Bombay High Court
Dharmraj Bhupal Magdum vs Bhupal K. Magdum And Ors. ... on 16 August, 2017
Bench: Mridula Bhatkar
Sherla V.
cao.242.2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO.242 OF 2016
IN
CROSS OBJECTIONS ST. NO.28907 OF 2016
IN
FIRST APPEAL NO.1512 OF 2012
Dharmraj Bhupal Magdum ... Applicant
IN THE MATTER OF:
Shri Shantaram Bhau Adure & anr. ... Appellants
Vs.
Anandibai Bhupal Magdum & Ors. ... Respondents
WITH
FIRST APPEAL NO.1512 OF 2012
Shri Shantaram Bhau Adure & anr. ... Appellants
Vs.
Anandibai Bhupal Magdum & Ors. ... Respondents
WITH
CIVIL APPLICATION NO.3912 OF 2015
IN
FIRST APPEAL NO.1512 OF 2012
Shri Shantaram Bhau Adure & anr. ... Applicants/
Appellants
Vs.
Anandibai Bhupal Magdum & Ors. ... Respondents
Mr.Induprakash Tripathi i/b C.K. Tripathi for org. Appellants in
FA/1512/2017 and CAF/3912/2015
Mr.Prashant Bhavake for Respondent No.5 in First Appeal
No.1512/2017 and for Appellant in Cross Objections (stamp)
No.28907 of 2016
Page 1 of 6
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cao.242.2016.doc
CORAM: Mrs.MRIDULA BHATKAR, J.
DATED: AUGUST 16, 2017
P.C. :
1. Heard the learned Counsel for the parties. The respondents
have filed Cross Objections Stamp No.28907 of 2016. Civil
Application No.242 of 2016 is also taken out in the Cross
Objections praying for stay of the decree dated 25.8.2012 passed
by the Civil Court, Dindoshi, in S.C. No.128 of 2003.
2. Mr.Tripathi, the learned Counsel for Appellants in the First
Appeal, submitted that there is an inordinate delay in filing the
counter claim. Considering the chronology of the events, he
submitted that the suit was partly decreed on 25.8.2012.
Therefore, the original plaintiff filed an appeal and in the said
appeal, the respondent / present applicant appeared on 3.8.2013
and it shows that the respondent had notice of the appeal and at
interim stage, the respondent was heard. They filed reply and they
were heard and, therefore, the Cross Objections filed in the order
dated 4.10.2016 is beyond limitation and cannot be entertained.
3. The learned Counsel for the respondents has submitted that
he has filed Cross Objections on 4.10.2016. He relied on Order 41
cao.242.2016.doc
Rule 22(1) of the Civil Procedure Code and submitted that as there
was neither notice of final hearing nor have the respondents
argued the appeal on merits at the time of admission, but the
appeal was admitted without notice and therefore, he submitted
that the cross objections are filed in time. Alternatively, he
submitted that if at all it is found that it is not within time, yet, the
appellate Court has discretion to the extent of further time and
allow registration of the counter claim and admit the same. In
support of his submissions, he relied on the judgment of the
learned Single Judge in the case of State of Maharashtra vs.
Kalu Ladku Mhatre1. He also relied on the judgment in the case
of Mahadev Govind Gharge & Ors. vs. Special Land
Acquisition Officer, Upper Krishna Project, Jamkhandi,
Karnataka2. Learned Counsel has further argued that the
applications for which no period of limitation is provided elsewhere,
the limitation is covered under Article 137 of the Limitation Act i.e.,
3 years from the date when the right to apply accrues.
4. Perused the orders passed. I am informed that the First
Appeal is admitted, however, at the time of admission, the
1 2011 (4) Mh.L.J. 741
2 (2011) 6 SCC 321
cao.242.2016.doc
respondents were not heard and not served with the notice.
5. Considered the submissions.
6. In the case of State of Maharashtra vs. Kalu Ladku
Mhatre (supra), it is held that the appellate Court can grant further
time as it may see fit to allow and so it is not necessary for the
respondent in appeal to invoke section 5 of the Limitation Act and
there is no requirement of showing sufficient cause.
7. In Mahadev Govind Gharge & Ors. (supra), the Supreme
court has explained the meaning of hearing as contemplated under
Rule 22 of Order 41 of the Civil Procedure Code. The Supreme
Court has dealt with Rule 22 of Order 41 and has dealt with Rule
22 of Order 41 and has held as follows:
"51. 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."
....
....
"59. If we examine the provisions of Order XLI Rule 22 of
cao.242.2016.doc
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 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."
8. After considering the ratio laid down in the case of Mahadev
Govind Gharge & Ors. (supra), a counter claim is to be filed
within one month from the date of service of notice. However, the
Court has power and discretion to extend time further depending
on the facts and circumstances of the case. In the present case,
cao.242.2016.doc
the defendant has appeared in the matter. However, cross
objections were not filed. The First Appeal is admitted and there is
an issue in respect of the immovable property, which the appellant
claims that he has right through his deceased wife which is 1/5 th
portion in the ancestral property and the respondent defendant is
contesting the said claim and so, I condone the delay in filing the
cross objections. Thus, I am of the view that in the present case,
Article 137 of the Limitation Act is not attracted.
9. Cross Objections are admitted. It shall be heard alongwith
the First Appeal.
10. If any executions proceedings are taken out, pursuant to the
order dated 25.8.2012, they are stayed.
11. List the matter on 13.9.2017.
(MRIDULA BHATKAR, J.)
