RAJASTHAN HIGH COURT

                        East India Hotels Ltd.

                        Vs.

                        Mahendra Kumari

                        S.B.C.C.O. No.4 of 2008
                        (Jitendra Ray Goyal, J.)

                        08.05.2008

                        ORDER

Jitendra Ray Goyal, J.

1. Cross-objection under Order 41, Rule 22 of the Civil Procedure Code (in short the
'Code') has been filed by Shri Jitendra Singh, legal representative of deceased
plaintiff-respondent No. 1 Smt. Mahendra Kumari, in first appeal filed by the
appellant-defendant No. 2 the East India Hotels Ltd. against the judgment and decree
dated 30-11-2005 passed by Additional District Judge (Fast Track) No. 4, Jaipur City,
Jaipur in Civil Suit No. 243/ 2003 (Old No. 43/1986) whereby the suit of partition,
cancellation of sale deed and permanent injunction was partly decreed but the trial
Court dismissed the plaintiff's suit in so far as she claimed preferential right under
Section 22 of the Hindu Succession Act, 1955. This part of the decree was assailed by
the plaintiff-respondent No. 1 by way of filing this cross-objection. An application
under Order 41, Rule 22 of the Code read with Section 5 of the Limitation Act was
also filed for condonation of delay and extension of time to file the cross-objection.

2. Heard learned counsel for the parties on the application for condonation of delay
and extension of time for filing the cross-objection.

3. Learned counsel appearing for the respondent-objector submitted that according to
the provisions contained in sub-rule (1) of Rule 22 of Order 41 of the Code the period
of limitation for filing the cross-objection starts from the date of service of the notice
on the respondent or his pleader of the day fixed for hearing of the appeal and in the
instant case no notice under Order 41, Rule 14 of the Code was ever served upon the
respondent-objector, rather the case was never fixed for hearing of the appeal and that
stage would come after preparation of the paper book, therefore, in the instant case
period of limitation for filing the cross-objection under Order 41, Rule 22 of the Code
did not start to run, hence the cross-examination was filed well within the period of
limitation. Reliance was placed on the judgment delivered in the case of Union of
India v. Jhuttar Singh, reported 1 in wherein though notice of filing of the appeal was
served on the respondent but no notice of the day of hearing of the appeal was served
on him, therefore it was held that notice was not in compliance with the provisions of
Order 41, Rule 22 of the Code. Reliance was also placed on the judgment delivered in
the case of Union of India v. Shibu Ram Mittal, reported 2 in wherein it was held that
notice informing a farzi date is not a notice of fixing the date of hearing of the appeal,
therefore, the cross-objection filed by the respondent held to be well within limitation.
Reliance was also placed on the judgment delivered in the case of Rashida Begum v.
Union of India, reported in 3 wherein notice containing only the date of hearing of stay
application was not considered to have confirmed specific requirement of law
contained in Order 41, Rule 14 of the Code and therefore it does not offer starting
point of limitation for filing cross-objection.

4. It was then submitted that apart from the provisions under Order 41, Rule 22 of the
Code, the Appellate Court could exercise the power under Rule 33 of Order 41 of the
Code even if the appeal is only against a part of the decree of the lower Court. The
Appellate Court could exercise the power in favor of all or any of the respondents,
although such respondent may not have filed any appeal or objection, therefore, in
view of aforesaid provision the respondent-objector has a right to address to the Court
in regard to that part of the decree or on a particular issue which was decided against
him. Reliance was placed on the judgment delivered in the case of Mahant Dhangir v.
Madan Mohan, reported in 4

5. Learned counsel appearing for the appellant, in counter, submitted that cross-
objection is hopelessly time-barred which was filed with the delay of 507 days from
the period of limitation and this inordinate delay has not at all been explained by the
objector. It was then submitted that in the instant case objector-respondent put in
appearance through his counsel as a caveat or and in his presence and participation
appeal was admitted on 28-3-2006, therefore since he was present through his counsel
at the stage of admission and thereafter also remained present in the subsequent
proceedings, no formal notice after admission fixing the date of hearing of the appeal
was required to be served but notice after admission was ordered to be served upon
respondent No. 2 under Rule 14 of Order 41 of the Code as he was not present at that
stage, therefore, period of limitation prescribed under Order 41, Rule 22 of the Code
started running from 28-3-2006 for filing the cross-objection as against objector-
respondent. Reliance was placed on the judgment delivered by the learned single
Bench of this Court in Ram Saran Sharma v. Smt. Kamla Acharya, reported in 5

6. I have considered the rival submissions of the parties.

7. Before coming to the main issue of limitation, it would be appropriate to have a
glance over the proceedings in the appeal.

8. In the instant case, the appeal was filed by the appellant-defendant. The East India
Hotels Ltd., on 9-3-2006 which was listed on 22-3-2006 for admission. On that day
objector-respondent appeared through his counsel and 28-3-2006 was fixed for
admission of the appeal. On that day this Court admitted the appeal in the presence of
counsel for the respondent-objector and notice was issued to remaining respondent No.
2 Ranjeet Singh and both the parties were directed to maintain stauts quo and
thereafter on filing the power (sic) on behalf of respondent No. 2 service was also
completed upon him.

9. Now adverting to the main issue of limitation that as to what is the starting point of
the limitation for filing the cross-objection in the instant case, it would be appropriate
to have a look over the relevant provisions in regard to filing of the cross-objection
under sub-rule (1) of Rule 22 of Order 41 of the Code which is reproduced here 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 favor; 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."
10. From the above provisions, it is manifestly clear that the cross-objection has to be
filed in the Appellate Court within a period of one month from the date of service on
him or his pleader of the notice of the day fixed for hearing of the appeal or even
within such further time as the Appellate Court may see fit to allow. A close scrutiny
of the procedure of filing of appeal and thereafter proceedings provided under Order
41, Rule 9 of the Code reveals that after proper presentation of the appeal the same is
to be posted for admission which may be dismissed at the admission stage and if the
same is not dismissed at the stage of admission under Order 41, Rule 11 of the Code
then the Appellate Court shall fix the day for hearing of such appeal as provided under
Rule 12 of Order 41 of the Code and notice shall be served on the respondent or his
pleader to appear and answer. As has been pointed out earlier, the objector-respondent
already put his appearance before this Court even before admission of the appeal as a
caveat or and his counsel was present and participated in proceedings at the admission
stage and in his presence the appeal was admitted, therefore, in my considered view
formal notice in writing under the prescribed form under Order 41, Rule 14 of the
Code was not essential to be served upon the objector-respondent who participated in
the proceedings and was having full knowledge of the admission of the appeal. Similar
view has been taken by this Court in Ram Saran Sharma's case (supra) wherein it was
observed that when a caveat has already been entered into, service of notice of hearing
of the appeal, on the respondent, cannot be taken to be necessary, and the limitation of
one month, for filing cross-objection, at the most can be computed from the date of
admission of the appeal and not prior to that. In the case of Mutyam Agaiah v. Special
Deputy Collector, (NTPC) LA Unit, reported 6 in while taking the similar view it was
held as under :-

       "We have to understand the issue of notices in the proper perspective. The
       notices are meant for giving knowledge to the other side regarding the judicial
       proceedings filed by the appellant. It is not every time necessary that the notices
       should be in writing in the prescribed form. If the knowledge of filing of the
       appeals can be proved then it is sufficient notice in law. The respondent-cross-
       objector engaged an Advocate, who filed Vakalatnama and he defended the
       cause of the claimant in the Original Petition. It means that the cross-objector
       had sufficient knowledge regarding the appeals. Nothing prevented for the
       respondent-cross-objector for filing the objections."
11. So far ratio decided in the cases of Union of India v. Jhutter Singh; Union of India
v. Shibu Ram Mittal and Rashida Begum v. Union of India (all supra) is concerned, the
facts of these three cases are distinguishable from the present case since in all these
three cited cases there was no point in issue that at the time of admission of the appeal
the objector-respondent was present and participated in the proceedings.

12. In view of above discussion, I am of the firm view that in the instant case the
period of limitation for filing the cross-objection by the objector- respondent starts
running from 28-3-2006 when in the presence and active participation by the counsel
for the objector-respondent in the proceedings, the appeal was admitted and the notice
after admission was ordered to be served upon remaining respondent No. 2 Ranjeet
Singh who was not present before the Court.

13. It is not disputed that thirty days period is prescribed for filing the cross-objection
under Rule 22 of Order 41 of the Code, though discretion has been left with the Court
to extend the period of limitation under the said provision. In the present case cross-
objection was filed with the delay of 507 days and in the application seeking
condonation of delay and extension of time in filing the cross-objection, it was averred
that the objetor was under the mistaken belief that in the appeal entire judgment and
decree is vulnerable and open to argument including the grievance of the objector-
respondent on the point of dismissal of his claim for right to pre-emption and after the
advise he realized the necessity of filing the cross-objection. In my view, subsequent
advise of the advocate for filing the cross-objection or some assumption in the mind of
the objector does not offer good and sufficient reason for seeking condonation of
inordinate delay of 507 days in filing the cross-objection. In the case of Jamshed
Hormusji Wadia v. Board of Trustees, Port of Mumbai, reported in (2004) 3 SCC 214
: ( AIR 2004 Supreme Court 1815) the Hon'ble Apex Court did not find it sufficient
ground for condonation of delay that cross-objection was filed with the advise and
persuasion of the counsel.

14. In this view of the matter it can be safely held that in the present case sufficient
reason for condonation of delay of 507 days and extension of period of limitation has
not properly been explained.

15. Now the point remained to be answered is whether the objector-respondent can
address on all the issues of controversy including the issue which was decided against
him by virtue of the provisions under Rule 33 of Order 41 of the Code even he did not
prefer any appeal and cross-objection was not admitted being time-barred?

16. In this regard, suffice is to say that the law is very much settled by the Hon'ble
Apex Court and in the case of Mahant Dhangir case (supra) it was held as under :-

       "the appellate Court could exercise the power under Rule 33 even if the appeal
       is only against a part of the decree of the lower Court. The appellate Court
       could exercise that power in favor of all or any of the respondents although such
       respondent may not have filed any appeal or objection. The sweep of the power
       under Rule 33 is wide enough to determine any question not only between the
       appellant and respondent, but also between respondent and co-respondents. The
       appellate Court could pass any decree or order which ought to have been passed
       in the circumstances of the case. The appellate Court could also pass such other
       decree or order as the case may require. The words "as the case may require"
       used in Rule 33 of Order 41 have been put in wide terms to enable the appellate
       Court to pass any order or decree to meet the ends of justice."
17. In the light of above authoritative pronouncement, it can be observed that objector-
respondent can address on all the issues including the issues which were decided
against him within the purview and scope of Rule 33 of Order 41 of the Code at the
time of final arguments of appeal, though he has not filed any appeal and his cross-
objection has not been admitted being time-barred.

18. In view of what has been discussed above, the application under Section 5 of the
Limitation Act is rejected and consequent thereof the cross-objection is declined to be
admitted as being time-barred.

Petition dismissed.

Cases Referred.

1. 46 (1992) DLT 364 (DB)
2. 76 (1998) DLT 577
3. 91 (2001) DLT 664: (AIR 2001 (NOC) 81 (Del))
4. 1987 (Supp) SCC 528: (AIR 1988 SC 54)
5. RLR 2000 (3) page 77: (2000 AIHC 4588)
6. 2002 (2) ALT 715