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Present: The Hon. Sir. Joseph T. Hutchinson, Mr. JusticeWendt, and Mr. Justice Middleton,
PALINGU MENIKA v. MUDIYANSE BANDA.
D. C., Kandy, 18,179.
Appeal, withdrawal of—Cross-objections—Right of respondent to be heard—Civil Procedure Code, ss. 406 , 772.
Held by Hutchinson C.J. and Wendt J., dissentients Middleton J.,that where, on an appeal being called on for hearing, counsel forthe appellant withdraws the appeal, the respondent is neverthelessentitled to be heard on the cross-objections of which he has givennotice, as provided by section 772 of the Civil Procedure Code.
PPEAL from a1 judgment of the District Judge of Kandy(J. H. Templer, Esq.).
The facts material to the report sufficiently appear in the judg-ments.
H. A. Jayewardene, for the defendant, appellant.
Van Lmgenberg, for the plaintiff, respondent.
Cur. adv. vult.
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April 15, 1908. Hutchixson C.J.—
The defendant in this case filed his petition of appeal against thejudgment of the District Court on July 29 last. When the appealcame on for hearing on December 19, the appellant’s advocate said" I withdraw the appeal.” Thereupon the respondent, who had notuppealed, but had given notice to the appellant under section 772of his intention to object to part of the judgment, applied that hisobjection might be heard. Section 772 says that the respondent’sobjection may be taken “ upon the hearing,” and the appellantsays that there was no hearing, and therefore the objection cannotbe taken.
There is no express provision in our law' for the withdrawal of anappeal. In the ordinary course when an appeal has been, in thewords of section 768 of the Civil Procedure Code, " entered forhearing ” and ” comes on for hearing,” and the appellant says thathe withdraw's it, the Court makes an order dismissing the appeal.It was argued that the provisions of section 406 for the " withdrawalof an action ” apply to an appeal, because an appeal is an “ actionas defined in section 5. But I think those provisions were intendedto refer to the whole of an action, and not to particular proceedingsin the course of an action, and this is shown by the fact that it isonly the plaintiff who can withdraw the action, whereas the appellantmay be, as he is in the present case, the defendant.
There are decisions of Indian Courts on the provisions of theIndian Code which are similar to section 772, that under similarcircumstances the respondent’s objections cannot be heard. Onthe other hand, the English Court of Appeal in the "Beeswing”case 1 decided that the respondent under such circumstances mayelect either to continue or to withdraw his objection; this was adecision on Order 58, rule 6, which says that it shall not under anycircumstances be necessary for a respondent to bring a cross-appeal,but that he may, if he intends, “ upon the hearing of the appeal,”to contend that the judgment should be varied, give notice of hisintention.
The only practical difference that I can see between the Englishrule on the one hand and our section 772 or the Indian section 561on the other is that the former expressly says that-no cross-appealshall in any case be necessary, intending apparently that the noticeunder rule 6 shall have all the effect of a cross-appeal. In all thethree enactments there is the same provision, that the respondent’sobjections are to be urged “ upon the hearing ” of the appeal. Andin none of them is there any provision for withdrawal of an appeal,although the practice in the English Begistry is to allow the with-drawal of an appeal by consent of the parties before it is listed forhearing; and it seems that in India, by reason of an enactment in
i (1885) 10 P. D. 18.
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190S. the Indian Code which does not appear in ours, the provisions forApril is. withdrawal of..an action apply also to appeals. The English CourtHutchinson did not give any reasons for its decision, but, after consulting the
J. other Judges of the Appeal Court, laid down what should be thepractice. But it was bound by its rules, as we are bound by ourCode, and had no power to alter them, and I think it must have beenof opinion that when an appeal comes on for hearing, and theappellant says in effect that he will not argue it, and the Courtthereupon dismissed it, that is a “ hearing of the appeal.”
My opinion is that when an appeal is listed and “ comes on forhearing ” under sections 768 and 769, and the appellant either doesnot appear or appears and says that he ” withdraws ” it or that hewill not support it, it has been heard, and the respondent’s objectionunder section 772 can then be heard.
The question which has been reserved by my Lord and my brotherMiddleton for the consideration of three Judges is whether, when anappeal comes on for hearing, the appellant is entitled to withdrawit, and whether if he does so, the respondent is nevertheless entitledto have the objections of which he has given notice under section 772of the Procedure Code heard and determined by the Court.
It was argued by the respondent that our Civil Procedure Codecontains, no provision for the withdrawal of appeals, and I thinkthat that is so. It is one distinguishing characteristic of theprocedure enacted by that Code that once a proceeding iscommenced, the continuance of it is compulsory until its finaldetermination; the Court is itself to see that the next step at eachstage shall be taken by the party from whom it is due. Wherewithdrawal from an action is recognized at all, it is subject to thecognizance and control of the Court according to the principleslaid down in chapter XXVI. That chapter has been held to applyto the Appellate Court to this extent, viz., that that Court maygive the plaintiff leave to withdraw from the action and to bring afresh action. This construction is justified by the opening wordsof section 406, ” at any time after the institution of the action.”But that construction does not enlarge the powers conferred by thesection. The leave is given to the 'plaintiff, and it is to put an endto the whole action. It does, not contemplate the withdrawal froma mere step in the action, such as an appeal, with liberty to re-takethat step, while the action still remains undisposed of. Theappellant might be the defendant, who could not withdraw from theaction even if he wished. Counsel for the appellant sought to makechapter XXVI. applicable by a resort to the definition in section 6of “ action ” as an “ application to a Court for relief or remedyobtainable through the exercise of the Court’s power or authority.”
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An appeal, it was said, was an application to the Appellate Courtlor relief against the judgment of the Court below. But, in mayopinion, the context shows that the Court intended by the definitionis a Court of first instance. “ Actions ” are divided into those ofregular and those of summary procedure (section 7), and, exceptwhere otherwise specially provided, they must be of regular pro-cedure (section 8). Every regular action begins with a “ plaint ”(section 39), and every summary action with a petition supportedby affidavits (sections 373-76). That excludes appeals.
It is true that sometimes in practice an appellant’s counsel, whenhis case is called, rises and says “ I withdraw the appeal;” butthat is always treated as equivalent to I have nothing to sayin support of the appeal,” and the order accordingly is “ appealdismissed with costs.”
Several cases were cited to us in which the Indian Courts haddecided in favour of the appellant the very question now before us,and held that the appellant could withdraw his appeal, and that ifhe did so without opening his case, there was no bearing of theappeal,” and respondent’s objections could therefore not be broughtforward. But these decisions, which extend in a long series back tothe case of R. P. Ojah and others v. B. B. Bhoonuar and others,1 areinapplicable owing to a material difference between the Indian Codeof Civil Procedure and our own. Act XXIII of 1861, section 37,enacted that, “ unless when otherwise provided, the AppellateCourt shall have the same powers in cases of appeal which are vestedin the Courts of original jurisdiction in respect of original suits.”And the High Court of Calcutta, in the case just cited, in dealingwith the argument that while the law provided for the withdrawalof suits, it nowhere provided for withdrawal of appeals, expresslyrelied upon that section as giving them the power to allow an appealto be withdrawn. We have no provision in our Code similar tothat section 37. Our Legislature, in adapting the Indian Code toour wants, appears advisedly to have left out section 582 of theIndian Code of 1882, which had eventually replaced the section ofthe Act of 1861. We must take that ommission to have been advisedlymade.
In my opinion, therefore, an appellant cannot claim to “ withdrawhis appeal in the same way that a plaintiff can “ withdraw ” hisaction. I think also that respondent is entitled to have his objectionsto the decree heard. To hold so does not necessarily involve theconsequence that a respondent need never present an appeal of hisown. It may happen that the appeal abates (e.g., in consequenceof security for costs not having been given in time) and never comeson. In that case I should hold there could be no “ hearing ” ofthe appeal, and the objections of the respondent would lapse.
1 (1868) 9 W. R. 828.
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This was an action to recover certain movables deposited withthe defendant for safe keeping, or their value. The District Judgegave judgment for some of the articles in question. The defendantappealed, after which the plaintiff, without entering a cross-appeal,gave notice under section 772 of the Civil Procedure Code that heobjected to the decree, as not including the value of those articleswhich the District Judge had disallowed.
Upon the appeal being called on by the Registrar, the appellant’scounsel stated that he withdrew his appeal. The respondent’scounsel then desired to press his objections under section 772, butthis was demurred .to by counsel for the appellant, who quotedJafer Horsan v. Rangii Singh,1 where Sir John Edge C.J., followingthe cases reported in 9 Weekly Reporter 32S, 14 Weekly Reporter 210,I. L. R. 9 Bombay 281, and I. L. R. Allahabad 551, held that wherean appeal was withdrawn before it was argued, or opened objectionsunder section 581 of the Indian Civil Procedure Code, could not beheard, the ground apparently being that there was no hearing ofthe appeal.
The English Court of Appeal, however, in the “ Beeswing ”2case held under order 58, rule 6, that when a respondent hasgiven notice that he will on the hearing of an ’appeal contend -thatthe decision of the Court below should be varied, and the appellantsubsequently withdraws his appeal, such notice entitles the re-spondent to elect whether to continue or withdraw the cross-appeal.If he continues his cross-appeal, the appellant has the right ofgiving a cross-notice that he will bring forward his original con-tention on the hearing of the respondent’s appeal.
The difference between our procedure and that in England is thatin the latter, under rule 6, order 58, “ it is not under any circumstancesnecessarj’ for a respondent to give notice of motion by way ofcross-appeal, but if a respondent intends, upon the hearing of theappeal, to contend. that the decision of the Court below should bevaried,” he shall give an eight days’ notice in the case of a. finaljudgment and a two days’ notice in the case of an interlocutoryorder of such intention to any parties who may be affected by suchcontention.
Under our procedure a party in the position of a respondent, if- dissatisfied with the decree in his favour, ought properly to appeal,but on failure to do so he has further privileges accorded to himunder section 772. If a mainly successful party in our Courts doesnot appeal within the statutory period, it is clear in most cases thathe is not greatly dissatisfied with .the decree in his favour, and haswaived the right to do so; but on an appeal against him, he may withdue notice exercise his privileges under section 772 upon the hearing
» I. L. R. Allahabad 518.2 (1885) 10 P. D. 18.
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of the appeal. The privilege under section 772 is given, in myopinion, to enable a satisfied respondent to defend himself on allpoints from the attack on appeal.
In the case of the “ Beeswing ” (win supra), the Court allowed thenotice to be treated as a cross-appeal, a character which in fact itpossesses under English procedure to the extent that on the originalnotice of appeal being withdrawn by the appellant, the Courtallowed the respondent to elect whether to persevere with or with-draw the cross-appeal. The Court further accorded the appellantthe privilege of reinstatement of his withdrawn appeal on thehearing of the respondent’s appeal. The Court gave the respondentthis privilege, although there was no hearing of the appeal either infact or constructively, I think (1) because it is not necessary underEnglish procedure to enter a cross-appeal, and (2) it is not specificallylaid down that the right may be exercised upon the hearing of theappeal, and thus inferentially is not to be exercised if there is nohearing of the appeal.
The wording of rule 6 is, " If a respondent intends upon thehearing of the appeal to contend that the decision of the Court belowshould be varied,” &c. Our section 772 enacts that ‘‘ he may uponthe hearing support the decree, or take any objection,” &c.
The power given to the respondent “ to support the decree on anyof the grounds decided against him in the Court below ” can only beexercised on an actual hearing of the appeal, and the “ objections ”1 think are assumed to be such as the respondent would not haveraised had there been no appeal, and therefore were not intended tobe heard if no actual hearing of the appeal took place. I am inclinedto think, therefore that the decision in the “ Beeswing ” (ubi supra)does not apply to the circumstances of this case and the casesdecided by the Indian Courts.
The question here and in some of those cases was whether whathas happened amounts to a hearing of the appeal within the con-templation of section 772. Taking into consideration the power ofappeal permitted to a person in the position of a respondent here,I am disposed to agree in the reasoning of Mahamood J.1 that thehearing of the objections is subject to the condition of the appellantproceeding to an actual hearing. The respondent is not reallydissatisfied with the decree, or he would have appealed; but eitherfearing his position may be deteriorated by the appellant’s appeal,or, by way of counter move, he puts forward his objections or supportshis judgment on grounds decided against him in the Court below,which can only be considered upon the actual hearing of the appeal.The case is called on for hearing, and the appeal is announced tobe withdrawn by counsel'for the appellant, and Is not heard, and Ithink the right to have the objections heard vanishes thereupon.
i I. L. ft. 8 All. 552.
The appellant can, if he chooses, inform the Begistrar that he doesnot support the appeal, and neither appear in person or by counsel,in which case, under section 769, the appeal upon being called on,but not heard, is dismissed.
There are no provisions in our Code for the withdrawal of anappeal, but if an appeal is not supported or stated by the appellantor his counsel to be withdrawn, the Court dismisses it as of course(section 769).
The announcement of the withdrawal of the appeal imposes thatduty upon us without hearing it, and I would hold, therefore, thatthe appeal must stand dismissed with costs, and that the respondent’sobjections cannot be heard.
Objection to the cross-objections being heard over-ruled.
PALINGU MENIKA v. MUDIYANSE BANDA