IN THE HIGH COURT OF DELHI AT NEW DELHI

 

SUBJECT: ORDER XI RULES 1, 12, 14 AND 15 CPC

 

                            Date of Hearing & Decision:  November 9, 2004.

 

OA 10/2004 in CS(OS) 464/2004

 

 

Akash Gupta                                              ....  Plaintiff

                                          Through: Mr.Pradeep K.Bakshi, Mr.Rajat Navet,                                                  Mr.H.S.Jaggi and Mr.Karan Mehra, Advocates.

 

                                             Versus

 

M/s Frankfinn Institute of Air Hostess

Training & Anr.                                       .                       ....  Defendants

                     Through:Mr.A.S.Chandhioke,Sr.Adv. with

                                          Mr.J.R.Midha and Mr.Ajit Nair, Advocates.

                                                               

R.C.JAIN, J. (ORAL)

 

1.                  This appeal under Rule 4 of Chapter II, Delhi High Court (Original Side) Rules, 1967 (hereinafter referred to as 'Rules'), is directed against the order of the learned Joint Registrar dated 5.10.2004 passed on IA 3106/2004 in CS(OS) 464/2004.

 

2.                  The plaintiff has filed a suit for permanent injunction against the defendants restraining them from taking out and/or printing any advertisements with any reference to the plaintiff and/or the Air Hostess Academy (AHA) in any form or manner.  The suit is being contested by the defendants and a written statement stands filed on their behalf.  During the pendency of the suit, the defendants moved an application (IA 3106/2004) under Order XI Rules 1, 12, 14 and 15 read with Section 151 CPC seeking a direction on the plaintiff to answer the interrogatories annexed with the application and to produce the documents referred to therein.  The said application was dealt with and disposed of by the Joint Registrar by means of a detailed order dated 5.10.2004 allowing the application and directing the plaintiff to answer the interrogatories within 10 days from the date of the said order.  Aggrieved by the said order, the plaintiff has filed the present appeal.

 

3.                  The defendants, being noticed on the appeal, raised a preliminary objection about the very maintainability of the appeal against the impugned order under the provisions of Rule 4 of Chapter II of the Rules, which is to the following effect:

 

"4.  Appeal against the Registrar's Orders__

 

 Any person aggrieved by any order made by the Registrar under Rule 3 may, within fifteen days of the making of such order, appeal against it to the Judge in Chambers.  The appeal shall be in the form of a petition bearing Court fee stamp of the value of Rs.2.65 P".

 

4.                  Mr.A.S.Chandhioke, learned senior counsel representing the defendants contends that no appeal would lay against the impugned order passed by the Joint Registrar because an order passed on an application under the provisions of Order XI CPC is not an appellable  order within the meaning of Order XLIII Rule 1 CPC or under the Letters Patent of this Court or in terms of Section 10 of the Delhi High Court Act, 1966.  Mr.Pradeep Bakshi, learned counsel appearing for the plaintiff does not dispute that no appeal lies against an order passed within the meaning of Order XLIII Rule 1 CPC, but he has strongly contended that an appeal would lie and is maintainable against such an order by virtue of Rule 4 of the Rules because the impugned order has been passed by the Registrar in exercise of his powers under Rule 3 of the Rules.

 

5.                  This Court after giving its anxious consideration is, prima facie, of the opinion that Rule 4 is not in conformity and consonance with the provisions of the Code of Civil Procedure, the Delhi High Court Act, 1966 and Clause 10 of the Letters Patent because while Rule 4 permits the filing of an appeal against any order passed by the Registrar in relation to any of the matters enlisted in Rule 3 of the Rules, the Code, the Act and the Letters Patent do not permit filing of such an appeal.  Therefore, the following questions of law and/or procedure have arisen. The questions being:

1)     Whether an appeal would lie under Rule 4 of the Rules against any order made by the Registrar under Rule 3 on an application/matter against which no appeal is provided under the Code of Civil Procedure, Delhi High Court Act, 1966 or the Letters Patent of this Court?; and

 

2)       If the answer to the above question is in negative, whether Rule 4 needs to be retained in the Rules or needs to be suitably amended so as to bring the said rule in conformity with the Code and Act?

 

6.                  It appears that the above questions have not been specifically considered and answered by this Court in any earlier proceedings and, therefore, this Court is of the view that these important questions of law and/or procedure which have arisen in this case and which might arise in future in other cases, should be answered by a Larger Bench of this Court by means of an authoritative pronouncement.

 

7.                  Accordingly, the appeal is referred to Hon'ble the Chief Justice for constituting  a Bench of two or more Judges to decide the above questions.  Parties are directed to appear before Hon'ble  the Chief Justice on 23rd November, 2004.

 

November 9, 2004                                                      R.C.JAIN,J.