Cipla Ltd vs The Assistant Commissioner Of ...
2016 Latest Caselaw 4561 Bom

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Sbw

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                          
                      ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                  
                                CROSS OBJECTION NO.14 OF 2010
                                              ARISING IN
                      INCOME TAX APPEAL (L)NO.1589 OF 2010




                                                                 
      Cipla Limited                                                         ..Petitioner
           Versus




                                                    
      The Assistant Commissioner
      of Income Tax & Anr.           ig                                     ..Respondents
                                                ...........
      Mr. Nitesh Joshi a/w Netaji Gawade i/b. Sanjay Udeshi & Co. for the
                                   
      petitioner.
      Mr. Ashok Kotangle a/w Ms. Padma Diwakar for the respondents.
                                                ...........
         


                                              CORAM: M. S. SANKLECHA &
                                                              A. K. MENON, JJ.
      



                                          RESERVED ON : 2 nd AUGUST, 2016
                                          PRONOUNCED ON : 9 th AUGUST, 2016





      JUDGMENT (PER A.K. MENON, J.)

1. The short point that arises in the present Cross Objection pertains

to its maintainability in view of the fact that the Income Tax Appeal

bearing Lodging No.1589 of 2010 was rejected vide order dated 9 th

November, 2010 for non-removal of office objections. The learned

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counsel for the applicants/petitioners in the Cross Objection submits that

the Cross Objection maintainable notwithstanding the rejection of the

appeal in view of the fact that the applicant had notice of the hearing of

appeal and it is pursuant to said notice that the Cross Objection came to

be filed and within time prescribed by law. It is an admitted position that

the applicant did not file its own Income Tax Appeal within the time

prescribed by law.

2.

In order to help focus on the issue to be decided, it will be necessary

to make note of a few dates:

(i) The impugned Order of the Income Tax Appellate Tribunal in respect

of the assessment year 1999-2000 and 2000-2001 was passed on 17 th

February, 2010. The present Cross Objection pertains to A.Y. 2000-2001;

(ii) Being aggrieved by the order of the Tribunal, the Revenue filed its

appeal before this Court on 30 th June, 2010 being Income Tax Appeal

(Lodging) No.1589 of 2010.

(iii) The Department's appeal came to be served on the applicant-assessee

on 10th August, 2010.

(iv) The appeal appeared on board on 23 rd August, 2010, apparently it

was listed under the caption of "Covered Matter".

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3. Both Revenue and the applicant were represented. The order of the

Court reads as follows:-

"PC : By Consent. Stand over to 30/08/2010."

4. On 30th October, 2010 both parties were represented and by

consent the matter came to be adjourned to 13 th September, 2010. On

13th September, 2010 by consent, the matter was adjourned to 29 th

September, 2010 to be placed along with Cross Objection (Lodging)

No.24 of 2010. On 29th September, 2010 by consent it was once again

adjourned to 4th October, 2010. On 4th October, 2010 it appears that the

Court noticed that objections in the Appeal as well as the Cross Objection

were still not removed. As a result, the Appeal and Cross Objection came

to be adjourned, by consent, by four weeks only for removal of office

objections failing which the matters were to stand dismissed without

further reference to the Court.

5. It transpires that the objections in the Appeal were not removed. As

a result, on 9th November, 2010 the Assistant Prothonotary Appeal Cell

recorded as follows:-

"Dismissed on 9/11/2010 pursuant to an order dated 4/10/2010 passed by the Hon'ble Division Bench consisting

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of Hon'ble Shri Justice V. C. Daga & Hon'ble Shri Justice R. M. Savant for non compliance of the order within prescribe

time."

6. In the meantime, the present Cross Objection came to be numbered

after a 'filing' Order on 9 th November, 2010. The Cross Objection has

since remained pending. The Cross Objection came up for hearing and

on 5th July, 2016 at the request of learned counsel for the applicant it

came to adjourned to 12 th July, 2016 and thereafter for a few dates by

consent of parties. On 26th July, 2016 the matter was heard for some time

when we questioned the maintainability of the Cross Objection on an

objection was raised by the Revenue.

7. Mr. Kotangle, the learned counsel appearing for the Revenue

pointed out that the Income Tax Appeal (L)No.1589 of 2010 had already

been rejected. We, therefore, queried counsel for the Applicant as to how

the Cross Objection is maintainable in view of the fact that Order 41 Rule

22 clearly provides that the Cross Objection can be entertained during the

pendency of an appeal and even if an original appeal is withdrawn or is

dismissed for default, the Cross Objection will nevertheless be heard and

determined after notice to the other party. At this, Mr. Joshi, the learned

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counsel for the assessee submitted that the Cross Objection, in the present

set of facts, is clearly maintainable since the assessee had notice of the

hearing of the appeal on 23rd August, 2010 when the matter was

adjourned by consent of parties and accordingly the Cross Objection

came to be lodged on 9th September, 2010.

8. In this respect, perusal of the record indicates that the Cross

Objection is dated 9th September, 2010 the same was lodged on 9th

September, 2010 itself under Lodging No.25 of 2010. It was thereafter

taken on "file" by the registry on 9 th November, 2010 pursuant to the

order dated 4th October, 2010 granting four weeks time to remove office

objections. Thus, it is the case of the applicant that in view of the fact that

it had notice of the hearing it was entitled to file the Cross Objection

which must now be dealt with in accordance with law. In the course of

his submissions, we pointed out to Mr. Joshi the decision of the Supreme

Court in Mahadev Govind Gharge and others v/s. Special Land

Acquisition Officer, Upper Krishna Project, Kamkhandi,

Karnataka (2011) 6 SCC 321 . The observations of the Supreme

Court in the said order and specially in paragraph 60 reads as follows:-

"Having analytically examined the provisions of Order 41 Rule 22, we may now state the principles for its application

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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."

9. Thereafter, we granted the time to the parties to consider the effect

of rejection of appeals for want of removal of office objections and

pendency of the Cross Objections and the resultant disability that the

Cross Objector may face on account of the main appeal being rejected.

Mr. Joshi, the learned counsel for the applicant submitted, with the help

of various judicial pronouncements that the Cross Objection was still

maintainable notwithstanding the disposal of the appeal as aforesaid. In

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this behalf, Mr. Joshi relied upon a decision of the Supreme Court in the

case of Sushil Kumar Sabharwal v/s. Gurpreet Singh and others

(2002) 5 SCC 377 and submitted that in that case the Supreme Court

set aside the exparte decree on the ground of non-service of summons

and held that the defendant's knowledge about pendency of a suit does

not amount to knowledge of the date of hearing. In the present case.

Mr.Joshi contended that the applicant had knowledge of the date of

hearing and therefore the Cross Objection was maintainable.

10. Mr. Joshi then referred to the decision of Patna High Court in the

matter of Mowar Sheobaksh Singh v/s. Mowar Thakur Dayal

Singh A.I.R. 1919 Patna 219(1) where in a First Appeal it was held

that Cross Objections could be heard and disposed of despite the fact that

the appeal itself had been dismissed upon failure of the appellant to

provide security resulting in dismissal of the Appeal for default. Referring

to the judgment of Madhya Pradesh High Court in Sonibai w/o

Pratapji Rajput and another v/s. Bhavarsingh s/o Gangaram

Rajput AIR 1963 MP 161 Mr.Joshi submitted that the Appeal came

to be dismissed for default under Order 41 Rule 22 for failure to pay

paper book charges despite which the Cross Objection was heard and

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determined. Mr. Joshi then invited our attention to the judgment of

Madras High Court in the case of P. K. Bhimasena Rao v/s.

C.Venugopal Mudali & two others 48 ILR 631 and submitted

that in that case although the Appellant had to furnish security of costs

and defaulted in doing so, resulting in the dismissal of the appeal for

default, the Cross Objection was allowed to be proceeded with. Mr. Joshi

laid emphasis on the judgment of Srinivasa Ayyangar, J. who observed

that sub-clause(4) Rule 22 of Order 41 would entail that prior to the

amendment of the Code of Civil Procedure there was an expression of

judicial opinion that such Cross Objections could not be heard if the

appeal itself was not pending. However with the introduction of clause(4)

of Rule 22 of Order 41 there was no bar in hearing the Cross Objection.

Accordingly, Mr. Joshi submitted that the present Cross Objection could

be heard and disposed of notwithstanding the fact that the appeal itself

had been rejected.

11. On behalf of the Revenue Mr. Kotangle submitted that under

provisions of Order 41 Rule 22 the Cross Objection could be dealt with

and disposed of provided the appeal was pending. In the present case he

submitted, the appeal had been disposed of by a self-operative order

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passed on 4 th October, 2010 and therefore, there is no question of the

cross objection being heard. In addition to this, Mr. Kotangle sought to

differentiate the judgments cited by Mr. Joshi and pointed out that in the

case of Mowar Sheobaksh Singh (supra) the appeal was dismissed for

default on account of failure of the apellant to provide security. The

appeal in fact had been admitted and was registered on the file of the

Court. Unlike the present case where the appeal was rejected on its

lodging number itself. In the case of Sonibai w/o Pratapji Rajput (supra)

also the appeal was admitted and pending in Court. It came to be

dismissed only on account of the appellants failure to pay the paper book

charges and as as a result, the Cross Objection continued to remain on the

file and was directed to be heard. In the case of P. K. Bhimasena Rao

(supra) also the appeal was part of the record of the Court that the

appellants defaulted in furnishing the security for costs and as a result the

appeal came to be dismissed for default and the Cross Objection was

allowed to proceed. According to Mr. Kotangle these cases cited as

precedents are of no assistance to the applicant since in the present case

the appeal itself came to be rejected without being registered in the file of

this Court. He similarly sought to distinguish the facts situation in the

present case from those in Sushil Kumar Sabharwal (supra).

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12. In rejoinder Mr. Joshi submitted that the case of Mahadev Govind

Gharge (supra) in fact supports the applicants, in that case the Caveat had

been filed by the appellant, the appeal in question was admitted on 12 th

September, 2001 and the same was fixed for early hearing on 25 th

January, 2002, Cross Objections were filed on 19 th November, 2002. The

appeal came to be dismissed on 22 th October, 2003. Relying on the

observations of the said judgment, Mr. Joshi pointed out that under Rule

22(1) of Order 41 limitation for filing an appeal commences from date of

service of notice of the date fixed for hearing of the appeal. According to

Mr. Joshi the expression "date fixed for hearing" does not mean the date

fixed for 'final' hearing of the appeal after the admission of appeal but

should be read as date fixed for hearing of the appeal including the

preliminary hearing of the appeal for admission.

13. According to Mr. Joshi notice given to the applicant in the instant

matter was of a hearing on 23rd August, 2010 on which date the applicant

appeared. The matter came to be adjourned to 30 th August, 2010 and

thereafter to 13th September, 2010 and further dates mentioned in

paragraph 3 of this order. In the meantime, the Cross Objection came to

be filed on 9th September. According to Mr. Joshi the period of one month

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is to commence from the date of service of the notice of hearing which

was initially served on 10 th August, 2010 when the department served a

copy of the appeal on the assessee putting them to notice that the matter

would be taken up on 23rd August, 2010. On this basis, Mr. Joshi

submitted that the Cross Objection was indeed in time.

14. Having heard the counsel at length on this limited aspect of

maintainability of the Cross Objection, it will be useful to reproduce

Order 41 Rule 22 for ease of reference:-

"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 ion 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-

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objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the

decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly

or in part, in favour of that respondent]

(2) Form of objection and provisions

applicable thereto. - Such cross-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.

[***]

(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 pauper appeals shall, so far as they can be made applicable, apply to an objection under this rule."

15. Ordinarily on a plain reading of the aforesaid provision, it is clear

that a respondent who has not filed an appeal is entitled to file a Cross

Objection on issues that he could have taken by way of appeal, provided

that, such Cross Objection is filed before the appeal Court within one

month of the date of service upon him or his pleader of notice of the date

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fixed for hearing the appeal or even such time that the Court may grant.

16. Sub-rule (2) of Rule 22 provides the form of the Cross Objection,

Sub-rule (3) was limited with effect from 1 st July, 2002, sub-rule (4)

provides that even if the original appeal is withdrawn or dismissed for

default the Cross Objection may nevertheless be heard. This sub-rule is

of some significance in deciding the issue of maintainability before us.

We may also make reference to the Bombay High Court (Original Side)

Rules which under Chapter LII provides for filing of appeals of Cross

Objections. In this behalf, Rule 907 and 908 are relevant and the same is

reproduced below:-

"R. 907. When cross-objection under Order XLI,

Rule 22 of C.P.Code may be treated as a cross

appeal. - In case an appeal for any reason fails to come to

a hearing on the merits, any cross-objection filed under

Order XLI, rule 22, of the Code of Civil Procedure may be

treated as a cross-appeal on the application of the

respondent by whom the same was filed on such terms as

the Court may think fit.

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R. 908. Time for filing cross-objections under

Order XLI, Rule 26 of C.P. Code. - Cross-objections

under Order XLI, rule 26 of the Code of Civil Procedure

shall be filed within thirty days from the date on which the

findings are recorded or within such further time as the

Appellate Court may allow."

17. Rule 907 provides that if for any reason the appeal fails to come to

a hearing on merits, any Cross Objection filed may be treated as a cross

appeal and the application of the respondent by whom the same was filed

on such terms of the Court may deem fit. Clause 908 provides for the

time for filing the Cross Objection under Order 41 Rule 26. We are not

presently concerned with the application of the said rules as it relates to

findings and evidence being on record as contemplated under Rule 26.

On interpretation of Rule 907 therefore it would appear that if an appeal

does not come to a hearing on merits, a Cross Objection may be treated as

a cross appeal and may be heard as such. Applying this rule to the

instant case, one has to consider whether the applicant would get benefit

of Rule 907 from the facts narrated herein above.

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18. It is evident that the appeal in question was never registered on the

file of this Court. In our view, the submission of Mr. Joshi that notice of

filing of the appeal and service of notice of the hearing on 23 rd August,

2010 should be construed as notice of hearing of the appeal as

contemplated in Rule 22 cannot be accepted. Under Rule 4 the original

appeal is required to be "withdrawn" or dismissed "for default" in order to

enable the respondent to maintain its memorandum of Cross Objection.

19.

In the present case, the appeal was not dismissed "for default" or

"withdrawn" but it came to be rejected, not on merits, but for failure to

remove Office Objections. This view may appear harsh considering that

non removal of objections may seem a formality. However this non-

removal of objections cannot be trivialised. Compliance with office

objections is a necessary process and part of the justice administration

system and reflecting on parties conduct of the case. Non-removal of

objections despite repeated adjournments as in the instant case or even

generally, within the time specified signifies inability or a conscious

decision on the part of a litigant to not pursue the case. Once a case is

rejected for non compliance with objections and more particularly after

time was extended by the Court to remove objections within the time

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specified, the appellant loses his remedy of appeal. It is not then open for

the Cross objector to insist, as of right, that the Cross objection must be

heard notwithstanding rejection of the appeal. We therefore highlight the

distinction between "rejection" of a case under the rules and "dismissal for

default" which is indicative of a default compliance of an Order of the

Court.

20. In our view, the cases cited by Mr. Joshi of Patna High Court,

Madhya Pradesh High Court and Madras High Court all can be

distinguished on facts inasmuch as in all those cases the appeal was filed

and registered in the record of the Court and all were scheduled for

hearing on merits. The appellants committed default in complying to the

orders of the Court for furnishing the security for costs and paying paper

book charges. These were not the cases where the appeals were not

registered for non-compliance of preliminary office objections but these

were appeals scheduled to proceed on merits. In this behalf, it is useful to

consider the decision of the Supreme Court in Mahadev Gharge(supra)

which in paragraph 60 has observed that the respondent is a Caveator or

otherwise puts in appearance and argues on merits and if the appeal is

heard finally on a subsequent date, such a factual occurrence shall be

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deemed to be service of notice within the meaning of Order 41 Rule 22

and the period of limitation of one month would start from that date. This

judgment of the Supreme Court clearly contemplates that the parties

would have argued the appeal on merits and the same would be taken up

for hearing on merits. The provisions of Order 41 Rule 22 enables a party

to file a Cross Objection only when an appeal is filed and when the Court

hears the appeal on merits. In Rajasthan High Court in Ramkripal

v/s. Radheshyam and Others AIR 1970 Rajasthan 234, ig a

Division Bench of the Rajasthan High Court had occasion to consider the

contention that the Cross Objection could be canvassed independent of

the appeal. The Court held that a Cross Objection can be entertained

only if the Court issues notice to the respondent on the appeal, after the

Court assumes jurisdiction and decides to hear the appeal. We agree with

this view. In the present case, in our view, the Court had not assumed

jurisdiction to entertain the appeal since the appeal was rejected at the

very preliminary stage. Since the applicant had filed its Cross Objections

even before the appeal was heard for admission, the issue of limitation

may not arise. However, filing of the Cross Objection before time in that

sense does not entitle the applicant to a hearing of the Cross Objection on

merits in the absence of the appeal being admitted.

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21. In the instant case, there is nothing to show that the Court had

assumed jurisdiction and the merits of the matter has been considered.

The contention of Mr. Joshi that the matter was shown as a "covered

matter" is of no consequence because it appears that the said appeal was

listed was the caption of matters which were possibly "covered" by an

earlier decision of this or of another court. There is nothing to indicate

that the matter was actually covered by any prior decision of Court. The

operative portion of the order merely reads as follows:-

"PC : By Consent. Stand over to 30/08/2010."

22. The order of the Court therefore simply adjourns the matter by a

week. Subsequently and as we have seen from the order sheets the

matter came to be adjourned on 6 occasions for this very same reason i.e.

by consent the same was stood over for presumably for removal of office

objections. It is only on one occasion on 13 th September, 2010 that the

Court took cognizance of the pendency of the Cross Objections and

directed that the appeal be heard along with the Cross Objections and on

that date even the Cross Objections were not heard and continued to be so

till the subsequent order was passed on 4 th October, 2010 granting the

applicant time of four weeks from 4th October, 2010 to remove the office

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objections in Cross Appeal and that is how the Cross Objection came to be

numbered and 'filed' on 9th November, 2010.

23. In the circumstances, we are of the opinion that the Appeal

was never taken on the file of this Court and was dismissed for non-

removal of office objections. There was no occasion for this Court to

consider the issue arising in the appeal on merits. There has not been a

hearing on merits at all before the appeal came to be rejected. The

record indicates that the Cross Objections nevertheless continued to

remain on file since the office objections therein were removed as

directed by the Court on 4 th October, 2010. In the circumstances, there

will be no occasion for the Revenue to be heard on merits in the appeal.

We are of the opinion that the applicant had notice of "date fixed for

hearing of the appeal". Even assuming Mr. Joshi is correct in his

submission, the hearing of the appeal indicates that hearing would

include hearing at the stage of admission and not necessarily at the final

hearing of the appeal. Since there has been no hearing of the appeal on

merits, it will not be possible to accept Mr. Joshi's submission that service

of the appeal memo and intimation that the appeal is likely to be listed for

admission before the Court on a particular date would amount to notice

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of the date fixed for hearing. We are of the considered opinion that the

expression "notice of date fixed for hearing" necessarily meant the date

fixed for hearing of the appeal on merits.

24. Mr. Joshi has placed reliance on paragraphs 36, 38, 40, 41, 44, 45

and 48 of the judgment in Mahadev Gharge (supra) to submit that the

date of hearing can be classified in two different stages one at the stage of

admission and the other at the final stage and normally the date of

hearing should be understood to mean the date on which the Court

applies its mind to the merits of the case. The Supreme Court observed in

the said judgment that in a criminal case the matter can be said to have

commenced only when the Court applies its mind to frame a charge etc.

and similarly under civil law it is only when the Court actually applies its

mind to averments made by the parties, has to be considered as a

"hearing" of the case. In paragraph 45 the Supreme Court observed that

there appears to be dual purpose in the language of Order 41 Rule 22,

firstly to grant a month's time (or such extended period as the Court may

grant) and secondly to put the party or his pleader at notice that the

appeal has been admitted and fixed for hearing and the Court will

pronounce the rights and contentions of the parties on the merits of the

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appeal. It is on such notice being served, the period of limitation starts

running. The Court further observed that if both these purposes are

achieved prior to the service of a fresh notice then, it would be futile to

issue a separate notice which would result in delay in disposal of the

appeals.

25. The Court observed that a law of procedure should be construed in

a manner so as to eliminate both these possibilities of delay and prejudice

being caused to the parties. In our view, from the above observations of

the Supreme Court, it is clear that the party or his pleader must be put to

notice that the appeal has been admitted (emphasis supplied) and fixed

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

rights and contentions of the parties on the merits. This stage, in our

view, had not been reached in the instant case because the appeal came to

be rejected for non-removal of office objections as aforesaid. There has

evidently been no hearing on the merits of the case at all and no prejudice

was caused to the revenue since it consciously stopped pursuing the

appeal. On all dates and as referred to above in the various orders only

time has been extended and repeatedly, for removal of office objections

and for no other reason. In the circumstances, there is no question of any

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delay on the part of the applicant filing a Cross Objection. The question is

whether the Cross Objection can be entertained given the fact that the

appeal itself was never on the file of this Court and was never fixed for

hearing. Sub-rule 4 of Rule 22 of Order 41 does not in our view assist the

Applicant.

26. In our view, the answer to this would also depend upon the

meaning that we give to the Rule 907 which states that if an appeal "fails"

to come for hearing on merits any Cross Objection filed under Order 41

Rule 22 may be treated as a Cross appeal but on the application of the

respondents. In the present case, Mr. Joshi has contended that in the even

we hold against the Applicant on maintainability, the present Cross

Objection may be treated as an appeal and the delay in filing the appeal

be condoned. While there is nothing on record to assist us an

ascertaining extent of delay, there is also no application that has been

preferred before us as contemplated in Rule 904. As far as Rule 907 is

concerned on proper reading of the said Rule it becomes evident that if

the pending appeal which has been admitted or which is pending

admission, what is intended is that if the pending appeal does not come

up for hearing on merits and if the Respondent has filed Cross Objection,

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the Respondent may apply to have Cross Objection heard as if the same

were Cross Appeal and although the Appeal is pending.

27. The Rules do not enable the Respondent - Cross Objector to make

such application if the Appeal is already rejected for non removal of

office objections. Under High Court Rule 986, an appeal can be rejected

by the Prothonotary and Senior Master if the Appellant does not remove

office objections within 30 days of lodging an Appeal. In the present

case it is the Court that has granted additional time to remove office

objections failing which the appeal would stand rejected and it was

accordingly rejected. Rule 907 does not give any right to the Appellant,

over and above what is provided under Order 41 Rule 22 Sub-Rule (4).

All that it does is to enable the cross objector to seek hearing of the Cross

Objection as if the same were Cross Appeal, during pendency of the

appeal and nothing more. In the circumstances having considered the

various judgments relied upon by the Applicants and the submissions of

the counsel we are of the view that present Cross Objection is not

maintainable in view of the fact that the Appeal itself was rejected.

28. As an alternate submission, Mr. Joshi suggested that in the event

the Court is against the Applicant he may be allowed to treat the Cross

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Objection as an Appeal and delay in filing it may be condoned. As far as

this oral request is concerned, we hold that it will be open for the

Applicant to take out appropriate application after filing an appeal,

seeking condonation of delay if so advised and same will be considered

on its own merits. Be that as it may, we noticed that the present appeal

has since been numbered as Appeal No.556 of 2011, even after its

dismissal by the self operative order. The Registry informs us that as a

matter of practice the Appeals which are rejected pursuant to orders

of Court are also numbered for the sake of good order and maintaining

the register of disposed off matters used for reporting pendency. In the

circumstances we pass the following order ;

(i) Cross objection is dismissed.

(ii) There will be no order as to costs.

                 (A. K. MENON, J.)                       (M. S. SANKLECHA, J.)





    Wadhwa