@JUDGMENTTAG-ORDER
Mr. K. Ravichandrabaabu, J.—This miscellaneous petition is filed to condone the delay of 2165 days in filing the cross objection in the above second appeal, which at the time of filing such cross objection was not admitted.
2. The petitioner contended that he filed the above application by way of abundant caution, though filing cross objection would arise only after the admission of the second appeal. Thus it is contended that when the second appeal itself was not admitted at that time and only notice of motion was ordered by this court, cross objection filed even at that stage to be taken as the one filed in time by taking note of the fact that the event of admission of the second appeal took place latter.
3. This application is opposed by the appellant. It is his contention that when admittedly notice of hearing of the appeal was served on the petitioner pursuant to an order of the court on 09.06.2009, he should have filed cross objection within one month from the date of receipt of such notice. It is further contended that even otherwise, the petitioner not explained such enormous delay.
4. Mr. N.Suresh, learned counsel for the petitioner submit that limitation period of 30 days for filing cross objection would commence only after the admission of the second appeal and not at the stage of ordering notice of motion itself. In other words, his contention is to the effect that the phrase used in Order 41, Rule 22 CPC viz., "one month from the date of service of notice of the day fixed for hearing the appeal" to file cross objection shall mean, in the case of second appeals, the day fixed for hearing the appeal after admitting the same by framing the substantial question of law. Therefore, he contended that filing of the cross objection well in advance before admission, at any event, cannot be said as the one out of time and thus the present application seeking to condone the delay, though unwarranted however filed by way of abundant caution cannot be rejected.
5. Per contra, learned counsel appearing for the contesting first respondent submit that the petitioner having received the notice at the stage of "Notice of motion" as early as in the year 2009, ought to have filed the cross objection within 30 days on receipt of such notice. He further contended that the affidavit filed in support of the present petition does not disclose any justifiable reason for condoning the delay.
6. Heard both sides.
7. The point for consideration in this petition is as to whether the time prescribed for filing cross-objection under Order 41, Rule 22 CPC, in the case of second appeal, commences from the date of receipt the notice even before admission of such appeal or from the date of either receipt of notice after admission of the second appeal or from the date of admission of the second appeal, if notice was already issued even before admission. In other words, the question is whether the term "hearing the appeal" used in Order 41, Rule 22 CPC means the day of hearing the second appeal before admission or after admission.
8. Answering the above question requires thorough analysis of the relevant provisions made under the Code of Civil Procedure. In this case, we are concerned with the filing of cross objection in the second appeal. Needless to say that a cross objection may be filed by the respondent in an appeal in respect of any issue which ought to have been decided in his favour by the trial court, even though he otherwise supports the decree.
9. For proper appreciation, Order 41, Rule 22 CPC is extracted hereunder:
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 that he 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.
[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 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.]
(2) Form of objection and provisions applicable thereto -Such cross-objections shall be in the form of a memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
(3) [***]
(4) Where, in any case in which any respondent under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.
(5) The provisions-relating to pauper appeals shall, so far as they can be made applicable apply to an objection under this rule."
(Empis Supplied)
Thus, it is clear that the above provision requires two events to happen to maintain a cross objection. Firstly, a notice fixing the day of hearing the appeal should be served on such person. Secondly, such person should file cross objection within 30 days from date of receipt of such notice. Therefore, out of these two events, the most important requirement which is to take place is, the service of notice fixing the day for hearing the appeal. Now let us see how the code of Civil Procedure proceeds on this aspect.
10. The day for hearing the appeal is dealt with Order 41, Rule 12 CPC which reads as follows:-
"Day for hearing appeal:-
(1) Unless the Appellate Court dismisses the appeal under Rule 11, it should fix a day for hearing the appeal.
(2) Such day shall be fixed with reference to the current business of the Court.]"
11. Thus, fixing a day for hearing the appeal under Order 41, Rule 12 CPC would arise only when the Appellate Court not dismissed the appeal under Order 41, Rule 11 CPC, which reads as follows:
"Power to dismiss appeal without sending notice to Lower Court:-
[(1) The Appellate Court after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal.
(2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.
(3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.
(4) Where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment."
12. It is to be noted at this juncture that Order 41 of CPC deals only with the appeals which are arising from original decrees and that Rule 22 therein contemplates of filing cross objection as stated supra. No doubt, Order 43 CPC, as amended by Madras High Court, clarifies that the Rules of Order 41 and Order 41(A) may be applied to appeals to the High Court from appellate decrees so far as may be applicable. In other words, filing of cross objection as provided under Order 41, Rule 22 in an appeal arising out of the original decree though available in a second appeal arising out of the appellate decree, it is evident that such applicability is always subject to the satisfaction of mandatory requirement of Section 100 CPC.
13. Therefore, now we have to see as to whether the phrase used under Order 41, Rule 22 viz., "the day fixed for hearing the appeal" is to be construed as the day when the respondent is called upon to answer before admission of the second appeal or to answer the question of law framed for hearing the second appeal after admission of the same. In other words, we need to consider as to whether the phrase "day fixed for hearing the appeal" as contemplated under the above said Rule would convey the same meaning to both the appeals arising out of Section 96 and 100 CPC.
14. At this juncture, it is very essential to note that appeals from the original decrees viz., the first appeal contemplated under 96 CPC and the appeals from the appellate decrees contemplated under 100 CPC are not lying on one and the same footing. While the former is to be considered and decided both on facts and law, the latter is to be decided purely on the substantial question of law.
15. Section 96 CPC reads as follows:
"Appeal from original decree.
(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognisable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed [ten thousand rupees.
16. Perusal of the above said provision would show that an appeal shall lie automatically or as a matter of right from every decree passed by any court exercising original jurisdiction, except in a case where the decree was passed by Court of Small Causes and the amount or value of the subject matter of the original suit does not exceed Rs. 10,000/-, except on a question of law. Therefore, there is no requirement of passing through a hearing before entertainment of the appeal by the court, as required in the case of second appeal, to find out as to whether any substantial question of law exist or not. In fact, Rule 9 to 14 of Order 41 deals with the procedure on admission of appeal wherein it is contemplated that the appellate court may dismiss the appeal after hearing the appellant, even before issuing notice to the other side. If the appeal is dismissed so, there is no occasion for filing a cross objection. Only when the appellate court not chosen to dismiss the appeal under Order 41, Rule 11 , it shall fix a date for hearing the appeal and issue notice to the other side as contemplated under Rule 12 and 14 of Order 41. Therefore, it is evident from these provisions that the day of hearing of the appeal as contemplated under Order 41, Rule 22 is the day of hearing either under Order 41, Rule 11 CPC or the day fixed under Order 41, Rule 12 CPC. In the former, only the appellant is heard at the time of hearing the appeal and in the latter, the respondent is also put on notice of hearing the appeal. This distinction clearly indicates that hearing the appeal on merits after notice to the respondent is not the same hearing of the appeal before notice to the respondent as contemplated under Order 41, Rule 11 CPC. This is what the position in sofar as the appeal filed under section 96 CPC.
17. Keeping the above position of law in mind, now let us see as to what is the position of law in the case of second appeal.
18. Section 100 CPC deals with second appeal which reads as follows:
"(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question as formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.]
19. Reading of the above provision would make it clear that a second appeal will not lie either automatically or as a matter of right to the High Court from every decree passed in appeal by any court subordinate to the High Court, unless the High Court is satisfied that the case involves a substantial question of law. Such satisfaction is a prerequisite for entertaining the second appeal, otherwise called as admission of the second appeal. This is what being reiterated time and again by the Apex Court in so many decisions. Therefore either issuing notice before admission or ordering notice of motion cannot be construed as though this court entertained the second appeal. After such notice and hearing of parties, if this court comes to the conclusion that a substantial question of law does exist, it to admit the appeal on such substantial question of law and thereafter proceed to hear the appeal on merits on such question of law.
20. At this juncture, the recent decision of this court reported in 2016(4) MLJ 10, Raghavendra Swamy Mutt v. Uttaadi Mutt is relevant to be quoted. In the above decision, the Apex Court observed that the High Court can entertain a second appeal only if it is satisfied that the appeal involves a substantial question of law. It is also observed in the said decision that even for passing an ex parte interim order, deferring formulation of question of law is not permissible. The relevant paragraphs at 14 and 23 as follows:
"14. A plain reading of Section 100 CPC makes it explicit that the High Court can entertain a second appeal if it is satisfied that the appeal involves a substantial question of law. More than a decade and a half back, in Ishwar Dass Jain v. Sohan Lal AIR 2000 SC 426:(2000) 1 SCC 434): LININD 1999 SC 1062, it been ruled that after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so.
..23. Submission of the learned senior counsel for the appellant is that Order 41, Rule 5 confers jurisdiction on the High Court while dealing with an appeal under Section 100 CPC to pass an ex parte order and such an order can be passed deferring formulation of question of law in grave situations. Be it stated, for passing an ex parte order the Court to keep in mind the postulates provided under sub-rule (3) of Rule 5 Order 41. It to be made clear that the Court for the purpose of passing an ex parte order is obligated to keep in view the language employed under Section 100 CPC. It is because formulation of substantial question of law enables the High Court to entertain an appeal and thereafter proceed to pass an order and at that juncture, needless to say, the Court the jurisdiction to pass an interim order subject to the language employed in Order 41, Rule 5 (3). It is clear as day that the High Court cannot admit a second appeal without examining whether it raises any substantial question of law for admission and thereafter, it is obliged to formulate the substantial question of law. Solely because the Court the jurisdiction to pass an ex parte order, it does not empower it not to formulate the substantial question of law for the purpose of admission, defer the date of admission and pass an order of stay or grant an interim relief. That is not the scheme of CPC after its amendment in 1976 and that is not the tenor of precedents of this Court and it been clearly so stated in Ram Phal v. Banarasi and Others (supra). Therefore, the High Court rectified its mistake by vacating the order passed in IA No. 1/2015 and it is the correct approach adopted by the High Court. Thus, the impugned order is absolutely impregnable."
21. Therefore, it is evident that very lying of the second appeal before the High Court would commence and take effect only when such appeal is entertained by the High Court after framing substantial question of law. In other words, issuing a notice to the respondent before admission of a second appeal in some cases, shall not be construed either as the notice after entertaining the second appeal or to mean that such appeal been laid before the High Court in satisfaction of the requirement made under Section 100 CPC. Needless to say, hearing the second appeal for admission is one thing and hearing the same after framing the substantial question of law is another thing. In the case of former, the respondent does not have a say on admission, while in the case of latter, the respondent got a vested right to put forth his case and contest the matter. Therefore, right to file a cross objection, even before admission, does not arise since the second appeal not been entertained by the High Court by framing the substantial question of law. In the eyes of the respondent, pendency of the second appeal before admission not given him the right to file the cross objection, as the cause of action to do so not arisen. Let us assume that the appeal is dismissed at the admission stage itself on the reason that there is no substantial question of law. This is what the position similar to the dismissal of the appeal under Order 41, Rule 11 CPC. Only when the second appeal is admitted, the respondent will be called upon to answer the substantial question of law so framed. Therefore, I am of the considered view that there is no necessity for the respondent to file the cross objection within 30 days from the date of receipt of notice in the second appeal before admission and on the other hand, he can wait for the second appeal to be admitted based on the substantial questions of law framed and thereafter, file the cross objection within 30 from the date of such admission.
22. Now the next question is as to when the limitation time commences in such cases. If the respondent is already served with notice before admission and the second appeal is admitted thereafter, then he to file such cross objection within 30 days from the date of admission of the second appeal. On the other hand, if the respondent is served with notice only after admitting the appeal, he should file cross objection within 30 days from the date of receipt of such notice.
23. In this case, admittedly the second appeal was only pending at the stage of notice of motion till it was admitted on 12.07.2016. In the mean time, the petitioner herein filed the cross objection and however by way of abundant caution, he also filed the above application seeking for condonation of delay. In my considered view, both these acts of the respondent are unwarranted and pre-matured one. He could very well file the cross objection within 30 days from 12.07.2016. However in this case, a cross objection is filed much earlier. Therefore, the same is to be taken to have been filed on 12.07.2016 itself and to be heard along with the second appeal. Thus, there is no question of considering the delay petition, as this court finds the same as unnecessary.
24. Learned counsel for the respective parties relied on the decision of the Apex Court reported in 2011(6) SCC 321, Mahadev Govind Gharge v. Special Land Acquisition Officer in support of their contention.
25. In the above decision, at paragraph No.60, the Apex Court observed as follows:
"Having analytically examined the provisions of Order 41, Rule 22 , we may now state the principles for its applications as follow:
(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 included 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."
26. Perusal of the above decision would show that the same came to be rendered while dealing with a first appeal laid before the High Court of Karnataka arising out of a judgment of Reference Court under the Land Acquisition Act, 1894. Thus, it is evident that the issue as raised in the present proceedings viz., the position with regard to the second appeal was not under consideration of the Apex Court. Therefore, I am of the view that the above said decision is not applicable to the present case, as it dealt with the scope of K.RAVICHANDRABAABU, J. Vri limitation time for filing the cross objection before the First Appellate Court.
27. For all these reasons, the delay petition is closed as unnecessary. Accordingly, the cross objection is entertained. Registry is direct to number the cross objection and post the same along with the second appeal for final hearing.
