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2014 DIGILAW 91 (MAD)

Kuppanna Gounder v. Srinivasan

2014-01-10

P.R.SHIVAKUMAR

body2014
JUDGMENT 1. The arguments advanced by Mr.P.Valliappan, learned counsel for the revision petitioners and Mr.N.Manokaran, learned counsel for the first respondent are heard. Though the second respondent was served with notice, he has not chosen to enter appearance to oppose this revision petition. 2. The first respondent herein filed the suit in O.S.No.222 of 2001 on the file of the District Munsif Court, Sankari for partition and separate possession and for injunction. The second respondent challenged the suit. The learned Trial Judge decreed the suit as prayed for and passed a preliminary decree for partition directing division of 38 cents from the rest of the suit properties with a further direction to put the plaintiff in possession of the same. The decree also restrained the defendants from interfering with the peaceful possession and enjoyment of the Car Track shown as 'ABCD' in the rough plan attached to the plaint. 3. As against the decree of the Trial Court dated 28.9.2007, the second respondent herein, who figured as third defendant, filed an appeal on the file of the learned Subordinate Judge, Sankari in A.S.No.11 of 2008. The appeal is being contested by the first respondent herein/decree-holder (plaintiff). The revision petitioners, who have been arrayed as respondents 2 and 3 in the appeal, chose to prefer a Cross-Objection in the said appeal filed by the third defendant making a prayer similar to the one made by the appellant. The first respondent/decree-holder preferred application in I.A.No.52 of 2011 for the rejection of the cross-objection citing Order 41 Rule 22 and Section 96 of the Code of Civil Procedure as the provision under which the cross-objection was filed making a prayer similar to the one made by the appellant in A.S.No.11 of 2008 viz., the third defendant in the suit. The learned Subordinate Judge chose to number it as cross appeal assigning the number as Cross Appeal Suit No.39 of 2008. After the same was taken on file, the first respondent herein viz., the plaintiff in the original suit, filed application in I.A.No.52 of 2011 for rejection of the said cross appeal. The learned Subordinate Judge, after hearing, allowed the application and rejected the cross appeal preferred by the revision petitioners. As against the said order dated 26.7.2012 passed in I.A.No.52 of 2011, the present revision has been filed. 4. The learned Subordinate Judge, after hearing, allowed the application and rejected the cross appeal preferred by the revision petitioners. As against the said order dated 26.7.2012 passed in I.A.No.52 of 2011, the present revision has been filed. 4. Mr.P.Valliappan, learned counsel for the revision petitioners submits that a co-respondent can prefer a cross objection challenging that part of the decree which is against him even though he could have filed an appeal against the same and that the learned Subordinate Judge, without properly appreciating the scope of liberty given under Order 41 Rule 22, chose to reject the cross appeal filed by the revision petitioners and that the said order of the learned Subordinate Judge should be set aside. It is the further contention of the learned counsel for the petitioners that though a wrong provision might have been stated as the provision under which the cross appeal has been filed, the learned appellate court could have very well returned the same pointing out the inappropriate provision quoted in the memorandum and giving an opportunity to the petitioners to correct the provision of law and re-present the memorandum of appeal as an independent appeal. 5. Mr.N.Manokaran, learned counsel for the first respondent submits that since the memorandum was said to be filed under Order 41 Rule 22, the nomenclature given to the same as "cross appeal" will be of no significance and in fact, the memorandum should be taken only as "cross-objection" and that the learned Subordinate Judge has not committed any error in holding that such a cross-objection, simply for supporting the case of the appellant, was not maintainable. 6. As an answer to the above said contention, the learned for the revision petitioners would submit that though, by inadvertence, Order 41 Rule 22 might have been mentioned in the title of the memorandum, it also refers to section 96 as the provision under which the memorandum was filed. 6. As an answer to the above said contention, the learned for the revision petitioners would submit that though, by inadvertence, Order 41 Rule 22 might have been mentioned in the title of the memorandum, it also refers to section 96 as the provision under which the memorandum was filed. It is the further contention of the learned counsel for the petitioners that if at all the memorandum was returned pointing out the fact that it was filed with a delay, the petitioners would have got an opportunity to re-present it alongwith necessary application under Order 41 Rule 3-A to condone the delay in filing the appeal and that since the lower appellate court chose to take the memorandum of appeal on file as cross appeal, the said opportunity was lost. 7. The learned counsel appearing for the contesting respondent viz., the first respondent would submit that the revision petitioners deliberately referred to Order 41 Rule 22 knowing fully well that the limitation for filing a separate appeal had expired by the time the memorandum came to be filed and that was the reason why it was presented as cross-objection improperly describing it as "cross-appeal" and that therefore, rejection of the same by the court based on the application of the first respondent cannot be said to be either defective or infirm. 8. This court paid its anxious consideration to the above said submissions made on both sides. The decree of the Trial Court came to be passed on 28.9.2007. Copy application by the revision petitioners was made on 4.10.2007. Copies were made ready on 14.11.2007 and on the very same day, the counsel for the revision petitioners received the copies. But, they did not file an appeal within the period of limitation and thereafter, they chose to file the appeal with a description capable of confusing as to whether it was filed as cross-objection or an independent appeal. 9. Cross-objections are different from cross appeals. When more than one party file different appeals against the very same decree, those appeals will be called cross appeals. On the other hand, when a respondent in the appeal wants to challenge a part of the decree by invoking Order 41 Rule 22, it will be called cross-objection. 9. Cross-objections are different from cross appeals. When more than one party file different appeals against the very same decree, those appeals will be called cross appeals. On the other hand, when a respondent in the appeal wants to challenge a part of the decree by invoking Order 41 Rule 22, it will be called cross-objection. In this case, though the second respondent herein and the revision petitioners contested the suit by engaging one and the same counsel, for the reasons best known to the second respondent, he had chosen to file the appeal without co-opting the revision petitioners. The revision petitioners, no doubt, after failing to file appeal within the period of limitation, had chosen to file the same projecting the same as a cross objection. 10. Further, the lower appellate court could have very well returned the memorandum of cross objection titled as cross appeal pointing out the fact that no cross-objection can be filed to support the prayer made by the appellant in the appeal and on the other hand, if the memorandum was to be construed to be a separate appeal, it was not filed in time. Then the revision petitioners could have re-presented the same alongwith necessary application to condone the delay. The first respondent/decree holder has chosen to support the decree by filing an application for rejection of the appeal memorandum filed by the revision petitioners. Now, he has, in fact, afforded a chance to the revision petitioners to rectify the defect since this court is of the considered view that there is also mistake on the part of the lower appellate court in accepting the memorandum filed as cross appeal, which refers to section 96 of the Code of Civil Procedure also. Since the lower appellate court has chosen to give a wrong nomenclature as cross appeal suit instead of cross-objection, this court is of the considered view that for the mistake of the court, the revision petitioners should not be penalised and they should not be deprived of their right to challenge the decree of the Trial Court independently. It is an admitted fact that the appeal filed by the second respondent is still pending disposal. It is an admitted fact that the appeal filed by the second respondent is still pending disposal. No prejudice will be caused if the revision petitioners are allowed to clearly state that the memorandum filed by them is one as a memorandum of independent appeal and re-present it alongwith necessary application to condone the delay. 11. In view of the above, this court is of the view that the interest of justice requires that the order of the Trial Court rejecting the memorandum of appeal termed as memorandum of cross appeal should be set aside. In the result, the civil revision petition is allowed and the order of the lower appellate court dated 26.7.2012 made in I.A.No.52 of 2011 in Cross Appeal No.39 of 2008 in A.S.No.11 of 2008 is set aside. The lower appellate court is directed to return the memorandum for being re-presented as a memorandum of regular appeal in which event, the revision petitioners shall, if so advised, re-present the appeal memorandum after making necessary corrections alongwith necessary application to condone the delay in presenting the appeal. While doing so, they can cite the passage of time from the date of filing of the memorandum before the lower appellate court as cross appeal and till the date of return of the memorandum as time spent on prosecuting an inappropriate proceeding, availing the benefit of section 14 of the Limitation Act. No costs. The connected miscellaneous petition is closed.