Mahadev Govind Gharge & Ors vs Spl.Land Acq Offcier Ukp.Jamkhandi Kar

Mahadev Govind Gharge & others ..Appellant(s)

- Versus -

The Special Land Acquisition Officer,

Upper Krishna Project, Jamkhandi,

Karnataka ..

Respondent(s)

WITH

CIVIL APPEAL NO. 5113 OF 2005

The Special Land Acquisition Officer,

Upper Krishna Project, Jamkhandi .. Appellant(s)

- Versus -

Mahadev Govind Gharge & others ..Respondent(s)

J U D G M E N T

GANGULY, J.

1. Interesting questions involving interpretation of Order XLI

Rule 22 of the Civil Procedure Code (hereinafter "CPC") fall for

1

decision in this case in which the relevant facts are that a

preliminary notification under section 4(1) of the Land

Acquisition Act, 1894 (hereinafter referred to as `the Act') was

issued on 24.4.1997, for acquisition of land in Survey No.

616/1/1 measuring 2 acres 29 guntas and in Survey No.

616/1B/1 measuring 1 acre 2 guntas. The award was passed

by the Special Land Acquisition Officer on 13.04.1999; he

considered the land acquired to be dry land and fixed

compensation amount at the rate of Rs.31,650/- per acre.

2. Aggrieved, the claimants (landowners) filed references

under section 18 of the Act. The Reference Court enhanced

compensation to Rs.3,50,000/- per acre, along with all

statutory benefits.

3. The respondents filed an appeal against the judgment of

the Reference Court to the High Court of Karnataka on

12.09.2001. The landowners 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 filed cross-objections before the

High Court, under Order XLI, Rule 22 of CPC, along with an

2

application for condonation of delay of 404 days in filing the

cross-objections.

4. On 22.10.2003, the High Court, vide the first impugned

judgment, dismissed the appeal of the State holding that the

point for consideration in the appeal was squarely covered by

the judgment of that court dated 12.8.2003 in M.F.A. No. 3278

of 2001, as a result of which the appeal was liable to be

dismissed. The High Court also held that the landowners were

entitled to interest with effect from the date of the award, i.e.

from 13.4.1999. Against the said judgment, the State came up

in the present appeal before this court i.e. Civil Appeal No.

5113 of 2005.

5. On the same day, the High Court, vide the second

impugned judgment, also dismissed the cross objections filed

by the landowners. In the appeal dismissing the cross

objections, two points came up for consideration before the

High Court:

(i) Whether the limitation period of one month

prescribed under Order XLI Rule 22 (1) of CPC

shall run from 12.9.2001 as contended by

learned government advocate or from the date

3

of service of notice of date of hearing of appeal

fixed by the court, as contended by the learned

advocate of the landowner.

(ii) If the limitation of one month prescribed under

Order XLI Rule 22(1) of CPC did not begin to

run with effect from 12.9.2001, whether the

alternative argument by way of explanation

offered by the cross objectors would constitute

`sufficient cause' warranting condonation of

delay in filing the cross objection?

6. The High Court stated that the Division Bench had

admitted the appeal on 12.9.2001 and had also stayed the

operation of the impugned award subject to the land

acquisition officer depositing 50% of the enhanced

compensation with statutory benefits. On the same day, the

Division Bench had directed the office to list the appeal for final

hearing after the records were received. Accordingly, the office

called for the records and they were received by the office.

Subsequently, on 25.1.2002, the Division Bench permitted the

cross objectors to move for an early hearing of the appeal. It

held as follows:

"Therefore, it is quite clear that on 12.9.2001 itself,

the Division Bench thought it appropriate to hear

the appeals out of turn and accordingly directed

the office to post the appeal for hearing

4

immediately after the records are received. The

submission of Sri Kalagi that since the Division

Bench did not fix a particular date for final hearing

of the appeal, it would not satisfy the requirement

of Order XLI Rule 22(1) CPC, is not acceptable to

us. We can take judicial notice of the fact that quite

often courts direct the final hearing of the matters

out of turn or in regular course without fixing a

specific date for final hearing of cases. Once an

order is made by the court for final hearing, the

registry, in compliance with the direction and

having regard to the workload of the court

concerned, would post cases for final hearing.

Therefore, it could not be said that the Division

Bench did not direct final hearing of the appeal on

12.9.2001. The language implied by the Division

Bench would go to show that the High Court

wanted the registry to post the appeal for final

hearing out of turn immediately after the records

were received. It is quite apparent from the records

that the cross objection was not filed either within

one month from the date of fixing the date of the

appeal or from the date the records of the lower

court were received by the registry of this court.

Therefore, the cross objectors' contention based on

the provisions of Order XLI Rule 22(1) CPC is

misconceived and untenable."

7. On the second point, the High Court was of the opinion

that the explanation offered by the cross objectors for the delay

of 404 days was vague and did not amount to sufficient cause

so as to condone the delay. Consequently, the cross objections

were dismissed.

5 8. Thus, the landowners (cross objectors) approached this

court by filing Civil Appeal No. 5094 of 2005 against the

impugned judgment of the High Court.

9. Both the appeals were heard together by this Court.

10. Before this court, the landowners in their appeal (Civil

Appeal No. 5094 of 2005), raised the following contentions:

a. The limitation period of one month, prescribed

under Order XLI Rule 22, would not begin to

run till an actual date was fixed for hearing by

the High Court and notice of it was served on

the cross objectors, i.e. landowners.

b. Powers of an Appellate Court are very wide

under Order XLI Rule 33 and relief could be

granted to the landowners even under the said

provision.

c. The landowners had shown sufficient cause for

the delay.

d. Land of the landowners was compulsorily

acquired and the court was duty bound to

award just compensation to the landowners.

11. The State, in its appeal (Civil Appeal No. 5113 of 2005),

contended as follows:

a. The High Court wrongly dismissed the appeal by

relying on M.F.A. No. 3278 of 2001 since there

was absence of evidence to show that the land

6

in question and the land covered by the said

judgment were similar in all respects.

b. The High Court erred in awarding interest from

the date of the award and the same was

contrary to section 28 of the Act.

12. We have heard the parties and perused the material on

record.

13. Rule 22(1) makes it clear that the limitation for filing a

cross-objection is one month from the date of service of notice

of date fixed for the hearing of appeal. The relevant provision

read as follows:

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 the decree but may also state that the

finding against him in the court below in respect of

any issue ought to have been in his favour; and may

also take any cross-objection to the decree which he

could have taken by way of appeal provided he has

filed such objection in the Appellate 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

7

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.

14. Notice of this Court was drawn to the judgments of

different High Courts where the provisions of Order XLI Rule

22 of CPC came up for consideration.

15. In the case of Rashida Begum (since deceased now

represented through LRs) v. Union of India reported in 91

(2001) Delhi Law Times 664 (DB), the High Court while

considering other judgments of the same High Court in Union

of India v. Jhutter Singh [46 (1992) DLT 364] and Union of

India v. Shibu Ram Mittal [1999 (49) DRJ 166] held that

limitation for the purpose of filing cross objection under Order

XLI, Rule 22 will run only after the appellate court has fixed

the date of hearing of the appeal and notice thereof has been

served on the respondent or his pleader. In coming to the said

conclusion, the courts sought to make a distinction between

the date of hearing of the appeal under Order XLI, Rule 11 and

date for hearing of the appeal under Order XLI, Rule 12.

8 16. In Shibu Ram Mittal (supra), the Division Bench of the

Delhi High Court specifically held as follows:

"9. A bare perusal of the relevant provisions

contained in Sub-Rule (1) of Rule 22 of Order XLI

C.P.C makes it clear that the limitation would begin

to run from the date of service of notice on the

respondent or his pleader of the day fixed for

hearing of the appeal. A notice informing the

respondent that an appeal has been admitted

against him and intimating a Farzi (tentative) date

of hearing cannot be taken as the notice envisaged

under this provision. The provision is specific-

"notice of the date fixed for hearing the appeal". A

Farzi date cannot be said to be the date fixed for

hearing the appeal. Simply because a counsel

appeared for the respondents does not displace the

requirement of service of notice of actual date of

hearing of appeal. The emphasis on the words

"notice of date fixed for hearing an appeal" cannot

be allowed to be diluted. The provision ensures that

the appellant has advance notice before the hearing

of the appeal about the cross objections by the

respondent."

17. In the case of Karnataka State Road Transport

Corporation v. R. Sethuram & Anr., reported in AIR 1996

Karnataka 380, the Karnataka High Court has taken a similar

view by holding that the provisions of limitation are to be

strictly construed and the rule does not speak of limitation

from the date of knowledge of appeal, rather it speaks of

limitation from the date of service of notice which would

9

indicate the date of fixation of hearing of appeal by the High

Court.

18. However, a different view has been taken by the

Rajasthan High Court in the case of The East India Hotels

Ltd. v. Smt. Mahendra Kumari and another, reported in AIR

2008 Raj. 131. In the said case, the cross objector has put in

his appearance before the High Court and a caveat had been

lodged even before admission of the appeal. It also appears that

the counsel was present and the appeal was admitted in his

presence. Under those circumstances, the High Court held that

notice prescribed under Order XLI, Rule 14 was not be

essential to be served upon the respondents who participated

in the proceedings.

19. De hors the facts of the present case, it will be

appropriate for us to examine the legislative scheme as well as

the principles governing the application of Order XLI and its

various rules of the Code of Civil Procedure, 1908 (in short the

`Code'). The Code is a law relating to procedure and procedural

law is always intended to facilitate the process of achieving the

ends of justice. The Courts would normally favour the

10

interpretation which will achieve the said object. In the case of

Sardar Amarjit Singh Kalra (dead) by LRs., v. Pramod

Gupta (Smt.) (dead) by LRs. and others [2003 (3) SCC 272],

a Constitution Bench of this court held, "laws of procedure are

meant to regulate effectively, assist and aid the object of doing

substantial and real justice and not to foreclose even an

adjudication on merits of substantial rights of citizen under

personal, property and other laws. Procedure has always been

viewed as the handmaid of justice and not meant to hamper the

cause of justice or sanctify miscarriage of justice."

20. Similar views are also expressed by this Court in the case

of The State of Punjab and another v. Shamlal Murari and

another [(1976) 1 SCC 719] where the Court held as under: -

"...We must always remember that processual

law is not to be a tyrant but a servant, not an

obstruction but an aid to justice. It has been

wisely observed that procedural prescriptions

are the handmaid and not the mistress, a

lubricant, not a resistant in the administration

of justice. Where the non-compliance, tho'

procedural, will thwart fair hearing or prejudice

doing of justice to parties, the rule is

mandatory. But, grammar apart, if the breach

can be corrected without injury to a just

disposal of the case, we should not enthrone a

11

regulatory requirement into a dominant

desideratum. After all, courts are to do justice,

not to wreck this end product on

technicalities..."

21. Order XLI of the Code deals with appeals from original

decrees. Rules 1 and 2 give the right to file an appeal against a

decree in the manner and on the grounds specified therein.

Rule 3 provides for rejection of the memorandum of appeal.

Rule 3A which was added by the Amendment Act 104 of 1976

(w.e.f. February 1, 1977) provides for application for

condonation of delay where the appeal is filed beyond the

period of limitation. Rule 5 defines power of the Court to grant

stay, conditional or otherwise, of the decree under appeal.

Rule 11 is an important provision which requires the Appellate

Court to fix a day for hearing the appellant or his pleader and,

on hearing, it may even dismiss the appeal at that very stage.

The expression `after fixing a date for hearing the appellant' is

of some significance. It obviously means that the Court should

fix a date for hearing the appellant on the merits of the appeal.

The hearing contemplated under Rule 11 is not an empty

formality but denotes the substantive right of being heard,

12

available to the appellant(s). The Court has to apply its mind

to the merits of the appeal and then alone the Court can pass

an order of dismissal. In terms of Rule 12, unless the Appellate

Court dismisses the appeal under Rule 11, it shall fix a day for

hearing of the appeal. The hearing contemplated under Rule

12 is normally called `final hearing'. Between the day of

hearing fixed under Rule 11 and that fixed under Rule 12 there

is a requirement to issue notice to the respondent(s). Besides

this two other aspects need to be highlighted. First is that Rule

11A of the Code requires the Court to hear the appeal under

Rule 11 as expeditiously as possible and to conclude such

hearing within 60 days from the date on which the

memorandum of appeal is filed. Second is that the fixation of

the appeal for hearing under Rule 12 would be on such day

which the court may fix with reference to the current business

of the court. As is evident, the intention of the legislature is to

ensure expeditious disposal of the appeals keeping in mind the

heavy burden on the courts. The Appellate Court is vested

with very wide powers including framing of additional issues,

permitting additional evidence, remanding a case, pronouncing

13

judgments in accordance with law and even admitting an

appeal for re-hearing where the appeal was dismissed in

default. The provisions of Rule 22 which have been reproduced

by us above gives right to a respondent to file cross-objections

to the decree under appeal which he could have taken by way

of an appeal. This right is available to the respondent provided

he had filed such objections in the Appellate 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.

22. A bare reading of the provisions of Rule 22 clearly show

that they do not provide for any consequences, leave any

adverse consequence, in the event the respondent-cross

objector defaults in filing the cross objections within the

statutory period of one month. On the contrary they provide

that the cross objections can be filed within such further time

as the Court may see fit to allow. The expression `or within

such further time as the court may see fit to allow' clearly

shows that wide judicial discretion is vested in the courts to

permit the filing of the cross-objections even after the expiry of

14

30 days or for that matter any period which, in the facts and

circumstances of the case, is found to be just and proper by

the Court.

23. 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, 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.

24. Maxwell on The Interpretation of Statutes, (12th Edn., by P.

St. J. Langan), states as follows:-

"A reference to the power of a court being

exercisable "at any time thereafter" will

receive a literal construction {L. v. L.

[1962] P.101}. But where something is to

be done "forthwith" by some person or

body, a court will not require

instantaneous compliance with the

statutory requirement [Sameen v.

Abeyewickrema (1963) A.C. 597]

" `Forthwith,' " Harman L.J. has said, "is

not a precise time and, provided that no

harm is done, `forthwith' means any

15

reasonable time thereafter," and so may,

according to the circumstances, involve

action within days or years [Hillingdon

London Borough Council v. Cutler (1968) 1

Q.B. 124]"

25. Such provisions should be construed on their plain

meaning and it may not be necessary for the Court to bring

into service other principles of statutory interpretation.

However, the maxim De minimis non curat lex shall apply to

such statutory provisions.

26. Bennion on Statutory Interpretation (5th Edn., 2008, at

page 55) states that

"Where discretion exists The Court will be

more willing to hold that a statutory

requirement is merely directory if any

breach of the requirement is necessarily

followed by an opportunity to exercise

some judicial or official discretion in a way

which can adequately compensate for that

breach."

27. In the case of Kailash v. Nanhku & others, [(2005) 4

SCC 480], a Bench of three Judges of this Court while

interpreting the provisions of Order VIII Rule 1 of the Code,

which has more stringent language and provides no such

16

discretion to extend the limitation as provided to the Courts in

Order XLI Rule 22, had observed that despite the use of such

language in the provisions of Order VIII 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:

"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... 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."

28. Thus, it is an undisputed principle of law that the

procedural laws are primarily intended to achieve the ends of

justice and, normally, not to shut the doors of justice for the

17

parties at the very threshold. We have already noticed that

there is no indefeasible divestment of right of the cross-objector

in case of a delay and his rights to file cross-objections are

protected even at a belated stage by the discretion vested in the

Courts. But at the same time, the Court cannot lose sight of

the fact that meaning of `ends of justice' essentially refers to

justice for all the parties involved in the litigation. It will be

unfair to give an interpretation to a provision to vest a party

with a right at the cost of the other, particularly, when

statutory provisions do not so specifically or even impliedly

provide for the same. The provisions of Order XLI Rule 22 of

the Code are akin to the provisions of the Limitation Act, 1963,

i.e. when such provisions bar a remedy, by efflux of time, to

one party, it gives consequential benefit to the opposite party.

Before such vested benefit can be taken away, the Court has to

strike a balance between respective rights of the parties on the

plain reading of the statutory provision to meet the ends of

justice. If a cross-objector fails to file cross-objections within

the stipulated time, then his right to file cross-objections is

taken away only in a limited sense. To that extent a benefit is

18

granted to the other party, i.e. the appellant, of having their

appeal heard without such cross-objections. Still, however, if

the Court is of the opinion that it is just and proper to permit

the filing of cross-objection even after the expiry of the

statutory limitation of one month, it is certainly vested with

power to grant the same, but of course, only after hearing the

other party. That is how the rights of the parties are to be

balanced in consonance with the scheme of Order XLI Rule 22

of the Code.

29. In Justice G.P. Singh's Principles of Statutory

Interpretation (11th Edn., 2008), the learned author while

referring to judgments of different Courts states (at page 134)

that procedural laws regulating proceedings in court are to be

construed as to render justice wherever reasonably possible

and to avoid injustice from a mistake of court. He further

states (at pages 135 and 136) that: "Consideration of hardship,

injustice or absurdity as avoiding a particular construction is a

rule which must be applied with great care. "The argument ab

inconvenienti", said LORD MOULTON, "is one which requires to

be used with great caution"."

19 30. The learned author while referring to the judgments of

this Court in the case of Sangram Singh v. Election

Tribunal, Kotah [(1955) 2 SCR 1] recorded (at page 384) that

"while considering the non-compliance with a procedural

requirement, it has to be kept in view that such a requirement

is designed to facilitate justice and further its ends and

therefore, if the consequence of non-compliance is not

provided, the requirement may be held to be directory..."

31. This Court in the case of Byram Pestonji Gariwala v.

Union Bank of India & others [(1992) 1 SCC 31] referred to

Crawford's Statutory Construction (para 254) to say that:

"Statutes relating to remedies and procedure must receive a

liberal construction 'especially so as to secure a more effective,

a speedier, a simpler, and a less expensive administration of

law'."

32. The consistent view taken by this Court is that the

provisions of a statute are normally construed to achieve the

ends of justice, advance the interest of public and to avoid

multiplicity of litigation. In the case of Dondapati Narayana

Reddy v. Duggireddy Venkatanarayana Reddy & others 20

[2001 (8) SCC 115], this Court expressed similar view in

relation to amendment of pleadings. The principles stated in

this judgment may aptly be applied generally in relation to the

interpretation of provisions of the Code. Strict construction of

a procedural law is called for where there is complete

extinguishment of rights, as opposed to the cases where

discretion is vested in the courts to balance the equities

between the parties to meet the ends of justice which would

invite liberal construction. For example, under Order XLI Rule

22 of the Code, cross objections can be filed at any subsequent

time, even after expiry of statutory period of one month, as may

be allowed by the Court. Thus, it is evidently clear that there is

no complete or indefeasible extinguishment of right to file cross

objections after the expiry of statutory period of limitation

provided under the said provision. Cross-objections within the

scheme of Order XLI Rule 22 of the Code are to be treated as

separate appeal and must be disposed of on same principles in

accordance with the provisions of Order XLI of the Code.

33. This Court in the case of Sangram Singh (supra) while

dealing with the principles of interpretation of provisions of the

21

Code, laid down three principles which have to be kept in mind

while interpreting any portion of the Code and held as under:

"31. In our opinion, Wallace, J., and the

other judges who adopt the same line of

thought, are right. As we have already

observed, our laws of procedure are based

on the principle that, as far as possible,

no proceeding in a Court of law should be

conducted to the detriment of a person in

his absence. There are of course

exceptions, and this is one of them. When

the defendant has been served and has

been afforded an opportunity of

appearing, then, if he does not appear, the

Court may proceed in his absence. But, be

it noted, the Court is not directed to make

an ex parte order. Of course the fact that

it is proceedings ex parte will be recorded

in the minutes of its proceedings but that

is merely a statement of the fact and is

not an order made against the defendant

in the sense of an ex parte decree or other

ex parte order which the Court is

authorised to make. All that Rule 6(1)(a)

does is to remove a bar and no more. It

merely authorises the Court to do that

which it could not have done without this

authority, namely to proceed in the

absence of one of the parties. The contrast

in language between rules 7 and 13

emphasises this.

34. This Court has reiterated the above dictum with approval

in the case of Kailash (supra). The above-stated principles

22

require the Court to give precedence to the right of a party to

put forward its case. In other words unnecessary and avoidable

technical impediments should not be introduced by virtue of

interpretative process. At the same time any irreparable loss

should not be caused to a party on whom the right might have

vested as a result of default of other party. Furthermore, the

courts have to keep in mind the realities of explosion of

litigation because of which the Court normally takes time to

dispose of appeals. It would be a travesty of justice, if after

passage of substantial time when the appeal is taken up for

final hearing a cross-objector who was heard and participated

in the hearing at the admission stage itself, claims that the

limitation period for him to file his cross-objection will

commence only from the date of service of a fresh notice on

him or his pleader, in terms of Order XLI Rule 22 of the Code.

Such an interpretation would jeopardize the very purpose and

object of the statute and prejudicially affect the administration

of justice as the appeal which has come up for final hearing

and disposal would again be lost in the bundle of pending

cases on this pretext. It is trite that justice must not only be

23

done but must also appear to have been done to all the parties

to a lis before the Court.

35. 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.

36. 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 its end object of just, fair and expeditious

justice to parties without seriously prejudicing the rights of any

of them.

37. Now, we would proceed to examine the language of Order

XLI Rule 22 of the Code. The stipulated period of one month is

to commence from the date of service, on the concerned party

24

or his pleader, of notice of the day fixed for hearing the appeal.

A cross-objection may also be filed within such further time as

the Appellate Court may see fit to allow.

Date of hearing

38. First and foremost, we must explain what is meant by

`hearing the appeal'. Hearing of the appeal can be classified in

two different stages; one at the admission stage and the other

at the final stage. Date of hearing has normally been defined

as the date on which the court applies its mind to the merits of

the case. If the appeal is heard ex-parte for admission under

Order XLI Rule 11 of the Code, the Court could dismiss it at

that very stage or admit the same for regular hearing. Such

appeal could be heard in the presence of the other party at the

admission stage itself, particularly, in cases where a caveat is

lodged by the respondent to the appeal.

39. The concept of `hearing by the Court', in fact, has

common application both under Civil and Criminal

jurisprudence. Even in a criminal matter the hearing of the

case is said to be commenced by the Court only when it applies

25

its mind to frame a charge etc. Similarly, under civil law also it

is only when the Court actually applies its mind to averments

made by party/parties, it can be considered as hearing of the

case. This Court in the case of Siraj Ahmad Siddiqui v. Prem

Nath Kapoor [1993 (4) SCC 406] while dealing with the

provisions of the U.P. Urban Buildings (Regulation of Letting,

Rent & Eviction) Act, 1972, referring to the concept of first

hearing, held as under:

"13. The date of first hearing of a suit

under the Code is ordinarily understood

to be the date on which the court

proposes to apply its mind to the

contentions in the pleadings of the parties

to the suit and in the documents filed by

them for the purpose of framing the issues

to be decided in the suit. ........................

.................................We are of the view,

therefore, that the date of first hearing as

defined in the said Act is the date on

which the court proposes to apply its

mind to determine the points in

controversy between the parties to the suit

and to frame issues, if necessary."

40. The date of hearing must not be confused with the

expression `step in the proceedings'. These are two different

concepts of procedural law and have different connotation and

26

application. What may be a `step in the proceeding',

essentially, may not mean a `hearing' by the Court. Necessary

ingredients of `hearing' thus are application of mind by the

court and address by the party to the suits.

41. Now we would proceed to discuss the purpose of giving

one month's time and notice to the respondent to file cross-

objection. The primary intention is, obviously, to give him a

reasonable opportunity to file cross-objections in the appeal

filed by the other party. It may be noticed that filing of cross-

objections is not an exclusive but, an alternate remedy which a

party can avail as alternative of filing a separate appeal in its

own right.

42. The language of Order XLI Rule 22 of the Code fixes the

period of limitation to be computed from the date of service of

notice of hearing of the appeal upon the respondent/cross-

objector and within one month of such date he has to file cross

objections. Thus, the crucial point of time is the date on which

the notice of hearing of the appeal is served. This could be a

notice for actual date of hearing or otherwise.

27 43. There appears to be a dual purpose emerging from the

language of Order XLI Rule 22 of the Code. Firstly, to grant

time of one month or even such further time as the Appellate

Court may see fit to allow; and secondly, to put the party or his

pleader at notice that the appeal has been admitted and is

fixed for hearing and the Court is going to pronounce upon the

rights and contention of the parties on the merits of the appeal.

Once such notice is served, the period of limitation under

Order XLI Rule 22 of the Code will obviously start running from

that date. If both these purposes are achieved any time prior to

the service of a fresh notice then it would be an exercise in

futility to issue a separate notice which is bound to result in

inordinate delay in disposal of appeals which, in turn, would be

prejudicial to the appellants. A law of procedure should always

be construed to eliminate both these possibilities.

44. A Bench of three Judges of this Court in the case of

Salem Advocate Bar Association, Tamil Nadu v. Union of

India [(2003) 1 SCC 49] while examining the constitutional

validity of various amended provisions of the Code, (amended

or introduced by Amendment Act 46 of 1999 and Amendment

28

Act 22 of 2002) discussed requirements of Section 27 of the

Code which relates to issuance of summons to the defendants

to appear and answer the claim. Such summons are required

to be issued within one month from the date of institution of

the suit. The Court held that once steps in furtherance to

issuance of summons within one month are taken by the

plaintiff, then even if the summons are not served within that

period, it will be substantial compliance of the provisions of

Section 27 of the Code. Following dictum of the court can be

usefully noticed at this stage.

"7. It was submitted by Mr. Vaidyanathan

that the words "on such day not beyond

thirty days from the date of the institution

of the suit" seem to indicate that the

summons must be served within thirty

days of the date of the institution of the

suit. In our opinion, the said provisions

read as a whole will not be susceptible to

that meaning. The words added by

amendment, it appears, fix outer time

frame, by providing that steps must be

taken within thirty days from the date of

the institution of the suit, to issue

summons. In other words, if the suit is

instituted, for example, on 1st January,

2002, then the correct addresses of the

defendants and the process fee must be

filed in the Court within thirty days so

that summons be issued by the Court not

beyond thirty days from the date of the

29

institution of the suit. The object is to

avoid long delay in issue of summons for

want of steps by the plaintiff. It is quite

evident that if all that is required to be

done by a party, has been performed

within the period of thirty days, then no

fault can be attributed to the party. If for

any reason, the court is not in a position

or is unable to or does not issue summons

within thirty days, there will, in our

opinion, be compliance with the

provisions of Section 27 once within thirty

days of the issue of the summons the

party concerned has taken steps to file the

process fee along with completing the

other formalities which are required to

enable the court to issue the summons."

45. The learned counsel for the appellant also relied upon the

judgment of this court in the case of Sushil Kumar

Sabharwal v. Gurpreet Singh & others [2002 (5) SCC 377]

to contend that knowledge of appeal cannot be equated to

notice of date of hearing. There is no doubt that this Court in

para 11 of that judgment made a distinction between the

knowledge of the date of hearing and the knowledge of

pendency of suit. Referring to the evidence in that case, this

Court held that the version of the defendant should have been

believed by the courts concerned because he was denied a

reasonable opportunity to present his case before the Court. In

30

the present case this distinction is hardly of any help to the

counsel for the appellant inasmuch as they have appeared and

argued at the admission stage of the appeal which was

admitted in their presence and an order was also passed for

final hearing.

46. Adverting to the facts of the present case, as already

noticed, the appellants had also filed caveat in the appeal. In

law, the rights of a caveator are different from that of cross-

objectors per se. In terms of Section 148A of the Code, a

caveator has a right to be heard mandatorily for the purposes

of passing of an interlocutory order. The law contemplates that

a caveator is to be heard by the court before any interim order

can be passed against him. But in the present case when the

appeal was listed for hearing at the admission stage itself, the

appellants had appeared and argued the matter not only in

relation to grant of an interim order but also on the merits of

the appeal. The High Court, on 12th of September, 2001, after

applying its mind to the merits of the case had passed the

following order:

"Admit.

31

Heard the counsel for the appellant and

respondent.

Interim stay as prayed, in I.A. II/01

subject to the appellant depositing 50% of

amount awarded with all statutory

benefits etc., before the reference court,

within eight weeks.

Respondents permitted to withdraw 25%

of the amount. Remaining 25% amount

shall be kept in fixed deposit for the term

of six months.

Call for records.

List for hearing immediately after the

records are received with connected

cases."

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

32

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

objector 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.

49. It may be noticed that somewhat divergent views have

been taken by different High Courts while interpreting the

33

provisions of Order XLI Rule 22 of the Code. The High Court of

Rajasthan in the case of The East India Hotels Limited v.

Smt. Mahendra Kumari [AIR 2008 Raj. 131] took the view

that respondent cross-objector had put in appearance through

his counsel as a caveator and the appeal was admitted on 28th

March, 2006 in his presence and participation. As the appeal

was admitted in their presence, the Rajasthan High Court

opined that no notice thereafter was required to be served on

the caveator for the purposes of Order XLI Rule 22 and period

of limitation of one month would start from 28th March, 2006

(i.e. the date of admission) for filing of cross-objection. The

filing of the cross objection in that case was delayed by 507

days. On the issue of condonation the High Court felt that the

delay could not be condoned in the facts and circumstances of

the case and thus dismissed the cross-objections as barred by

time. It also needs to be noticed that the judgments of the

Delhi High Court in the case of Jhutter Singh (supra) and

Rashida Begum (supra) were also examined by the Rajasthan

High Court and are distinguished on facts as in those cases at

no point of time the objector or respondent had participated.

34 50. The Rajasthan High Court also relied upon the judgment

of the High Court of Andhra Pradesh in the case of Mutyam

Agaiah v. Special Deputy Collector, (NTPC) L.A. Unit. [2002

(2) ALT 715] wherein that High Court while accepting the

submissions of the respondent had held that:

"...We have to understand the issue of

notices in the proper perspective. The

notices are meant for giving knowledge to

the other side regarding the judicial

proceedings filed by the appellant. It is

not every time necessary that the notices

should be in writing in the prescribed

form. If the knowledge of filing of the

appeals can be proved, then it is sufficient

notice in law. The respondent-cross

objector engaged an Advocate, who filed

vakalatnama and he defended the cause

of the claimant in the Original Petition. It

means that the cross-objector had

sufficient knowledge regarding the

appeals. Nothing prevented for the

respondent-cross-objector for filing the

objections......."

51. In the case of Rashida Begum (supra) 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

35

application but not the appeal would not be `notice' as

contemplated under Order XLI Rule 22 of the Code.

52. The view taken by the Delhi High Court is more in line

with the intent of the provisions of Order XLI Rule 22 while the

decision of the Rajasthan High Court was on its own facts and

cannot be treated to be stating a preposition 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 XLI Rule 22 we shall shortly proceed to

state.

53. In the case of Pralhad & others v. State of

Maharashtra and another [2010 (10) SCC 458], a Bench of

this Court to which one of us was a member was dealing with

the object and scope of the powers vested in the Court in terms

of Order XLI Rule 33 of the Code. This Court observed that

Rule 33 empowers the Appellate Court to pass any decree or

make any order which ought to have been passed or made and

also to pass or make such further decree or order as the case

may require. The Appellate Court can exercise this power

notwithstanding that appeal is only with respect to a part of

36

decree. This power may be exercised in favour of any of the

respondents or the parties although such respondent or party

may not have filed any appeal or objections. In other words,

the Court has been vested with the power to pass such orders

which ought to have been passed in the facts of a given case.

While dealing with this issue, this Court held as under:

"18. The provision of Order XLI Rule 33 CPC is clearly an enabling provision, whereby the appellate court is empowered to pass any decree or make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require. Therefore, the power is very wide and in this enabling provision, the crucial words are that the appellate court is empowered to pass any order which ought to have been made as the case may require. The expression "order ought to have been made" would obviously mean an order which justice of the case requires to be made. This is made clear from the expression used in the said rule by saying "the court may pass such further or other order as the case may require". This expression "case" would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law."

54. The Court clearly held that the expression "order ought to

have been made" obviously means an order which justice

demands in facts of the case. The dictum of law stated by this

37

Court clearly demonstrates that justice between the parties to

a case is the essence of procedural law and unless the statute

expressly prohibits or put an embargo, the Courts would

interpret the procedural law so as to achieve the ends of

justice.

55. If we examine the provisions of Order XLI Rule 22 of the

Code in its correct perspective and in light of the above stated

principles then the period of limitation of one month stated

therein would commence from the service of notice of the day of

hearing of appeal on the respondent in that appeal. The

hearing contemplated under Order XLI Rule 22 of the Code

normally is the final hearing of the appeal but this rule is not

without any exception. The exception could be where a party

respondent appears at the time of admission of the appeal, as a

caveator or otherwise and argues the appeal on merits as well

as while passing of interim orders and the Court has admitted

the appeal in the presence of that party and directs the appeal

to be heard finally on a future date actual or otherwise, then it

has to be taken as complete compliance of the provisions of

Order XLI Rule 22 of the Code and thereafter, the appellant

38

who has appeared himself or through his pleader cannot claim

that period mentioned under the said provision of the Code

would commence only when the respondent is served with a

fresh notice of hearing of the appeal in the required format. If

this argument is accepted it would amount to travesty of

justice and inevitably result in delay while causing serious

prejudice to the interest of the parties and administration of

justice. Such interpretation would run contra to the legislative

intent behind the provisions of Order XLI Rule 11 of the Code

which explicitly contemplate that an appeal shall be heard

expeditiously and disposed of as far as possible within 60 days

at the admission stage. All the provisions of Order XLI of the

Code have to be read conjunctively to give Order XLI Rule 22

its true and purposive meaning. Having analytically examined

the provisions of Order XLI Rule 22, we may now state the

principles for its applications as follow:

(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;

39

(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 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 XLI Rule 22. In other words the limitation of one

month shall start from that date.

56. Needless to notice that the cross-objections are required

to be filed within the period of one month from the date of

service of such notice or within such further time as the

Appellate Court may see fit to allow depending upon the facts

and circumstances of the given case.

57. Since the provisions of Order XLI Rule 22 of the Code

itself provide for extension of time, the Courts would normally

be inclined to condone the delay in the interest of justice

40

unless and until the cross-objector is unable to furnish a

reasonable or sufficient cause for seeking the leave of the

Court to file cross-objections beyond the statutory period of

one month.

58. Examining the case in hand within the legal framework

afore-stated, it has to be held that the case falls squarely

within the principles formulated in clause (c). The appellant(s)

herein were caveators before the High Court and they were

heard not only while passing of interim orders but the appeal

itself was admitted in their presence. Further, the Court

directed that the records from lower court be called and after

receipt of such record the appeal was directed to be listed for

final disposal. Thus, the cross-objector not merely had the

knowledge of pendency of the appeal and order of the High

Court for its final disposal but he actually participated at all

the stages of the proceedings before that Court, i.e. at the stage

of admission of appeal, passing of interim orders and variation

thereof and at the stage of consideration of application of the

cross-objector, moved for early hearing of the appeal and, in

fact, the appeal had been directed to be heard finally in his

41

presence. Thus, in these circumstances, one month of

prescribed period in terms of Order XLI Rule 22 of the Code

shall commence from 12th September, 2001, i.e. the date on

which the High Court ordered that the appeal may be listed for

hearing.

59. As the period for filing the cross objection had long

expired, the application for condonation of delay was filed. It is

interesting to note that the appellants in this Court themselves

admitted that they had received the notice of the appeal

through their counsel and the period of one month came to an

end on 12th October, 2001. This submission has been made in

paragraph 3 of the affidavit annexed to the application filed by

the cross-objector before the High Court under Section 5 of the

Limitation Act, 1963, along with the cross-objections, praying

for condonation of delay and leave of that Court to file their

cross-objections beyond the statutory period of one month as

provided in Order XLI Rule 22 of the Code.

60. Delay was sought to be condoned on the ground that the

appellants have appeared before the Court and despite receipt

of the notice of final hearing they could not file cross-objections

42

within the prescribed time as they were out of their native

place and have gone to Karwar to earn their livelihood and they

could not therefore receive the letter and that too within one

month. Later, the appellant fell down and his leg was twisted

and because of swelling and pain he was not able to drive and

consult his counsel in Bangalore. It is only after he got well, he

met his counsel and filed the cross-objections on 19th

November, 2002, i.e. after a delay of 404 days. The High Court

did not find any merit in the reasons shown for condonation of

delay and dismissed the said application. We have already

noticed that Order XLI Rule 22 of the Code itself provides a

discretion to the Appellate Court to grant further time to the

cross-objector for the purposes of filing cross-objections

provided the cross-objector shows sufficient or reasonable

cause for his inability to file the cross-objections within the

stipulated period of one month from the date of receipt of the

notice of hearing of appeal. No specific reasons have been

recorded by the High Court in the impugned judgment as to

why the said averments did not find favour and was

disbelieved. There is nothing on record to rebut these

43

averments made by the cross-objector.

61. In the peculiar facts and circumstances of this case, to do

complete justice between the parties, we allow the landowner's

appeal by setting aside the order of the High Court, limited to

the extent that the appellants herein have been able to show

sufficient/reasonable cause for grant of further time to file the

cross objections beyond the period of one month in terms of

Order XLI Rule 22 of the Code. This approach could even be

adopted without the aid of Section 5 of the Limitation Act,

1963, which provisions may also find application to such

matters. Be that as it may, we do not consider it necessary to

delve on this issue in any further detail. Suffice it to say that

the appellants were entitled to file cross-objections by grant of

further time before the High Court. Delay in filing the cross-

objections is thus condoned.

62. The High Court has therefore to hear afresh the appeal of the

State as also the cross objections of the landowners. In that view of

the matter, there is no need of passing a separate order on the

appeal filed by the State before this Court and the same is thus

disposed of.

44 63. Since considerable time has elapsed, we request the High

Court to dispose of the appeal and the cross objections as early

as possible, preferably within a period of three months from the

date of production of this order before the High Court.

64. Parties to bear their own costs.

......................................J.

(ASOK KUMAR GANGULY)

...................................J.

(SWATANTER KUMAR)

New Delhi

May 10, 2011

45