Satya Pal Singh And Another vs Ranjeet Singh Sirohi And Another
2019 Latest Caselaw 520 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 59
 
Case :- FIRST APPEAL No. - 386 of 1979
 
Appellant :- Satya Pal Singh And Another
 
Respondent :- Ranjeet Singh Sirohi And Another
 
Counsel for Appellant :- B.D. Tripathi,C.L. Pandey,D.P. Maheshwari,G.N. Verma,K.R. Sirohi,Rahul Sahai,Y.K. Singh
 
Counsel for Respondent :- V.K. Gupta,Ashok Kumar Pandey,K.K.Chaturvedi,Kaushal Kishor,M.K.Gupta,Manoj Kumar Singh,Pankaj Agarwal,Siddharth,V.S. Chaudhary,Atul Dayal
 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Limitation for filing cross-objection under Order 41 Rule 22 C.P.C. and Condonation of delay, are the points involved in the present applications filed by the plaintiff-respondent.

2. Heard Shri Atul Dayal, learned counsel for the applicant/cross objector and Shri Rahul Sahai, learned counsel for the defendant-appellant on Delay Condonation Application No. 194761 of 2007 in/and Cross Objection No. 194762 of 2007.

3. Shri Atul Dayal, learned counsel for the applicant submits that the limitation for the purposes of Order 41 Rule 22 C.P.C. with regard to filing of cross objection shall start from the date when the appeal is fixed for final hearing or in the facts of the present case from 05.04.2007 when the order dated 18.10.2005 dismissing the appeal are abated was recalled. He submits that consideration of the objection of the plaintiff/respondent no. 2 against the interim order dated 11.08.1979 and 06.02.1980 shall not amount to hearing of the appeal. In support of his submission he relied upon the judgment of the Hon'ble Supreme Court in the case of Mahadev Govind Gharge & Others vs. Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka reported in 2011 (6) SCC, 321 (Paragraph nos. 59 & 60).

4. Shri Rahul Sahai, learned counsel for the defendant no. 1/appellant opposes the delay condonation application and submits that the limitation for filing cross objection in terms of the provision of Order 41 Rule 22 shall start at least from the date not later than 06.02.1980 when the interim order was passed by this Court after exchange of the counter and rejoinder affidavits. He submits that no explanation has been offered by the applicant/cross objector/plaintiff for delay from 06.02.1980 till the final hearing of the cross objection and as such the delay condonotion application for condonation of delay of about 27 years, deserves to be rejected and in consequence the cross objection deserves to be dismissed.

5. I have carefully considered the submissions made by the learned counsel for the parties.

6. Brief relevant facts of the present case for the purposes of limitation and the explanation for condonation of delay in filing cross objection in terms of Order 41 Rule 22 C.P.C. are being summarized below.

7. The present first appeal was admitted by order dated 11.09.1979 as under :-

"Admit.

Issue notice."

8. Another order dated 11.09.1979 was passed on stay application of the defendant-appellant which is reproduced below :-

"Issue notice.

We direct that until further orders the respondents shall not take steps to compel the appellants to join the sale deed as has been directed in the decree under appeal, provided the appellants furnish adequate security to the satisfaction of the Trial Court for the due performance of the decree as contemplated under Order 41 Rule 5 of C.P.C. within a period of one month from today's date."

9. There is no dispute that notice of the present appeal was served upon the plaintiff-respondent no. 1 who filed a counter affidavit on 30.10.1979 along with Civil Misc. Application No. 18896 of 1979 for vacating the ex parte stay order dated 11.09.1979. This application was disposed of by the order dated 06.02.1980 by modifying the interim order dated 11.09.1979 as under :-

"Heard counsel for the parties. In supersession of the interim order dated 11.09.1979, it is directed that the decree for specific performance of the contract of sale shall not be put into execution, provided that by the 30th of June, 1989, the appellants deposit a sum of Rs. 4000/- (Rs. Four Thousand) in the execution court and continues to deposit Rs. 4000/- every year by the end of June of that year. The amount so deposited can be withdrawn by the respondent no. 1 on furnishing adequate security to the execution court. The deposit for the year 1981 shall be deposited by the end of June 1981 and the deposits for further years by the 30th June of that year. It is clarified that the decree for costs is not stayed.

In case of any default, this stay order shall stand automatically vacated."

10. The aforesaid appeal was dismissed as abated by the order dated 18.10.2005. The recall application filed by the defendant-appellant was dismissed for non-prosecution on 26.10.2006. Recall application for recall of the order dated 26.10.2006 was allowed by the Court by the order dated 17.11.2006. By order dated 05.04.2007 the order dated 18.10.2005 was recalled and lower court's record was summoned. The order dated 05.04.2007 is reproduced below :-

"This is an application to recall the order dated 18.10.2005 whereby the appeal was abated.

It has been argued that the appeal cannot be abated because it was in respect of the agricultural land and Smt. Premawati who died on 4th August 1994 never inherited the land in view of the provision of Section 171 of U.P.Z.A. Act.

As regard the substitution of respondent no. 2 deceased Rajendra Singh concerned he had sold the disputed property in favour of present appellant Satpal Singh. He has placed reliance on the case of Kanhaiya Lal vs. Rameshwar and Others, (1983) 2 (SCC) 260 whereby it was observed that "if the appellant was not seeking any relief against the original judgment-debtor who was a proforma respondent, the appeal did not abate on the appellant's failure to substitute the deceased judgment-debtor in time."

It has been argued by learned counsel for the appellant that he could not get information nor his name was published in the cause list and the order for abatement was passed in his absence as appears from the itself.

The order dated 18.10.2005 is hereby recalled.

As the appeal does not abate therefore, formal amendment is required for substitution. The substitution application is rejected. The necessary amendment be incorporated in the memo of the appeal.

Summon the record to be furnished within three weeks.

List thereafter for hearing.

The interim order is extended till the next date of listing."

11. Thereafter on 16.08.2007 the respondent no. 1/plaintiff has filed the above-noted cross objection along with the delay condonation application. In the affidavit accompanying the aforesaid delay condonation application no. 194761 of 2007 dated 16.08.2007, the plaintiff-respondent no. 1 has stated as under :-

"1. That I am the nephew of the plaintiff-respondent no. 1 herein and doing pairvi in the instant case on his behalf and as such well acquainted with the facts deposed to below.

2. That the plaintiff-opposite party herein had filed suit for specific performance of the agreement to sell date 01.01.1974 which was decreed by the trial court in toto by directing the defendants to execute the sale after accepting remaining safe consideration of Rs.10,000/-.

3. That the plaintiff-opposite party nor any of his pairokars are aware of intricacies of law. They never knew that any finding was recorded by the trial court against them or it could be challenged by filing cross objections.

4. That the deponent came to Allahabad in the 3rd week of August, 2007 for getting the appeal prepared for final hearing.

5. That thereafter his counsel advised the plaintiff-opposite party herein and the deponent who is his pairokar to file the accompanying cross objections in so far as certain findings have been recorded in the impugned judgment against the plaintiff.

6. That the appeal is yet to be heard and since the cross objection is only against a particular finding and, therefore, it is expedient in the interest of justice that the delay in filing the Cross Objection may kindly be condoned."

12. Perusal of the affidavit accompanying the delay condonation application as afore-quoted, would reveal that the only explanation offered by the plaintiff-respondent no. 1/applicant was in paragraph 3 of the affidavit. The explanation offered by the plaintiff-respondent no. 1 applicant appears to be wholly vague.

13. Having briefly summarized the facts as above, now I proceed to examine the legal position with regard to filing of cross objection Order 41 Rule 22 C.P.C. and condonation of delay.

Order 41 Rule 22 C.P.C. :-

14. The provision of Order 41 Rule 22 C.P.C. is reproduced below :-

"22. Upon hearing respondent may object to decree as if he had preferred 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.

(2) Form of objection and provisions applicable thereto :- Such cross-objection 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) 47 [***]

(4) Where, in any case in which any respondent has 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 appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule."

15. It is settled that law of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose 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. These principles have been laid down by the Hon'ble Supreme Court in the case of Sardar Amarjit Singh Kalra v. Pramod Gupta reported in (2003) 3 SCC 272 (Paragraph 26) and in the case of State of Punjab vs. Shamlal Murari reported in (1976) 1 SCC 719 (Paragraph 8).

16. Procedural laws, like the Code of Civil Procedure are intent 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. In other words the procedural law must have a linchpin to keep the wheel of expeditious and effective determination of dispute moving in its place. The procedural checks must achieve their end object of just, fair and expeditious justice to the parties without seriously prejudicing the rights of any of them.

17. Thus, normally a procedural law is to be treated as directory but 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. One such example under Order 41 Rule 22 of the C.P.C., where-under cross-objection can be filed at any subsequent time, even after expiry of statutory period of one month, as may be allowed by the Court.

18. There is no complete or indefeasible extinguishment of right to file cross-objections after the expiry of statutory period of limitation provided under Order 41 Rule 22 C.P.C. which is to be treated as separate appeal and to be disposed of on same principles in accordance with the provisions of Order 41 Rule 22 C.P.C.

19. The crucial words for computing the limitation for the purposes of Order 41 Rule 22 CPC are "date of hearing".

20. This phrase has been authoritatively explained by the Hon'ble Supreme Court in the case of Mahadev Govind Gharge & Others (supra) (Paragraph nos. 39, 40, 42, 43, 44, 45, 48, 51, 59 & 60) as under :-

"39. 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 41 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.

40. 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 when the court actually applies its mind to averments made by the party/parties, can it be considered as hearing of the case.

42. 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 application. What may be a "step in the proceedings", 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.

43. Now we would proceed to discuss the purpose of giving one month's time and notice to the respondent to file cross-objections. 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 an alternative of filing a separate appeal in its own right.

44. The language of Order 41Rule 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.

45. There appears to be a dual purpose emerging from the language of Order 41 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 41 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.

48. The learned counsel for the appellant also relied upon the judgment of this Court in Sushil Kumar Sabharwal vs. Gurpreet Singh reported in (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 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.

51. In these circumstances, it is difficult for this Court to hold that the period of 30 days, as contemplated under Order 41 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.

59. In we examine the provisions of Order 41 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 41 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 with the provisions of Order 41 Rule 22 of the code and thereafter, the appellant who has appeared himself or through his pleader cannot claim that the 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 41 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 41 of the Code have to be read conjunctively to give Order 41 Rule 22 its true and purposive meaning.

60. Having analytically examined the provisions of Order 41 Rule 22, we may now state the principles for its applications as follows :

(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 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 41 Rule 22. In other words the limitation of one month shall start from that date."

(Emphasis supplied by me)

Law of Limitation :-

21. The 'law of limitation' is enshrined in the legal maxim 'interest reipublicae up sit finis litium' which means that it is for the general welfare that a period be put to litigation. Rules of limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislative fixed period of time.

22. Meaning of the word 'sufficient' is 'adequate' or 'enough', inasmuch as may be necessary to answer the purpose intended. The words 'sufficient cause' mean that the parties should not have acted in a negligent manner or there was a want of bona fide on his part in view of the facts and circumstances of a case or it cannot be alleged that the party has not acted diligently or remained inactive. The applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court cannot allow the application for condonation of delay. The Court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. The expression "sufficient cause" should normally be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned. Whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim "dura lex sed lex" which means "the law is hard but it is the law", stands attracted in such a situation.

23. Where the cross-objection has been presented in the court beyond limitation by about 27 years, the applicant has to explain the court as to what was the ''sufficient cause' which means "adequate and enough reason" which prevented him to approach the court within limitation. The applicant/cross-objector could not furnish sufficient cause for such long delay. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. In such circumstances, no court could be justified in condoning an inordinate delay of about 27 years by imposing any condition whatsoever.

24. In the case of Basawaraj and another Vs. Special Land Acquisition Officer, (2013) 14 SCC 81, Hon'ble Supreme Court considered the order of the High Court and rejected the application for condonation of delay of five and a half years in filing an appeal under Section 54 of the Act before the High Court on the ground of illness of one of the appellant and after referring to the judgments in the case of Manindra Land and Building Corporation Ltd. v. Bhootnath Banerjee & Ors., AIR 1964 SC 1336; Lala Matadin v. A. Narayanan, AIR 1970 SC 1953; Parimal v. Veena @ Bharti (2011) 3 SCC 545, and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai (2012) 5 SCC 157, Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993, Madanlal v. Shyamlal, (2002) (1) SCC 535; and Ram Nath Sao v. Gobardhan Sao & Ors., (2002) 3 SCC 195, Popat and Kotecha Property v. State Bank of India Staff Assn. (2005) 7 SCC 510; Rajendar Singh & Ors. v. Santa Singh & Ors., (1973) 2 SCC 705, Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project, (2008) 17 SCC 448, upheld the judgment of the High Court and dismissed the Civil Appeal observing in paras-14 & 15 as under:

"14. In P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578, this Court held that judicially engrafting principles of limitation amounts to legislating and would fly in the face of law laid down by the Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225.

15.The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."

25. Since I have already held the delay of 27 years could not be explained by the plaintiff-respondent no. 1/applicant and, therefore, the delay in filing the Cross Objection cannot be condoned.

26. Therefore, the Delay Condonation Application No. 194761 of 2007 is rejected. Consequently, the Cross Objection No. 194762 of 2007 also stands dismissed.

As jointly agreed, list on 11.03.2019 for hearing of the appeal.

Order Date :- 6.3.2019/VR