Himachal Pradesh High Court
Subhash Chand vs Ishwar Dass on 5 December, 2017
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revision No. 42 of 2017.
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Reserved on: 30th November, 2017.
Decided on : 5th December, 2017.
Subhash Chand .....Petitioner/Plaintiff.
Versus Ishwar Dass Coram:
r to ..Respondents/Defendants.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Petitioners : Mr. Ajay Sharma, Advocate.
For the Respondent: Mr. Surinder Saklani, Advocate.
Sureshwar Thakur, Judge The extant petition stands directed against the impugned order recorded, on 02.12.2016, by the learned Addl. District Judge-I, Kangara at Dharamshala in CMA No.27-D/2016.
1Whether reporters of the local papers may be allowed to see the judgment?
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2. The plaintiff's suit for declaration, injunction and possession vis-a-vis the suit property, was, decreed by the learned trial Court. However, the decree rendered by the learned trial Court was made subject to the plaintiff affixing court fee ad valorem vis-a-vis the value of the suit property, in respect whereof, a decree for possession was rendered. Any default, on the part of the plaintiff, to comply with the aforesaid condition, was, in the operative part of the judgment and decree, rendered by the learned trial Court, hence pronounced to entail dismissal, of, the plaintiff's suit.
3. The aggrieved defendants' reared an appeal therefrom, before the learned First Appellate Court.
However, the defendants' appeal being time barred, it was accompanied by an application, constituted under the provisions of Section 5 of the Limitation Act. Notice of the application, constituted under the provisions of Section 5 of the Limitation Act, was, ordered to be issued ::: Downloaded on - 11/12/2017 23:00:33 :::HCHP ...3...
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upon the plaintiff/cross-objector AND it was served upon the latter on 11.10.2007. However, the application constituted, under provisions of Section 5 of the Limitation Act, bearing CMA No. 117 of 2007, stood on 5.7.2008, hence dismissed in default. After service of notice, of application aforesaid being effected, 11.10.2007, upon, the plaintiff/cross-objector, the plaintiff r on instituted cross-objections, to, the yet unregistered appeal preferred by the aggrieved defendants, against, the judgment and decree, recorded by the learned trial Court upon his suit. The plaintiff's cross-objections, came to be instituted, within, one month of his being served, with a notice vis-a-vis the defendants' application, cast under the provisions of Section 5 of the Limitation Act, application whereof was appended with the yet unregistered Civil Appeal, (i) wherein, they sought condonation, of, delay in theirs belatedly preferring, an appeal before the learned First Appellate Court, against, ::: Downloaded on - 11/12/2017 23:00:33 :::HCHP ...4...
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the judgment and decree rendered by the learned trial Court. As aforestated, the defendants' apposite application, cast under the provisions of Section 5 of the Limitation Act, was, dismissed in default on 5.7.2008, (ii) consequently, the time barred appeal instituted by the Court, thereupon r to aggrieved defendants before the learned First Appellate ipso facto also entailed the ill consequence of its suffering its dismissal.
Conspicuously, also unless an affirmative order, was pronounced, upon, the aggrieved defendants' application, instituted before the learned First Appellate Court, application whereof, was, cast under the provisions of Section 5 of the Limitation Act, obviously, hence, rendered the defendants' appeal to remain unregistered besides rendered it to be mis-constituted.
4. Nowat, the effect of the dismissal, of the defendants' application, constituted under the provisions of Section 5 of the Limitation Act, with all sequelling ::: Downloaded on - 11/12/2017 23:00:33 :::HCHP ...5...
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effects, of, its also begetting dismissal of the defendants' appeal, reared before the learned First Appellate Court, (i) does also have, a bearing upon the maintainability, of the cross-objections, reared by the plaintiff/cross-objector vis-
a-vis the conditional affirmative pronouncement, recorded upon his civil suit.
to (ii) The effect(s) besides bearings, of, the dismissal of the defendants' application, cast under the provisions of Section 5 of the Limitation Act, application whereof was appended with their, yet unregistered appeal, constituted before the learned First Appellate Court, upon the plaintiff's cross-objections, instituted within 30 days, of his receiving notice of the aforesaid application, (iii) is to be fathomed, from, the apposite thereto provisions borne, in Order 41, Rule 22 of the CPC, provisions whereof stand extracted hereinafter:-
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 ::: Downloaded on - 11/12/2017 23:00:33 :::HCHP ...6...
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 months from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow:
[Explanation: A respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may, under this rule, file cross 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 the 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.
(3) Omitted (4) Where, in any case in which any respondent has under
this rule filed a memorandum of objection, the original appeal is withdrawn or Is dismissed for default, the objection so filed may nevertheless be heard and ::: Downloaded on - 11/12/2017 23:00:33 :::HCHP ...7...
determined after such notice to the other parties as the .
court thinks fit, (5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule.
5. The relevant sub-rule 4 to Rule 22 of Order 41, enumerates r therein the peremptory statutory condition(s), (i) whereupon, despite, the aggrieved litigant's appeal, before the Court concerned, being withdrawn or dismissed in default, (ii) nevertheless, enjoins the Court concerned, to proceed to hear and determine the aggrieved litigants' concerned cross-
objections, instituted before the Court concerned. A deep incisive reading, of the phraseology occurring therein, especially "of the original appeal, is withdrawn or dismissed in default", unravels that (iii) the aggrieved litigant's appeal preferred before the Appellate Court concerned, necessarily enjoining its being numbered, in ::: Downloaded on - 11/12/2017 23:00:33 :::HCHP ...8...
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the apposite register maintained by the court concerned, whereupon, alone, the litigants' concerned, appeal would accrue thereon, the further statutory consequence, (iv) of, "its being withdrawn or its being dismissed in default", besides with befallment, of, the aforesaid ill-fates upon the litigants' concerned appeal, would, yet render the cross-objector's cross-objections being r enjoined to be heard and determined by the learned First Appellate Court. However, reemphasingly further more, rather the aggrieved litigant's appeal, obviously, is to be properly constituted, besides even if it is preferred by the litigant concerned, beyond, the prescribed period of limitation,
(v) yet the apposite delay in its preferment thereat, is enjoined to be condoned, whereafter, it is enjoined to be registered in the apposite register maintained, at the Court concerned, for the apt purpose, whereafter, it would be construable to be a properly constituted appeal,
(vi) besides thereafter alone, valid pronouncement(s) of ::: Downloaded on - 11/12/2017 23:00:33 :::HCHP ...9...
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its being withdrawn or dismissed in default would occur.
Contrarily, hereat the aggrieved defendants' appeal reared, against, the judgment and decree rendered, by the learned trial Court, was visibly outside the period of limitation, prescribed for its institution before the learned First Appellate Court, (vii) thereupon, it was accompanied by an application constituted, under the provisions of Section 5 of the limitation Act, application whereof was dismissed in default on 5.7.2008. (viii) Conspicuously hence, the aggrieved defendants' appeal neither remained registered nor hence was properly constituted,
(ix) thereupon, within, the ambit of sub-rule 4 to Rule 22 of Order 41, of the CPC, no valid orders, were pronounceable thereon vis-a-vis its withdrawal or qua its being dismissed in default nor any of the aforesaid orders evidently are pronounced thereon. (x) Significantly, thereupon, the learned First Appellate Court, was not entailed, with any dire legal obligation(s), to, ::: Downloaded on - 11/12/2017 23:00:33 :::HCHP ...10...
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nevertheless, hear the plaintiff's cross-objections, even if, they stood filed within 30 days, from, his being served with a notice upon the defendants' application, constituted under the provisions of Section 5 of the Limitation Act. The effect of the aforesaid discussion, is, of the impugned order, not suffering from any gross illegality or impropriety.
7. The apposite affirmative conditional decree rendered vis-a-vis the plaintiff/cross-objector, was, a conditional decree, (i) condition whereof is comprised in the learned trial Court, fastening an obligation upon the decree holder/plaintiff, to affix court fee ad valorem vis-
a-vis the value of the suit property, qua whereof, a decree whereof for possession was rendered, (ii) also when the plaintiff/cross-objector, had evidently constituted an application, before, the Court concerned seeking enlargement of time, for his meteing compliance, with the mandate of the conditional decree, whereon , ::: Downloaded on - 11/12/2017 23:00:33 :::HCHP ...11...
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findings adversarial to the plaintiff stood recorded, yet, the orders rendered therein are not shown to be assailed.
Moreover, as displayed by Ex. RW2/A, the application preferred by the plaintiff/cross-objector, under, the provisions of Section 148 of the CPC, wherein, he sought relief for time being extended vis-a-vis him, for his meteing compliance, with the condition precedent(s), for his deriving benefits, of, the affirmative decree pronounced vis-a-vis him, stood visibly dismissed.
Consequently, the aggrieved litigant therefrom, may avail, his legal remedy, of, assailing the aforesaid order, before the competent Court of law, rather his pressing for his mechanically raised cross-objections vis-a-vis the conditionally decree, being adjudicated upon. However, yet the cross-objector/plaintiff, rears, vis-a-vis the affirmative pronouncement recorded by the learned trial Court, upon his apposite suit, trite objections, vis-a-vis the validity of the conditional mandate occurring therein, ::: Downloaded on - 11/12/2017 23:00:33 :::HCHP ...12...
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(iii) wherein, he is enjoined, to, upon the plaint hence affix, court fee ad valorem vis-a-vis the value of the suit property, in respect whereof a decree for possession was rendered, efforts whereof are hence grossly untenable.
Apart therefrom, the plaintiff/cross-objector, does not, rear any objections to vis-a-vis the pronouncement recorded by the learned trial Court, upon, r affirmative his apposite suit. However, as aforestated, the plaintiff also instituted an application, cast under the provisions of Section 148 of the CPC, wherein, he sought extension of time, for, his meteing compliance with the mandate, of, the conditional decree, rendered by the learned trial Court, upon, his civil suit, application whereof stands dismissed, (iv) the effect of the plaintiff casting, the aforesaid application, is, of its casting its concomitant ill effect(s), upon, his cross-objections, wherein, he has reared objections vis-a-vis the validity of the conditions, fastened upon him, under, the affirmative conditional ::: Downloaded on - 11/12/2017 23:00:33 :::HCHP ...13...
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decree rendered by the learned trial Court, (v) ill effect(s) whereof, is/are comprised in the plaintiff, thereupon, hence acquiescing to the mandate of the condition precedent(s) enjoined upon him, for his hence taking the benefit(s) of the conditional decree, besides his being estopped also from his rearing per se mechanical cross-
objections vis-a-vis the condition precedent(s) embodied in the apposite affirmative conditional decree.
8. Even if, the aforesaid expostulations are imperative, as they, pronounce, upon, the bonafides of the plaintiff, to rear cross-objections, despite his, instituting an application, before, the learned trial Court, cast under the provisions of Section 148 of the CPC, whereupon, he sought extension of time, for his begetting compliance, with, the mandate of the affirmative conditional decree, (i) whereupon hence, he is construed to affirmatively waive, his right(s), to rear cross-objections thereto. Nonetheless, for affording the ::: Downloaded on - 11/12/2017 23:00:33 :::HCHP ...14...
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fullest adjudication, with its widest amplitude vis-a-vis the validity(ies), of his staking a claim, through, his application bearing CMPA No.27-D/2016 instituted by him, before the learned First Appellate Court, wherein he sought, relief, of, his objections being treated as an appeal, specifically within, the ambit of Order 41, Rules 1 and 2 of the CPC besides has sought relief, of the apposite delay in preferment thereto, being condoned, the apposite hereinafter facts enjoin allusion thereto, (a) the aforesaid application, being instituted on 23.07.2008 and (b) its institution evidently occurring subsequent, to, the defendants' application constituted, under the provisions of Section 5, of, the Limitation Act, standing dismissed in default on 5.7.2008, (c) an affirmative order could be validly pronounced upon the aforesaid application, only upon, evident good sufficient cause demonstrably precluding, the plaintiff to, earlier thereto, rear his cross-objections/appeal. (d) With an affirmative ::: Downloaded on - 11/12/2017 23:00:33 :::HCHP ...15...
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conclusion being recorded by this Court qua the untenability of the cross-objections reared by the plaintiff, without, the aggrieved defendant's appeal being property constituted, (e) thereupon, with this Court concluding of the learned First Appellate Court, being not, also enjoined to make any adjudication upon the plaintiff's cross-objections, (f) thereupon, also when, despite, the plaintiff in his deposition making a communication, of, his being purveyed a copy of the judgment and decree rendered, by the learned trial Court, on 3.9.2007, hence when, dehors the aggrieved defendants' instituting or not instituting, an appeal against the verdict adversarial pronounced vis-a-vis them, by the learned trial Court, (g) he hence could well have instituted an appeal, for, assailing the apposite mandate, of the affirmative conditional decree, pronounced vis-a-vis his suit, by the learned trial Court.
However, the plaintiff's/cross-objector's failures in doing ::: Downloaded on - 11/12/2017 23:00:33 :::HCHP ...16...
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so, contrarily, also his filing mis-constituted cross-
objections vis-a-vis the grossly mis-constituted aggrieved defendants' appeal, directed, against the judgment and decree rendered by the learned trial Court. (h) Rather, the plaintiff preferring, to, seek extension of time, from the Court concerned, for his begetting compliance vis-a-
vis the mandate of the conditional decree, time whereof was declined to him, (i) therefrom, it is rather befitting to conclude, of, his acquiescing to the mandate of the affirmative conditional decree pronounced, upon his suit by the learned trial Court. In sequel, his espousal in the apposite application is rather grossly malafide, also though the mandate, of, the provisions, wherewithin, the application is cast, does empower the Appellate Court, to make a pronouncement in consonance therewith, (j) yet with a rider of demonstrable evident good cause, precluding the aggrieved plaintiff, to, within time, institute an apposite appeal before the learned First ::: Downloaded on - 11/12/2017 23:00:33 :::HCHP ...17...
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Appellate Court, (k) contrarily, when no good cause is evidently demonstrated hereat rather when the espousal(s) of the cross-objectors/plaintiff, is grossly malafide, (l) thereupon, the plaintiff's/cross-objector's, endeavour to, through the application preferred subsequent, to the dismissal in default of the aggrieved defendants' application, constituted under Section 5 of the Limitation Act, hence claim, that, his mis-constituted cross-objections, be treated as an independent appeal, in its entirety ARE abortive mechanism(s) deployed by him.
9. For the foregoing reasons, there is no merit in the extant petition and it is dismissed accordingly. In sequel, the impugned order is maintained and affirmed.
However, liberty reserved to the plaintiff/petitioner herein to assail before the competent court of law, the disaffirmative order recorded by the learned trial Court upon his application, for extension of time for begetting compliance with the condition precedent, occurring, in ::: Downloaded on - 11/12/2017 23:00:33 :::HCHP ...18...
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the affirmative conditional decree pronounced upon his apposite civil suit. All pending applications also stand disposed. No costs. Records be sent back forthwith.
(Sureshwar Thakur) 5th December, 2017. Judge.
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