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2019 DIGILAW 1030 (PNJ)

Union of India v. Tikka Rajinder Prakash Bedi

2019-04-02

REKHA MITTAL

body2019
JUDGMENT Mrs. Rekha Mittal, J.:- Union of India filed FAO No.315 of 2002 to challenge award dated 03.01.2001 passed by the Arbitrator i.e. District Judge, Ludhiana exercising the powers of Arbitrator under the Requisitioning and Acquisition of Immovable Property Act in respect of land falling in village Gill, requisitioned under the Defence of India Act, 1915. During pendency of the appeal aforesaid, the respondent/land owners whose land was requisitioned filed cross objections in the year 2013 for grant of compensation along with solatium and interest in the light of enhancement of compensation by the Punjab and Haryana High Court vide order dated 05.07.2006 passed by Hon’ble Mr. Justice J.S. Narang in the case of other land owners whose land was requisitioned simultaneously. 2. Counsel representing the Union of India has seriously resisted claim of the cross objectors on the premise that cross objections preferred in the year 2013 are clearly barred by limitation. It is argued that the cross objectors have not filed an application for condonation of delay of more than 10 years and allegations raised in para 1 of the cross objections are patently false when examined in the light of facts on record that the cross objector caused appearance in the appeal through a counsel on 01.04.2002 and the period of limitation to file cross objections would start from that day. In support of his contention, he has heavily relied upon judgment of Hon’ble the Supreme Court Mahadev Govind and others VS. Special Land Acquisition officer, Upper Krishna Project, Jamkhandi, Karnataka, with connected case, 2011(3) Civil Court Cases 575. 3. Another submission made by counsel is that cross objections can be continued even if the appeal is dismissed provided the cross objections are filed within limitation prescribed for an appeal or within the extended period if the appeal was valid and filed within limitation. For this purpose, reference has been made to judgment of Hon’ble the Supreme Court Municipal Corporation of Delhi and others VS. Intnl. Security & Intelligence Agency Ltd., 2003(1) RCR (Civil) 757. According to counsel, the cross objectors caused appearance through counsel on 01.04.2002, sought time for filing reply to application vide order date 31.10.2002. Application for condonation of delay of 323 days in filing the appeal was allowed in presence of counsel for the cross objectors on 12.05.2005 and on the same very day, the appeal was admitted. According to counsel, the cross objectors caused appearance through counsel on 01.04.2002, sought time for filing reply to application vide order date 31.10.2002. Application for condonation of delay of 323 days in filing the appeal was allowed in presence of counsel for the cross objectors on 12.05.2005 and on the same very day, the appeal was admitted. It is argued with vehemence that keeping in view the aforesaid when examined in the light of judgment in Mahadev Govind Gharge and other’s case (supra), the cross objections are liable to be rejected outrightly being barred by limitation. 4. Counsel representing the cross objectors, on the contrary, would argue that limitation of 30 days to file cross objections under Order 41 Rule 22 CPC would start from the date of notice of hearing of the appeal to the respondents therein. It is vehemently argued that as in the present case, no notice of hearing of the appeal was given to the cross objectors at any point of time much less before filing the cross objections in the year 2013 when the appeal was lying admitted, cross objections are very much within limitation. In support of his contention, he has relied upon the Division Bench judgment of Gujarat High Court Oriental Insurance Company Ltd. VS. Alpaben Wd/o Jigishbhai N. Dalal, 2009 ACJ 1423 . Further reference has been made to judgments of this Court The Union Territory of Chandigarh VS. Bachna and others, 1981 RLR 278 and State of Haryana VS. Khalsa High School, 1985(2) PLR 335. Counsel has further submitted that even if the appeal preferred by Union of India has been dismissed as withdrawn, the cross objections are still to be heard and decided on merits. For this purpose, reliance has been placed upon judgment of Hon’ble the Supreme Court Hari Shankar Rastogi VS. Sham Manohar and others, 2005(2) RCR (Civil) 362. 5. I have heard counsel for the parties, perused the paper book and considered the judgments cited at bar. 6. For this purpose, reliance has been placed upon judgment of Hon’ble the Supreme Court Hari Shankar Rastogi VS. Sham Manohar and others, 2005(2) RCR (Civil) 362. 5. I have heard counsel for the parties, perused the paper book and considered the judgments cited at bar. 6. Before adverting to the submission made by counsel for the parties, it is appropriate to recapitulate of Order 41 Rule 22 (1) CPC, germane to the present controversy, reads as follows:- Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the findings against him in the Court below in respect of any issue ought to have been in his favour, and may also take any cross objections 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. 7. The concluding lines of the aforesaid extract particularly the words ‘notice of the day fixed for hearing the appeal’ needs consideration in the light of facts highlighted by counsel for the appellant (Union of India) that the cross objectors caused appearance in the appeal through a counsel on 01.04.2002, application for condonation of delay in filing the appeal was decided in his presence and the appeal was admitted in his presence on 12.05.2005. 8. Hon’ble the Supreme Court in Mahadev Govind Gharge and others’s case (supra) has dealt with the question of limitation for filing cross objections under Order 41 Rule 22 CPC. In the said case, the respondents filed appeal against judgment of the Reference Court to the High Court of Karnataka on 12.09.2001. The land owners were on a caveat. The High Court admitted the appeal on the same day and directed the office to post the same for hearing immediately after LCR were received. On 19.11.2002, the appellants for condonation of delay of 404 days in filing the cross objections. The Court in para 55 has held that all the provisions of Order 41 of the Code have to be read conjunctively to give order 41 Rule 22 its true and purposive meaning. On 19.11.2002, the appellants for condonation of delay of 404 days in filing the cross objections. The Court in para 55 has held that all the provisions of Order 41 of the Code have to be read conjunctively to give order 41 Rule 22 its true and purposive meaning. Having analytically examined the provisions of Order 41 Rule 22, the Court stated the principles, reads thus:- (a) Respondent in an appeal is entitled to receive a notice of hearing of the appeal as contemplated under Order XLI Rule 22 of the Code; (b) the limitation of one month for filing the cross-objection as provided under Order XLI 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 purpose 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 XLI Rule 22. In other words the limitation of one month shall start from that date. 9. In the case at hand we are mainly concerned with principle (c) for the purpose of controversy raised in the present case. Indisputedly, the cross objectors were not on caveat in the appeal filed by Union of India. This Court vide order dated 22.01.2002 issued notice in the application under Section 5 of the Limitation Act. A relevant extract therefrom reads as follows:- “Notice in the CM under Section 5 of the Limitation Act, to the respondent for 01.04.2002.” 10. On the adjourned date, Ms. Ritu Punj, Advocate caused appearance on behalf of the respondents (cross objectors herein) and sought time to file reply to the application and the case was adjourned to 20.05.2002. Again on 20.05.2002, the case was adjourned to 30.10.2002 for filing reply to the application. Similarly on 31.10.2002, the case was adjourned to 13.02.2003 for filing of reply to the application. On 13.02.2003, CM No.2879-CII of 2003 filed by the appellant was disposed of and the appeal was adjourned to 25.07.2003. On 25.07.2003, it was adjourned to 13.10.2003 under orders of the Court. Similarly on 31.10.2002, the case was adjourned to 13.02.2003 for filing of reply to the application. On 13.02.2003, CM No.2879-CII of 2003 filed by the appellant was disposed of and the appeal was adjourned to 25.07.2003. On 25.07.2003, it was adjourned to 13.10.2003 under orders of the Court. On the adjourned date, counsel for the appellant pointed out to the Court that appeals arising out of the same award had been admitted by the Court and counsel for the cross objectors sought time for verifying that fact. On 19.10.2004, the case was adjourned to 15.04.2004 in absence of counsel for the parties. Again on 17.05.2004, the case was adjourned to 26.10.2004. Eventually, the application (CM No.1342-CII of 2002) for condonation of delay of 323 days in filing the appeal was allowed after hearing counsel for the parties. The appeal was ordered to be admitted. A relevant extract from order date 17.05.2005 with regard to admission of appeal, reads thus:- Main case Appeal admitted. 11. Subsequent thereto, this appeal was never taken up for hearing nor a notice was issued to the respondents/cross objectors with regard to hearing of appeal. 12. The question that calls for consideration is whether in view of order discussed hereinbefore, can it be said that the cross objectors were ever served with notice of the day fixed for hearing the appeal. The respondents/cross objectors, in my considered opinion, never received any notice of hearing of the appeal before they preferred the cross objections in the year 2013 in the appeal which was lying admitted since 12.05.2005, thus, the appellant cannot derive any advantage to its contention from the judgment in Mahadev Govind Gharge and others’s case (supra). In the said case, the appellants filed caveat in the appeal. When the appeal was listed for hearing at the initial stage, the appellants argued the matter not only in relation of grant of interim order but also on merits of the appeal. The High Court, on 12.09.2001, after applying its mind to merits of the case had passed the order reproduced in para 46 of the judgment. In paras 47 and 48, it was held, quoted hereunder for ready reference:- 47. As is evident from the above order, the records were required to be called from the lower courts and thereafter, the appeal was to be heard finally. In paras 47 and 48, it was held, quoted hereunder for ready reference:- 47. As is evident from the above order, the records were required to be called from the lower courts and thereafter, the appeal was to be heard finally. Though the court had not actually fixed any particular date, it had directed the appeal to be listed for hearing. Then again, vide its order dated 25th January, 2002, the High Court had directed the appellant(s) to move an application for early hearing of the appeal. On all these occasions, the appellant(s), or his pleader, was present and participated in the proceedings before the Court. Thus, the appellant(s) not only had the knowledge of pendency of the appeal but also had notice of fixing of hearing of the appeal. Even on 18th September, 2003, the High Court took notice of the cross-objection and counsel for the appellant(s) cross objectors was directed to furnish copies of the cross-objection within three weeks to the Additional Advocate General. After the records from lower courts were received, the matter was heard and judgment impugned in the present appeal was pronounced by the High Court on 22nd October, 2003. 48. In these circumstances, it is difficult for this Court to hold that the period of 30 days, as contemplated under Order XLI Rule 22 of the Code, never commenced even till final disposal of the appeal. Such an interpretation will frustrate the very purpose of the Code and would be contrary to the legislative intent. We may also notice that the appeal was finally heard without fixing any particular date and in presence of the appellant(s). Under such circumstances, the requirement of fixing a final date separately must be deemed to be waived by the parties. 13. Counsel for the appellant has failed to advance any convincing arguments as to how he can draw similarity between the facts of the referred authority vis-à-vis the case at hand in order to contend that principle (c) reproduced hereinbefore can be applied in the given circumstances to say that cross objections have been filed beyond 30 days from the date of notice of hearing of the appeal, therefore, barred by limitation. In this view of the matter, the appellant cannot derive any advantage to its contention from the judgment in Mahadev Govind Gharge and others’s case (supra). In this view of the matter, the appellant cannot derive any advantage to its contention from the judgment in Mahadev Govind Gharge and others’s case (supra). However, there cannot be any quarrel with the proposition in law laid down in Municipal Corporation of Delhi and others’s case (supra) that cross objections can be continued even if the appeal is dismissed provided the same were filed within the limitation prescribed or within the extended period if any allowed by the Court. 14. A similar controversy was raised in Bachna and others’s case (supra) and Khalsa High School’s case (supra) decided by the Single Benches of this Court. In Bachna and others’s (supra), this Court had held that there was no service of any notice on the objectors about the date fixed for hearing of the appeal by the time they filed the objectors about the date fixed for hearing of the appeal by the time they filed the objections on 12.11.1980. In the said case, the Chandigarh Administration filed FAO No.154 of 1980 to make a grouse of enhancement of compensation by the Reference Court. The appeal was admitted and a notice was ordered to be issued on 17.01.1980 to four respondents/objectors and their brothers. Notices were issued to the respondents on 20.08.1980 returnable for 22.09.1980. Notices were alleged to have been served on the two objectors on 01.09.1980 though they filed miscellaneous application and disputed genuineness of service and correctness of the report of process server on the plea that they had been living away from village Atawa. This Court held that Order 41 deals with the content and manner of service of such a notice. In fact the form of such a notice is prescribed as Form No.6 in appendix G to the Civil Procedure Code. Instead of serving any such notice on the objectors, notice which had been issued and was alleged to have been served on them says specifically that the date fixed, that is 22.09.1980 was on a farzi date. Thus, it is apparent that instead of it being notice of the date fixed for hearing of the appeal in terms of Rule 22, it pointedly brought to the notice of the objectors that no such hearing of the appeal was involved and the date fixed was only a farzi date, that is for the completion of the case. 15. Thus, it is apparent that instead of it being notice of the date fixed for hearing of the appeal in terms of Rule 22, it pointedly brought to the notice of the objectors that no such hearing of the appeal was involved and the date fixed was only a farzi date, that is for the completion of the case. 15. In Khalsa High School’s case (supra), it was held that till the actual date notice is issued and served upon the respondents/cross objectors, period of limitation for filing cross objections would not start, by relying upon the judgment Panjab University Chandigarh VS. Dr. AK Kapoor, 1981(83) PLR 203. As in the case at hand, neither the cross objectors were ever issued notice of hearing of the appeal nor they ever made submission with regard to merits of the appeal even at the stage of its admission, it is difficult to accept contention of the appellant that cross objections preferred by the respondents/cross objectors are barred by limitation. As a matter of fact, there was no hearing at all at time of admission of appeal. It appears that since in the earlier order it was notice that appeals arising out of the same award had been admitted, the Court admitted the appeal vide order dated 12.05.2005, reproduced hereinbefore. In view of the above, contention raised by the appellant that cross objection of the land owners are barred by limitation is patently misconceived and accordingly rejected. 16. In view of the recorded above, counsel for the parties are ad idem that merits of these cross objections are completely covered by the earlier decision in the connected cases Jatinder Bachan Singh Grewal VS. Union of India and another, FAO No.3978 of 2004, decided on 06.08.2018 and Akhtar Singh VS. Union of India and another, FAO No.4120 of 2006, decided on 06.08.2018 and in view of that, the cross objections deserve to be allowed in the same terms and ordered accordingly.