Khandeparkar, R.M.S., J.@mdashNot on board. Mentioned. Taken up on board on request.
Heard. Admit. Heard forthwith by consent. The Advocate for the respondents waives service.
2. This Notice of Motion is taken out for condonation of delay in filing the cross objections in Appeal No. 114 of 1999.
3. It is the case of the appellant/original respondent in the appeal that considering the provisions of Order 41, Rule 22 read with Rules 1, 12 and 14 of the Code of Civil Procedure, there is no delay as such in filing the cross objections, in as much as that there had been no service of notice of hearing of the Appeal at any point of time upon the appellant-respondents. In any case and assuming that the applicant-respondent had notice of the hearing of the appeal on 16th February, 1999 on which day the appeal was admitted, there is delay of only 33 days in filing the cross objections and in the facts and circumstances of the case, there is sufficient cause for condonation thereof.
On the other hand, it is the case of me opponent/original appellant in the appeal that the applicant/respondent had the notice of the hearing of the appeal on 16th February 1999 on which they waived service of notice and therefore the cross objections ought to have been filed on or before 12th March, 1999 and in any event by 16th March, 1999. The cross objections were lodged only on 26th May 1999 and therefore there was delay of 71 days in filing the cross objections. It is their further case that there is unexplained delay of 3117 days i.e. from 16th March, 1999 till 27th September 2007, the day on which the present Notice of Motion was taken out, inspite of the knowledge to the applicant-respondents that the cross objections were under objections for having filed beyond the period of limitation.
4. The learned Advocate appearing for the applicant-respondent while placing reliance on the decision of the Division Bench of the Delhi High Court in (Union of India v. Shibu Ram Mittal) reported in 199 (49) D.R.J. 166 as well as of the Division Bench of Madras High Court in the matter of
6. He further submitted that the expression "the day fixed for fixing the appeal" in Rule 22, does not give clear idea about the date which should be considered as the day for commencement of limitation since the provision of law in that regard is vague and as has been held by the Madras High Court, benefit should be given to the respondent in that regard and the delay should be condoned.
7. Learned Senior Counsel appearing for the original appellant on the other hand submitted that the respondent had sufficient knowledge about the admission of the appeal on 16th February, 1999 and therefore in any case the cross objections ought to have been filed on or before 16th March, 1999; however they have lodged only on 26th May, 1999 without any application for condonation of delay. It was only after 3117 days of filing of the cross objections that the respondent has taken Notice of Motion seeking condonation of delay without even explaining such a long period of time taken by the respondent for taking out the present Notice of Motion for condonation of delay. In the circumstances, according to the learned Advocate, there is no case made out for condonation of delay.
8. Rule 22(1), Order 41 clearly provides that 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.
9. The provision of law, therefore is very clear to the effect that the respondent in appeal who wants to dispute about any finding in the decree under appeal can lodge cross objections even after the service of notice regarding hearing of the appeal to such respondent. However, such cross objections should be filed within a period of one month from the day of service of such notice either upon himself or his pleader.
10. It is well settled law that service of notice regarding hearing of the appeal can be waived either by the respondent or his pleader. Obviously, therefore when such notice is waived, the period of limitation for taking cross objection would be deemed to have commenced from the day of waiver of such notice.
11. Rule 12 of Order 41 of C.P.C. provides that unless the Appellate Court dismisses the appeal under Rule 11, it shall fix a day for hearing of the appeal and such day shall be fixed with reference to the current business of the Court.
12. Rule 14(1) provides that the Notice of the day fixed under Rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the Appellate Court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice. Sub-rule (3) of Rule 14 requires that the notice should be served on the respondent shall be accompanied by a copy of the memorandum of appeal.
13. The provisions of Rules 12 and 14, therefore would reveal that in case an appeal is not summarily dismissed in terms of Rule 11 or Order 41 of C.P.C., the Court has to fix the date of hearing of the appeal. Such hearing could be either for hearing on admission of the appeal or for final hearing thereof. It is also well settled law that at the stage of admission of an appeal, it is not necessary that respondent should be heard in the matter and the appeal can be admitted for final hearing, even without hearing the respondent. So Rule 11 clearly empowers that the Court either to dismiss the appeal summarily or to admit the appeal and fix the same for final hearing or to issue notice to the respondent even at the stage of hearing for admission of the appeal.
14. It is also permissible for the Appellate Court to dispose of the appeal at the admission stage after hearing both the parties, unless there is specific objection in that regard for such disposal by the parties or any one of them for justifiable reasons. Being so, the expression "fixed a day for hearing of the appeal" in Sub-rule (1), Rule 22 would not necessarily mean to be fixed for final hearing and it would also include the day fixed for hearing of appeal at the admission stage.
15. What is relevant in terms of Order 41, Rule 22 read with Rules 12 and 14 is that the respondent should have knowledge about the admission of the appeal for final hearing. Undisputedly it is the practice of the Court when an appeal is heard at the admission stage, normally the Advocate for the respondent, having already notice of the hearing of the matter, waives service on behalf of the respondent and consequent to such waiver the appellant is not required to serve the respondent afresh with the notice of appeal for the final hearing.
16. Once the Advocate for the respondent waives the service of notice on admission of the appeal, it is always considered as the notice to the respondent for final hearing of the appeal and on such waiver of notice, no further notice is issued to the respondent. The appeal is straightaway taken up for final hearing on the board and after hearing the Advocates for the parties, it is disposed of. That being normal practise followed by the Court and the same being to the knowledge of the Advocates and litigants and there is no dispute raised in that regard by the respondent-applicant herein, once the Advocate for the respondent had waived the notice to appear before the Court on 16th February, 1999, the respondent now cannot be heard to contend that there was no service of notice to the respondent about the hearing of the appeal. Exhibit ''B'' to the Notice of Motion is a copy of order dated 16th February, 1999 in Appeal No. 114 of 1999. It specifically records appearance of the Advocate for the respondents. It further states that the Advocate appearing for the respondent had waived service on behalf of the respondents. The order reads thus:
Admit. Filing of paper book dispensed with. Mr. Doctor on behalf of respondent waives service.
17. Obviously, therefore the respondent had sufficient notice of hearing of the appeal on 16th February, 1999 itself, hence for all purposes the period of limitation for the purpose of cross objection on behalf of the respondent had commenced on 16th February, 1999 itself.
18. It was sought to be contended that in normal course when a notice is issued for hearing of the appeal, it provides atleast 14 days time and specifies that the hearing would be after 14 days from the date of service of the notice. Being so the period of limitation could not have commenced before expiry of 14 days after 16th February 1999. We are unable to accept the contention raised in that regard. Period of 14 days is added in a notice to enable the party to make necessary arrangement to enable him to defend the matter, which will include time to engage his lawyer. Once the Advocate himself appears for the party and waives service, question of grant of period of further 14 days does not arise.
19. The Division Bench of Delhi High Court in Union of India v. Shibu Ram Mittal case referring to Order 41, Rule 22 (1) of C.P.C. and the facts of the case before the High Court had held that:
In the present case, no notice of the day for fixing of the appeal was ever served on the respondent or their Pleader and therefore limitation never started to run.
20. The facts of the case in hand are totally different. In the present case, the learned Advocate for the respondent appeared before the Court and waived the notice and therefore it cannot be said that the respondent had no knowledge about the hearing of the appeal.
21. In (Kancherla) Pushkaramba and another, the Madras High Court was dealing with a matter wherein the party was served with a notice only for appearance and not for hearing of the appeal. The Judgment clearly records that "the respondents Vakil claims that he is in time as he has not yet received a notice fixing the date of hearing and it is only within 30 days from the receipt of such a notice that he was to file his Memorandum of cross objections. In framing Order 41-A and Form 6-A, fixing time for appearance, Civil P.C. Order 41, Rule 12, seems to have been overlooked. Order 41, Rule 12, requires that a day for hearing should be fixed and even if we can construe, Order 41-A as making this unnecessary, there must be some rule guiding the litigants as to how, Order 41, Rule 22, should be complied with. There is no rule saying that the day fixed for appearance shall be regarded as the day fixed for hearing within the meaning of Order 41, Rule 22, Civil P.C." Apparently the Madras High Court was dealing with the subject relating to difference between the date fixed for appearance and the date fixed for hearing of the appeal. Order 41, Rule 22 does not speak for notice for appearance, but it speaks for notice for hearing the appeal. Once the Advocate for the respondent appears before the Court at the admission stage of appeal and waives service of notice on admission of the appeal, it is settled practice that no further notice is required to be served upon the respondent about hearing of the appeal. That being the position, the contention on behalf of the respondent that they had no notice of hearing the appeal cannot be accepted. Both the decisions are of no help to the respondents.
22. Perusal of the records as rightly submitted on behalf of the respondent also disclose that even the Notice of Motion for condonation of delay in preferring the cross objections was taken out merely 2 and 1/2 years after lodging the cross objections. Undoubtedly the Order 41, Rule 22(2) speaks about applicability of provisions of Rule 1 as to the form and contents of memorandum of cross objections. Order 41, Rule 22 nowhere specifically provides that the provisions of Rule 3(A) of Order 41 would also apply to the cross objections.
23. However, in our considered opinion, merely because there is no specific provision in that regard once it is held that the form and contents of the cross objections should satisfy requirements of Rule 1 of Order 41, provision of Rule 3(A) would also get attracted to the cross objections. Rule 3(A) of Order 41 clearly requires that when the appeal is filed beyond the period of limitation, the application for condonation of delay should accompany the appeal. Similarly when the cross objections filed beyond the period of limitation prescribed under Order 41, Rule 22 of C.P.C., the application for condonation of delay should accompany the cross objections.
24. As already seen above in the case in hand, the application for condonation of delay was not filed along with the cross- objections. Perhaps it was so on assumption that there was no delay in filing the cross objections. Nevertheless, having filed the same subsequently it is really surprising that neither the notice of Motion nor the Affidavit in support thereof disclose any cause for delay in filing the cross- objections. Merely contending that there was no service of Notice and that therefore there was no delay in filing the cross objections cannot be accepted for the reasons stated above.
25. It is pertinent to note that there is no factual matrix disclosed which compelled the respondents to take 71 days to prepare the cross objections and lodge the same in the Court. Having been made aware that there was a delay in lodging the cross objections and that, therefore, is required to disclose the sufficient cause for such delay, apart from raising the legal contentions as regards the absence of delay, it was necessary for the appellant/respondent to place on record the facts, if any, which could reveal sufficient cause for delay.
26. Once it was to the knowledge of the appellant that there was 71 days delay, considering the notice of hearing of appeal was waived on 16th February, it was necessary for the respondent to reveal the facts which could disclose sufficient cause for condonation of 71 days in filing the cross objections. As rightly submitted on behalf of the appellant, we find total absence of any fact which could justify any part of the delay of 71 days in lodging the cross objections.
27. For the reasons stated above, therefore, in the absence of sufficient cause being disclosed for 71 days delay in lodging cross objections, there is no case made out for condonation of delay. Hence, Notice of Motion fails and is hereby dismissed with no order as to costs.
