I want to vacate interim stay order.
sk..........
(Querist) 28 April 2013
This query is : Resolved
plaintiff filed civil suit for mandatory injunction but even after 3 yrs has not filed evidence, i want to vacate the interim stay order pl. provide section ,order and rule to file counter to vacate the stay.
ajay sethi
(Expert) 28 April 2013
take out a motion for setting aside interim order passed . your lawyer will guide you . final disposal of suit takes years depending upon backlog of cases
Nadeem Qureshi
(Expert) 28 April 2013
Dear Murali
Revision will be lies against this order, you should file a revision u/s 115 of Civil Procedure Code 1908 before appellate court against this stay order and approach to Revision court to set- aside this Stay.
Feel Free to Call
Nadeem Qureshi
(Expert) 28 April 2013
Bhagwan S/O Ganpatrao Godsay vs Kachrulal S/O Bastimal Samdariya on 23 January, 1987
Equivalent citations: 1987 (2) BomCR 153
Author: G Guttal
Bench: G Guttal, P Nirgudkar
JUDGMENT
G.H. Guttal, J.
1. These four revision applications have beed placed before us for hearing upon a reference made by Ratnaparkhi, J., who differed from the view adopted by S.J. Deshpande, J., on the construction of Rule 3-A of Order XLI of the Code of Civil Procedure. At the outset, Counsel for the petitioners and respondents agreed that we should dispose of not only the question of construction of Rule 3-A of Order XLI but all the question arising in these civil revision applications so that the civil revision applications need not be sent back to a Single Judge for disposal in accordance with our decision.
I Facts
(i) Civil Revision Application No. 6 of 1986
2. In this Revision Application, petitioner is the owner of house bearing Municipal No. 2/771 situated at Tilak Road, Beed. Respondent Kachrulal is the tenant. The petitioner filed eviction Suit No. 85/RC/8 under section 15 of the Hyderabad Rent Control Act, 1954 on the ground of non-payment of rent and acquisition of alternative accommodation. The eviction suit was allowed by order dated 7th November, 1985 and the respondent was ordered to vacate the premises within 30 days from the date of the order.
The defendant preferred appeal to the District Judge at Beed under section 25 of the Hyderabad Rent Control Act. He urged that notice of the proceedings before the Rent Controller was never served on him, and the order for substituted service was erroneously made. He came to know the order of eviction made ex parte on 14-12-1985 when he was served with the order of the Rent Controller through the Tahsildar, Beed. He preferred an appeal on 16-12-1985 which was within 30 days from the date of knowledge of the order of eviction. Thus, the appeal was not barred by law of limitation. With the appeal, the petitioner made separate applications for condonation of delay and stay of execution of the order. The applications were made out of abundant caution. The learned District Judge heard Counsel. The respondent urged that having regard to Order XLI, Rule 3-A of the Code of Civil Procedure, the Appellate Court cannot grant interim stay until the application for condonation of delay was disposed of and the appeal was admitted. The District Judge invoked the inherent powers of Civil Courts and stayed execution of the order of eviction pending decision of the application for condonation of delay in filing the appeal. The petitioners has preferred this revision application against the order granting interim stay.
(ii) Civil Revision Application Nos. 8, 9 and 10 of 1986.
3. The Petitioners in these Civil Revision Applications were defendants in Regular Civil Suits Nos. 238 of 1984, 235 of 1984 and 237 of 1984 respectively in the Court of the learned Civil Judge, (Junior Division), Biloli, district Nanded. The suits were for possession of lands. The respondent was the plaintiff in each of these three suits. The petitioners-defendants engaged an Advocate to represent them. He did not file written statements. Eventually ex parte decrees for possession were made in the three suits. The three defendants then filed Regular Civil Appeals Nos. 51 of 1985, 52 of 1985 and 50 of 1985 respectively in the District Court at Nanded. The appeals were accompanied by applications for stay and applications for condonation of delay in filing the respective appeals. In all the three appeals the learned 2nd Additional District Judge, Nanded, by his orders dated 17th August, 1985 granted interim orders and stayed the execution of the decrees. But on hearing Counsel for both the parties he vacated the orders of stay. According to the learned 2nd Additional District Judge, Order XLI Rule 3-A prohibits grant of stay until the application for condonation of delay is disposed of. These orders which are impugned in the Civil Revision Applications were made on 2-1-1986.
II Questions for Consideration :
4. These Civil Revision Applications were heard by Ratnaparkhi, J., on February 28, 1986 but were not disposed of by him. After expressing his dissent from the view held by S.J. Deshpande, J., in Civil Revision Application No. 329 of 1985, he referred them to a larger Bench. S.J. Deshpande, J., while disposing of Civil Revision Application No. 329 of 1985 held that provisions of Rule 3-A(3) of Order XLI which prohibit the grant of order of stay are directory and not mandatory. Upon a construction of sub-rules (1), (2) and (3) of Rule 3-A of Order XLI, he held that the Legislature intended that the application for condonation of delay must be disposed of immediately but did not intend that the order of stay shall not be made. He dismissed the plaintiffs' revision application. Ratnaparkhi, J., who heard these civil revision applications concluded that the view held by S.J. Deshpande, J., was opposed to Rule 3-A(3) of Order XLI of the Code of Civil Procedure. He observed:-
"When the Single Judge is confronted with this difficulty, Judicial Discipline requires the matter to be placed before the learned Chief Justice for constitution a Division Bench instead of myself giving a different judgement."
This is how these revision applications came before us.
5. Upon hearing Counsel for the petitioners and respondents and upon the reference made to us, we propose to frame the questions that arise for consideration. While referring the case to a Division Bench, Ratnaparkhi, J., did not formulate the question that he referred to the Division Bench. The arguments of Counsel raise other incidental questions. We, therefore, address ourselves to the following questions:-
(1) Having regard to the prohibition enacted by Rule 3-A(3) of Order XLI of the Code of Civil Procedure which directs that "the Court shall not make order of stay of execution", is the appellate Court empowered to make interim orders of stay of execution of decrees appealed from, pending disposal of the application for condonation of delay made under Order XLI, Rule 3-A(1)?
(2) In the appeals preferred under section 25 of the Hyderabad Rent Control Act, is the District Judge empowered to make interim orders of stay notwithstanding Order XLI, Rule 3-A of the Code of Civil Procedure.
The question at (1) above raises certain further questions. (a) Whether the prohibition enacted by the words "shall not make order of stay of execution" in Rule 3-A(3) is mandatory. (b) Whether the Legislature intended that during the interregnum between the making of the application for condonation of delay and the hearing under Order XLI, Rule, 3-A the decrees appealed from should be executed thereby rendering the appeal infructuous. (c) Whether the Court can resort to its inherent powers to prevent the failure of justice by granting interim stay notwithstanding the aforementioned prohibition.
The question at (2) above raises a further question whether the Hyderabad Rent Act which is a special enactment governing special cases between landlord and tenant should not prevail over the general law of procedure laid down in the Civil Procedure Code.
III. The Enactment
6. We are called upon to construe the provisions of Order XLI, Rule 3-A which apparently takes away power of the Appellate Court to grant interim stay before the disposal of the application for condonation of delay and the hearing of the appeal under Rule 11 of Order XLI of the Code of Civil Procedure. Let us, therefore, have a look at the enactment.
Order XLI has the caption "Appeals from original decrees", Section 96 of the Code of Civil Procedure creates a right of appeal from "every decree passed by any Court of original jurisdiction". Section 104 of the Code creates a right of appeal against the Orders specified therein and those specified in Order 43 of the Code.
7. The scheme of Order XLI Rule 3-A is this---
Where an appellant presents an appeal which is barred by law of limitation, it shall be accompanied by an application for condonation of delay supported by an affidavit setting forth facts with a view to satisfying the Court that he had sufficient cause for not preferring the appeal within time. The Court is then called upon to consider the merits of this application without issuing notice to the respondent. If the Court finds that the grounds are untenable no notice need be issued to the respondent on such application. If the Court thinks fit, it may issue notice to the respondent. The respondent then appears. After hearing both the parties the Court is required to dispose of the application for condonation of delay but it shall do so "before it proceeds to deal with the appeal under Rule 11 or Rule 13 as the case may be". Rule 11 empowers the Court to examine the merits of the case in the appeal. It has two options. It may dismiss the appeal without notice to the respondent and to the Court from whose decree is appealed from. If it finds that the appeal raises questions required to be heard after notice to the respondents, it may "admit" the appeal and issue notice to the respondent. But the thrust of the rule is that the Court shall finally decide the application for condonation of delay before considering the merits of the appeal under Rule 11. In other words, it shall not postpone the consideration of the question of limitation beyond the date on which it decides to hear appeal under Rule 11.
Then the Legislature goes on to provide that the Court shall not stay the execution of the decree "so long as the Court does not" decide to admit or dismiss the appeal. Thus, Rule 3-A creates an obligation on the litigant to make application to condone delay and enjoins Court not to postpone condonation of delay beyond the stage of admission. In other words, condonation of the delay or refusal to condone the delay must precede the admissions of the appeal.
Rule 3-A was introduced for the first time by Act 104 of 1976. Before 1976, appeal barred by the law of limitation were filed and applications for condonation of delay were made under section 5 of the Limitation Act. The Privy Council disapproved the practice of courts in India of admitting appeals "subject to the provisions as to limitation being raised at the time of hearing". This provided the impetus to the legislative enactment of Rule 3-A.
8. The Appellate Court is empowered to stay execution of the decrees appealed from by Rule 5 of Order XLI. Rule 3-A thus, enacts a limitation on the power of the Appellate Court to grant stay of execution of decrees in appeals barred by limitation. Rule 5(2) enacts the power of the trial Court to stay its own decree which is likely to be appealed from. It reads :
"Where an application is made for stay of execution of an appealable decree, before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may, on sufficient cause being shown order the execution to be stayed".
There is no restriction on the power of the trial Court to stay the execution of its decree which may extend beyond the period of limitation prescribed for appeal. The only restriction is that the application for stay to the trial Court must be made " before the expiration of the time allowed for appealing therefrom".
Another amendment introduced by the Amending Act 104 of 1976 is in Rule 5 of O. XLI of the Code which occurs under caption "Stay of proceedings and of execution". Sub-rule (4) empowers the Appellate Court to make ex parte orders of stay of execution of decrees. The Amending Act qualifies this power by introducing the words "Subject to the provision of sub rule (3)" thereby making it obligatory on the Court that the grounds stated in sub-rule (3) existed before making the ex parte order.
IV. Identifying the mischief-Use of Historical Material.
9. It is against the background of these facts that we are called upon to determine the meaning of the enactment. The Court is not required to determine meaning in the abstract but only when applied to the relevant facts arising in such cases. The words of Rule 3-A do not appear ambiguous in as much as the Legislature so emphatically and so clearly takes away the power of the Appellate Courts to stay execution decrees. The legal meaning of Rule 3-A should ordinarily conforms to its grammatical meaning. If in the context of the facts the verbal formula is ambiguous the legal meaning is in doubt. Even if the language is not ambiguous, there may be real doubt as to the legal meaning, if, the relevant factors drawn from the criteria laid down by law as guides to legislative intention may tend in different directions. (Please see Statutory Interpretation by Francis Bennion-Butterworths 1984 page 199). In the context of the cases before us, legislative intention tend in different directions because, on the one hand the Appellate Court is expected to hear the appeal, the right to which is granted by the statute, and on the other hand, if pending a consideration of the appeal under Rule 11 interim stay is not granted, the appeal may become infructuous thereby denying to the appellant the very right which the statute creates. Thus, the situations that arise in such cases and the context, highlight factors that pull in different ways.
It is an established rule of construction that Legislature is taken to delegate to the Court of construction the ultimate working out of the meaning intended by it. (Statutory Interpretation---Francis Bennion p. 233). The application of clear literal meaning of Rule 3-A conflicts with the desirability of remedying the mischief that the Legislature intended to deal with. The application of literal meaning may travel beyond what the law makers intended, and in the process, may operate in a manner not intended by it. In such situations the interpreter is expected to identify the mischief which the Amending Act 104 of 1976 intended to remedy. The second step is to so construe the enactment as to suppress the mischief and determine the meaning consistent with the Legislative intent.
This necessarily calls for a reference to historical material. While such historical material should be considered as an aid to construction of words, it is not permissible to encroach upon the legislative function. The earlier interpreters held doubts about the relevance of reports which preceded the passage of the statute. The modern trend is set out in Maxwell on interpretation of statutes (Twelfth Edition p. 53):-
"The majority of the cases have taken the middle course indicated in the Assam case: the reports have been admitted, not to show the intention of the legislature, but to show what was the mischief intended to be remedied in the same way as other evidence of the historical setting of legislation is received."
In Letang v. Cooper, (1965)1 Q.B. 232 Lord Denning M.R. upheld the legitimacy of reference to historical material like reports of the Parliament Committees. Knowledge of the previous state of the law, the defects found to exist in that law and the facts that caused the Legislature to pass the Act in question are all necessary to identify the mischief. (Francis Bennion p. 514).
"Legislature history and reports preceding the enactment are relevant for understanding the mischief and for resolving ambiguities or obscurities in the enacting words". Lord Diplock in Fothergill v. Monarch Airlines Ltd., (1980)2 All.E.R. 696."
Similarly in Black-Clawson International Ltd. v. Papierwerke Waldhof-Ascheffenberg, AG., (1975)1 All.E.R. 810 a report which preceded the enactment was looked into to ascertain the mischief.
10. The historical material which may be considered are the sources referred to in the Act, itself, in the committees, committee reports, the reports of Parliamentary proceedings and explanatory material.
11. The reason for passing Rule 3-A was obviously to change the existing law. So the reason for the Act's passing must lie in some defect in the existing law. If the existing law were not defective, Parliament would not need or want to change it. The defect is the mischief to which the Act is directed.
V. The Historical Setting
12. Having understood what historical material could be used for understanding the mischief, let us turn to the historical setting of the enactment of Rule 3-A. The Statement of Objects and Reasons of the Act 104 of 1976 are set out at p. 755 of the A.I.R. Manual, Vol. 5 1979---Clause 90---Sub clause (iii) reads :
"Where an appeal is filed after the expiry of the period of limitation, it is the practice to admit the appeal subject to the provisions as to limitation being raised at the time of hearing. This practice has been disapproved by the Privy Council which has stressed the expediency of adopting a procedure for securing the final determination of the question as to limitation even at the stage of admission of the appeal. New Rule 3-A is being inserted to give effect to the said recommendation."
Clause 87(ii) reads :
"The Committee is of the view that the Court should not be empowered to grant ad interim stay of execution of the decree unless the Court has, after hearing under Rule 11 of Order XLI, decided to hear appeal, Sub-rule (3) in the proposed Rule 3-A of Order XLI has been inserted accordingly."
13. The following facts appear from the statement of objects and reasons---
(i) The practice "to admit appeal subject to the provisions as to the limitation being raised at the time of hearing" was intended to be curbed. This was the mischief sought to be suppressed.
(ii) It was expedient to adopt a procedure for securing the final determination of the question as to limitation even at the stage of admission of the appeal.
(iii) The Court should not be empowered to grant ad interim stay of execution of the decrees unless the Court has decided to hear the appeal under Rule 11.
What was sought to be curbed by the Legislature was the practice to admit appeals without deciding the question of limitation. The dominant object of the legislative purpose was to ensure that the courts do not admit appeals and postpone the consideration of the question of limitation beyond the stage of admission. For this purpose the Legislature thought it expedient to evolve a procedure. In other words, the mischief was in the practice of the courts of granting interim stay of execution of the decrees without admitting appeals. The practice left the consideration of limitation open until the appeals were finally disposed of. The purpose was not to frustrate the right of appeal itself but to regulate it in such manner that the Courts consider condonation of delay before admission of appeals. This would be clear from the words "the expediency of adopting a procedure for securing the final determination of the question as to limitation" used in the statement of objects and reasons.
VI. Application of the Rules of Construction
13. We are not oblivious to the Court's duty to consider provisions of statute in such a manner as to carry out object of the Legislature and no other. We shall, therefore, read the enactment with a view to finding out what it means and not with a view to extending it to something that was not intended.
14. The consequences of the literal construction of Rule 3-A of Order XLI appear to us so undesirable that Parliament cannot have intended them. We are, therefore, resorting to the rule of strained construction. Where the result of a literal construction appears absurd or mischievous, it is the duty of the Court to ask itself whether the Legislature really meant it. There is a presumption that the Legislature does not intend to do anything that would produce an absurd result. It is not unusual for courts to resort to strained construction. The need for strained construction has been authoritatively expounded by authors like Francis Bennion (pages 213 to 217). History of Legislature interpretation reveals a steady tendency towards the triumph of the rule of strained construction which is also known as equitable construction. It should be realised that the law makers could not possibly set down all the cases in express terms.
15. We find that there is a discrepancy between the (a) enactment of the right of appeal, (b) the need to consider application for condonation of delay, (c) the need to do it within a stipulated time of 60 days, and (d) the idea of absolute prohibition against grant of stay of execution of decrees. This discrepancy will have to be resolved by resorting to functional construction rule which, in the circumstances, is the rule of strained or equitable construction. Consider the situations that are likely to arise, in such cases. Firstly, there are cases where the appeal is not really barred by law of limitations but certain circumstances accompanying the disposal of the suit raise apprehension in the mind of the appellant that the appeal may be thought to be barred by law of limitation. For example; ex parte decrees are often made without notice to the defendant. This results from erroneous procedure for serving the defendant, or erroneous service by substitution or fraud by the plaintiff. The defendant comes to know about the decree only when the plaintiff seeks to execute it. He prefers appeal well within the period of limitation from the date of his knowledge of decree. Yet from the date of decree, the appeal is barred by law of limitation. With his memorandum of appeal he presents an application for stay of execution alongwith application for condonation of delay. It could not have been intended by the Legislature that in such a situation, the Appellate Court shall not stay execution of the decree. In M. Das Gupta v. Prakash K. Shah, Jahagirdar, J., in a different context held that
notwithstanding peremptory language of Rule 3-A of Order 41 a proper construction of the procedural rule like Order 41, Rule 3-A must take into account contingency such as the one referred to by us. It is not possible for the Legislature to foresee such case or situations. It is in order to prevent such absurd results that we are resorting to the rule of equitable construction. This rule has been resorted to by the Supreme Court also.
16. In Govindlal Chhaganlal Patel v. The Agricultural Produce Market Committee, Godhra and others, the Supreme Court took into account the Legislative history and held :-
"Need for departure from the rule of plain interpretation arises because sometimes the Legislature does not say what it means. That has given rise to a series of technical rules of interpretation devised or designed to unravel the mind of the law makers. If the words used in a statute are ambiguous, it is said, consider the object of the statute, have regard to the purpose for which the particular provision is put on the statute book and then decide what interpretation best carries out that object."
17. The scheme of Order XLI, Rule 3-A as expounded earlier, is that the application for condonation of delay must be disposed of before the hearing of the appeal under Rule 11. The regulatory context is clear from the desire of the Parliament to "adopting a procedure" for final determination of the question of limitation before the appeal is admitted. Legislature was aware that between presentation of the appeal, (which would be accompanied by the application for condonation of delay and the application for stay of execution) and the actual hearing of the appeal under Rule 11, a time would elapse. The Privy Council's decision which disapproved the practice of the courts called for 'the procedure for securing final determination of the question as to limitation even at the stage of the admission of the appeal." The Legislative enactment of Rule 3-A of Order XLI is thus intended to curb the practice "to admit appeal subject to the provisions as to limitation being raised at the time of hearing," by prescribing a regulatory procedure. Thus, what the Legislature intended was to prevent the courts from admitting appeals without deciding as to whether the appeal was barred by law of limitation. This process of decision making would naturally take some time. The Legislature, aware of this fact, also enacted Rule 11-A by the same Amending Act of 104 of 1976. Under Rule 11-A introduced simultaneously with Rule 3-A, the appeal is required to be heard for admission within 60 days from the date on which the memorandum of appeal is filed. This means that there is a period of 60 days from the date of filing the memorandum of appeal and the date on which the hearing under Rule 11 takes place. Did the Legislature intend that during these 60 days the judgment-creditor should be free to execute the decree by virtue of the prohibition created by Rule 3-A? The Legislative intent is clear. The Appellate Court should receive the memorandum of appeal, application for condonation of delay and the application for stay. The Legislative intent is that the right of appeal created by section 96 should be advanced. The intent was that the courts should not admit appeals and stay execution of decrees without deciding the question of limitation. The provision of the period of 60 days is an indication of the Legislative awareness that during these 60 days the right of appeal should not be frustrated. We are of the opinion that the Legislature intended that the Appellate Court may exercise its power of granting stay during these 60 days but shall not extend it beyond 60 days without admitting the appeal.
18. In Rule 3-A(3) the reference is to the "proposed" appeal and not to "appeal", Rule 1 of Order XLI employs the word "appeal". This distinction implies that the memorandum of appeal which is barred by limitation and therefore accompanied an application for condonation of delay under Rule 3-A(1) is not an appeal but a proposed appeal. The legislature implied that the "proposed" appeal be transformed into an appeal after the delay is condoned and the appeal is heard under Rule
11. Rule 11-A enjoins the Court to conclude the admission of the appeal within 60 days from the date on which the memorandum of appeal is presented. In other words, the hearing under Rule 11 must be concluded within 60 days from the date of presentation of the "proposed" appeal.
In order that the "proposed" appeal is transformed into an appeal, the proceedings must not be short-circuited by execution of the decree. It stands, to reason therefore, that in order to fulfil the Legislative intent of transformation of the "proposed" appeal into an appeal, the proceedings should not be frustrated by execution of the decree.
19. The construction proposed by us is consistent with the fundamental difference between appeals against decrees and appeals against orders which are not decrees.
Section 2(2) of the Code of Civil Procedure defines "decree" to mean the formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. Section 2(14) defines-an "order" to mean the formal expression of any decision of a Civil Court which is not a decree. The difference between decree and order is marked by their incidents which are fundamentally different in their character. A decree is the formal expression of an adjudication determining the rights of the parties to a suit. But "order" is a mere decision. The Legislature has provided appeals against decrees and orders. By their vary nature, the consequences of decree are more far-reaching and determinative of the rights of parties. They cannot be altered except in an appeal or on review. An order being a decision has a different character. Some of the orders which may arise in suits are these.
(a) An order for compensatory costs under section 35-A;
(b) An order for compensation for arrest and detention;
(c) An order directing return of the plaint for presentation to the proper Court;
(d) An order rejecting the application for setting aside dismissal of a suit or order rejecting application for setting aside ex parte decree and so on.
It will be clear, therefore, that Order XLI which provides for appeals against original decrees and not original orders enacts the procedure to regulate more valuable appeals as compared to Order XLIII of the Code of Civil Procedure. The right of appeal against decree by its very nature is more valuable than the right of appeal against an order. Unlike decrees some of the appealable orders are interlocutory and do not finally determine rights. The consequences of the orders are not as far reaching as those of the decrees, Yet, the Legislature by Rule 3-A precluded the Court from granting stay of execution of decrees. A significant feature of the Code is that a similar amendment has not been introduced, in Order XLIII whose caption is "Appeals from Orders". No doubt Rule 2 of Order XLIII provides that the rules of Order XLI shall apply " so far as may be" to Appeals from Orders. But in the absence of clear indication, the meaning of the words. "as far as may be" cannot be so stretched as to read every rule of Order of XLI into Order XLIII of the Code. These words do not suggest that Rule 3-A of Order XLI shall be applied to appeals from orders. It is unlikely that the Legislature intended that an appeal from a decree may be frustrated by operation of Rule 3-A and the appeal from an order should not be subjected to a similar consequence.
Rule 1-A of Order XLIII introduced by the Amending Act No. 104 of 1976 provided that an order may be challenged in the appeals against the decree. This once again highlights that an order is essentially a subordinate decision. It could not have been intended that the Appellate Court shall not have the power to stay execution of appeals against decrees but may have such a power in the case of appeals against orders.
20. Rule 3-A applies to Appellate Court and not trial Court from whose decree the appeal is preferred. Under Rule 5(2) "the Court which passed the decree" is empowered to "order the execution to be stayed" if the decree is appealable. The only restriction on this power is that the application for stay must be made "before the expiration of the time allowed for appealing therefrom". There is no restriction which limits the exercise of this power, so that the stay does not extend beyond the period of limitation prescribed for the appeal. The application may be made within the period of limitation but the Court's order may result in staying the execution which may well extend beyond the period of limitation prescribed for the appeal. While an order of the Court from whose decree the appeal is preferred may result in staying execution beyond the period of limitation, yet the Appellate Court which is seized of the "proposed" appeal cannot stay the execution even for a few days. We do not consider that such an absurd result was in the intendment of the legislature. In our opinion the power to stay the execution of decrees during the period of 60 days referred to in Rule 11-A was intended to be conferred on the Appellate Courts.
VII 'Shall'---Whether Mandatory
22. Another question raised is whether the use of word 'shall' in Order 41, Rule 3-A(3) indicates Legislative imperative. The words 'shall' and 'may' are often treated as inter-changeable. As the Supreme Court held in Govindlal Patel v. Agriculture Produce Market Committee, the word 'shall' must normally mean 'shall' and not 'may'. But in the instant case did Legislature intend that in all situations and at all events its command shall be obeyed or does it expect the courts to comply with it substantially? Ordinarily the answer depends upon the language in which the intent is clothed. The meaning and intention of the legislature must govern and these are to be ascertained not only from the phraseology of the provision but also by considering its nature, its design and the consequences, which would follow from construing it the one way or the other. (Crawford on Statutory Construction-quoted by the Supreme Court in Govindlal v. Agriculture Produce Market Committee, . No universal rule can be laid down in this matter. In such case, we must look to the subject matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured Hardwarsingh v. Begun Sumbrui, . Thus, is the construction of the word 'shall' as mandatory or imperative consistent with the object of the Legislature to expedite disposal of the cases of condonation of delay and to ensure that such applications subserve the remedy of appeal itself? The provision of 60 days for the transformation of the 'proposed' appeal [R. A(3)] into an 'appeal' (Rule 11) the situations like those set out in paragraphs 19 and 20 are consistent with permissive nature of the word 'shall'. The object of the enactment is merely to provide a regulatory procedure to prevent appeals being admitted without considering the question of condonation of delay. The permissive or directory use of the word 'shall' fully conforms to this Legislative intent. If construed as mandatory, the appeal may become infructuous, thereby destroying the regulatory content of Rule 3-A for, then there is nothing left to regulate.
In our opinions, therefore, the word 'shall' in Rule 3-A has not been used to denote the imperative. It is permissive while the application for condonation of delay is pending during the 60 days provided by the statute.
23. We have not had the advantage of any decision on this question but the provision of Order 41, Rule 3-A in so far as it requires the application for condonation of delay to accompany the memorandum of appeal have been construed differently by different courts. In Dijabar and another v. Sulbha and others, ; State of Bihar and other v. Roy Chandi Nath Sahay and others, ; Maya Devi v. M.K. Krishna Bhattathiri and another, , it was held that the provisions were not mandatory. However, in Padmavati v. Kalu, ; Madhukar Daso Deshpande v. Anant Nilkantha Deshpande and others, , Order 41, Rule 3-A was held to be mandatory.
However, the provision as to the prohibition against granting stay did not fall for consideration in any of these cases.
VIII S. 25 OF THE HYDERABAD RENT ACT---STAY BY APPELLATE COURT.
24. The question whether the District Judge who exercise appellate powers under section 25 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 can stay execution of order appealed from will have to be decided with reference to the provision of that Act. The controller who exercises the original jurisdiction in respected of all matters to which the Act extends in appointed by the Government. Determination of fair rent, eviction of tenants and all other actions provided by the Act are instituted before the Controller. Since the proceedings are not in the nature of suits, the Civil Procedure Code does not automatically apply. In the matter of summoning witnessed and compelling production of documents section 23 enjoins the Controller to follow the procedure laid down in the Code of Civil Procedure. But this power is qualified by the words "so far as may be" thereby indicating that the whole procedure with its technicalities need not to be applied. Similarly section 24 of the Act prescribes the procedure fore the enquiries under the Act. The Rent Controller shall follow "as nearly as may be" the procedure laid down in the Code of Civil Procedure.
25. The appeals are provided by the section 25 of the Act. Section 25(1) opens with the words "notwithstanding anything contained in any law for the time being in force" and goes on to lay down that am appeal from an order made by the Controlled shall lie to "the District Judge". In other words, the appeal does not lie to the District Court but to the District Judge who has been designated as the appellate authority. The district Judge who is the appellate authority is constituted as an adjudicating body exercising the appellate jurisdiction over the orders made by the Controller. The appellate authority vested in the District Judge is created by the Act for fulfilling the purpose of the Act. Sub-station (4) of section 25 of the Act makes the order of the appellate authority final. It is not liable to be questioned in any way Court of law, whether in a suit or in other proceeding or by way of appeal .
26. The nature of the jurisdiction exercised by the Rent Controller and the District Judge under the Act is of a special kind created to meet the special purpose of the Act. The designation of the "District Judge" means the particular individual holding the office of the District Judge at any given point of time. The scheme of the Act, the nature of jurisdiction and the use of the words "District Judge" in section 25 and the finality attaching to his orders clearly signify that the Appellate Authority under section 25 is a Tribunal and not a Civil Court.
27. The Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954, is a special Law. What is general law and what is special law is not always easy to decide but the subject matter of the Statute is an index to the understanding of the nature of the enactment. The Preamble of the Act makes it clear that it is intended to provide "for the better control of rent of houses and to prevent unreasonable eviction of tenants there from and for regulation of the leasing of houses in certain areas". It is intended to serve a specialised purpose. In its scope and ambit, it is narrow and restricted to the particular cases between landlord and tenant as compared to the general laws governing properties. This restricted scope of the Act and the special purpose which it is intended to serve make it a special law.
On the other hand, the Code of Civil Procedure has general application and is a general law.
28. Order 41, Rule 3-A which precludes an Appellate Court from granting stay in the circumstances stated therein, is a part of he general law of Civil Procedure Code Section 25 of the Hyderabad Rent Act which provides the right of appeal is part of the special enactment intended to serve the special cases arising under that Act. It is a basic rule of interpretation that the general legislation must give way to the special legislation. The Hyderabad Rent Act and the appellate powers conferred by it do not preclude the District Judge from granting stay pending consideration of applications for condonation of delay. Since the special legislation does not create the prohibition similar to the one contained in Order 41, Rule 3-A of the Code of Civil Procedure, such prohibition has no application to the cases under the Hyderabad Rent Act.
29. Rule 3-A of Order 41 of the Code of Civil Procedure was no doubt enacted subsequent to the Hyderabad Rent Act. The substitutions covered by Rule 3-A also occur in Appeals under section 25 of the Hyderabad Rent Act. Under the established rules of construction it is presumed that such situations were intended to be continued to be dealt with under the Hyderabad Rent Act which is a special law.
In our opinion, therefore, it is open to the District Judge exercising appellate powers under section 25 of the Act to stay execution of the orders of the Rent Controller from which appeals are preferred to him notwithstanding the provisions of Rule 3-A of Order 41 of the Code of Civil Procedure.
IX CONCLUSIONS
30. (i) The creation of the right to appeal, and the Court's duty to consider condonation of delay in preferring the appeal, on the one hand and the prohibition against grant of stay of execution of decrees on the other create a situation which has to be resolved on the basis of accepted rules of construction. We have elaborated the reasons in the paragraphs 13 to 22 above. This discrepancy can be resolved by equitable construction of Rule 3-A of Order 41, of Code of Civil Procedure. Order 41, Rule 3-A was enacted not for the purpose of prohibiting the stay of execution of decrees pending consideration of the applications for the condonation of but for ensuring that the courts do not admit appeals without consideration of the application for condonation of delay and to provide a procedure to regulate the practice of Courts in this matter. This being the dominant purpose of the legislation, it is adequately fulfilled by the construction which we have laid down. The construction which we have proposed is consistent with legislation intent that during 60 days that may be taken for the hearing of the appeal under Rule 11, the appeals should be kept alive. In our opinion, Legislation did not intent that the right of appeal should be frustrated by refusal to stay execution of decrees during the interregnum between proceeding under Order 41, Rule 3-A and Order 41, Rule 11. The intent was to enable the courts to stay execution of decrees during this short period.
(ii) The word 'shall' employed in Order 41, Rule 3-A(3) is permissive and not mandatory.
(iii) Under section 25 of the Hyderabad Rent Act, the District Judge who is the appellate authority possesses the power to stay execution of the orders appealed from notwithstanding the provisions of Order 41, Rule 3-A of the Code of Civil Procedure.
(iv) In the view which we have taken the question of application of section 151 of the Civil procedure need not be considered.
Per P.V. NIRGUDKAR, J.:---I agree with the conclusions arrived at but looking to the significance and importance of the point involved and impact of the effect it would have if the view taken by Ratnaparkhi, J., is accepted, I think that I should add a few lines if mine to emphasis our conclusions.
32. We have already taken the view that he word "shall" used in Order 41, Rule 3-A(3) is directory and not mandatory. In arriving at this conclusion, we have taken into account the consequences of the interpretation and the Legislative history of the enactment. What impressed us is the dicta of the Supreme Court in (The State of Punjab and another v. Shamlal Murari and another)11, , where Justice Krishna Iyer while interpreting mandatory provision in case of procedural law says :
"Procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are not the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, though procedural, will thwart fair hearing of prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, the court should not enthrone a regulatory requirement into a dominant desideratum. After all, courts are to do justice, not to wreck this end product on technicalities."
33. Situation may arise and it dose arise that delay is caused in filling appeal for the reason beyond the control of the party, say for instance on account of wrong calculation of time by the office, because of the mistake of the Advocate and the delay may also be for a very short time say for one or two days but notices are necessary and if it is held that unless the delay application is decided, no stay can be granted, the party who prefers an appeal would suffer irreparable loss and unmeasurable hardship. It is in this context, we have to interpret the above Supreme Court judgement in The State of Punjab and another v. Shamlal Murari and another. However , law is meant to do substantial justice and we should not stick to the technicalities and niceties of words. If there is prima facie good reason for condonation of delay in filling the appeal and stay is not granted, then we fear that the were purpose of the appeal would be frustrated and what is demanded in the appeal is deemed to have been denied to the party even before the admission of the appeal, the other party may take possession in haste and hurry if stay is not granted.
34. Before parting, I would like to refer to the two decisions of our High Court in which Order 41, Rule 3-A Came for interpretation. In M. Das Gupta v. Prakash K. Shah, , it is held that
despite the apparently peremptory language of Rule 3-A of Order 41 of the code the appeal preferred after the expiry of period of limitation cannot be dismissed summarily on ground that the application for condonation of delay does not accompany the memo of appeal. Here also Jahagirdar, J, hinted that in the matter of procedure the word "shall" should be liberally construed. Further there is a direct decision of Tated, J., in Shaikh lbrahim v. Teckchand Fakirchand Rathod and others, 1986 Mh.L.J. 903. The learned Judge took the view that the Appellate Court can grant interim relief till decision of the application for condonation of delay.
35. In the result we proceed to pass the following order :
ORDER
(I) Civil Revision Application No. 6 of 1986 is rejected. Rule is discharged.
(II) Civil Revision Application Nos. 8/1986;9/1986 and 10/1986 are allowed. Rule is made absolute in terms of prayer (A).
(III) No order as to costs in any of these petitions.
Rajeev Kumar
(Expert) 28 April 2013
Nadeem Sir has guided you well and in depth. So go for revision.
R.K Nanda
(Expert) 28 April 2013
no more to add.
Devajyoti Barman
(Expert) 28 April 2013
Only in change in circumstance you can apply for vacating the stay order. However if the same is in interim nature then you can ask for final hearing of the petition.
Raj Kumar Makkad
(Expert) 01 May 2013
Nadeem has not provided the relevant case law and Rajeev seems has not read the contents of the case law.
The interim stay order shall not be got vacated unless the final order is passed in the case or the order is modified by appellate court.
prabhakar singh
(Expert) 01 May 2013
It is usual affair on this site.
either we deny a citation or we provide a wrong citation.
An injunction order can be legally modified or even refused if court finds a party taking undue advantage of it in course of progress of a suit proceedings.It must not be understood to be a seal of win for a frivilous litigatation without lawful rights.
prabhakar singh
(Expert) 01 May 2013
was i right ?
why all of you are mums?
come to confront me?
if you feel me wrong?
Raj Kumar Makkad
(Expert) 01 May 2013
The situation of mum speaks loudly that you were not wrong while making the comment above.
It is better not to provide citation as per decision of the experts taken a long ago instead of posting irrelevant judgment.
Wrong and irrelevant judgment definitely reduces the faith of general querist over the experts.
