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2006 DIGILAW 194 (CAL)

HEMCHANDLOONKAR v. SUJYAPATI DEBI

2006-03-31

PRATAP KUMAR RAY

body2006
Pratap Kumar Ray, J. ( 1 ) HEARD the learned Advocates appearing for the parties ( 2 ) AN application under Section 5 of the Limitation Act, being CAN 8084 of 2005. Pratap Kumar Ray, J. ( 1 ) HEARD the learned Advocates appearing for the parties ( 2 ) AN application under Section 5 of the Limitation Act, being CAN 8084 of 2005. is taken up for hearing ( 3 ) FROM the report of the Stamp Reporter who has dealt with the matter, it appears that on 2nd September, 2005 a note was endorsed on the file of the cross-objection as filed, being numbered as COT 2699 of 2005, that there was a delay of 13 days to prefer this cross-objection with reference to the appeal, being SAT 1727 of 2005, on calculating such 13 days from the date of service of the appeal on 22nd June, 2005 From the order sheet of the Second Appeal, sat 1727 of 2005, it appears that the appeal was admitted for hearing on 13th july, 2005 under Order 41 Rule 11 of the C P C In view of the office note cross-objection file was directed to be returned to the learned Advocate so that appropriate application praying for condonation of delay may be filed In pursuance of such note, this application under Section 5 of the Limitation Act has been filed by the plaintiff/respondent of the said Second Appeal To satisfy that there was sufficient reason not to approach the Court in time, reasons have been assigned in the application under Section 5 of the Limitation Act The Court is not concerned at the present moment with that pleading Having regard to the statutory provision of law and on the reflection of the records of the Second appeal, a question has been cropped up as to whether there was at all any necessity to file any application under Section 5 of the Limitation Act The relevant provision now to be looked into Order 41 Rule 22 of the Code of Civil procedure is the relevant rule by which the cross appeal could be preferred with reference to any appeal filed under certain contingencies Order 41 Rule 22 tends to this effect"22 Upon hearing respondent may object to decree as if he had preferred a separate appeal- (1) Any respondent, though he may not have appealed from any part of the decree, may not only support ( but may also state that the finding against him in the Court below in respect of any ought to have been in his favour, and may so take any cross-objection) to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant 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 (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) (2) Form of objection and provisions applicable thereto - Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit (5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule " ( 4 ) ON a bare reading of the said provision of Order 41 Rule 22 it appears that time to file cross appeal would cross its limitation after expiry of the one month from the date of service of notice intimating the date fixed for hearing of the appeal Hence from the language of the statute it is clear that to attract the limitation for preferring any cross-objection, the following points must be satisfied (1) that an appeal has already been admitted for hearing under Order 41 Rule 11 of the Code of Civil Procedure and (2) that the notice for date of hearing of such appeal has been served From the Second Appeal file, being SAT 1727 of 2005. it appears that only on 13th July, 2005 appeal was admitted under Order 41 Rule 11 of the Code of Civil Procedure So far notice intimating the date of hearing of the appeal which is also a sine quo non of considering the point of limitation as prescribed by the statute, it appears that Order 41 Rule 14 is the relevant provision regarding service of notice intimating the date of hearing of the appeal In terms of the said provision it appears that the Court will serve notice upon the respondent or his pleader in the manner as service of notice is done to a defendant summoning him to appear and answer The relevant provision of order 41 Rule 14 reads to this effect" (3) It shall be in the discretion of the Appellate Court to make an order, at any stage of the appeal whether on its own motion, or ex parte, dispensing with service of such notice on any respondent who did not appear, either at the hearing In the Court whose decree is complained of or at any proceeding subsequent to the decree of that Court or on the legal representatives of any such respondent provided that -a) The Court may require notice of the appeal to be published in any newspaper or newspapers as it may direct b) No such order shall percolate any such respondent or legal representative from appearing to contest the appeal" ( 5 ) UNDER Order 41 Rule 12 of the Code of Civil Procedure, it is statutory provision that the Appellate Court unless dismisses the appeal under Rule 11, it should fix a date for hearing the appeal and such date is required to be communicated in terms of the Order 41 Rule 14 Hence to fix the rigour of limitation in terms of Order 41 Rule 22 of the Code of Civil Procedure, it further requires that the Court has fixed a date for hearing of the appeal under Order 41 rule 12 and notice has been served to the respondent intimating such date of hearing On perusal of the order sheet of the Second Appeal file it appears that nowhere the Court fixed the date of hearing in terms of Order 41 Rule 12 of the code of Civil Procedure save and except admission of the appeal under Order 41 Rule 11 of the Code of Civil Procedure on 13th July, 2005 However, from the records it appears that no notice also was served by the Court after admission under Order 41 Rule 14 of the Code of Civil Procedure, as already referred, to the respondent ( 6 ) CONSIDERING all the aspects of the matter, this Court is of the view that there was no need to file any application under Section 5 of the Limitation act praying for condonation of delay as the cross objector did not cause any delay in preferring the cross-objection since the condition precedent for applicability of the rigours of the limitation, as already referred to, are completely absent in the instant case This Court is very much surprised from the report of the Stamp Reporter in COT 2699/2005 by mentioning that the notice of appeal was served on 22nd June, 2005 Nowhere from the order sheet it appears that furthermore it is the accepted position that when the appeal was admitted on 13th July, 2005 under Order 41 Rule 11 of the Code of Civil Procedure, notice of appeal fixing the date of hearing could not be served on a prior date From the order sheet of the second appeal file it appears that it was noted on 22nd June, 2005 that original xerox certified copy of the judgement and decree impugned in the appeal as well as of the trial Court was filed on 14th June, 2005 In that view of the matter, noting of the Stamp Reporter is nothing but without caring the legal proposition of law and consulting the records of the second appeal ( 7 ) REGISTRAR (Administration) is directed to submit a report on the next date to the effect by holding an enquiry as to how the noting was given by the stamp Reporter showing that there was a delay of 13 days in preferring the cross appeal ( 8 ) THE matter will appear in the list four weeks hence for consideration of such report ( 9 ) HAVING regard to the findings and observations, this Court is of the view that there was no necessity of filing any application under Section 5 of the limitation Act and as such there is no question of adjudication of such application under Section 5 of the Limitation Act ( 10 ) IT is recorded that the cross objection has been filed within the period of limitation in terms of Order 41 Rule 22 of the Code of Civil Procedure was in embargo stage In the instant case, as yet exercise of the period of limitation has not been matured and that is still in the unborn stage as no notice Of appeal admittedly has been served in terms of Order 41 Rule 14 of the Code of Civil procedure the application, being CAN 8084 of 2005, is thus disposed of.