Madras High Court Full Bench: Registry cannot issue notice in first appeals before the Bench hears them

A three-judge bench held that every first appeal under Section 96 CPC must be heard by the Bench under Order 41 Rule 11 before the respondent is noticed, and that the 1965 Appellate Side Rule directing the Registrar to issue notice forthwith stands repealed to that extent.

For eighteen months the Madras High Court has been split on a question every civil litigant in Tamil Nadu runs into sooner or later: when a losing party appeals a trial court decree, does the appeal go to a judge first, or does the Registry simply send notice to the other side and wait for the final hearing? Seven orders had answered it in opposite directions. On 16 October 2026 a Full Bench of Justices G. Jayachandran, D. Bharatha Chakravarthy and N. Ramesh settled it. Every first appeal must be placed before the Bench for a hearing under Order 41 Rule 11 of the Code of Civil Procedure before any notice issues, and the 1965 rule telling the Registrar to issue notice forthwith has been repealed by Parliament to the extent it says otherwise.

Seven orders in eighteen months

The reference arose out of A.S. No. 728 of 2026, an appeal by Saroja and S. Jothi Lakshmi against a judgment and decree of 31 October 2025 of the XVI Additional District Judge, City Civil Court, Chennai, in O.S. No. 916 of 2017. The merits were not before the Full Bench. On 5 August 2026 a Division Bench of Justices N. Sathish Kumar and M. Jothiraman noticed that coordinate benches had taken conflicting views on how a first appeal is placed before the Court and notice ordered, and asked the Chief Justice to constitute a Full Bench. The Chief Justice did so on 11 August 2026.

The judgment, delivered by Justice N. Ramesh for the Bench, traces the seven orders in sequence. In February 2025 Justice N. Sathish Kumar, sitting singly in Karupuchetty @ Vaiyapuri (Died) v. Papathi, doubted the practice of the Deputy Registrar issuing notice in first appeals without the appeal ever being posted before a judge, and by a reasoned order of 7 March 2025 held that every first appeal must be posted under Order 41 Rule 11 for orders on admission.

Six weeks later a Division Bench of Justices G.R. Swaminathan and M. Jothiraman, in V.S. Chandrasekaran v. R. Uma, accepted that Order 41 Rules 9 and 11, as read by the Supreme Court, were inconsistent with Order II Rules 1 to 3 of the Appellate Side Rules of the Madras High Court, but held that the Rules, framed under Section 122 of the Code, would prevail until the Rules Committee amended them. Four days after that, Justice Sathish Kumar in Prema v. Nallasellam held that V.S. Chandrasekaran had been decided without noticing Section 32(1) of the Code of Civil Procedure (Amendment) Act, 1999, and reiterated his view.

In May 2025 a Division Bench of Justices G.R. Swaminathan and V. Lakshminarayanan went the other way in P.R. Saravanan v. K. Dhanalakshmi (Died). Neither Section 96 nor Order 41 Rule 11 contemplates an admission or motion procedure, it held; there is no conflict between the Appellate Side Rules and the Code; and the Registry should keep issuing notice on registration, listing the appeal under Rule 11 only if the Court so directs. It overruled Karupuchetty and Prema, adding that worthless or vexatious appeals could be dismissed at any stage after notice.

On 30 April 2026 a third Division Bench, Justices C.V. Karthikeyan and K. Kumaresh Babu in Chennai Port Authority v. J. Chandrasekaran, held that first appeals must be posted for admission, proceeding on an amendment to Order II Rule 3 that the Rules Committee had approved but never notified. On 15 July 2026 the Saravanan bench, in D. Paramasivam v. P. Arunachalam, declined to follow it: the observations were obiter, since that appeal arose under the Commercial Courts Act, 2015, and a Rules Committee resolution has no force of law until sanctioned and published under Sections 126 and 127. It directed the Registry to follow Saravanan. Yet the same bench then invoked Rule 11 and dismissed the appeal before it in limine without notice to the respondents. The referring bench observed that this did not sit easily with the proposition that dismissal is possible only after notice.

The four questions and the text that answered them

The reference asked whether a first appeal must be posted for admission under Order 41 Rule 11; whether it can be dismissed in limine without notice to the respondent; whether notice issues from the Registrar automatically or only under Rule 12 if the appeal survives Rule 11; and whether amended Rule 11 conflicts with the Appellate Side Rules and, if so, which prevails.

Mr B. Dinesh Kumar appeared for the appellants and Mr N. Santhanaraman for the fourth respondent, who appeared through her mother. Counsel for the respondents filed written notes dated 5 October 2026 with a chart of the judgments, and it was his submissions the Full Bench recorded and largely accepted. Since the 1999 amendment, he argued, admission of a first appeal is not automatic; the Appellate Side Rules predate the amendment and have never been aligned with it; and three statutory provisions would be left with no work to do if notice issued on numbering. He relied on paragraph 3.17 of the Malimath Committee report and on the Supreme Court in Mahadev Govind Gharge v. Special Land Acquisition Officer, U.P. Avas Evam Vikas Parishad v. Sheo Narain Kushwaha, Bolin Chetia v. Jogadish Bhuyan, Devi Theatre v. Vishwanath Raju and the three-judge decision in Salem Advocate Bar Association v. Union of India.

The Full Bench started with the Code. Rule 11(1) lets the appellate court, after fixing a day for hearing the appellant or his pleader and hearing him, dismiss the appeal. Rule 11-A, inserted in 1999, says every appeal shall be heard under Rule 11 as expeditiously as possible, with an endeavour to conclude that hearing within sixty days of the memorandum being filed. Rule 12(1) says that unless the court dismisses the appeal under Rule 11, it shall fix a day for hearing it. Rule 14(1) provides for notice of the day so fixed to be affixed in the court-house, sent to the trial court and served on the respondent.

Rule 11-A answered the first question on its own, Justice Ramesh found. The words are every appeal, and the verb is shall. The Rule does not say an appeal may be heard under Rule 11 if the Court so directs; it says every appeal shall be, within an outer limit of sixty days. Read with Rules 12 and 14, the Code lays down one sequence: a hearing of the appellant under Rule 11; dismissal at that stage or, if not, the fixing of a day under Rule 12; and notice of that day to the respondent under Rule 14.

That, the Bench said, is how the Supreme Court has read the Rules. Mahadev Govind Gharge described the Rule 11 hearing as a substantive right of being heard, requiring the court to apply its mind to the merits before dismissing, and placed the requirement of notice between the day fixed under Rule 11 and the day fixed under Rule 12. Bolin Chetia called the Rule 11 stage a motion hearing or hearing on admission; Devi Theatre said the court may admit a Section 96 appeal if fit for full hearing or dismiss it at the initial stage; and Salem Advocate Bar Association upheld the 1999 and 2002 amendments, including the one to Rule 11.

The purpose of the amendment pointed the same way. The Malimath Committee had found no justification for not listing regular first appeals for preliminary hearing, and had said that admitting appeals for final hearing regardless of merit encourages frivolous litigation and adds to arrears. A practice under which every first appeal is noticed on numbering and reaches the Court for the first time at final hearing, the Full Bench held, restores the very position the Committee identified as a cause of arrears.

Why the Saravanan reading did not survive

The Bench gave P.R. Saravanan what it called respectful consideration before rejecting it. That decision had reasoned that the word admission does not appear in Rule 11, which confers a power of dismissal rather than a gate every appeal must pass through. Nothing turned on the absence of the word, the Full Bench held: Rule 11-A requires every appeal to be heard under Rule 11, Rule 12 makes the fixing of a day depend on the outcome, and the Supreme Court has used all three labels for the stage. Saravanan had also read Mahadev Govind Gharge as deciding only that an appellate court may dismiss an appeal ex parte, relying on paragraph 39 of that judgment without noticing paragraph 20, which deals directly with Rule 11. And it did not account for Rule 11-A at all, which leaves no discretion about whether the Rule 11 hearing is held.

The Bench accepted that the contrary construction would render three provisions otiose. If notice issued automatically on numbering, the power recognised in Bolin Chetia to dismiss an appeal before issuing notice and before sending for the record could never be exercised; the sixty-day limit in Rule 11-A would have nothing to operate on; and notice would precede the Rule 11 hearing, contrary to Mahadev Govind Gharge.

Two further points rounded off the first answer. The right of appeal under Section 96 is a substantive and valuable right, but it is a right to be heard by the Court, not satisfied by registration of the memorandum and a notice from an officer of the Registry. And the range of appeals under Section 96 is far wider than in 1965: appeals under special enactments such as the Commercial Courts Act carry their own limitation periods and raise threshold questions of forum and procedure, as Chennai Port Authority showed. Those are questions for the Court, not the Registry.

On the second question the Bench held that Rule 11(1) contemplates a hearing of the appellant alone and does not require the respondent to be served or heard before dismissal at that stage. U.P. Avas Evam Vikas Parishad had said an appellate court can dismiss an appeal after a preliminary hearing without calling for the records and without notice to the respondent if satisfied it has no merit, and D. Paramasivam had done exactly that. But the power carries two safeguards. It is to be exercised sparingly and only by way of exception; an appeal that raises a triable issue or discloses a prima facie case is not to be dismissed in limine. And the order must be reasoned, enough to show application of mind to the grounds and to make out that the court found the appeal vexatious or wholly without merit. Where a caveat has been lodged, the caveator is entitled to be heard at the Rule 11 stage.

The third answer followed from the first. Rule 14(1) speaks of notice of the day fixed under Rule 12, and a day is fixed under Rule 12 only if the appeal is not dismissed under Rule 11. Notice is therefore the consequence of the appeal surviving the Rule 11 hearing, not an event preceding it. Whether a respondent should be called upon to answer an appeal is a decision on whether the appeal deserves a contested hearing, and that is a judicial decision. The Full Bench adopted the view in Prema that it cannot be delegated to a Deputy Registrar. The Registry may receive, scrutinise and number an appeal; it cannot decide that the respondent must answer it before the Court has heard the appellant.

A 1965 rule against a 1999 amendment

The fourth question was where V.S. Chandrasekaran had gone wrong, in the Full Bench's view. The difficulty lay in a single clause. Order II Rule 3(3)(i) of the Rules of the High Court, Madras, Appellate Side, 1965, provides that in appeals against original decrees of subordinate courts “the Registrar shall issue notice forthwith”. Read as a direction to notice the respondent on numbering, without any Rule 11 hearing, that clause cannot stand with Rules 11, 11-A, 12 and 14 of Order 41. Both cannot be given effect in the same appeal. To that extent there is a conflict.

The Bench noted something Saravanan had missed. The clause that decision described as merely calling on the Registrar to take the Judge's instructions on listing under Rule 11 is, in terms, Order II Rule 3(3)(iv), which governs appeals against appellate decrees and miscellaneous second appeals. Clause (iv) is in harmony with the Code. It is clause (i), governing first appeals and directing notice forthwith, that is not. The description of the Rules in Saravanan itself pointed to listing before the Judge.

Which prevails? Section 122 permits a High Court to annul, alter or add to the rules in the First Schedule by rules not inconsistent with the body of the Code. The power is conferred by Parliament, and a rule made under it operates on the First Schedule as it stood when the rule was made. Order II Rule 3(3)(i) was framed in 1965, when Order 41 stood in a different form. Parliament then amended Order 41 by Act 46 of 1999 and Act 22 of 2002, both in force from 1 July 2002, and the High Court has made no rule under Section 122 since which alters or departs from amended Rule 11. Order II has not been touched since 1999 in any material respect; the amendments notified in 2021 and 2025 concern Orders I, IV, VIII and IX. A rule framed in 1965 cannot be read as having altered a provision which did not then exist in its present form.

The preamble to the Appellate Side Rules reinforced the point. The rules are issued to apply, so far as may be practicable, to proceedings on the Appellate Side. Once the Code was amended so that the appellate court had to apply its mind and reject an appeal with no merit, it became impracticable to keep applying Order II Rule 3(3)(i). The Bench also remarked that the clause is misnumbered and should ideally be Order II Rule 4(1).

Parliament had in any case provided for the situation expressly. Section 32(1) of the 1999 Act, repeated in Section 16(1) of the 2002 Act, says any provision inserted in the Code by a High Court before the amending Act commenced stands repealed except in so far as it is consistent with the Code as amended. A rule under Section 122 altering the First Schedule is such a provision. To the extent Order II Rule 3(3)(i) is inconsistent with amended Order 41, it stands repealed by the words of Parliament and remains inoperative unless and until the High Court makes a fresh rule consistent with the Code as it now stands.

This is why the Bench could not agree with V.S. Chandrasekaran, which had held that rules under Section 122 rank higher than the First Schedule and therefore prevail. The Section 122 power is a power to vary the First Schedule as it stands when the rule is made. It does not authorise a 1965 rule to override an amendment Parliament itself made thirty-four years later, and it cannot be read to defeat Section 32(1), which V.S. Chandrasekaran had not considered. For the same reasons the Saravanan view that there is no conflict between the Rules and the Code could not be accepted so far as first appeals under Order II Rule 3(3)(i) are concerned.

The Bench closed with an observation about practice. After all, it said, “procedure is the hand-made of justice”; the hearing and disposal of first appeals under the existing system had not been exemplary, and clinging to an outdated procedure would not serve the litigant, for whose benefit alone the system exists.

Order

The reference was answered in four parts. Every first appeal under Section 96 shall be posted before the concerned Bench for hearing under Order 41 Rule 11 read with Rule 11-A before notice issues. A first appeal may be dismissed in limine on merits under Rule 11 without notice, after hearing the appellant or his counsel, sparingly, only where it is vexatious or wholly without merit, by a reasoned order, with a caveator heard at that stage. Notice shall not be issued by the Registrar automatically; only the Court can issue it under Rule 12 read with Rule 14, if the appeal is not dismissed under Rule 11. And Order 41 Rule 11 as amended prevails over Order II Rule 3(3)(i) of the Appellate Side Rules, which stands repealed to the extent of the inconsistency under Section 32(1) of Act 46 of 1999 and Section 16(1) of Act 22 of 2002; in all other respects Order II Rules 1 to 3 are to be read in harmony with amended Order 41.

Karupuchetty, Prema and Chennai Port Authority were approved in so far as they hold that a first appeal must be posted before the Bench under Rule 11. P.R. Saravanan and D. Paramasivam were overruled in so far as they hold the contrary, and V.S. Chandrasekaran in so far as it holds that the Appellate Side Rules prevail over amended Rule 11.

The Registrar General was directed to place the judgment before the Chief Justice and the Rules Committee for an amendment of Order II Rule 3 under Section 122, which the Bench suggested should provide for listing of a first appeal before the Bench under Rule 11 within the time contemplated by Rule 11-A, for hearing a caveator at that stage, for a reasoned order on in limine dismissal, and for conforming the forms in the Appendices. Pending the amendment, the Registry is to list first appeals in accordance with the answers. A.S. No. 728 of 2026 itself goes back to the appropriate Bench under the roster. The matter was reserved on 29 September 2026 and pronounced on 16 October 2026.