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1903 DIGILAW 121 (CAL)

Shabiuddin v. Deomoorat Koer

1903-05-11

body1903
JUDGMENT Ghose and Pratt, JJ. - Having disposed of the appeal of the Defendant No. 5, their Lordships continued:-We come to notice a cross-objection which has been preferred by the Plaintiff-Respondent u/s 561, Civil Procedure Code, on the 10th April 1901. We ought here to mention that the Sub D ordinate Judge was of opinion that the claim of the Plaintiff as against the Defendants Nos. 1 to 4 was barred by the law of limitation and the cross-objection preferred by the Plaintiff seeks to impeach the correctness of the judgment of the Subordinate Judge on this head. The decree of the Subordinate Judge in this case was pronounced on the 11th September 1900. The appeal of the Defendant No. 5, which is the appeal with which we are mainly concerned, was preferred on the 8th of January 1901. The notice of this appeal was served upon the Plaintiff on the 5th March 1901, but the cross-objection was not put in until the 10th April 1901, that is to say, more than one month after the date when notice of the appeal was served on the Plaintiffs and thus the cross-objection is really out of time, having regard to the provisions of Section 561 of the Code. But beyond this, if it was the intention of the Plaintiff to obtain any relief as against the Defendants Nos. 1 to 4 in spite of the judgment of the Subordinate Judge, it was her duty to serve the said cross-objection upon the said Defendants, but this was not done. It will further be observed that the cross-objection is sought to be pressed not against the Appellant (Defendant No, 5), but against the Plaintiffs co-Respondents, the Defendants Nos. 1 to 4 and it has been argued on behalf of the Plaintiff that she is entitled to press it because the wording of Section 561 is very general so as to admit of a cross-objection being pressed not only against the Appellant, but also against a co-Respondent. We are, however, unable to accept that view as correct. This question seems to have been considered many a time in this Court under the old Civil Procedure Code, as also under the new Civil Procedure Code. We are, however, unable to accept that view as correct. This question seems to have been considered many a time in this Court under the old Civil Procedure Code, as also under the new Civil Procedure Code. In the case of Anwar Jan Bibee v. Azmut Ali (1871) 15 W.R. 26, in which the facts were very similar to those with which we are concerned in the present case, the learned Judges, in disallowing the cross-objection that was presented by one of the Respondents, observed as follows : "It has been held in a long series of decisions that the cross-appeal cannot reopen any questions which have been decided between the co-Respondents, but must have reference to the Appellant and the points which are in dispute between the Respondent who takes the cross-appeal and the Appellant. It is quite possible that there may be cases in which, when an Appellant succeeds in his appeal, questions will be opened up as between the co-Respondents -which would otherwise have been decided ; and it is also possible when interests are identical that a Respondent succeeding in his cross-appeal may open up questions as between himself and his corRespondent. But that is not the case in this litigation." The same view was adopted in a comparatively recent case under the Code of 1882 and that is the case of Bishan Churn Roy Chowdhry v. Jogendra Nath Roy ILR (1898) Cal. 114. The learned Judges in that ease, after referring to various cases on the point, made the following observations:-"As a general rule the right of a Respondent to urge cross-objections should be limited to his urging them against the Appellants; and it is only by way of exception to this general rule that one Respondent may urge cross-objections as against the other Respondents, the exception holding good (we do not attempt to lay down any definite exhaustive rule on the point) among other oases In those in which the appeal of some of the parties opens out questions which cannot be disposed of completely without matters being allowed to be opened up as between co-Respondents. One instance of this kind is to be found in cases of the class considered in Upendra Lil Mukerjee v. Girindra Nath Mukerjee ILR (1898) Cal. 565 (which, we might here mention, was a case of contribution). One instance of this kind is to be found in cases of the class considered in Upendra Lil Mukerjee v. Girindra Nath Mukerjee ILR (1898) Cal. 565 (which, we might here mention, was a case of contribution). The view we take is in accordance with that taken in the case of Anwar Jan Bibee v. Azmut Ali (1871) 15 W.B. 26 to which we have already referred. Is there anything in this case which may be taken as an exception to the general rule that the right of a Respondent to urge cross-objections should be limited to his urging them against the Appellants and could it be said that the appeal preferred by the Defendant No. 5 opens cat questions which cannot be disposed of completely without the matters decided against the Plaintiff by the Court below being opened up as between the Plaintiff on one hand and the Defendants Nos. 1 to 4 on the other? We think not. For these considerations, we are unable to give any effect to the cross-objection that was preferred out of time by the Plaintiff-Respondent. 2. The learned vakils for the Plaintiff-Respondent, however, have, presented a petition to us, asking permission to file an appeal against the decree of the Subordinate Judge in this case so far as that decree disallows her claim as against the Defendants Nos. 1 to 4; and they have urged that, having regard to the fact that the real Plaintiffs are minors and that they were advised that it was not necessary to prefer an appeal against the decree of the Subordinate Judge, but that it would serve all purposes if a cross-objection were directed against the Defendants Nos. 1 to 4, we should now receive the appeal, though considerably beyond time. We have considered this matter carefully, but we are bound to say that we do not see our way to grant such a prayer of the Respondent. 1 to 4, we should now receive the appeal, though considerably beyond time. We have considered this matter carefully, but we are bound to say that we do not see our way to grant such a prayer of the Respondent. No doubt Section 5 of the Limitation Act (XV of 1877) does not give any illustration as to what may or may not be a sufficient cause for extending the time of limitation, within which a suit or an appeal ought to be preferred, but is there really anything in the circumstances of this case which would justify us in relaxing the rule of limitation and in holding that there was sufficient cause within the meaning of Section 5 for the Plaintiff-Respondent not preferring her appeal against the decree of the Court below within such a long time as has elapsed between the 11th September 1900 and the present date? We might here mention that this application to prefer an appeal against the decree of the Subordinate Judge was not thought of until the arguments in the case had been practically closed. The learned vakils for the Plaintiff-Respondent have been throughout urging upon us that we should treat the cross-objections preferred on the 10th April 1901 as objections which could rightly be preferred not only against the Appellant, but also against the Defendants Nos. 1 to 4 and it was not until the arguments came to a close that a petition was presented to us asking that the Plaintiff should be allowed now to file an appeal, though so much out of time, against the decree of the Subordinate Judge. We accordingly refuse this application. The petition of appeal with the annexures which were placed before us will be returned. 3. We observe that the petition of appeal is engrossed on a stamp of Rs. 295. That clearly is due to a misapprehension of what fell from the Court the other day at the close of the arguments in this appeal. 4. The result is that the appeal is decreed and the cross-objection disallowed. The Appellant is entitled to recover his costs of this Court as well as that of the Lower Court from the Plaintiff-Respondent.