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2010 DIGILAW 438 (MP)

Sushila Gupta v. Rajendra Kumar

2010-04-16

SANJAY YADAV

body2010
ORDER 1. The petitioners, who were respondents in M.A.No. 1116/2006 vide this review petition seeks reconsideration of order, dated 24.2.2010 qua cross objection filed therein. 2. The Misc. Appeal in question was under section 173 of the Motor Vehicles Act, 1988 at the instance of owner of offending vehicle involved in accident dated 5.9.2001 causing death of Kuldeep Gupta. The claim petition by the deceased's legal representatives, i.e., the petitioners herein, was allowed and a compensation of Rs. 1,76,700/- was awarded. 3. It appears (as pleaded by the petitioner) that an appeal for enhancement filed by the petitioners herein, i.e., MA No. 175/2008, was dismissed on the ground of limitation on 26.3.2008. However, in an appeal preferred by the owner i.e. M.A. No. 11/ 6/2006, cross-objection was filed within time and this Court on 24.2.2001 while dismissing the appeal filed by the owner, al10wed the cross appeal and enhanced the compensation by Rs. 2,25,150.00. 4. This order in the considered opinion of this Court was well within' the four comers of the stipulations contained under Order 41 Rule 22 of Code of Civil Procedure, 1908 because the appeal preferred by the claimants/petitioners herein, was not dismissed on merits but on limitation. There was thus no judicial determination as to bar the consideration of cross-objection. Reference in the context can profitably be of judgments by two Division Benches of High Court of Bombay and High Court of Punjab. 5. In Mohd. Oomer v. S.M. Nooruddin, AIR 1952 Bombay 166. their Lordship while considering somewhat similar issues were pleased to observe: "4. But a more interesting question has been raised and debated at the bar, and that is whether the learned Judge was right in coming to the conclusion that the cross-objections preferred by the appellant were barred and not maintainable. Now, the view that the learned Judge has taken is that, when Mr. Justice Coyajee dismissed the appellant's appeal, the order of the Registrar became merged in the order of the appel1ate Court and, therefore it was not open to the appel1ant to re-agitate the same question by way of cross objections. Now with respect to the learned Judge, the learned Judge is in error when he takes the view that the judgment of the registrar was merged in the order of dismissal passed by Mr. Justice Coyajee. Now with respect to the learned Judge, the learned Judge is in error when he takes the view that the judgment of the registrar was merged in the order of dismissal passed by Mr. Justice Coyajee. A merger only takes place when the Court of appeal judicially determines the appeal pending before it. It is only on a judicial determination that the order of the lower Court becomes merged in the decision of the Court of appeal. But no merger takes place when the Court of appeal does not judicially determines the appeal but dismisses it on any preliminary ground like, limitation or maintainability. Then on the dismissal by the appellate Court, the order that still stands is the order of the Lower Court and not the order of the Court of appeal. This position is clear as laid down by the Privy Council in Abdul Majid v. Jawahir Lal, 36 All 350. In that case. His Majesty in Council dismissed an appeal for want of prosecution. This was an appeal from a preliminary decree for sale and the question was whether limitation began to run from the preliminary decree or from the order of the Privy Council dismissing the appeal from the preliminary decree and the Privy Council held that limitation ran from the preliminary decree and not from the Order in-Council. The reasons why the Privy Council came to this conclusion was that there was no judicial determination of the matter by His Majesty in Council. 8. Now, if one looks at the judgment, it is clear that the view taken by the Allahabad High Court of the dismissal of the defendant's appeal was that the dismissal was on merits they took the view that, when a party withdraws his appeal and appeal is dismissed, the dismissal on merits and operate as res judicata. But it is rather significant to note in this case that the Allahabad High Court held that, although the plaintiff had cross-objected and these cross-objections has been dismissed, inasmuch as the dismissal was not on merits, the plaintiffs own appeal was not barred. Although the subject-matter of cross-objections and the plaintiffs appeal was identical, because there was no judicial determination of the plaintiffs cross objections, his right to appeal was not held to be barred. Therefore, if anything, this decision support the contention of Mr. Although the subject-matter of cross-objections and the plaintiffs appeal was identical, because there was no judicial determination of the plaintiffs cross objections, his right to appeal was not held to be barred. Therefore, if anything, this decision support the contention of Mr. Palkhiwala that without judicial determination of the appeal of the appellant it cannot be said that he has no right to have his cross-objections judicial determined because the subject-matter of the appeal and the cross-objections happened to be identical. Therefore, in my opinion, cross-objections under Order 41, Rule 22 are not barred, notwithstanding the dismissal of the appeal of the respondent, if that appeal was not dismissed on merits, although the subject -matter of the respondent's appeal and cross-objections might be identical. Therefore, in my opinion the learned Judge below was in error when he held that the cross-objections of the appellant were not maintainable." 6. Similarly in Smt. Nripjit Kaurv. Sardar Satindar Singh, AIR 1955 Punjab 190 their Lordships, were pleased to observe: "2. The suit was decided by a decree dated 10.8.1953 and the appeal was filed in this Court on 22.1.1954 by Nirpat Kaul- in person. The application for leave to appeal in "forma pauperis" should have been filed within thirty days, but it was filed long after that period had elapsed, but Mr. Gurbachan Singh Bakhshi submits that his memorandum of appeal should be treated as cross-objection and he relied on a Full Benchjudgment of the Lahore High Court in - Labhu Ram and others v. Ram Pratap, AIR 1944 Lah. 76 (A.), where it was held that although cross-objections cannot be presented after the expiry of thirty days from the date of service of the notice on the respondent, the right to submit cross-objections accrues as soon as an order is made issuing notice of the date of hearing of the appeal to him and it is not necessary for him to wait until the service is actually effected on him. The respondent in such a case can appear on the date of hearing and present his objections though he is not served. At page 87 Din Mohammad. The respondent in such a case can appear on the date of hearing and present his objections though he is not served. At page 87 Din Mohammad. J. said: In other words, could it be intention of the Legislature in enacting O. 41 , R. 22, to specify the point of time in which cross-objection could be filed at both ends: After giving this matter my careful consideration, I have reached the conclusion that it could serve no purpose to restrict the right of a respondent to prefer his cross-objections in the matter suggested. No doubt they cannot be presented after the expiry of one month from the date of the service of the notice on him or his pleader. but the right to submit his cross-objections, in my view accrues to a respondent as soon as an order is made issuing notice of the date of hearing of the appeal to him it is not necessary for him to wait until the service is actually effected on him. It is even open to him to appear in a Court of appeal on the date of hearing and present his objections there and then though not served at all. To put the restricted interpretation upon the provisions of law would create situations which may look anomalous". If the respondent could appear on the day when an appeal is admitted and cross-object, is it not possible for him to ask after an appeal is admitted to treat his time barred appeal as cross-objections. In my opinion, there is nothing in law which says to the contrary. As a matter of fact, it has been held in - Bhagat Ram v. Raghbar Dyal. AIR 1925 Lah. 57 (B) that a time barred appeal can be treated as cross-objections. In this case - Bawa Singh v. Thakkar Singh, AIR 1992 Lah. 423 (c) was followed. AIR 1925 Lah. 57 (B) was followed by Hilton J. in Milhan Singh v. Tilak Ram, AIR 1934 Lah. 273 (c). We are therefore of the opinion that this memorandum of appeal can be treated as cross-objections and should be allowed to be so treated in the present proceedings. 8. Thus in view of above pronouncements and the principle imbibed under Order 41, Rule 22 of the Civil Procedure Code, 1908. no error apparent on the face of record is perceived in the order dated 24.2.2010. 9. 8. Thus in view of above pronouncements and the principle imbibed under Order 41, Rule 22 of the Civil Procedure Code, 1908. no error apparent on the face of record is perceived in the order dated 24.2.2010. 9. True it is that, the petitioners herein while moving the cross-objection failed to mention the dismissal of appeal, at their instance or limitation but a nondisclosure of this fact in the considered opinion of this Court will not cause any change in the Law as it stands. 10. In view of above no case is made out for recalling in the order dated 24.2.2010. 11. In the result the review petition fails and is hereby dismissed. However no costs.