Bombay High Court
Vasant Builders, A Partnership Firm ... vs Mohan S/O Narayan Patwardhan on 22 December, 2020
Bench: Z.A. Haq, Avinash G. Gharote
wp5099 of 2018.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.5099/2018
PETITIONERS : 1. Vasant Builders (Developers, Builders
and Contractors), Yatra Chowk, Balaji
Complex, Akot, Tah. Akot, Distt. Akola,
a Partnership Firm through its Partner,
Prakash Vasantrao Thokal.
2. Prakash S/o Vasantrao Thokal,
Aged about 33 years, Occu :
Business, R/o Vasant Niwas,
Keshavraj Vetal, Akot, Tah. Akot,
Ditt. Akola.
...VERSUS...
RESPONDENT : Mohan S/o Narayan Patwardhan,
Aged about 71 years, Occu. :
Business & Agriculturist, R/o Yatra
Chowk, Akot, Tah. Akot, Distt. Akola.
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Mr. R.L. Khapre, Senior Advocate with Mr. R.G. Kavimandan and
Mr. D.R. Khapre, Advocates for petitioners
Mr. S.R. Deshpande, Advocate for respondent
CORAM : Z.A. HAQ AND
AVINASH G. GHAROTE JJ.
Order reserved on : 26/11/2020
Order pronounced on : 22/12/2020
wp5099 of 2018.odt
2
O R D E R (PER : AVINASH G. GHAROTE , J.)
1. The present reference arises out of the referral order dated 16/10/2020, by which the question raised in Writ Petition No.5099 of 2018 has been referred to the Division Bench for an authoritative answer. In Writ Petition No.5099 of 2018, the learned Single Judge (Shri R.B. Deo, J.) finding himself unable to accept the view as taken in V.I.D.C., through Executive Engineer, Wardha Vs. Kawadu Narayan Tandulakar and others, 2017 (6) Mh.L.J. 780, (Shri S.B. Shukre, J.) has framed the following question :-
"Where the appeal is admitted and the notice made returnable is waived by the respondent, the appeal being ready for final hearing on private paper-book being filed, the limitation for cross-objection is triggered the moment the respondent receives notice of hearing under Rule 12 of Order XLI, wherein in accordance with Rule 14 or in Form - 6 or by virtue of his presence when the appeal was admitted and fixed for final hearing irrespective of the appeal being ready or otherwise for final hearing, OR the limitation is triggered only when the appeal is ready for final hearing that is the private paper-book is prepared after receipt of the record of the lower Court, as appears to be the view as expressed in V.I.D.C., Wardha Vs. Kawadu (supra)."
2. Mr. Khapre, learned Senior Advocate, appearing for the petitioners, submits that the limitation for filing the cross-objection under Order XLI Rule 22 of C.P.C., is triggered when the respondent in appeal, puts in his appearance, either by having already filed a caveat, or by appearing suo moto, or upon service of notice of the appeal. He submits that once an appearance is put in by the wp5099 of 2018.odt 3 respondent in the appeal proceedings, the limitation starts from the date of his appearance or the date of service of the notice of the appeal, whichever is earlier. He further submits, that considering the language of Order XLI Rule 22 of C.P.C., the respondent, then has to file a cross-objection within a period of one month thereafter. He further submits, that the expression "day fixed for hearing of the appeal" as occurring in Order XLI Rule 22 of C.P.C. has to be construed to mean the date of service of the notice of the appeal upon the respondent or his appearance otherwise in the proceedings and once he has entered appearance, no separate notice is required to be issued to the respondent, at any point of time of the proceedings in the appeal thereafter, and the cross-objection has to be filed within a period of 30 days from the date the respondent has entered appearance, in any form whatsoever.
3. Mr. Khapre, learned Senior Advocate further places reliance upon the provisions of Order XLI Rule 12 and 14 of C.P.C. along with Form - 6 in Appendix - C, to contend that the language thereof contemplates, issuance of a notice, of the appeal only once, for fixing the date of hearing and decision of the matter, and does not provide for issuing another notice for the same purpose. He submits that the entire purpose of expeditious decision of the appeal would be frustrated, if the Court is required to issue notices to the respondents at various stages during the pendency of the appeal. He further submits that the provisions of Order XLI of C.P.C. do not provide for preparation of any paper-book and a notice consequent to its preparation to the parties to the appeal. Such a provision, is wp5099 of 2018.odt 4 contained in the Civil Manual, which is actually a set of guidelines for the purposes of implementation of the provisions of C.P.C. and cannot have an effect of overriding the provisions of the Code. He therefore submits that once the respondent enters appearance, it has to be construed to be good and valid for the purpose of the entire appeal and such appearance would continue to bind the respondent and his Advocate for the duration of the appeal. He therefore submits that the starting point of counting the limitation for the purpose of the limitation of one month for filing of the cross- objection, would be the date when the respondent enters appearance or is served, whichever is earlier. Mr. Khapre, learned Senior Advocate in support of his submissions places reliance upon the following judgments :-
(1) AIR 2020 Supreme Court 709 [Urmila Devi and Ors. Vs. Branch Manager, National Insurance Company Ltd., and Anr.] (2) 2020 SCC OnLine SC 721 [Bangalore Club Vs. Commissioner of Wealth Tax and Another] (3) (2002) 3 Supreme Court Cases 667 [Baldev Singh Gandhi Vs. State of Punjab and others] (4) (1976) 3 Supreme Court Cases 800 [Diwan Bros. Vs. Central Bank of India, Bombay and others] (5) AIR 1970 Supreme Court 1953 [Mata Din Vs. Narayanan] (6) 2013 AIR SCW 6158 [Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and others] wp5099 of 2018.odt 5 (7) AIR 2008 Rajasthan 131 Rajasthan High Court (Jaipur Bench) [East India Hotels Ltd. Vs. Smt. Mahendra Kumari and Anr.] (8) 2019 (3) Mh.L.J. 780 [Chhagan Trimbak Lokhande Vs. Dattatraya Krishna Patil and others] (9) AIR 2003 Supreme Court 1515 [Municipal Corporation of Delhi and others Vs. Intnl. Security and Intelligence Agency Ltd.]
4. Mr. S.R. Deshpande, learned Advocate for the respondent places heavy reliance upon paragraph 459 of the Civil Manual and submits that the date of hearing, as contemplated by the provisions of Order XLI Rule 12 of C.P.C. is the date on which the notice is served upon the respondent, consequent to the paper-book having been prepared, as without the paper-book, the appeal cannot be said to be ripe for hearing. He therefore submits that the expression "shall fix a day for hearing the appeal" as occurring in Order XLI Rule 22 C.P.C., has to be construed in light of the language of paragraph 459 of the Civil Manual, and the cross-objection filed within one month from the date of service of the notice of paper- book would be within time. He contends that even otherwise, the provisions of Order XLI Rule 22 of C.P.C. confer a wide jurisdiction upon the appellate Court to accept the cross-objection beyond the period of one month for the reasons which it may consider fit and proper. He further invites our attention to Rule 3 of Chapter VII of the Bombay High Court Appellate Side Rules, 1960 (Appellate Side Rules, 1960 hereinafter) and Practice Note-20 of the Bombay High Court Manual, as noticed by the Court in V.I.D.C. (Supra) to buttress wp5099 of 2018.odt 6 his submission that a notice, post printing and preparation of the paper-book, alone can be construed to be the notice, fixing the date of hearing under Order XLI Rule 22 of C.P.C. He further places reliance upon Sub Rule 4 of Rule 14 of Order XLI of C.P.C. to contend that a respondent would be entitled to notices of all incidental proceedings in case he has appeared and filed the address for the service in the Court of first instance or has appeared in the appeal, and therefore, the respondent would equally be entitled to a notice upon preparation of the paper-book and the limitation for filing the cross-objection, would begin from the date of service of such notice.
5. For appreciating the rival contentions, certain provisions of the Code of Civil Procedure and the Civil Manual being material are reproduced as under : -
"ORDER XLI OF THE CODE OF CIVIL PROCEDURE.
APPEALS FROM ORIGINAL DECREES Rule 12. Day for hearing appeal. - (1) Unless the Appellate Court dismisses the appeal under rule 11, it shall fix a day for hearing the appeal.
(2) Such day shall be fixed with reference to the current business of the Court.
Rule 14. Publication and service of notice of day for hearing appeal. - (1) Notice of the day fixed under rule 12 shall be affixed in the Appellate Court- house, and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the Appellate Court in the manner wp5099 of 2018.odt 7 provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice.
(2) Appellate Court may itself cause notice to be served. - Instead of sending the notice to the Court from whose decree the appeal is preferred, the Appellate Court may itself cause the notice to be served on the respondent or his pleader under the provisions above referred to.
(3) The notice to be served on the respondent shall be accompanied by a copy of the memorandum of appeal.
(4) Notwithstanding anything to the contrary contained in sub-rule (1), it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the Appellate Court, unless he has appeared and filed an address for the service in the Court of first instance or has appeared in the appeal.
(5) Nothing in sub-rule (4) shall bar the respondent referred to in the appeal from defending it.
Rule 22. Upon hearing, respondent may object to decree as if he had preferred separate appeal. -
(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
[Explanation. - A respondent aggrieved by a finding of the Court in the judgment on which the wp5099 of 2018.odt 8 decree appealed against is based may, under this rule, file 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] (emphasis supplied) FORM NO.6 NOTICE TO RESPONDENT OF THE DAY FIXED FOR THE HEARING OF THE APPEAL [O.41, R. 14] Appeal from the..............of the Court of...............dated the.............day of ...........20..........
To Take notice that an appeal from the decree of...............in this case has been presented by.............and registered in this Court, and that the.............day of...........20....., has been fixed by this Court for the hearing of this appeal.
If no appearance is made on your behalf by yourself, your pleader, or by some one by law authorized to act for you in this appeal, it will be heard and decided in your absence.
Given under my hand and the seal of the Court, this..........day of...........20.........
Judge.
(emphasis supplied) CIVIL MANUAL Para 459. (i) After the appeals, viz., the appeals from proceedings other than the suits finally disposed of, appeals from preliminary decrees, appeals against some interim orders of the trial Court etc, are admitted, the Court concerned shall consider the necessity of the record and proceedings for the purpose of a final hearing of the appeal and then pass necessary orders for calling upon the trial Court to wp5099 of 2018.odt 9 send in the Record and proceedings to it, if required. Otherwise, the Court shall pass the necessary order for not requisitioning the record and proceedings for the purpose. Similarly, the Court shall pass the necessary orders for the preparation and supply of the paper- book containing [Clearly readable [photocopy] or typed copies of] the relevant documents necessary for the final hearing. Looking to the urgency of the final hearing, the Court may direct the parties concerned to file the copies of the relevant documents of which they would rely.
(ii) After the appeal is admitted and the record and proceedings are received in the District Court, the Clerk of the Court shall give notice of that fact to the appellant or his lawyer, who shall, within one month from that date or such other further time as may be allowed by the Presiding Judge, deposit in Court the estimated cost of as many paper books as may be necessary for supplying them to the contesting parties separately represented by lawyers.
(iii) The paper book shall contain memorandum of appeal, judgment depositions in English and pleadings of the parties.
(iv) The charges for the preparation of paper books shall be at the rate of 15 Ps. for 100 words or fraction thereof for all the copies, not exceeding five; if an extra copy is needed, the rate for extra copy should be 5 Ps. for 100 words or fraction thereof. In addition to this, charges for the cost of paper at 5 Ps. per foolscap sheet shall be levied. When the paper books are ready, notice thereof shall be given to the appellant or his lawyer.
(v) If the deposit for the paper books is not made or if the balance remaining due after making the final adjustment is not paid within one month from the date on which notice has been given in that behalf, the appeal shall be placed before the Presiding Judge for such orders including dismissal for default or for want of prosecution, which the Presiding Judge may pass."
(emphasis supplied) wp5099 of 2018.odt 10
6. The factual background in which V.I.D.C. (Supra) came to be decided needs to be stated for proper assimilation of the position and the manner in which the provisions were applied thereto. In V.I.D.C. (Supra), the First Appeal No.818/2013, before the High Court, was filed under Section 54 of the Land Acquisition Act, 1894 read with Section 96 of the C.P.C., challenging the judgment and award passed by the 2 nd Jt. Civil Judge, Senior Division, Wardha, in L.A.C. No.409/2005 in a reference under Section 18 of the Land Acquisition Act. On 20/8/2013, the Court condoned the delay in filing of the appeal and issued notice to the respondents on the appeal, returnable on 11/11/2013, while granting an interim order of stay of coercive recovery, subject to the appellant depositing 50% of the amount awarded. The appeal thereafter upon service being complete was listed on 10/1/2014 on which date, the Advocates for all the respondents were present, whereupon the Court after hearing the Advocates for parties admitted the same and the ad interim order granted earlier was directed to be continued and notice was made returnable on 17/2/2014. On 10/01/2014 the Advocates for respondents waived notice. On 7/2/2014, the appeal was listed on board for passing order on the stay application and the Court confirmed the interim stay, granted earlier. The matter was thereafter listed on 19/1/2015 for hearing on an application filed by the cross-objector for seeking permission to withdraw the decretal amount deposited in the Court which was allowed by an order of the same date. On 11/9/2015, the Court dispensed with the printing of paper-book and directed the Advocate for the appellant to file private paper-book within eight wp5099 of 2018.odt 11 weeks. On 6/7/2017, cross-objection came to be filed in the First Appeal by the respondent nos.1 and 2 under Order XLI Rule 22 of C.P.C., whereupon the matter was listed before the Court on 13/10/2017 on which date the application for filing cross- objections came to be decided by the judgment which has been dissented with.
7. The reason for the decision as discerned from the judgment in V.I.D.C. (Supra) was that having regard to the standardization of notice to be issued after admission of the appeal made under Rule 3 of Chapter VII of the Bombay High Court Appellate Side Rules, 1960 and the practice note-20 of the Bombay High Court Manual, where under any first appeal in which record and proceedings were received and in which printing of the paper- book had not been made, which was the case in this appeal, it was to be treated as ready for final hearing and the appeal was to be listed before the Court for dispensing with printing and directing the appellant to supply a private paper-book within the time stipulated by the Court. The learned Judge noted that the office note dated 27/8/2015 showed that the record and proceedings of the case from the lower Court were received and observed that since the record and proceedings were received the appeal would have to be treated as ready for final hearing, provided the private paper-book was filed. On 11/9/2015, the printing of the paper-book was dispensed with and the private paper-book with necessary decree forms were directed to be supplied within six months, following which direction after availing several opportunities the private paper-book was filed wp5099 of 2018.odt 12 on 8/2/2017. It is in this contextual background that the learned Judge held that having regard to the standardization of notice to be issued after admission of the appeal under Rule 7 of Chapter VII of the Bombay High Court Appellate Side Rules, 1960, and practice note-20 of the Bombay High Court Manual, since the private paper- book was filed on 8/2/2017, notice of which was received by the appellant on 8/2/2017, it would then follow that from this date onwards, it could be reasonably presumed that the cross-objector had the notice of fixing of the appeal for hearing on merits, and therefore, the cross-objection ought to have been filed within one month from 8/2/2017 in terms of Order XLI Rule 22 (1) of C.P.C.
8. It is a settled position of law, that the provisions of Civil Manual are to be construed as being in aid of the provisions of the Code of Civil Procedure. By no stretch of imagination, can it be held that the provisions contained in Civil Manual, would have the effect of overriding the provisions of the Code of Civil Procedure. Reliance can be placed on Kisanlal Bachharaj Vyas Vs. Mohan Chandmal and ors., AIR 1971 Bom. 410, wherein the Court held as follows :-
"8. It must further be remembered that the Civil Manual merely embodies the rules and instructions for the guidance of the Civil Courts and officers subordinate to it and the same were issued in order to ensure uniformity in the rules and practice in all parts of the State. The argument of Mr. Shankar Anand that all the instructions contained in the Civil Manual must be deemed to be rules framed by the High Court under s. 122 of the Code of Civil Procedure is not, in our view, valid. Under s. 122, High Court not being the Court of a Judicial Commissioner, may, wp5099 of 2018.odt 13 from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule. But every instruction contained in the Civil Manual cannot obviously be regarded as rules framed under this provision. There is a separate printed booklet of rules made by the High Court of Judicature at Bombay under s. 122 of the Code of Civil Procedure. Those rules came into effect on November 1, 1966, and one of those rules contains an amendment to the provisions of O. IV, r. 1 of the Code of Civil Procedure, with which we are not concerned in this appeal. We have only referred to those rules to point out that they are clearly distinct and separate from the instructions contained in the Civil Manual and the instructions contained in para. 7 in Chapter II of the Civil Manual cannot, in our view, be regarded as a rule having the force of law."
(emphasis supplied) Even otherwise, the language of paragraph 459 (1) of the Civil Manual, clearly indicates that it is not mandatory in every case, for the paper-book to be prepared and direction for its preparation by the Appellate Court would depend from case to case and that too, only in cases where the Appellate Court considers it necessary and not otherwise. Thus, the preparation of the paper- book, where it is so ordered to be prepared, is not an act, which is considered to be a requirement in law, for the purpose of hearing of the appeal. Paragraph 459 of the Civil Manual does not contemplate issuance of a notice of the paper-book being ready to the respondent, as the language of sub-paragraph (iv) of paragraph 459 of the Civil Manual reveals that the notice contemplated therein is only to be given to the appellant or his lawyer of the paper-book wp5099 of 2018.odt 14 being ready. In the earlier sub paragraph (ii) of paragraph 459 of the Civil Manual also, the notice contemplated, about the receipt of the record and proceedings in the District Court and the requirement to deposit the estimated cost of paper-book within one month, is only to the appellant or his lawyer and not to the respondent, the reason for which is obvious that the respondent has no role to play therein. Thus, the entire language of paragraph 459 of the Civil Manual, does not contemplate, the issuance of any notice, for any purpose whatsoever, including the paper-book having being prepared, where it is so directed, to the respondent. This would clearly indicate that there is no obligation, even as per paragraph 459 of the Civil Manual also, to serve a notice upon the respondent or his lawyer at any point of time. It is thus apparent that the requirement of preparing a paper-book is not a statutory obligation enjoined by law, so as to enable the respondent to claim a vested right in himself for issuance of any notice of its preparation.
9. That apart, the provisions of Order XLI of C.P.C. or for that matter Order V of C.P.C. do not contemplate the issuance of notice to the respondent/defendant, at various stages of the proceedings, either in appeal or in the suit. Once the respondent/defendant has entered appearance, either on a caveat, suo moto or upon service of the notice/summons, such appearance stands good for the entire duration of the appeal/suit.
10. Order XLI Rule 12 of C.P.C enjoins the Court to fix a day for hearing the appeal and the manner in which the publication wp5099 of 2018.odt 15 and service of notice for such day of hearing of appeal is prescribed in Rule 14 of Order XLI of C.P.C. The language in which the notice is addressed to the respondent, is contained in Form-6 of Appendix - G to the C.P.C. A plain reading of the language of Form-6 clearly demonstrates, that the notice, issued in Form-6, is of the date fixed for hearing of the appeal, which is substantiated by the later part of Form-6, which states that if no appearance is made on behalf of the respondent in the appeal, it will be heard and decided in his absence. Thus, the notice under Order XLI Rule 12 read with Rule 14, in Form-6, Appendix-G of C.P.C., is a notice for the day fixed for hearing of the appeal and not otherwise. As stated, Order XLI C.P.C. does not prescribe the issuance of any further notice to the respondent at any further stage of the appeal.
11. Sub Rule 4 of Rule 14 of Order XLI of C.P.C. is also of no assistance to the arguments as advanced by Mr. S.R. Deshpande, learned Advocate for the respondent, as the preparation of the paper-book cannot be said to be a proceeding incidental to an appeal.
12. The purpose of issuance of a notice/summons in an appeal or suit, to the respondent/defendant is to make him aware of the pendency of the lis against him/her, and once such knowledge is attributed to the respondent/defendant, by any mode whatsoever, including by his appearance suo moto or on a caveat, it would not be permissible for the respondent/defendant, to claim the entitlement for issuance of any further notice, at any subsequent wp5099 of 2018.odt 16 stage of the lis.
13. It is further material to note that though the provisions of Order XLI Rule 3 of C.P.C. contemplate rejection or amendment of memorandum of appeal where it is not drawn up in the manner prescribed and Rule 11 of Order XLI of C.P.C. contains a provision for dismissal of the appeal without sending notice to lower court after fixing a day for hearing, the same do not contemplate, any role of the respondent at that stage. The expression "after fixing a day for hearing, the appellant or his pleader" as occurring in Rule 11 of Order XLI, ought not to be confused with the expression "fix a day for hearing the appeal" as occurring in Rule 12 of Order XLI. This is clear from the language of Rule 12 of Order XLI which contemplates the fixing of the day for hearing of the appeal, only if the appeal is not dismissed under Rule 11 of Order XLI. Thus, the provisions of Rule 11 of Order XLI and Rule 12 of Order XLI operate in two different arenas and context. The power under Rule 11 Order XLI of C.P.C. is exercisable in absence of the respondent, as is further apparent from the expression "the appellate Court after fixing a day for hearing the appellant or his pleader and hearing him accordingly, if he appears on that day may dismiss the appeal". This in normal practice, occurs immediately on the first day, when the appeal, after its filing and allotment, is listed before the Court to which it is allotted, when the Court upon hearing the Advocate for the appellant, and having applied its mind, may choose to exercise the power under Rule 11 (1) of Order XLI of C.P.C., in case it finds for reasons to be recorded that the appeal is not tenable or otherwise is wp5099 of 2018.odt 17 without any merits altogether. Once the Appellate Court, issues notices to the respondents, it clearly indicates that the Appellate Court has applied its mind, to the facts of the matter, and is of the opinion, that the appeal is required to be decided on its merits. This clearly contemplates a stage which is post Rule 11 of Order XLI of C.P.C., and the notice issued thereafter, would clearly be a notice under Rule 12 of Order XLI of C.P.C., and the respondent in light of the language of Order XLI Rule 22, would be required to submit his cross-objection within the time of one month from the date of service of notice upon him. The mandate of filing the cross-objection within a period of one month would equally be applicable, where the respondent, has already entered his appearance by filing a caveat or has put in his appearance suo moto, whichever is earlier.
14. Rule 3, Chapter VII of the High Court Appellate Side Rules, 1960, and practice note-20 of the Bombay High Court Manual read as under :-
"Rule - 3. Date of hearing in notice to respondent or opponent. -
Subject to such general or special orders as may be made by the Registrar, the date to be entered in the notice to a respondent or an opponent as the earliest possible date of hearing, shall be not less than three months from the date of issue of the notice in First Appeals, two months in Second Appeals and one month in Short Notice or Expedited Matters, unless the Court orders otherwise.
wp5099 of 2018.odt 18 Practice Note No.20 of the Bombay High Court Manual.
It has been observed by the Hon'ble the Chief Justice that large numbers of matters are lying in the Branches as unready due to trivial objections. Hence, the Hon'ble the Chief Justice is pleased to give the following directions to all the Departments that :-
(i) The matters with the Civil Applications shall be treated as ready for final hearing and placed before the Court except the matters in which the Civil Applications for legal heir is pending and in which other side is not served.
(ii) The First Appeals and Second Appeals after R & P is received in which printing is not yet available shall also be treated as ready for final hearing and placed before the Court so that the printing can be dispensed with directing Advocates for the Appellants to supply private paper books within the time limit so ordered by the Court. If private paper books are not supplied within the time granted, the matters will be placed before the Court for dismissal for non compliance.
High Court, Appellate Side By Order, Bombay, 4th August, 2004. Sd/-"
A perusal of Rule 3 of Chapter VII of the Appellate Side Rules, 1960, merely postulates that the notice to be issued to the respondent after admission, shall be of a particular duration depending upon the nature of the proceedings. It nowhere postulates, that in spite of a respondent/opponent having put in his appearance, issuance of the notice under Rule 3 is a must. Thus, the question of issuance of notice as contemplated in Rule 3 of Chapter wp5099 of 2018.odt 19 VII of the Appellate Side Rules, 1960 would arise only in a case where the respondent has not put in his appearance, through an Advocate or in person, upon service of notice either at the pre-
admission stage or is not served when the matter is admitted, and not otherwise. As already observed, the purpose of a notice, being to bring to the knowledge of the respondent the pendency of the lis, against him, the issuance of a notice to him at various stages of the lis is not mandated by law, rather it would make a travesty of the entire process of administration of justice and permit the respondent/opponent to protract the litigation by adopting various tactics of avoiding notice. Thus, the provisions of Rule 3 of Chapter VII of the Appellate Side Rules, do not come to the aid of the argument as canvassed by learned Advocate Mr. S.R. Deshpande.
Practice Note-20 of the Bombay High Court Manual, speaks of as to when the matters are to be considered to be ready, which in the case of first appeals is to be considered as such, upon receipt of the record, even if printing is not yet available. Practice Note-20, are merely administrative instructions to the Registry of the Court to ensure that matters are not pending for trivial reasons and are not listed before the Court for hearing and decision. The receipt of the record, is many a times, unnecessary, if the memo of appeal contains, all the requisite material in the form of pleadings, evidence, exhibited documents and judgment to decide the appeal, and is always in the discretion of the Court, where it thinks it necessary and not otherwise. Thus, no sustenance can be had from practice note-20 of the Bombay High Court Manual to the contention being advanced by learned Advocate Mr. S.R. Deshpande.
wp5099 of 2018.odt 20
15. The distinction sought to be made, between a notice received/waived by the respondents at the time of admission of the appeal and the notice received by the respondents consequent to the printing of the paper-book being dispensed with and a private paper- book being filed and the later, being the starting point of limitation for filing the cross-objection under Order XLI Rule 22 (1) of C.P.C., in fact goes against the scheme of Order XLI of C.P.C., as depicted from Rules 3, 11, 12, 14 and 22 of Order XLI together with the purpose of issuance of notice to the respondents, being of the respondents being made aware of the pendency of the lis. It would be equally a position of law that neither the Bombay High Court Appellate Side Rules, 1960 nor the Practice Note-20 of the Bombay High Court Manual can override the express provisions of the Code of Civil Procedure as contained in Order XLI of C.P.C. What is stated in respect of the provisions of Paragraph 459 of the Civil Manual, would equally apply to practice note-20 of the Bombay High Court Manual. Thus, looking to the purpose for which a notice is required to be issued to the respondents, namely, of imparting knowledge of the lis to the respondents, the practice note-20 of the Bombay High Court Manual, read with Rule 3 of Chapter VII of the Bombay High Court Appellate Side Rules, 1960 cannot be said to make available a fresh period of limitation to the respondents for filing cross-objection from the date of notice of the preparation of the paper-book or the private paper-book being filed. It would not be out of place to mention here that the preparation of a paper-book, though not contemplated by the C.P.C., could only be considered as merely a step/mode to facilitate the hearing of the appeal and not otherwise.
wp5099 of 2018.odt 21
16. The position has been considered by the Hon'ble Apex Court in Mahadev Govind Gharge & Ors. Vs. Special Land Acquisition Officer, (2011) 6 SCC 321 as under :-
"40. The concept of "hearing by the court", in fact, has common application both under civil and criminal jurisprudence. Even in a criminal matter the hearing of the case is said to be commenced by the court only when it applies its mind to frame a charge, etc. Similarly, under civil law also it is only when the court actually applies its mind to averments made by the party/parties, can it be considered as hearing of the case.
41. This Court in Siraj Ahmad Siddiqui v. Prem Nath Kapoor [(1993) 4 SCC 406] while dealing with the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, referring to the concept of first hearing, held as under: (SCC p. 412, para 13) "13. The date of first hearing of a suit under the Code is ordinarily understood to be the date on which the court proposes to apply its mind to the contentions in the pleadings of the parties to the suit and in the documents filed by them for the purpose of framing the issues to be decided in the suit. ... We are of the view, therefore, that the date of first hearing as defined in the said Act is the date on which the court proposes to apply its mind to determine the points in controversy between the parties to the suit and to frame issues, if necessary."
42. The date of hearing must not be confused with the expression "step in the proceedings". These are two different concepts of procedural law and have different connotation and application. What may be a "step in the proceeding", essentially, may not mean a "hearing" by the court. Necessary ingredients of "hearing" thus are application of mind by the court and address by the party to the suits.
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43. Now we would proceed to discuss the purpose of giving one month's time and notice to the respondent to file cross-objections. The primary intention is, obviously, to give him a reasonable opportunity to file cross- objections in the appeal filed by the other party. It may be noticed that filing of cross-objections is not an exclusive but, an alternate remedy which a party can avail as an alternative of filing a separate appeal in its own right.
44. The language of Order 41 Rule 22 of the Code fixes the period of limitation to be computed from the date of service of notice of hearing of the appeal upon the respondent/cross-objector and within one month of such date he has to file cross-objections. Thus, the crucial point of time is the date on which the notice of hearing of the appeal is served. This could be a notice for actual date of hearing or otherwise.
45. There appears to be a dual purpose emerging from the language of Order 41 Rule 22 of the Code. Firstly, to grant time of one month or even such further time as the appellate court may see fit to allow; and secondly, to put the party or his pleader at notice that the appeal has been admitted and is fixed for hearing and the court is going to pronounce upon the rights and contention of the parties on the merits of the appeal. Once such notice is served, the period of limitation under Order 41 Rule 22 of the Code will obviously start running from that date. If both these purposes are achieved any time prior to the service of a fresh notice then it would be an exercise in futility to issue a separate notice which is bound to result in inordinate delay in disposal of appeals which, in turn, would be prejudicial to the appellants. A law of procedure should always be construed to eliminate both these possibilities.
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-
wp5099 of 2018.odt 23 respondent appears at the time of admission of the appeal, as a caveator or otherwise and argues the appeal on merits as well as while passing of interim orders and the court has admitted the appeal in the presence of that party and directs the appeal to be heard finally on a future date, actual or otherwise, then it has to be taken as complete compliance with the provisions of Order 41 Rule 22 of the Code and thereafter, the appellant who has appeared himself or through his pleader cannot claim that the period mentioned under the said provision of the Code would commence only when the respondent is served with a fresh notice of hearing of the appeal in the required format. If this argument is accepted it would amount to travesty of justice and inevitably result in delay while causing serious prejudice to the interest of the parties and administration of justice. Such interpretation would run contra to the legislative intent behind the provisions of Order 41 Rule 11 of the Code which explicitly contemplate that an appeal shall be heard expeditiously and disposed of as far as possible within 60 days at the admission stage. All the provisions of Order 41 of the Code have to be read conjunctively to give Order 41 Rule 22 its true and purposive meaning.
60. Having analytically examined the provisions of Order 41 Rule 22, we may now state the principles for its applications as follows:
(a) The respondent in an appeal is entitled to receive a notice of hearing of the appeal as contemplated under Order 41 Rule 22 of the Code.
(b) The limitation of one month for filing the cross-objection as provided under Order 41 Rule 22 of the Code shall commence from the date of service of notice on him or his pleader of the day fixed for hearing the appeal.
(c) Where a respondent in the appeal is a caveator or otherwise puts in appearance himself and argues the appeal on merits including for the purposes of interim order and the appeal is ordered to be heard finally on a date fixed wp5099 of 2018.odt 24 subsequently or otherwise, in presence of the said respondent/caveator, it shall be deemed to be service of notice within the meaning of Order 41 Rule 22. In other words the limitation of one month shall start from that date."
(emphasis supplied)
17. In East India Hotels Ltd. Vs. Smt. Mahendra Kumari, AIR 2008 Rajasthan 131, while considering the provisions of Order XLI Rule 22, it has been held as under :-
"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 caveator 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 wp5099 of 2018.odt 25 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) L.A. Unit, reported in 2002 (2) ALT 715 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."
(emphasis supplied)
18. A Division Bench of this Court in Smt. Krishnabai Rajaram Lonkar Vs. Prop. Shri Sanjay Sakharam Kamble, 2018 SCC OnLine Bombay 3915, has held as under :-
"10. Bare reading of Order XLI Rule 22 of the Civil Procedure Code, 1908 shows limitation for filing cross-objection starts from the date of notice of hearing. Even the Apex Court in the matter of Mahadev Govind Gharge v. Special Land Acquisition Officer (Supra) categorically held that limitation for filing cross- objection will commence from the date of admission if the respondents appeared due to earlier notice. Apart from that, even the authority cited by the advocate for wp5099 of 2018.odt 26 plaintiff also supports the fact that limitation for filing cross-objection starts from the date of admission and or the date of notice of hearing served on the other side. Paragraph 12 of the judgment in the matter of Oil and Natural Gas Corporation v. Punjsons Pvt. Ltd.(Supra) reads thus :
"12. What is relevant in terms of Order 41, Rule 22 read with Rules 12 and 14 is that the respondent should have knowledge about the admission of the appeal for final hearing. Undisputedly it is the practice of the Court when an appeal is heard at the admission stage, normally the Advocate for the respondent, having already notice of the hearing of the matter, waives service on behalf of the respondent and consequent to such waiver the appellant is not required to serve the respondent afresh with the notice of appeal for the final hearing. Once the Advocate for the respondent waives the service of notice on admission of the appeal, it is always considered as the notice to the respondent for final hearing of the appeal and on such waiver of notice, no further notice is issued to the respondent. The appeal is straightway taken up for final hearing on the board and after hearing the Advocates for the parties, it is disposed of. -----"
19. Coming to the judgments relied upon by Mr. Khapre learned Senior Advocate in Urmila Devi Vs. Branch Manager, National Insurance Company Limited, AIR 2020 SC 709 , the nature of a cross-objection, has been enunciated by the Hon'ble Apex Court in the following terms :-
"15. Right to prefer cross objection partakes of the right to prefer an appeal. When the impugned decree or wp5099 of 2018.odt 27 order is partly in favour of one party and partly in favour of the other, one party may rest contented by his partial success with a view to giving a quietus to the litigation. However, he may like to exercise his right of appeal if he finds that the other party was not interested in burying the hatchet and proposed to keep the lis alive by pursuing the same before the appellate forum. He too may in such circumstances exercise his right to file appeal by taking cross objection. Thus taking any cross objection to the decree or order impugned is the exercise of right of appeal though such right is exercised in the form of taking cross objection. The substantive right is the right of appeal; the form of cross objection is a matter of procedure.
18. It, thus, could be seen, that this Court has held that the right to prefer cross objection partakes of the right to prefer an appeal. It has been held, that when the impugned decree or order is partly in favour of one party and partly in favour of the other, one party may rest contented by his partial success with a view to giving a quietus to the litigation. It, however, held that if he finds that the other party was not interested in giving an end to the litigation and proposed to keep the lis alive by pursuing the same before the appellate forum, he may like to exercise his right of appeal. It has been held, that he too may in such cases and circumstances exercise his right to file appeal by taking cross objection. It has been next held, that taking any crossobjection to the decree or order impugned is the exercise of right of appeal though such right is exercised in the form of taking crossobjection. It has been held, that the substantive right is the right of appeal and the form of cross objection is a matter of procedure."
The question posed here however, is the starting point of limitation for filing the cross-objection under Order XLI Rule 22 of C.P.C., which did not fall for consideration of the Hon'ble Apex Court in Urmila Devi (supra).
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20. Bangalore Club Vs. Commissioner of Wealth Tax 2020 SCC OnLine 721, relied upon by Mr. Khapre, learned Senior Advocate is on the point of interpretation of a provision by the Court and the legislature being presumed to be cognizant of the view of the Court.
21. Baldev Singh Gandhi Vs. State of Punjab and others, (2002) 3 SCC 667 and specifically para 9 relied upon by Mr. Khapre, learned Senior Advocate, which dilates upon the word "misconduct" is not of any assistance to the arguments advanced by Mr. Khapre, learned Senior Advocate, as the word "misconduct", is not under consideration in the present reference.
22. Diwan Bros. Vs. Central Bank of India and Ors., (1976) 3 SCC 800, relied upon by Mr. Khapre, learned Senior Advocate, by quoting Caries on Statute law, holds as under :
22. Apart from the above considerations, it is a well-settled principle of interpretation of statutes that where the Legislature uses an expression bearing a well-known legal connotation it must be presumed to have used the said expression in the sense in which it has been so understood. Craies on Statute Law observes as follows:
"There is a well-known principle of construction, that where the legislature uses in an Act a legal term which has received judicial interpretation, it must be assumed that the term is used in the sense in which it has been judicially interpreted, unless a contrary intention appears."
23. In Barras v. Aberdeen Steam Trawling and Fishing Company [1933 AC 402, 411] Lord Buckmaster pointed out as follows:
wp5099 of 2018.odt 29 "It has long been a well-established principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context must be construed so that the word or phrase is interpreted according to the meaning that has previously been ascribed to it."
Craies further points out that the rule as to words judicially interpreted applies also to words with well-known legal meanings, even though they have not been the subject of judicial interpretation. Thus applying these principles in the instant case it would appear that when the Court Fees Act uses the word "decree" which had a well-known legal significance or meaning, then the Legislature must be presumed to have used this term in the sense in which it has been understood, namely, as defined in the Code of Civil Procedure even if there has been no express judicial interpretation on this point."
In the instant matter the expression "day fixed for hearing the appeal" has already been judicially interpreted in several judicial pronouncements as indicated above and the meaning given to the expression, has been considered by us while rendering the present judgment.
23. Mata Din / Narayanan, AIR 1970 SC 1953 and Esha Bhattacharjee / Managing Committee, 2013 AIR SCW 6158, both are on the issue of condonation of delay and the principles as applicable for the same and are not of any assistance to Mr. Khapre, learned Senior Advocate, as that is not the question in reference.
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24. In Chhagan Trimbak Lokhande / Dattatraya Krishna Patil and Ors., 2019 (3) Mh. L.J. 780, as well as Municipal Corporation of Delhi / Intnl. Security and Intelligence Agency, AIR 2003 SC 1515, relied upon by Mr. Khapre, learned Senior Advocate, it was held that the cross objection itself was not maintainable and the issue in hand did not fell for consideration.
25. For the reasons stated above, we therefore, are of the considered opinion that V.I.D.C. (Supra) does not lay down the correct position of law.
26. The question under reference is thus answered as under :-
The limitation for filing of the cross-objection under Order XLI Rule 22 of the C.P.C. commences/starts/is triggered, from the date on which the respondent or his pleader has been served with the notice of the day fixed for hearing of the appeal or the day when the respondent has entered his appearance at any stage suo moto or on caveat, whichever is earlier, and not on the day when he receives any notice about the paper-book being ready.
27. The matter be now placed before the appropriate Bench for further consideration, in light of the reference as answered.
28. While considering the question referred, we realised that some improvements in the procedure laid down in Order XLI of C.P.C for filing appeals are required, specially because of the increase wp5099 of 2018.odt 31 in the number of appeals filed.
The entire controversy can be easily avoided, if the appellant at the stage of filing of the appeal, itself files the appeal, in the form of a paper-book containing the pleadings, evidence, judgment and decree and the exhibited documents. In most of the appeals while considering an application under Order XLI Rule 5 of C.P.C., the appellant may wish to rely upon a specific portion of the pleading or evidence or document, to demonstrate the existence of a ground available for admission of the appeal and an argument on the application under Order XLI Rule 5 of C.P.C. Adopting the mode of filing the memorandum of appeal in the form of a private paper- book, will obliterate the arising of any controversy altogether at a later point of time, in this regard. In fact the Legislature would do well to suitably amend the provisions of Order XLI Rule 1 of C.P.C. by requiring the filing of the memorandum of appeal in the form of a paper-book containing the pleadings, evidence, judgment, decree form and the exhibited documents, which would go a long way in curtailing the duration of litigation and time spent by the Registry in preparing the paper-book, which takes years together will be saved. In fact, if the memorandum of appeal is directed to comprise of the certified copies of the pleading, evidence, exhibited documents (judgment and decree have to be certified copies). The time taken by the paper-book section to verify the authenticity of the private paper-book would also be saved and the requirement of a paper-book section, itself could be done away with thereby saving manpower and precious time, which can be used in other fruitful activities. This is necessary as appeals, once the application under Order XLI Rule 5 of wp5099 of 2018.odt 32 C.P.C. is decided one way or the other, tend to languish in the paper- book section for years together, as is the practical experience. Thus a small amendment to Order XLI Rule 1 of C.P.C., would, go a long way in speeding up the process of decision of the appeals and so also saving manpower and time. We would therefore request the legislature to consider the above and make suitable amendments, which is solely within their domain.
(AVINASH G. GHAROTE, J.) (Z.A. HAQ, J.) Wadkar Digitally signed by Shailendra Shailendra Wadkar Wadkar Date: 2020.12.23 16:58:48 +0530