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2005 DIGILAW 109 (AP)

Bathini Rajalingam v. Nandala Rajesham

2005-02-08

C.Y.SOMAYAJULU

body2005
C. Y. SOMAYAJULU, J. ( 1 ) IN an appeal preferred by the revision petitioners and B. Anjayya against the dismissal of OS No. 44 of 1993, an application to bring on record Respondents 4 to 7 as the legal representatives of the deceased Anjayya was filed and allowed on 12-4-2004. In the cross-objections filed by them in the said appeal, Respondents 1 to 3 filed IA No. 96 of 2004 under Order VI rule 17 read with 151 CPC on 27-7-2004, seeking leave of the Court to amend the cause title in the cross-objections by including the names of Respondents 4 to 7 as the legal representatives of the deceased second respondent i. e. , Anjayya which was allowed by the order under revision. Questioning the same, the appellants, who are the respondents in the cross-objections, preferred this revision. ( 2 ) THE main contention of the learned counsel for the revision petitioners is that the Court below was in error in allowing the petition to amend the cause title of the cross-objections without the same being preceded by an application to bring on record the legal representatives of the deceased respondent in the cross-objections. It is his contention that since Respondents 1 to 3 were given notice of the petition to bring on record the legal representatives of the deceased appellant Anjayya in the appeal way back in March, 2004, Respondents 1 to 3 who must be imputed with knowledge of the details of the legal representatives of the deceased Anjayya, falsely alleged in the affidavit filed in support of IA. No. 96 of 2004 that they came to know about the particulars of the legal representatives of the deceased Anjayya only on 19-7-2004, and so that plea should not have been accepted by the Court below and it ought to have dismissed the petition since petitions under Section 5 of Limitation Act, Rule 9 and Rule 4 of Order XXII CPC were not filed as the cross-objections stood abated for the failure to bring on record the legal representatives of the deceased respondent anjayya in those cross-objections. It is his contention that appeal and crossobjections are independent proceedings, because result in cross-objections would not depend on the result of the appeal, and since cross-objections have to be heard and disposed of on merits even when an appeal is dismissed for default or withdrawn. It is his contention that appeal and crossobjections are independent proceedings, because result in cross-objections would not depend on the result of the appeal, and since cross-objections have to be heard and disposed of on merits even when an appeal is dismissed for default or withdrawn. The contention of the learned Counsel for respondents 1 to 3 is that in view of the ratio in N. Jayaram Reddi v. Revenue divisional Officer, AIR 1979 SC 1393 , when the legal representatives of the deceased Anjayya, the second appellant in the appeal, were brought on record in the appeal, there is no need to file a separate application to bring on record his legal representatives in the cross-objections, and so there are no grounds to interfere with the order under revision. ( 3 ) IT is true that the deponent to the affidavit filed in support of IA No. 96 of 2004 stated that he was not aware of the particulars of the legal representatives of the deceased Anjayya till 19-7-2004, and that that fact cannot be true, because petition to bring on record the legal representatives of the deceased Anjayya in the appeal was allowed on 12-4-2004, on the Counsel for respondents 1 to 3 reporting no objection and so Respondents 1 to 3 should be deemed to be aware of the particulars of the legal representatives of the deceased Anjaiah even by 12-4-2004, if not before. Since anjaiah died in December, 2003, petition to bring on record his legal representatives has to be filed within 90 days from the date of death as per Article 120 Limitation act, 1963. If no such petition is filed, the proceedings would automatically be abated and a petition to set aside the abatement has to be filed within 60 days from the date of abatement as per Article 121 limitation Act, 1963. In this case, no petition was filed in the cross-objections to bring on record the legal representatives of the deceased Anjayya, a respondent in the cross-objections. In this case, no petition was filed in the cross-objections to bring on record the legal representatives of the deceased Anjayya, a respondent in the cross-objections. So, technically speaking, the cross-objections stood abated by April, 2004 and since no petition to set aside abatement was filed within 60 days of abatement for the legal representatives of the deceased Anjayya not being brought on record in the cross-objections, normally petitions under Order XXII Rule 4 and Rule 9 cpc and Section 5 of the Limitation Act to condone the delay in filing the petition to set aside abatement would have to be filed. In view thereof and since crossobjection is nothing but an appeal and crossappeal at that, as held in Superintendent engineer v. B. Subba Reddy, 1999 (4) ald 38 (SC) = AIR 1999 SC 1747 , and since it is held in ASP Dikshitulu v. His holiness Pedda Jeeyangar, 1985 (1) APLJ 246 , even after the withdrawal of the appeal cross-objections have to be heard, ex facie, the contention of the learned Counsel for revision petitioners that the order under revision, a petition for amendment of cause title in cross-objections without petitions for condonation of delay in filing petitions for setting aside abatement, and a prayer to set aside abatement and bring on record the legal representatives, is unsustainable appears to be correct. But in view of the ration in N. Jayaram Reddi s case (supra), the order under revision cannot be found fault with, and does not need interference, as in Para 41 of the said judgment the apex Court held:"cross-APPEAL and cross-objections provide two different remedies for the same purpose and that is why under Order 41 Rule 22 cross-objections can be preferred in respect of such points on which that party could have preferred an appeal. If such be the position of cross-objections and crossappeal a differentiation in the matter of their treatment under Rule 3 and 4 (of Order 22 cpc) cannot be justified merely on the ground that in the case of cross-objections they form part of the same record while crossappeals are two independent proceedings. If such be the position of cross-objections and crossappeal a differentiation in the matter of their treatment under Rule 3 and 4 (of Order 22 cpc) cannot be justified merely on the ground that in the case of cross-objections they form part of the same record while crossappeals are two independent proceedings. "and in Para 42 at Page 1407, it held:"shorn of embellishment, when legal representatives of a deceased appellant are substituted and those very legal representatives as legal representatives of the same person occupying the position of respondent in cross-appeal are not substituted, the indisputable outcome would be that they were on record in the connected proceeding before the same Court hearing both the matters, in one capacity though they were not described as such in their other capacity, namely, as legal representatives of the deceased respondent. To ignore this obvious position would be giving undue importance to form rather than substance. The anxiety of the Court should be whether those likely to be affected by the decision in the proceeding were before the Court having full opportunity to canvass their case. Once that is satisfied it can be safely said that the provisions contained in Rules 3 and 4 of Order 22 are satisfied in a given case. To take another view would be to give an opportunity to the legal representatives of a deceased party in an appeal having had the fullest opportunity to canvass their case through the advocate of their choice appearing in cross-appeals for them and having canvassed their case and lost, to turn round and content that they were not before the Court as legal representatives of the same person in his other capacity, namely, respondent in the cross-appeal. In other words, those legal representatives were before the Court all throughout the hearing of the appeal as parties to the appeal and canvassed their case and were heard by their advocate and they had the full opportunity to put forth whatever contentions were open to them in the appeals and to contest the contentions advanced against them by the opposite side and yet if the other view is taken that as they were not formally impleaded as legal representatives of the deceased respondent in the cross-appeal that appeal has abated, it would be wholly unjust. " (Emphasis supplied) ( 4 ) IN view of the fact that the legal representatives of the deceased Anjayya were brought on record in time in the appeal, those very legal representatives being brought on record as party respondents as legal representatives of the deceased respondent anjayya in the cross-objections in the said appeal, as per the above decision, is a mere formality. Therefore, filing a petition under order VI Rule 17 CPC to add the names of the legal representatives of Anjayya in the cause title of cross-objections as respondents 4 to 7 cannot be said to be bad or error, and so I find no grounds to interfere with the order under revision. ( 5 ) THEREFORE, the civil revision petition is dismissed. No costs.