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2016 DIGILAW 2350 (HP)

Babu Ram v. Santokh Singh

2016-11-07

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present application has been filed by the applicant/respondent/objector, Santokh Singh (now deceased, represented through legal representatives) (hereinafter referred to as =the objector') under Order 41, Rule 22 CPC read with Section 5 of the Indian Limitation Act for condoning the delay in moving the cross-objections. 2. As per the objector, he has moved the cross-objections, which are barred by eleven years, eight months and seventeen days, but, in fact, the objections were filed within a year after fixing the date of hearing by this Hon'ble Court. It is further contended by the objector that he has preferred the cross-objections, in the present regular second appeal (RSA No. 457 of 2002), which is pending adjudication, against judgment dated 15.05.2002, passed by the learned District Judge, Hamirpur, in Civil Appeal No. 86 of 1994, whereby findings recorded by the learned Sub Judge, 1st Class (2), Hamirpur, in Civil suit No. 194/91, decided on 04.05.1994, were partly set-aside. As per the objector, the cross-objections have been filed within time, as no actual date notice of hearing was ever issued to him. As per Order 41, Rule 22 CPC, the Court has discretion to entertain the cross-objections, even after the expiry of thirty days. The objector was an old, illiterate and ailing person and he did not understand the intricacies of law. The objector further contends that he was never advised to file the cross-objections, till the last date of hearing, so the same could not be filed within thirty days from the date of admission. Even otherwise also, the period of thirty days, as per the provision of CPC would start from the date when actual date notice of hearing is issued by the Court. As per the objector, there are sufficient grounds for condoning the delay in filing the cross-objections and the same may kindly be condoned. The application is duly supported with an affidavit. 3. Reply to the application stands filed and it is averred therein that the regular second appeal was admitted on 08.10.2002. No objections were filed within the stipulated time of one month or extended period, therefore, the application deserves dismissal. 4. I have heard the learned Senior counsel for the parties and gone through the record in detail. 5. 3. Reply to the application stands filed and it is averred therein that the regular second appeal was admitted on 08.10.2002. No objections were filed within the stipulated time of one month or extended period, therefore, the application deserves dismissal. 4. I have heard the learned Senior counsel for the parties and gone through the record in detail. 5. The learned Senior Counsel appearing on behalf of the objector/respondent/applicant has argued that the matter was listed for the first time for hearing on 14.12.2012 and the period of one month is to be taken from 14.12.2012. Taking this into consideration, the cross-objections cannot be said to be too much time barred. He has further argued that even Under Order 41, Rule 33 CPC, the objector (respondent) has a right to argue and assail the judgment, as against him. He has prayed that the delay, in moving the cross-objections, may be condoned. To fortify his arguments, he has relied upon a judgment rendered by the Hon'ble Apex court in case titled as Mahadev Govind Gharge and others vs. Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, (2011) 6 Supreme Court Cases 321. 6. Conversely, the learned Senior Counsel appearing on behalf of the appellant/non-objector/non-applicant (hereinafter referred to as =the non-objector') has also relied upon the judgment (supra) referred by the learned Senior Counsel appearing on behalf of the objector. He has argued that as the delay has not been sufficiently explained, the application for condonation of delay is required to be dismissed. He has further argued that the objector is taking contradictory pleas and first he should decide whether he want to pursue the present cross-objections under Order 41, Rule 22 CPC or want to argue the matter under Order 41, Rule 33 CPC. However, he has argued that the application deserves dismissal and may be dismissed. 7. Precisely, the grounds, which the objector has taken in the application, are that he is an old, illiterate and ailing person having no knowledge of the intricacies of law and more so he was never advised to file cross-objections till the last date of hearing. 8. However, he has argued that the application deserves dismissal and may be dismissed. 7. Precisely, the grounds, which the objector has taken in the application, are that he is an old, illiterate and ailing person having no knowledge of the intricacies of law and more so he was never advised to file cross-objections till the last date of hearing. 8. The judgment of Hon'ble Apex Court in Mahadev Govind Gharge and others vs. Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, (2011) 6 Supreme Court Cases 321, has been relied upon by both the parties, wherein the Hon'ble Apex Court in para 60 has held as under: ?60. Having analytically examined the provisions of Order 41 Rule 22, we may now state the principles for its applications as follows: (a) The respondent in an appeal is entitled to receive a notice of hearing of the appeal as contemplated under Order 41 Rule 22 of the Code. (b) The limitation of one month for filing the cross-objection as provided under Order 41 Rule 22 of the Code shall commence from the date of service of notice on him or his pleader of the day fixed for hearing the appeal. (c) Where a respondent in the appeal is a caveator or otherwise puts in appearance himself and argues the appeal on merits including for the purposes of interim order and the appeal is ordered to be heard finally on a date fixed subsequently or otherwise, in presence of the said respondent/caveator, it shall be deemed to be service of notice within the meaning of Order 41 Rule 22. In other words the limitation of one month shall start from that date.? 9. Further the Hon'ble apex Court in the judgment (supra) has also held as under: ? 24. Rule 22 is not only silent on the consequences flowing from such default from filing appeal within one month, from the period fixed hereunder, but it even clothes the court with power to take on record the cross-objections even after the expiry of the said period. Thus, the right of the cross-objector is not taken away in absolute terms in case of such default. The courts exercise this power vested in them by virtue of specific language of Rule 22 itself and thus, its provisions must receive a liberal construction. … … … … … … 28. Thus, the right of the cross-objector is not taken away in absolute terms in case of such default. The courts exercise this power vested in them by virtue of specific language of Rule 22 itself and thus, its provisions must receive a liberal construction. … … … … … … 28. In Kailash v. Nanhku ( (2005) 4 SCC 480 ), a Bench of three Judges of this Court while —interpreting the provisions of Order 8 Rule 1 of the Code, which has more stringent language and provides no such discretion to extend the limitation as provided to the courts in Order 41 Rule 22, had observed that despite the use of such language in the provisions of Order 8 Rule 1 of the Code, the judicial discretion to extend the limitation contained therein has been a matter of legal scrutiny for quite some time but now the law is well settled that in special circumstances, the court can even extend the time beyond the 90 days as specified therein and held as under: (SCC pp. 494-95, paras 27-28) "27. ... The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried. ... 28. ... In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice." … … … … … … 37. Procedural laws, like the Code, are intended to control and regulate the procedure of judicial proceedings to achieve the objects of justice and expeditious disposal of cases. The provisions of procedural law which do not provide for penal consequences in default of their compliance should normally be construed as directory in nature and should receive liberal construction. The court should always keep in mind the object of the statute and adopt an interpretation which would further such cause in light of attendant circumstances. The provisions of procedural law which do not provide for penal consequences in default of their compliance should normally be construed as directory in nature and should receive liberal construction. The court should always keep in mind the object of the statute and adopt an interpretation which would further such cause in light of attendant circumstances. To put it simply, the procedural law must act as a linchpin to keep the wheel of expeditious and effective determination of dispute moving in its place. The procedural checks must achieve their end object of just, fair and expeditious justice to the parties without seriously prejudicing the rights of any of them. … … … … … … 54. In Rashida Begum (AIR 2008 Rajasthan 131) the Delhi High Court had noticed that limitation for filing the cross-objection would start from the date of service of notice of hearing of the appeal. A notice containing only the date of hearing of the stay application but not the appeal would not be "notice" as contemplated under Order 41 Rule 22 of the Code. 55. The view taken by the Delhi High Court is more in line with the intent of the provisions of Order 41 Rule 22 while the decision of the Rajasthan High Court was on its own facts and cannot be treated to be stating a proposition of law. The application of law would always depend upon the facts and circumstances of a given case and what is the true and correct construction of Order 41 Rule 22 we shall shortly proceed to state.? 10. From the above referred judgment it is amply clear that the limitation will start from the date the objector has given the first date of hearing. Taking this into consideration, it cannot be said that the cross-objections are hopelessly time barred, as as per the record, the date of one month will start from the date the objector or his pleader appears in the Court on the date fixed for hearing of the appeal, hearing in appeal was fixed on 14.12.2012, on which date the case was listed for hearing on 25.02.2013. It is clear from the record that earlier the case was not listed for hearing by this Hon'ble Court. It is clear from the record that earlier the case was not listed for hearing by this Hon'ble Court. Even if this Court takes that the cross-objections are barred by eleven years, eight months and seventeen days, then also the objector can request this Court to hear and give findings against the portion of the judgment which is against him. As the appeal is still to be heard and the Court under Order 41, Rule 33 CPC may render findings in favour of the objector, this Court finds that the interests of justice would be subserved if the objector (respondent) is heard on cross-objections. Moreover, the delay in moving the cross-objections has been sufficiently and satisfactorily explained, which, in the opinion of this Court, is the ill advice of the Advocate and when the objector was advised, he maintained the cross-objections. 11. Applying the law, this Court finds that the interest of justice would be met, in case the delay is condoned in moving application under Order 41, Rule 22 CPC. Accordingly, the delay in moving the cross-objections is allowed and the cross-objections are taken on record. The application stands disposed of accordingly.