TMI Blog2002 (9) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... According to the learned Counsel since his client's right will come under a shadow, as a result of the admission of this appeal with the formulation of substantial questions of law, he has an immediate and contemporaneous right to point out that no such question of law exists. According to him he has lodged the CAVEAT for the purpose of joining issue at this initial stage. The learned Counsel also submits that under Order 41 Rule 11 of the Civil Procedure Code, which is a procedural provision of the Code relating to appeal, there is no express bar on the respondent from arguing at the initial stage that no such substantial question of law is involved in the case. 3. The learned Counsel for the appellant on the other hand submits that if Order 41 Rule 11 and Order 41 Rule 12 are properly read with Section 100 of C.P.C., it will clearly appear that at the initial stage of formulation of substantial question of law by the High Court, the respondent has no right of audience. The learned Counsel submits that the respondent can address the court only after formulation of the question and at the hearing of the appeal. The learned Counsel also submits that even though the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whose decree the appeal is preferred. (4) Whereas appellate Court, not being the High Court, dismisses an appeal under Sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment. Order 41 Rule 12. Day for hearing appeal.--(1) Unless the appellate Court dismisses the appeal under Rule 11, it shall fix a day for hearing the appeal. (2) Such day shall be fixed with reference to the current business of the Court, the place of residence of the respondent, and the time necessary sufficient time to appear and answer the appeal on such day. 5. On a conjoint reading of these provisions it appears that Section 100 of the C.P.C. confers the substantive right of appeal from an appellate decree passed by any court subordinate to High Court and that right can be exercised only if the High Court is satisfied that the case involves a substantial question of law. Sub-section (3) of Section 100 provides that in an appeal under Section 100, the memorandum of appeal must precisely state the substantial question of law involved in appeal and Sub-section (4) of Section 100 further provides that if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argue that substantial question of law is not involved in the appeal is at a subsequent stage and not at the initial stage of the formulation of the question by the court. 11. The learned Counsel for the appellant has argued that the expression hearing occurring in Order 41 Rule 12, Sub-rules (1) and (2) and Sub-section (5) of Section 100 of the Code would mean the hearing of the appeal after admission. It was contended that the word 'hearing' must have the same meaning in both the situations. In support of this contention the learned Counsel relied on Maxwell's Interpretation of Statute, 10th Edition. At page 322 in Maxwell, it has been held as follows: It has been justly remarked that, when precision is required, no safer rule can be followed than always to call the same thing by the same name. It is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act. Accordingly, in ascertaining the meaning to be attached to a particular word in a section of an Act, though the proper course would seem to be to ascertain that meaning if possible from a consideration of the section itself, yet, if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode cannot be ruled out. This contention is not sound. First of all, it is well settled that inherent powers cannot override the express provisions of the Code. If dealing with a particular situation, specific provisions have been made in the Code and that has been done here, in that case such provisions expressly or by necessary implication exhaust the scope of the Court's powers dealing with such situation. And the inherent powers cannot be invoked cutting across the statutory powers. The prohibition in the Code need not be express but may be implied or implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates (See the judgment of the Supreme Court in Arjun Singh v. Mohindra Kumar, ). 17. This is more so in the context of a right of appeal. Right of appeal and -right of suit are not the same thing . Right of suit is inherent in every one subject to any legal bar as recognised under Section 9 of the C.P.C. But right of appeal is always controlled by the statute (See Ganga Bhai v. Vijay Kumar, ). Since a right of appeal is provided under the statute from an appellate decree, the appellate decree cannot be treated as fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntions . (Page 51 of the report) 22. This Court is of the view, if a second appeal is presented before the High Court, it may have three stages. The first stage is before the Stamp Reporter. The Stamp Reporter has to find out if there are defects in the appeal and whether or not the appeal is barred by limitation. The appeal is technically admitted at this stage. If that hurdle is crossed and the appeal is a defect free one, it is taken up by the Court, at times with curable defeats. The second stage is the satisfaction of the High Court that substantial question of law is involved in the appeal. If such questions exist then on the formulation of those questions by the High Court, accepted for hearing. At these two stages, the respondent has no right of hearing. If the second appeal survives these two stages then the third stage begins and the respondent enters the scene. The appeal then comes up for hearing. So in the instant case at the initial stage of formulation of the substantial question of law by the High Court the respondent has no right of being heard. The contentions of Mr. Chatterjee are thus overruled. We now, therefore, take up this appeal for hearing under Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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