case of a party to a suithe has a right of appeal, in the case of a person, not a party to the suit who is affected by the order he has no right, but the Court of Appeal may in its discretion allow him to prefer an appeal. It is difficult to understand why the Province of Bombay, which is vitally affected by the decision of Mr. Justice Coyajee, did not think lit to get itself made a party to the petition. Not only it did not do so, but it preferred an appeal without obtaining any leave or any direction from the Court of Appeal, and there can be no doubt that Mr. Vimadalal's contention is sound that as the record stands the appeal preferred by the Province of Bombay is not competent. It is an appealpreferred by a person who was not a party to the proceedings before Mr. Justice Coyajee and who has not been given any leave by the Court of Appeal to prefer this appeal. It was open to the Province of Bombay to come before us before filing this appeal and get the necessary leave and directions, but that, again, the Province of Bombay did not choose to do. But I do not think it would be right to deprive the Province of Bombay of the right to challenge Mr. Justice Coyajee's decision merely on this technical ground. Technicalities should never be permitted to override substantial justice, and we think that the Province of Bombay should be heard provided it pays all the costs of this appeal up to date. We would, therefore, give leave to the Province of Bombay to maintain this appeal although it was not a party to the proceedings before Mr. Justice Coyajee.
16. When Appeal No. 81 of 1948 was called on before us counsel for the respondent took a preliminary objection that the Province of Bombay not having been a party to the petition it was not competent to the Province of Bombay to file the appeal. It was contended that it was only the parties to the proceedings before the lower Court that had a right of appeal and those persons who were not parties to the proceedings were not competent to file any appeal even though the judgment and the decree appealed from might adversely affect their interests. Our attention was directed to the relevant provisions of the Civil Procedure Code, namely, Sections 96 and 146 and Order XLI, Rule 1, of the Civil Procedure Code. It may be noted however that in none of these provisions of the Civil Procedure Code has it been laid down who can prefer an appeal It was further pointed out that in the commentary of Sir Dinshah Mulla on the Civil Procedure Code and also in a judgment of Mr. Justice Madhavan Nair in Indian Bank Ltd. v. Seth Bansiram Jeshamal Firm [1933] I.L.R. 57 Mad. 670 it was stated that no person who is not a party to the suit or proceedings has a right of appeal. This is no doubt the position so far as the right of appeal is concerned. A person who is not a party to the suitor proceedings has no right to appeal against the decision and this is the position where a person who is not such party is aggrieved by the decision and wants to appeal against it. He can only ask for leave to appeal from the appellate Court before he can be allowed to file an appeal. There is no right of appeal vested in him by any of the provisions of the Civil Procedure Code or by any other provision of law. The only remedy open to him, if his interests are adversely affected or if he is aggrieved by a decision of the Court, is to approach the Appellate Court and ask for leave to appeal which the appellate Court would grant in proper cases. This is the position in England as one finds it laid down in In re Securities Insurance Company [1894] 2 Ch. 410 where Lindley L.J. observed (p. 413):
= (1949) 51 BOMLR 58
Showing the contexts in which not a party to the suit appealappears in the document
3. Now, as far as the Province of Bombay is concerned, it was not a party to the petition, although under the direction of the learned Judge notice was served upon the Province of Bombay, and pursuant to that notice the Province of Bombav appeared before the learned Judge and submitted its point of view before the Court; and a preliminary point is taken that inasmuch as the Province of Bombay was not a party to the petition, it is not competent for the Province of Bombay to prefer an appeal from the decision of the learned Judge. The Civil Procedure Code does not in terms lay down as to who can be a party to an appeal. But it is clear, and this fact arises from the very basis of appeals, that only a party against whom a decision is given has a right to prefer an appeal. Even in England the position is the same. But it is recognised that a person who is not a party to the suit may prefer an appeal if he is affected by the order of the trial Court, provided he obtains leave from the Court of Appeal. Therefore, whereas in the case of a party to a suithe has a right of appeal, in the case of a person, not a party to the suit who is affected by the order he has no right, but the Court of Appeal may in its discretion allow him to prefer an appeal. It is difficult to understand why the Province of Bombay, which is vitally affected by the decision of Mr. Justice Coyajee, did not think lit to get itself made a party to the petition. Not only it did not do so, but it preferred an appeal without obtaining any leave or any direction from the Court of Appeal, and there can be no doubt that Mr. Vimadalal's contention is sound that as the record stands the appeal preferred by the Province of Bombay is not competent. It is an appealpreferred by a person who was not a party to the proceedings before Mr. Justice Coyajee and who has not been given any leave by the Court of Appeal to prefer this appeal. It was open to the Province of Bombay to come before us before filing this appeal and get the necessary leave and directions, but that, again, the Province of Bombay did not choose to do. But I do not think it would be right to deprive the Province of Bombay of the right to challenge Mr. Justice Coyajee's decision merely on this technical ground. Technicalities should never be permitted to override substantial justice, and we think that the Province of Bombay should be heard provided it pays all the costs of this appeal up to date. We would, therefore, give leave to the Province of Bombay to maintain this appeal although it was not a party to the proceedings before Mr. Justice Coyajee.
16. When Appeal No. 81 of 1948 was called on before us counsel for the respondent took a preliminary objection that the Province of Bombay not having been a party to the petition it was not competent to the Province of Bombay to file the appeal. It was contended that it was only the parties to the proceedings before the lower Court that had a right of appeal and those persons who were not parties to the proceedings were not competent to file any appeal even though the judgment and the decree appealed from might adversely affect their interests. Our attention was directed to the relevant provisions of the Civil Procedure Code, namely, Sections 96 and 146 and Order XLI, Rule 1, of the Civil Procedure Code. It may be noted however that in none of these provisions of the Civil Procedure Code has it been laid down who can prefer an appeal It was further pointed out that in the commentary of Sir Dinshah Mulla on the Civil Procedure Code and also in a judgment of Mr. Justice Madhavan Nair in Indian Bank Ltd. v. Seth Bansiram Jeshamal Firm [1933] I.L.R. 57 Mad. 670 it was stated that no person who is not a party to the suit or proceedings has a right of appeal. This is no doubt the position so far as the right of appeal is concerned. A person who is not a party to the suitor proceedings has no right to appeal against the decision and this is the position where a person who is not such party is aggrieved by the decision and wants to appeal against it. He can only ask for leave to appeal from the appellate Court before he can be allowed to file an appeal. There is no right of appeal vested in him by any of the provisions of the Civil Procedure Code or by any other provision of law. The only remedy open to him, if his interests are adversely affected or if he is aggrieved by a decision of the Court, is to approach the Appellate Court and ask for leave to appeal which the appellate Court would grant in proper cases. This is the position in England as one finds it laid down in In re Securities Insurance Company [1894] 2 Ch. 410 where Lindley L.J. observed (p. 413):
No comments:
Post a Comment