MAHADEV GOVIND GHARGE Vs SPL.LAND ACQ OFFCIER UKP.JAMKHANDI KAR.
Bench: ASOK KUMAR GANGULY,SWATANTER KUMAR, , ,
Case number: C.A. No.-005094-005094 / 2005
Diary number: 3601 / 2004
REPORTABLE IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs.5094 OF 2005
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
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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
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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
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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.
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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
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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
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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.
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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
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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
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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
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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,
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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
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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
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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
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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
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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
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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
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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”.”
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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
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[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
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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
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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
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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
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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
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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
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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.
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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