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1982 DIGILAW 224 (KER)

SUDHAKARAN v. VARGHESE

1982-09-24

SUKUMARAN

body1982
Judgment :- 1. The first of the above petitions is an application filed by the applicants in O. P. No. 108 of 1980, for condoning the delay in filing the appeal against an award passed by the Motor Accidents Claims Tribunal, Ernakulam on 8-6-1981 It is seen from the same award that the 1st respondent, owner of the bus, had filed an appeal M FA. No 14 of 1982. It was thereafter that a copy of the award was applied for on 1-2-1982 and the appeal filed on 2-2-1982.. 2. A counter-affidavit was filed opposing the application for the condonation of delay. It was then that CMP. No. 17530 of 1982 was filed, praying that the appeal filed may be treated as a cross appeal. It was pointed out that the notice on MFA. No. 14 of 1982 had been served on the petitioners only on 30-1-1982. and consequently, if the appeal is treated as a cross appeal, it would be within the prescribed time. 3. This application also was opposed by the respondents, mainly on the basis that the Motor Vehicles Act does not confer the rights to prefer a cross appeal from an award of the Claims Tribunal. Pointing out the belated nature of the petition, it is submitted that the application is not bona fide either. 4. If the petitioners do have a right to file a cross appeal, there could not possibly be any valid objection in treating MFA No. 14 of 1982 as a cross appeal, as prayed for. 5. On the question whether a cross appeal would lie from the award of a Claims Tribunal, there appeared to be a cleavage of judicial view. The High Courts of Punjab and Haryana and Delhi had taken the view that the cross appeal would lie. The Allahabad High Court, however, had struck a different note in the decision Virendra Singh v. Phoolmati,1978 ACJ. 430 which view was followed in Mahendra Singh v. Smt. Krishna Devi, 1979 ACJ. 299. However, that court considered the question again later by an authoritative Full Bench decision. The case is U.P. State Road Transport Corporation v. Smt. Janaki Devi and others, AIR. 1982 Allahabad 296. The Allahabad High Court also ultimately fell in line with the other High Courts, overruling the earlier view taken by that court in the decision referred to above 6. The case is U.P. State Road Transport Corporation v. Smt. Janaki Devi and others, AIR. 1982 Allahabad 296. The Allahabad High Court also ultimately fell in line with the other High Courts, overruling the earlier view taken by that court in the decision referred to above 6. The nature of a right to prefer a cross objection was expressed by the Full Bench in the following words: "In our opinion the right of filing a cross-objection is not different in nature than the right to prefer an appeal by an aggrieved party as provided by the statute. S 110D of the Motor Vehicles Act confers on a person aggrieved by an award of a Claims Tribunals right to prefer an appeal to the High Court. It is this very right which an aggrieved party exercises when he prefers a cross-objection in an appeal brought in the High Court by the other aggrieved party. R.10 of O.XLI-A introduced by this Court which is in the same terms as cl.(1) of R.22 of O.XLI of the Civil P.C. enables a respondent who may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he had filed such objection within one month from the day fixed for his appearance in the notice served upon him or within such further time as the Court may deem fit to allow. This provision does not confer any new right on the respondent but only affords him a fresh opportunity to exercise the very same right which he had either under the Civil P.C.or under the special statute. If a person has a right of appeal under S.96 or S.100 of the Civil P.C. he may exercise that right within a period of limitation prescribed under the law of limitation and in case he fails to do so, the Court enables him to exercise that very right when the other party has preferred an appeal to the Court competent to hear it. The right to avail of she same procedure is available to a person who has a right of appeal conferred by the special statute, i. e., the right to file a cross-objection is included in the right to appeal conferred by the Statute. Indeed unless the respondent was entitled to appeal he has no right to take any cross-objection. In the cross-objection he can take only those pleas which he could have taken by way of his right of appeal. These have to be in the form of a memorandum like an appeal, and may be heard and determined even if original appeal is withdrawn or is dismissed for default. All these incidents indicate that there is no material difference between an appeal and a cross-objection except the stage of the proceedings." 7. Ultimately the conclusion of that court was expressed thus: "The words award has been used in the Act in a sense of a decree or akin to a decree since the award given by the Tribunal in such claim cases determines the rights of the parties. Since the procedure contemplated by 0.41, R.22 is applicable to the appeal preferred under S.110-D of the Motor Vehicles Act, the word 'Court' may be read as 'Tribunal' and the word 'decree' may be read as 'award'." 8. I am in agreement with the views expressed by the Full Bench in the above case. As stated earlier, other decisions have taken the view that the cross objection is maintainable from an award of a Claims Tribunal. 9. In view of the legal position, I allow CMP. No. 17530/82. The appeal MFA. No 41 of 1982 will be treated as a cross appeal in MFA No. 14 of 1982. 10. In view of the orders passed in CMP. No. 17530 of 1982, it is not necessary to pass separate orders in CMP. No. 2632 of 1982. It is accordingly dismissed. Dismissed.