Bombay High Court

M/S. Amar Builders Thru Its Proprietor vs Mr. Champalal Indraraj Sand Alias ... on 27 January, 2025

Author: Madhav J. Jamdar

Bench: Madhav J. Jamdar

2025:BHC-AS:6700                                                           12-WP-13939-2018+.DOC




                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           CIVIL APPELLATE JURISDICTION
                                         WRIT PETITION NO.13939 OF 2018


                    M/s. Amar Builders
                    A Proprietory Firm through its Proprietor
                    Amar H. Manjrekar                                            ...Petitioner
                          Versus
                    Champalal Indraraj Sand alias Rahtekar
                    since deceased through legal heirs
                    Hiralal Indraraj Sand alias Rahtekar & Ors.                  ...Respondents


                    Mr. Nachiket V. Khaladkar, Advocate, for the Petitioner.
                    Mr. S. S. Kanetkar, Advocate, for the Respondents.


                                                  CORAM:     MADHAV J. JAMDAR, J.
                                                  DATED :    27th JANUARY 2025
                    JUDGMENT:

1. Heard Mr. Khaladkar, learned Counsel appearing for the

Petitioner and Mr. Kanetkar, learned Counsel appearing for the

Respondents.

2. By the present Writ Petition filed under Article 227 of the

Constitution of India, the challenge is to the legality and validity of

the order dated 4th August 2018 passed by the learned District

Judge-5, Pune below Exhibit-54 in Civil Appeal No.9 of 2009. By

the impugned order, Application filed for condonation of delay in

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preferring cross-objection in said Civil Appeal No.9 of 2009 has

been dismissed.

3. Mr. Khaladkar, learned Counsel appearing for the Petitioner

raised the following contentions:

i. Although apparently the delay is of 8 years, 8 months and 5

days, in fact, there is no delay as the Appeal was never taken

up for hearing and for about 6 years the hearing of the said

Appeal was stayed.

ii. The Appeal has been filed on 20th December 2008 and along

with the Appeal itself amendment Application bearing

Exhibits-8 and 9 have been filed by the present Respondents

(Appellants/Defendants) seeking amendment in the plaint

as well as in the written statement to the counterclaim. Said

Amendment Applications were allowed on 20 th April 2009.

The said order was challenged by the present Petitioner i.e.

Defendant by filing the Writ Petition No.9688 of 2010 and

this Court granted stay to the hearing of the said Appeal.

The said order dated 20th April 2009 passed below Exhibit-8

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and 9 in Civil Appeal No.9 of 2009 allowing amendment has

been set aside by the High Court by the order dated 20 th July

2016. The Respondents filed SLP in the Supreme Court

challenging the order dated 20th July 2016 and the said SLP

was dismissed on 16th December 2016.

iii. In the meanwhile, as the Appellant No.1 passed away on 29 th

September 2010 and Appellant No.2 passed away on 5 th

August 2011, Applications were filed in said Civil Appeal

No.9 of 2009 to bring on record heirs and the said

Applications were allowed by the order dated 27th July 2017.

iv. The amended Appeal memo was served on the Petitioners on

11th August 2017 and immediately on 7 th October 2017,

cross-objections have been filed by the present Petitioners

along with Application for condonation of delay.

v. He therefore, submitted that although the delay mentioned

in the impugned order is of 8 years, 8 months and 5 days, in

fact, there is no delay as the Appeal was never taken up for

hearing. He submitted that hearing of the said Appeal was

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stayed for about 6 years and therefore, the impugned order

passed by the learned Appellate Court of rejecting Delay

Condonation Application in filing cross-objection is required

to be quashed and set aside.

vi. Mr. Khaladkar, learned Counsel relied on the decision of a

learned Single Judge in the case of State of Maharashtra vs.

Kalu Ladku Mhatre 1.

4. On the other hand, Mr. Kanetkar, learned Counsel appearing

for the Respondents raised the following submissions:

i. The Application for amendment in the written statement to

the counterclaim and to the plaint was allowed by the order

dated 20th April 2009. Amended written statement to the

counterclaim has been filed before the Appellate Court on

30th April 2009. On the very day, learned Advocate

appearing for the Petitioner (i.e. Respondent before the

Appellate Court) filed Application for allowing amendment

in the written statement in view of amendment in the plaint

and amendment in the written statement to the 1 2011(6) ALL MR 242

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counterclaim in view of amendment in the writte statement.

It appears that on 26th June 2009, an Application was filed

bearing Exhibit-28 for framing issues and accordingly, the

Appeal was adjourned for framing of issues, may be perhaps

as the plaint and the counterclaim were allowed to be

amended. Thereafter, the matter was adjourned from time to

time for submission of the Paper-Book on 15th September

2009, 28th October 2009, 5th December 2009, 6th January

2010 and 9th February 2010. He submitted that the Roznama

of the learned Appellate Court of 26 th March 2010 shows

that the same has been adjourned for arguments. Mr.

Kanetkar, learned Counsel therefore, submitted that as the

Appeal has reached upto the stage of arguments, the learned

Appellate Court rightly rejected the Application for

condonation of delay in filing the cross-objections.

ii. He submitted that even if, the reasons given by the Petitioner

are accepted as it is, then also there is considerable delay in

filing the cross-objections.

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iii. He relied on the decision of the Supreme Court in the case of

Banarasi and Ors. vs. Ram Phal2 and submitted that as cross-

objections are concerning prayers regarding mesne profits

and injunction, unless cross-objections are filed, the said

prayers cannot be considered in Appeal and therefore, the

Petitioner should have been more vigilant and filed cross-

objections in time.

iv. He pointed out roznama recorded for 26 th March 2010, 6th

October 2010 and 16th November 2010 and submitted that

the said Appeal was fixed for arguments and therefore, there

is exorbitant delay of about 7 years in filing cross-objections

which have been ultimately filed along with delay

condonation Application on 7th October 2017.

v. He relied on the decision of the Supreme Court in the case of

Mahadev Govind Gharge & Ors. vs. Special Land Acquisition

Officer, Upper Krishna Project, Jamkhandi, Karnataka 3 and

submitted that as the Petitioner has appeared in the said

2 (2003) 9 SCC 606 3 (2011) 6 SCC 321

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Appeal on 7th January 2009, the cross-objections should have

been filed immediately.

vi. He therefore, submitted that no interference in the

impugned order is warranted.

5. In the rejoinder, Mr. Khaladkar, learned Counsel appearing

for the Petitioner submitted that the said Appeal was fixed for

arguments on 6th October 2010 and on 16th November 2010 on

Exhibit-31 Application and not on the main Appeal. He submitted

that said Application bearing Exhibit-31 was filed on 29 th June

2010 under Order 41 Rule 27 of the CPC seeking leave to bring on

record additional evidence. Thus, he submitted that Appeal was

never taken up for hearing.

6. Before considering the rival contentions, it is necessary to set

out the factual position.

i. The present Respondents i.e. Plaintiffs filed Civil Suit No.266

of 2006 against the Petitioner i.e. Defendant seeking renewal

of lease period for 99 years from 22 nd May 2006 on the basis

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of lease deed dated 22nd May 1907. In the said suit relief is

also sought for permanent injunction that Defendants or any

person on his behalf should not disturb the lawful possession

of Plaintiffs of the suit property.

ii. The Petitioner i.e. Defendant filed written statement cum

counterclaim. In the counterclaim relief sought is that the

structure on suit land be demolished, the vacant possession

of suit land be handed over to the Defendant, the Plaintiffs

be restrained from creating third party interest and mesne

profit inquiry be conducted.

iii. The Plaintiffs filed written statement to the counterclaim.

iv. The learned Trial Court dismissed the suit and decreed the

counterclaim by directing removal of construction on the

suit land and further directing handing over vacant

possession to the Defendants within three months. However,

the learned Trial Court has refused to grant decree of mesne

profits and not passed any order regarding prayer of

injunction.

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v. The Plaintiffs filed Appeal on 20 th December 2008 and along

with the Appeal itself amendment Application bearing

Exhibits-8 and 9 have been filed by the Appellants i.e.

Plaintiffs seeking amendment in the plaint as well as in the

written statement to the counterclaim. The said Appeal was

registered on 1st January 2009.

vi. By the order dated 2nd January 2009, the Appellate Court

issued notice to the Respondents in said Appeal and made

the same returnable on 7th January 2009.

vii. On 7th January 2009, learned Advocate appeared for the

Respondents in the said Appeal and inter alia time was

sought to file reply to Exhibit-8 and Exhibit-9 Application.

viii. On 16th February 2009, the Respondents in the said

Appeal filed reply to the Exhibit-8 and Exhibit-9 Application.

ix. Amendment Applications bearing Exhibits-8 and 9 filed

along with the Appeal were decided and allowed on 20 th

April 2009.

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x. Thereafter, the matter was adjourned from time to time for a

period of 20th April 2009 to 9th February 2010 for filing

paper-book.

xi. The said Appeal has been fixed for arguments on 26 th March

2010 and 14th June 2010.

xii. On 29th June 2010, the Appellant filed Application bearing

Exhibit-31 seeking leave to produce the additional evidence

and thus, the Appeal was adjourned for filing reply to

Exhibit-31 Application on 29th June 2010, 13th July 2010,

21st August 2010 and 14th September 2010. Thereafter, the

matter was adjourned on 18th September 2010, 6th October

2010, 16th November 2010, 8th December 2010, 17th January

2011, 14th February 2011, 25th February 2011 and 16th

March 2011 etc. for arguments on Exhibit-31 Application.

xiii. In the meanwhile, the said order was challenged by

the present Petitioner by filing Writ Petition No.9688 of

2010. The said Writ Petition was filed on 19 th November

2010. A learned Single Judge by the order dated 8th February

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2011 passed in said Writ Petition No.9688 of 2010 granted

stay to the hearing of the said Appeal No.9 of 2009 .

xiv. A learned Single Judge by the order dated 20 th July

2016 passed in Writ Petition No.9688 of 2010 set aside the

order dated 20th April 2009 passed below Exhibits-8 and 9 in

Civil Appeal No.9 of 2009 allowing amendment.

xv. The Respondents filed SLP in the Supreme Court challenging

the order dated 20th July 2016 of the High Court and the

said SLP was dismissed on 16th December 2016.

xvi. In the meanwhile, as the Appellant No.1 passed away

on 29th September 2010 and Appellant No.2 passed away on

5th August 2011, Applications were filed in said Civil Appeal

No.9 of 2009 bearing Exhibit-39 to 41 on 25 th February 2011

to bring on record heirs and ultimately the said Applications

were allowed by the order dated 27 th July 2017. On 27th July

2017, the matter was adjourned to 11th August 2017 for

amended copy/arguments.

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xvii. The amended Appeal memo was served on the

Petitioners on 11th August 2017 and the matter was

adjourned to 15th September 2017 and 7th October 2017 for

arguments.

xviii. On 7th October 2017, cross-objections have been filed

by the present Petitioners along with Application for

condonation of delay.

7. The relevant provision is Order XLI Rule 22, which reads as

under:

"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-object] 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

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cross-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 as 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."

(Emphasis added)

8. At this stage only it is required to note the decision of the

Supreme Court in the case of Banarasi (supra) relied on by Mr

Kanetkar, learned Counsel for the Respondents. Paragraphs 9 to 12

of the said decision are relevant and the relevant portion of the

same is set out herein below:

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"9. Any respondent though he may not have filed an appeal from any part of the decree may still support the decree to the extent to which it is already in his favour by laying challenge to a finding recorded in the impugned judgment against him. Where a plaintiff seeks a decree against the defendant on grounds (A) and (B), any one of the two grounds being enough to entitle the plaintiff to a decree and the court has passed a decree on ground (A) deciding it for the plaintiff while ground (B) has been decided against the plaintiff, in an appeal preferred by the defendant, in spite of the finding on ground (A) being reversed the plaintiff as a respondent can still seek to support the decree by challenging the finding on ground (B) and persuade the appellate court to form an opinion that in spite of the finding on ground (A) being reversed to the benefit of the defendant-appellant the decree could still be sustained by reversing the finding on ground (B) though the plaintiff-respondent has neither preferred an appeal of his own nor taken any cross- objection. A right to file cross-objection is the exercise of right to appeal though in a different form. It was observed in Sahadu Gangaram Bhagade v. Special Dy. Collector, Ahmednagar [(1970) 1 SCC 685 : (1971) 1 SCR 146] that the right given to a respondent in an appeal to file cross-objection is a right given to the same extent as is a right of appeal to lay challenge to the impugned decree if he can be said to be aggrieved thereby. Taking any cross-objection is the exercise of right of appeal and takes the place of cross-appeal though the form differs. Thus it is clear that just as an appeal is preferred by a person aggrieved by the decree so also a cross-objection is preferred by one who can be said to be aggrieved by the decree. A party who has fully succeeded in the suit can and needs to neither prefer an appeal nor take any cross-objection though certain finding may be against him. Appeal and cross-objection -- both are filed against decree and not against judgment and

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certainly not against any finding recorded in a judgment. This was the well-settled position of law under the unamended CPC.

10. The CPC amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross-objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference which has resulted we will shortly state. A respondent may defend himself without filing any cross-objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross-objection. The amendment inserted by the 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations:

(i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent.

(ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent.

(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.

11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross-objection

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against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross-objection. The law remains so post-amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross- objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross- objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In the pre- amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.

12. The fact remains that to the extent to which the decree is against the respondent and he wishes to get rid of it he should have either filed an appeal of his own or taken cross-objection failing which the decree to that extent cannot be insisted on by the respondent for being interfered, set aside or modified to his advantage. The law continues to remain so post-1976 amendment. ......"

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(Emphasis added)

9. Mr. Kanetkar, learned Counsel on the touchstone of the

parameters laid down by the Supreme Court in Banarasi (supra)

submitted that as the learned Trial Court has partly allowed the

counterclaim and has refused to grant decree of mesne profits and

not passed any order regarding prayer of injunction, the Petitioner

is required to file Appeal or cross-objection and without the same

could not have assailed the decree of the learned Trial Court in

that regard without filing the cross-objection. There is substance in

the said contention. This is not a case where the Petitioner could

have supported the decree passed against the Respondents by

making contentions concerning the rejection of prayer for

injunction and mesne profits. Thus, it is absolutely essential for the

Petitioner to file the cross-objections.

10. Thus, it is necessary to decide the aspect whether in the facts

and circumstances of this case, the delay caused in filing the cross-

objection needs to be interfered with. For considering the same, it

is necessary to consider the observations of a learned Single Judge

in the case of State of Maharashtra vs. Kalu Ladku Mhatre (supra).

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The learned Single Judge has held as follows in paragraph Nos.6

and 7:

"6. Thus, under sub-rule (1) of Rule 22 of Order XLI of the said, Code, a power has been conferred upon the Appellate Court to extend the time to file Cross Objection. The Appellate Court can grant such further time as it may see fit to allow. The sub-rule (1) of Rule 22 does not lay down that sufficient cause is required to be shown by the respondent. As the said Code vests the power to extend the time to file Cross-Objection in the Appellate Court, it is not at all necessary for the respondent in Appeal to invoke section 5 of the Limitation Act, 1963. Section 5 of the Limitation Act reads thus:

"Extension of prescribed period of certain cases

- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfied the Court that he had sufficient cause for not preferring the appeal or making the application within such period."

7. The last part of sub-rule (1) of Rule 22 of Order XLI deals with the grant of extension of time for filing of Cross Objection and section 5 of the Limitation Act deals with the extension of time to prefer an Appeal. Section 5 of the Limitation Act incorporates a condition precedent of the appellant satisfying the Appellate Court that he had sufficient cause for not preferring the Appeal within the prescribed period of limitation. Sub-rule (1) of Rule 22 of Order XLI does not incorporate the stringent requirement of establishing a sufficient cause. Thus, a wide power to extend the time to file Cross-

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Objection has been vested in the Appellate Court. Though there is no requirement of establishing sufficient cause within the meaning of section 5 of the Limitation Act, in the application for seeking extension of time to file Cross-Objection, brief reasons for delay will have to be set out. A wider discretion has been conferred on the Appellate Court under the sub-rule (1) of Rule 22 than what is conferred by section 5 of the Limitation Act. The power to extend time under sub-rule (1) of Rule 22 of Order XLI of the Code has to be liberally exercised in case where a Cross-Objection is sought to be filed before the Appeal is heard for final hearing."

(Emphasis added)

11. Thus, the learned Single Judge has held that a wide power

to extend the time to file cross-objection has been vested in the

Appellate Court. Though there is no requirement of establishing

sufficient cause within the meaning of Section 5 of the Limitation

Act, in the application for seeking extension of time to file Cross-

Objection, brief reasons for delay will have to be set out. A wider

discretion has been conferred on the Appellate Court under the

sub-rule (1) of Rule 22 than what is conferred by section 5 of the

Limitation Act. The power to extend time under sub-rule (1) of

Rule 22 of Order XLI of the Code has to be liberally exercised in

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case where a Cross-Objection is sought to be filed before the

Appeal is heard for final hearing.

12. Thus, it is necessary to consider the correctness of the

impugned order on the touchstone of the law laid down by this

Court in Kalu Ladku Mhatre (supra) and in the facts and

circumstances of this case.

13. The perusal of the record shows that the

Respondents/Plaintiffs filed Appeal on 20th December 2008 and

along with the Appeal itself amendment Application bearing

Exhibits-8 and 9 have been filed by the Appellants i.e. Plaintiffs

seeking amendment in the plaint as well as in the written

statement to the counterclaim. Amendment Applications bearing

Exhibits-8 and 9 filed along with the Appeal were decided and

allowed on 20th April 2009. The said order was challenged by the

present Petitioner by filing on 19th November 2010 Writ Petition

No.9688 of 2010. A learned Single Judge by the order dated 8 th

February 2011 passed in said Writ Petition No.9688 of 2010

granted stay to the hearing of the said Appeal No.9 of 2009. By the

order dated 20th July 2016 passed in Writ Petition No.9688 of 2010

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this Court set aside the order dated 20 th April 2009 passed below

Exhibits-8 and 9 in Civil Appeal No.9 of 2009 allowing

amendment. The Respondents filed SLP in the Supreme Court

challenging the order dated 20 th July 2016 of the High Court and

the said SLP was dismissed on 16th December 2016. Thus, it is

clear that from 20th December 2008 till 16th December 2016 i.e. for

a period of 8 years, the proceedings in said Appeal were pending

for consideration of amendment application filed at the Appellate

stage for amending plaint and the written statement to the

counterclaim. Admittedly, the proceedings in said Appeal were

stayed by this Court by order dated 8th February 2011 till 20th July

2016 i.e. for about 5 and 1/2 years. In the meanwhile, as the

Appellant No.1 passed away on 29th September 2010 and

Appellant No.2 passed away on 5th August 2011, Applications were

filed in said Civil Appeal No.9 of 2009 bearing Exhibit-39 to 41 on

25th February 2011 to bring on record heirs and for setting aside

abatement and ultimately the said Applications were allowed by

the order dated 27th July 2017. The amended Appeal memo was

served on the Petitioners on 11 th August 2017 and on 7th October

2017, cross-objections have been filed by the present Petitioners

along with Application for condonation of delay. Thus, it is clear

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that in the facts and circumstances of this case, it cannot be said

that there is exorbitant delay in filing the cross-objections. In fact

the said Appeal could not have been taken up for the hearing till

16th December 2016 i.e. when said amendment applications filed

at the Appellate stage were finally decided and thereafter till 27 th

July 2017 when the heirs of the Appellant were brought on record.

14. It is further significant to note that on 29 th June 2010,

Application has been filed by the Appellant bearing Exhibit-31

under Order 41 Rule 27 of Code of Civil Procedure, 1908 ("CPC")

seeking to produce on record the additional evidence and

thereafter, the matter was adjourned for filing reply and thereafter,

on 18th September 2010, reply has been filed to the Application

seeking additional evidence at Exhibit-37. Thereafter, the matter

was adjourned for arguments on said Exhibit-31 filed by the

Appellant i.e. present Respondents. As already noted herein above,

the said Application has been filed for filing additional evidence.

The said Appeal was adjourned from time to time for hearing

arguments on said Exhibit-31 Application filed for additional

evidence by the present Respondents and in the meanwhile, the

High Court granted stay to the said Appeal vide order 8 th February

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2011 passed in Writ Petition No.9688 of 2010. By the order dated

20th July 2016, High Court set aside the order allowing

amendment Application and said order has been upheld by the

Supreme Court by the order dated 16th December 2016. Thus, it

cannot be said that said Appeal was taken up for final hearing.

15. Although, it is the contention of Mr. Kanetkar, learned

Counsel appearing for the Respondents that, on 26 th March 2010,

Appeal has been adjourned for arguments, as a matter of fact, the

final arguments were never heard. In fact, as noted earlier,

thereafter, on 29th June 2010, an application bearing Exhibit-31

has been filed by the Respondent in said Appeal under Order 41

Rule 27 of the CPC. Seeking permission to lead additional

evidence. The matter was adjourned for hearing on said

Application and in the meanwhile, as noted herein above, the High

Court has stayed the proceedings by the order dated 8th February

2011. It is also admitted that the said stay was operating till the

year 2016. Thus, perusal of the record shows that at no point of

time, the Appeal was taken up for final hearing.

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16. Mr. Kanetkar, learned Counsel appearing for the

Respondents has relied on the decision of the Supreme Court in the

case of Mahadev Govind Gharge (supra) and more particularly, on

paragraph No.59 of the same, which reads as under:

"59. If we examine the provisions of Order 41 Rule 22 of the Code in its correct perspective and in light of the abovestated 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

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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."

(Emphasis added)

17. However, paragraph Nos.60 and 61 of the said decision of

the Supreme Court in the case of Mahadev Govind Gharge & Ors.

(supra) are very relevant and the same read as under:

"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

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

61. 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. Since the provisions of Order 41 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 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."

(Emphasis added)

18. In above paragraph No.60, after analytically examining the

provisions of Order 41 Rule 22, the principles for its applications

have been set out by the Supreme Court. Clause No.(c) of the said

paragraphs 60 is very relevant. It has been held by the Supreme

Court that 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

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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.

19. Perusal of the Roznama of this case do not show that the

Appeal has been heard at any point of time on merits including for

the purpose of interim order as along with Appeal, the Application

for amendment has been filed and the said proceeding concerning

amendment application have been finally disposed of in December

2016 by the Supreme Court. It has also come on record that

thereafter, the Application under Order 41 Rule 27 of CPC seeking

leading of additional evidence has been filed and the same is

pending for hearing. Thus, even as per the decision of the Supreme

Court in the case of Mahadev Govind Gharge & Ors.(supra), the

Appeal was never ordered to be heard finally on the date fixed

subsequently and in any case, not taken up for final hearing.

20. In any case, it is an admitted position that the Appellant

No.1 passed away on 29th September 2010 and the Appellant No.2

passed away on 5th August 2011, application for bringing their

heirs on record was allowed on 27 th July 2017. Amended Appeal

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memo was served on the Petitioner on 11 th August 2017 and

immediately on 7th October 2017 cross-objections have been filed

by the Petitioner along with Application for condonation of delay.

21. As held by the learned Single Judge in Kalu Ladku Mhatre

(supra) that a wide power to extend the time to file cross-objection

has been vested in the Appellate Court for considering the

application for seeking extension of time to file Cross-Objection.

The power to extend time under sub-rule (1) of Rule 22 of Order

XLI of the Code has to be liberally exercised in case where a Cross-

Objection is sought to be filed before the Appeal is heard for final

hearing.

22. It is significant to note that even in Mahadev Gharge (supra)

which has been heavily relied on by Mr. Kanetkar, learned Counsel

for the Respondents, it has been held in paragraph 61 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 deem fit to allow

depending upon the facts and circumstances of the given case.

Since the provisions of Order 41 Rule 22 of the Code itself provide

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for extension of time, the courts would normally be inclined to

condone the delay in the interest of justice 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.

23. Thus, in the facts and circumstances of this case and on the

touchstone of the law laid down by a learned Single Judge in Kalu

Ladku Mhatre (supra) and by the Supreme Court in Mahadev

Gharge (supra), case is made out for condonation of delay in filing

cross-objection and thus allowing Application bearing Exhibit-54 in

Civil Appeal No.9 of 2009.

24. Accordingly, the following order is passed:

ORDER

(a) The order dated 4th August 2018 passed by the

learned District Judge-5, Pune below Exhibit-54 in

Civil Appeal No.9 of 2009 is quashed and set aside.

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(b) Application bearing Exhibit-54 filed in Civil Appeal

No.9 of 2009 for condonation of delay and for taking

on record cross-objection is allowed.

25. Accordingly, the Writ Petition is disposed of in above terms

with no order as to costs.

[MADHAV J. JAMDAR, J.]

Digitally signed by SONALI SONALI MILIND MILIND PATIL PATIL Date: