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Rajasthan High Court · body

2000 DIGILAW 885 (RAJ)

Ram Saran Sharma v. Smt. Kamla Acharya

2000-07-24

R.R.YADAV

body2000
JUDGMENT 1. - Heard. 2. Perused the defects, pointed out by the Office. 3. It is to be noticed that the office of Registry of this Court has pointed out two defects in the cross - objection, filed by the plaintiff respondent: one relates to limitation; and the other, relating to deficiency of court - fee. As regards limitation, the defect, pointed out by the Office of the Registry, is that the cross - objection was required to be filed in the present case within a period of one month from the date of furnishing of copy of memorandum of appeal to the plaintiff - respondent and if limitation is computed from the aforesaid date then the present cross-objection is barred by 52 days but no application for condonation of delay under Section 5 of the Limitation Act has been filed by the plaintiff-respondent. Relating to deficiency of payment of court-fee, it is pointed out by the Office that the plaintiff-respondent is required to pay court-fee of Rs. 195.00 ad valorem but no application under Section 149 Civil Procedure Code has been filed with a prayer seeking time to make the deficiency of court-fee good. 4. The plaintiff-respondent filed an objection against aforesaid two defects pointed out by office contending inter alia that the cross-objection was filed on 15.11.99, well within the period of one month from the date of admission of the second appeal which was admitted on 21.10.99. As regards payment of court-fee of Rs. 195.00 ad valorem, it is submitted that the cross-objection is not filed by plaintiff respondent against the decree or a part thereof, but it is filed against the finding on Issue No.2, decided against her, hence, payment of Rs. 2.00 as court fee on the memorandum of cross objection is sufficient. It is submitted by the learned counsel for plaintiff respondent that in view of the facts stated in objection filed by her the office objections are not sustainable in the eye of law. 5. The learned counsel, appearing on behalf of the defendant- appellant, supported the office-objections. It is submitted by the learned counsel for the defendant-appellant that the present cross-objection is barred by limitation and the court-fee paid by the plaintiff-respondent, is deficient, therefore, the defects, pointed out by the Office, are to be upheld. 6. 5. The learned counsel, appearing on behalf of the defendant- appellant, supported the office-objections. It is submitted by the learned counsel for the defendant-appellant that the present cross-objection is barred by limitation and the court-fee paid by the plaintiff-respondent, is deficient, therefore, the defects, pointed out by the Office, are to be upheld. 6. For deeper understanding of the contentions, raised by the learned counsel for the parties and also to decide the defects, pointed out by the Office of the Registry, it would be pertinent to set out the relevant procedure of the Code of Civil Procedure, in regard to filing of cross-objection under sub-rule (1) of Rule 22ORDER41, which is reproduced hereinbelow: "22. Upon Hearing Respondent May Object To Decree As If He Had Preferred Separate Appeal (1) Any respondent, though, he may not have appealed from any part of the decree (but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection) to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate court may see fit to allow." 7. Explanation inserted by Act No. 104 of 1976 to aforesaid sub-rule (1) to Rule 22ORDER41 of Civil Procedure Code which is made enforceable with effect from 1.2.1977 is also reproduced hereinbelow for ready reference which reads thus : "Explanation-A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent." 8. It is to be noticed that Explanation to sub-rule (1) of Rule 22ORDER41, was inserted by Act 104 of 1976, with effect from 1.2.1977, enabling the respondent, to file cross-objection, in respect of a finding on an issue decided against him notwithstanding that the ultimate decision is wholly or partly in his favour. Right to file a cross-objection, is essentially a creature of statute and not a mere matter of procedure, therefore, it is a substantive right. As regards limitation, a cross-objection has to be filed in appellate court, within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate court may see fit to allow. 9. A close scrutiny of Order 41, Rules 9 and 11, Civil Procedure Code reveals that at first instance the appeal is to be registered in a book to be kept for the purpose of endorsing thereon the date of presentation and thereafter appeal is to be posted for admission which is liable to be dismissed at admission stage. It is to be further noticed that if the appeal is not dismissed at the stage of admission under Order 41 Rule 11 Civil Procedure Code then the Appellate Court shall fix a day for hearing of such appeal as envisaged under Order 41 Rule 12 Civil Procedure Code. At the stage of admission the respondent is not required to be heard but after admission under amended sub-section (5) of Section 100 Civil Procedure Code, the respondent is called upon to argue that the case does not involve substantial question of law formulated at the stage of admission. It goes without saying that within the meaning of Order 42 Rule 1 Civil Procedure Code, all the provisions of Order 41 Civil Procedure Code are applicable in second appeal. 10. It goes without saying that within the meaning of Order 42 Rule 1 Civil Procedure Code, all the provisions of Order 41 Civil Procedure Code are applicable in second appeal. 10. A conjoint reading of rules 9, 11, 12 and sub-rule (1) of rule 22 of Order 41 together with explanation inserted therein with effect from 1.2.1977, read with sub-section (5) of Section 100 and Order 42 Rule 1 Civil Procedure Code, I have no hesitation to hold that expression "notice of the day fixed for hearing of the appeal" used under sub-rule (1) of Rule 22ORDER41 Civil Procedure Code means the date fixed for hearing of the appeal after admission and not prior to admission of appeal. Thus, respondent's right of hearing in an appeal can arise if the appeal is admitted for hearing and notice of the date fixed for hearing, is served on the respondent, calling upon him, to argue that substantial question of law formulated at the stage of admission does not involve in the second appeal. In case, a caveat has already been entered into, service of notice of hearing of the appeal, on the respondent, cannot be taken to be necessary, and the limitation of one month, for filing cross-objection, at the most can be computed from the date of admission of the appeal and not prior to that. 11. In second appeal, framing of substantial question of law is sine qua non, if the appeal is admitted for hearing and, therefore, the appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve any substantial question of law formulated at the stage of admission. Apart from amended Section 100 Civil Procedure Code newly inserted provisions of Rule 2ORDER42, Civil Procedure Code, by Act 104 of 76, which has been made effective from 1.2.1977, clearly provides that at the time of making an order under Rule 11ORDER41, for the hearing of a second appeal, the court shall formulate substantial question of law, as required by Section 100, and in doing so, the court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the court given in accordance with the provisions of Section 100 Civil Procedure Code. In the instant case, the order for admission of appeal, formulating the substantial question of law, was passed on 21.10.99, and by no stretch of imagination, the cross objection filed by plaintiff respondent on 15.11.99 can be said to be barred by lapse of time. Furnishing of copy of memorandum of appeal to the respondent, on her lodging caveat, was not at all relevant, for computing limitation. 12. From the discussion made hereinabove, I have no hesitation to hold that in the present case, the cross-objection filed on 15.11.99, is well within time and the defect, pointed out by the Office of the Registry, relating to limitation, is hereby overruled. 13. Coming to the other defect, pointed out by the Office, relating to deficiency in payment of court-fee it is to be noticed that under first part of sub-rule (1) of Rule 22ORDER41 it is dear that the respondent is entitled to support the decree not only on the issue decided in her favour, but also on the issue decided against her, by the courts below, and now the respondent, as mentioned in the newly inserted Explanation added to the aforesaid Rule may choose to file cross-objection to the finding recorded against her in the judgment against which an appeal is filed, but that does not mean that her right to support the decree, without filing cross-objection, as provided in the main provision, is taken away. It is held that where respondent prayed for modification or variance of the decree passed by subordinate court against which appeal is preferred by filing a cross-objection, then, in such a situation, the cross-objector is required to pay court fee ad valorem, but, in those cases where, the cross-objector is simply to support the decree, as passed by the courts below and he is found to be aggrieved by a finding of the court in the judgment on which the decree appealed against is based, in such a situation, payment of court-fee of Rs. 2/- would be sufficient, within the scope of residuary provision of Article 11 (s) of Schedule-I of Rajasthan Court Fees and Suits Valuation Act, 1961. In the present case, the respondent has rightly paid the court-fee of Rs. 2/-, as the plaintiff-respondent is supporting the decree, passed by the courts below and she is aggrieved only by finding recorded on issue No.2 in the judgment. The plaintiff-respondent is not claiming modification or variation of the decree passed by the courts below, therefore, the defect, pointed out by the Office of the Registry, relating to making deficiency in payment of Rs. 195.00 of court-fee good is also overruled. 14. The Deputy Registrar (judicial) is directed to send one copy of this order to Stamp Reporter, Jodhpur and one copy to Stamp Reporter at Jaipur for their future guidance to avoid wastage of public time of court and also to avoid unnecessary harassment to the litigant public and members of the Bar.As a result of the aforementioned discussion, the aforesaid two defects pointed out by the Officer in the present cross objection are hereby overruled. Office is to give regular number to the present cross objection and connect. and list the same for hearing along with second appeal in due course. Office is directed to proceed further. After dictation of the judgment in open Court, the members of the Bar made a request to mark the judgment "reportable". The request is allowed and the judgment is marked "reportable".Defect Pointed Out by Office of Registry Over.S *******