(Prayer: Appeal filed under Section 96 of the Code of Civil Procedure read with Section 31 of Commercial Courts Act against the Judgment and Decree dated 04.08.2023 of the Commercial Court at Egmore, Chennai in C.O.S.No. 337 of 2022.)

1. The first, second and third defendants in C.O.S.No. 337 of 2022 aggrieved by the Judgment and Decree dated 04.08.2023 passed by the Commercial Court at Chennai are the appellants herein.

2. C.O.S.No. 337 of 2022 had been initially filed before the Original Side of this Court as C.S.No.245 of 2015 and owing to reconstitution of the pecuniary jurisdiction, transferred to the City Civil Court and re-numbered as O.S.No. 7695 of 2019. Later, on the constitution of the Commercial Court at Chennai, the suit was again transferred to the Commercial Court at Chennai and again renumbered as C.O.S.No. 337 of 2022.

3. The suit had been filed by the first respondent seeking a Judgment and Decree against the appellants herein, Chennai Port Trust represented by its Chairman and the Chief Mechanical Engineer, Chennai Port Trust and the Financial Adviser and Accounts Officer, Chennai Port Trust and also against two other defendants, the Secretary to Government, Ministry of Agriculture, New Delhi and the Chairman, Tami Nadu Electricity Board (TANGEDCO), at Chennai, against the first, second and third defendants, the appellants herein to pay a sum of Rs.77,73,060/- towards excess amount collected together with interest expenses on charges owing to bank guarantee furnished and for a declaration that the demand by the first, second and third defendants/appellants herein towards supply of electricity to the unit of the plaintiff in excess of metre reading on account of compensatory charges, change in tariff and loss in transit is unjust and invalid and for further interest and costs of the suit.

4. The appellants herein had filed their written statement and had contested the case of the respondent/plaintiff. By Judgment dated 04.08.2023, the Commercial Court at Chennai had decreed the suit in favour of the respondent/plaintiff and further declared that the demand made towards compensatory charges and change of tariff for the electricity supply are unvalid and therefore directed payment of a sum of Rs.77,73,060/- together with interest at 6% p.a., from the date of the plaint till date of realisation. Challenging that Judgment and Decree the first, second and third defendants had filed the present appeal.

5. The respondent/plaintiff had filed caveat. The learned counsel was present even during the first hearing of the appeal on 05.04.2024. The Appeal was not admitted. The Appeal had been thereafter listed on various subsequent dates. The learned counsel for the caveator had raised a point of law stating that the Appeal should first be admitted and that the Court should examine whether there are grounds to admit the Appeal.

6. A Division Bench of this Court had appointed Mr.Sharath Chandran as Amicus Curiae to examine whether an appeal filed against the Judgment and Decree of a Commercial Court will have to be argued for admission. It had been noted by the Division Bench in its order dated 26.06.2024 that Section 96 of the Code of Civil Procedure 1908 and Section 13(1)(A) of the Commercial Courts Act 2015 do not envisage automatic admission of an appeal and that the appellants will have to establish that there are appealable grounds necessitating the appeal to be admitted and for records to be called from the Trial Court. The Appeal had then been adjourned from time to time and there had been no pronouncement by the Division Bench on the issue whether an Appeal emanating from a Judgment and Decree passed in a suit by the Commercial Court should be first admitted. However, on 27.01.2025, when the application seeking stay was taken up for consideration, a Co-ordinate Division Bench of this Court had directed the appellants to furnish a bank guarantee for a sum of Rs.1,25,00,000/- and directed that the guarantee should be kept alive for a period of one year and renewed year to year and should be renewed atleast 60 days before its expiry and granted four weeks time for furnishing such guarantee and granted stay of execution of the decree.

7. When the matter was listed before this Bench, we heard arguments only on whether an Appeal emanating from a Judgment and decree of a suit from the file of the Commercial Court at Chennai should be formerly admitted and thereafter records be called for or whether such admission of the Appeal is automatic on the numbering of the Appeal.

8. We are grateful for the arguments presented by Mr.ARL.Sundaresan, learned Additional Solicitor General, assisted by Mr.S.Haja Mohideen Gisthi, Central Government Standing Counsel for the appellants and Mr.V.Manohar, learned counsel for the first respondent/plaintiff/caveator and more importantly by Mr.Sharath Chandran, learned Amicus Curiae.

9. Much consternation was expressed across the bar by a slew of conflicting Judgments passed by a learned Single Judge of this Court vis-a vis a Division Bench of this Court, with respect to the issue whether an Appeal Suit requires to be first listed for admission or whether the Registry can claim to be the sole arbiter to admit appeals and issue notice to the respondents.

10. The learned Single Judge of this Court in 2025 (2) MLJ 719 [Karupucherry V. Papathi] took the view that a first Appeal filed under Section 96 of the Code of Civil Procedure must be listed for admission as provided under Order 41 Rule 11 CPC.

11. The Division Bench of this Court in 2025 (3) MLJ 411 [V.S.Chandrasekaran Vs. Uma], however overruled the above reasoning and held that there was inconsistency between the provisions relating to first Appeal in the Code of Civil Procedure and the Appellate Side Rules of the Madras High Court.

12. This decision of the Division Bench was declared per incuriam by the same learned Single Judge in (2025) 3 MLJ 420 [Prema Vs. Nallasellam], holding that there was no inconsistency between the provisions of the Code of Civil Procedure and the Appellate Side Rules.

13. Not to be out done, the Division Bench overruled this view in (2025) 4 MLJ 415 (DB) [P.R.Saravanan Vs. K.Dhanalakshmi].

14. We are wonder struck by the above four pronouncements.

15. We have carefully considered the said pronouncements. We must record that any order or Judgment pronounced should be focused on the materials on record. Unfortunately, in the successive orders referred supra, the respective Courts had concentrated on determining how the previous ruling was wrong, while the stand taken by them was alone correct. A Judgment should not be argumentative in nature. Once a Judge sheds the gown of an Advocate and adorns the mantle of a Judge, it is expected that he / she rises above focussing on answering what they perceive as incorrect reasonings in a previous Judgment. The two orders of the learned Single Judge and the two orders of the Division Bench appear to be an exercise in overruling the earlier pronouncements and asserting their respective stands.

16. We would refrain it from expressing any opinion on the reasonings given in the four pronouncements but rather address the issue afresh.

17. The Appellate Side Rules and the Code of Civil Procedure govern the procedure relating to Memorandum of Appeals.

18. The relevant provisions under the Code of Civil Procedure are as follows:

                   (1) Section 96 CPC is as follows:

                   “96. Appeal from original decree.

                   (1)Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.

                   (2)An appeal may lie from an original decree passed ex parte.

                   (3)No appeal shall lie from a decree passed by the Court with the consent of parties.

                   (4)No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed [ten thousand rupees.] ”

                   (2) Section 100A CPC is as follows:

                   “100A. No further appeal in certain cases. Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment and decree of such Single Judge.”

                   (3) Order 41 Rules 11 and 12 CPC are as follows:

                   “11. Power to dismiss appeal without sending notice to Lower Court.

                   (1) The Appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader.

                   (2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

                   (3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.

                   (4) Where an 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. '

                   “12 CPC - 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.”

                   (5) Order 41 Rule 14 CPC is as follows:

                   “14. Publication and service of notice of day for hearing appeal.—

                   (1) Notice of the day fixed under rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the Appellate Court in the manner provided for the service on a defendant of a summons to appear and answer, and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice.

                   (2) Appellate Court may itself cause notice to be served. —Instead of sending the notice to the Court from whose decree the appeal is preferred, the Appellate Court may itself cause the notice to be served on the respondent or his pleader under the provisions above referred to.

                   (3) The notice to be served on the respondent shall be accompanied by a copy of the memorandum of appeal.

                   (4) Notwithstanding anything to the contrary contained in sub-rule (1), it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the Appellate Court, unless he has appeared and filed an address for the service in the Court of first instance or has appeared in the appeal.

                   (5) Nothing in sub-rule (4) shall bar the respondent referred to in the appeal from defending it. ”

19. The relevant provisions under the Appellate Side Rules are as follows:

                   (1) Order II Rule 3 is as follows:

                   “Rule 3: In additional to the powers conferred by other rules, the Registrar shall have the following duties and powers, subject to any special or general order made by the Chief Justice:

                   provided that the Registrar may in his discretion refer any proceeding before him for the decision of the Court; provided also, that, at the request of any party, the Registrar shall post the matter before the Court

                   (1) to receive all appeals, petitions and other proceedings;

                   (2) to require any memorandums of appeal, petition, application or other proceeding presented to the Court or to the Registrar to be amended (or rectified) in accordance with the procedure or practice of the Court.

                   (3) (i) In appeals against (a) original decrees of subordinate Courts; (b) final judgments in original suits disposed of by the High Court in the exercise of its original jurisdiction; and (c) under Clause 15 of the Letters Patent from the judgment of single judges passed in appeals from appellate decrees or orders, where the certificate provided for in Order IV Rule 28, has already been obtained, the Registrar shall issue notice forthwith.

                   (ii) In all miscellaneous appeals other than appeals under Order XLIII, Rule 1(u) of the Code, the Registrar may direct the issue of notice forthwith or post any such appeal before the Court for orders.

                   (iii) In all appeals under Clause 15 of the Letters Patent from judgments of single judges, other than those specified in Rule 3(3)(i) (b) and (c) , the Registrar shall post them before the Court for orders.”

                   (2) Order II Rule 30 is as follows:

                   “Rule 30: An appeal under Clause 15 of the Letters Patent not being one specified in Rule 3(3)(i)(b) or (c) of Order II shall be posted before a Bench of two Judges for orders whether notice shall issue to the respondents. A list of such appeals shall be affixed to the Court Notice Board.”

20. The relevant clause under the Letters Patent is as follows:

                   1) Clause 15:

                   “15. Appeal from the Courts of Original Jurisdiction to the High Courts in its appellate jurisdiction: - And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything herein before provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act made (on or after the 1st day of February 1929) in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors in Our or Their Privy Council as hereinafter provided]. ”

21. Even before examining the import of the provisions of the Code of Civil Procedure or of the Appellate Side Rules, we have to immediately point out that with the introduction of Section 100A of the Code of Civil Procedure, a part of Clause 15 of the Letters Patent has become reduntant. Clause 15 can be recast as follows:

                   “(1) an appeal shall lie to the said High Court of Judicature at Madras from the judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, not being

                   (a) a Judgment passed in the exercise of appellate jurisdiciton in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and

                   (b) an order made in the exercise of revisional jurisdiction, and

                   (c) a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or

                   (d) in the exercise of criminal jurisdiction and

                   (2) that notwithstanding anything herein before provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act made (on or after the 1st day of February 1929) in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal;

                   (3) but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors in Our or Their Privy Council as hereinafter provided]. ”

22. From the above, it is evident that Clause 15 has three limbs. A part of the first limb namely that an appeal shall lie to the High Court from the Judgment of a single Judge of the said High Court alone survives and the other part of the first limb relating to appeals against a Judgment passed in respect of appellate jurisdiction by a Single Judge and the second limb have both become redundant in view of Section 100A CPC. The third limb has also become redundant in view of the Abolition of Privy Council Jurisdiction Act, 1949.

Reasonings on Objects and reasons on CPC 1999 Amendment Act:

23. A perusal of the statement of objects and reasons for amending the Code of Civil Procedure by the 1999 Amendment Act would refer to the implementation of Justice V.S.Malimath’s Report, Law Ministers Conference on 30th June and 1st July 1997, 129th Report of the Law Commission of India and the recommendations of the Committee and Subordinate Legislation.

129 th Law Report:-

24. The terms of reference as noted in the introductory chapter would indicate that there was a necessity to revisit the procedural laws for disposing of the cases expeditiously eliminating unnecessary litigation and delays in hearing of the cases. The said reference as noted in the said Chapter is extracted herein:

                   “1. The need for decentralisation of the system of administration of justice by_

                   (I) establishing, extending and strengthening in rural areas the institution of Nyaya Panchayats or other mechanisms for resolving disputes?

                   (ii) setting up of a system of participatory justice with defined jurisdiction and powers in suitable areas and centres;

                   (iii) establishing other tiers or systems within the judicial hierarchy to reduce the volume of work in the Supreme Court and the high Courts.

                   2……………………

                   3. The procedural laws with a view generally to disposing of cases expeditiously, eliminating unnecessary litigation and delays in hearing of cases and reform in procedures and procedural laws and particularly to devising procedures appropriate to the terms envisaged in items 1(i) and 1(ii).”

                   Clause 5.1 of the miscellaneous suggestions had also taken into consideration the time consumed in attributing the delay in disposal of the case.

                   2.1 Viewing the Court procedure as at present in vague in courts at close quarters, two things emerge which can be said to be time consuming, contributing, to the delay in disposal of cases pushing up arrears in courts. The maximum consumption of time place in recording oral evidence and listening to arguments both at the interim and final stage.

                   further the Report also refers to a 124th Report of the Law Commission on the arrears of the High Court. Order XLI was also the subject matter of the deliberation of the Law commissions which is evident from the following clause.

                   4.26. Order 41, Rule 1, Code of civil procedure, 1908, makes it obligatory for a litigant preferring an appeal against the judgment adverse to him to annex a copy of the decree appealed from (unless Appellate Court dispenses therewith) and the judgment on which it is founded. The period of limitation within which the appeal is to be preferred gets extended to the extent of the time lag between the date the copy of the decree is applied for and is made ready. Occasionally the delay is of such a long duration that the time to prefer appeals sets multiplied twice, thrice or, in rare cases, even ten times. Experience shows that the copy of the decree is hardly relevant or necessary or even looked into for the purpose of deciding whether the appeal should or should not be admitted under Order 41, Rule 11. In the past, the Commission and Committees dealing with the Code of Civil Procedure and the procedure for hearing appeals in the High Courts have not chosen to do away with the provision requiring annexing of copy of decree to memo of appeal which has become anachronistic and is of doubtful utility. The Law Commission is of the opinion that Order 41, Rule 1, should be so amended to read that annexing a certified copy of the decree to memorandum of appeal is not at all obligatory and the appeal can be filed by producing the operative part of the judgment accompanying the memo of appeal.”

25. Now analysing the provisions of the amended Act particularly Order XLI Rule 9 to 15 would also drive us to the conclusion that the appeals ought to be listed before the Court within 60 days of its registration by the Registry in the Register before the Court. On hearing, the appellate Court can dismiss the appeal and if it holds that the appeal cannot be dismissed, it would have to send notice of hearing in the appeal, it can fix a date for hearing in the appeal by issuing notice also to the respective parties. Hence, the objective of Order XI as amended is in conjunction with the objects and reasonings read along with the 124th and 129th Report of the Law Commission and also the Report placed before the Chief Justice conference that was held on 31st August to 2nd September 1990.

26. The Report that was placed before the Chief Justice Conference held in the year 1990 also envisages that the first appeals ought to be listed for admission before Court. For better appreciation Clause 3.17 of the said Report is extracted hereunder:

                   “Appeals to be Listed For Admission-Brief Reasons For Rejection to be Given-Appeals Involving Triable Issue Not to be Dismissed In Limine.

                   3.17 Reference needs to be made next to the procedure followed in the High Courts with regard to the listing of Regular First Appeals for hearing and the need to bring uniformity and to make improvement therein. In the Calcutta High Court, Regular First Appeals are not listed for preliminary hearing. They are straightaway listed for final hearing in due course. In some of the High Courts, although preliminary hearing takes place, it is more of a formality, since the view prevails that a litigant must have atleast one chance of full review of the case by the higher court at final hearing. In our view, there is no justification for not listing Regular First Appeals for preliminary hearing or admitting them as of course. Admitting appeals for final hearing regardless of merit not only encourages frivolous litigation and adds to the cost thereof but also leads to avoidable accumulation of cases in the High Courts. Not all appeals necessarily have merit nor do they involve points which cannot be briefly dealt with and rejected at the preliminary hearing. Such appeals ought to be summarily dismissed at the admission, stage. Indeed, the provisions of Order XLI rules 11, 11A and 12 of the Code of Civil, Procedure read together make it obligatory for the appellate court to fix a day for the preliminary hearing of appeal as expeditiously as possible and to make endeavour to conclude such hearing within sixty days from the date on which the memorandum of appeal is filed and, unless the appeal is summarily dismissed at preliminary hearing, to fix a day for final hearing. In other words, the question of fixing a day for the final hearing of appeal arises only if the appeal is not summarily dismissed at the preliminary hearing which has to be fixed as expeditiously as possible after the memorandum of appeal is filed. In our view, these provisions should be strictly followed. However, care should be taken that an appeal which raises triable issue is not dismissed in limine. We would also like to emphasise that when an appeal is dismissed in limine, a brief order giving reasons for dismissal at the preliminary stage should invariably be recorded. A similar recommendation has been made by the Law Commission of India in its 79th report.”

27. Before we analyse the provisions of the Code of Civil Procedure, it would only be appropriate to examine the provisions of the Appellate Side Rules extracted above. It had been contended that there is conflict between the provisions of the Appellate Side Rules and the provisions of the Code of Civil Procedure and it had also been contended that there are no such contradictions.

28. We had called upon the assistance of the Registry with respect to one specific provision in the Appellate Side Rules, namely Order II Rule 3(3)(i)(a)(b) and (c) wherein it had been provided that the Registrar shall issue notice forthwith of all appeals. Thus word have been interpreted to indicate that the appeals stand automatically admitted since even before it is listed for hearing before the Court, notice is issued to the respondent, notwithstanding the fact that under Order 41 Rule 11 CPC, it had been provided that the Court could dismiss the appeal without sending notice to the Lower Court and under Order 41 Rule 11(4) can deliver a Judgment give reasons for dismissing an Appeal and a decree shall also be drawn up in accordance with the Judgment.

29. We would like to state that this controversy had been laid to rest in view of the discussions we had, emphasising necessity for amendment to be introduced in Order II Rule 3(3) of the Appellate Side Rules and after ensuring that such amendment had been introduced by the Rules Committee and a circular alone has to be issued, this Judgment is being pronounced by us.

30. The amendment which would now shortly be issued under Order III Rule 3 would be with respect to the very last portion, namely, “the Registrar shall issue notice forthwith” and the word “forthwith” would be replaced by the words “after obtaining orders from the Court”. This would indicate that once this amendment comes into effect, no Registrar will have any power to issue notice on any Appeal presented. They would have to place the Appeal before the Court for orders. In the Court while examining the merits of the Appeal, may follow the procedure under Order 41 Rule 11 and dismiss the Appeal and deliver Judgment or may fix a date for hearing the Appeal, then issue notice and proceed to hear the Appeal on merits.

31. When the Court under Order 41 Rule 12 CPC fixes a date for hearing the Appeal, it would automatically mean that the Court had approved taking on record the Appeal for deeper consideration on merits which would indicate that the Appeal had been admitted to the file of the Court and would further indicate that the Court had called for the records from the Court from which the Appeal had emanated.

32. This slight amendment in Order II Rule 3(3) of the Appellate Side Rules would clarify the issue and we need not enter into any further discussion on the precedents, or on the law laid down or on the views expressed either by the learned Single Judge or by the Division Bench. This amendment would indicate that every Appeal presented in the Appellate Side either arising from a Original Decree of the Subordinate Court or a final Judgment from the Original Jurisdiction of the High Court, which would also include Appeals from the Commercial Division will necessarily have to be placed before the Court, before notice is issued by the Registrar. The Court shall exercise its discretion to either dismiss the Appeal without issuing notice and deliver a Judgment recording in brief its grounds for doing so and a decree shall be drawn in accordance with the Judgment or admit the Appeal before notice to the respondents, call for the records and fix a date for hearing of the Appeal.

33. In view of the above reasoning, we hold that since the amendment is contemplated and had been approved by the Rules Committee, every appeal presented before the High Court shall be listed for admission before the appropriate Court and the Registrar may await orders before issuing notice.

34. With respect to appeals presented before the District Court or the Sub Court arising from original decrees of either the Sub Court or the Munsif Court, the Appellate Court shall follow the procedure under Order 41 Rule 11 CPC and under Order 41 Rule 12 CPC and take an appropriate decision in accordance with the merits of the grounds raised in the Appeal.

35. In so far as the Appeal under now consideration, we had already stated that a Division Bench of this Court had directed the appellant to furnish bank guarantee. This order would indicate that there has been an examination of the merits of the Appeal. We would therefore formally record that the Appeal has been admitted and direct the Registry to call for the records. The respondent is present on caveat.

36. List the Appeal in due course.