Patna High Court
Musammat Chander Kala Kuer vs Musammat Dulhin Raja Kuer on 10 May, 1928
Equivalent citations: 119IND. CAS.900, AIR 1929 PATNA 31
JUDGMENT Kulwant Sahay, J.
1. This is an application for leave to file a memorandum of cross-objections in forma pauperis. The application was heard and notice was ordered to be issued. The Government Pleader does not appear and oppose the application. The appellant appears and raises two objections: first, that the memorandum of cross-objections ought to have been filed within 30 days of the date of the decree and, second, that there is no substantial question of law as required under the proviso to Order XLIV, Rule 1 of the Code.
2. As regards the first point, it is only necessary to refer to the provisions of Order XLI, Rule 22, Clause (5), which provides that the provisions relating to pauper appeals shall so far as they can be made applicable apply to an objection under this rule Now, an objection under this rule can be filed by the respondent after service of notice of the appeal. The time for filing an appeal to the High Court is 10 days, and if the respondent is entitled to present a memorandum of cross-objection in forma pauperis he cannot be expected to present the same within 30 days of the decree. The law allows a cross objection to be filed within 30 days of the service of the notice of the appeal and by the provisions of Clause (5), Order XLI, Rule 22, a cross-objection can be filed in forma pauperis. It is, therefore, clear that the limitation of 30 days from the date of the decree does not apply to applications for leave to file cross-objections in forma pauperis. This question was considered by the Calcutta High Court in Gobinda Rani Dasi v. Radha Ballabh Das 7 Ind. Cas. 118 : 12 C.L.J. 173 : 15 C.W.N. 205, where it was held that an application for leave to present a memorandum of cross-objection under Section 561, Civil Procedure Code of 1882 as also the corresponding provisions of the Code of 1958 may be received by the Court at any time. The first objection of the learned Advocate for the appellant has, therefore, no substance.
3. As regards the second objection, the notice of the application having been ordered to be issued, it must be presumed that the Court was satisfied before ordering the issue of the notice that the requirements of the law under the proviso to Order XLIV, Rule 1, were satisfied. Moreover, it appears that notice of the application was given to the learned Advocate for the appellant at the time it was presented and it was open to him to appear and object at that time. He, however, did not appear and raise any objection. It is not open to him now to say that the requirements of the proviso to Order XLIV, Rule 1, have not been complied with.
4. The application is granted, and the petitioner is allowed leave to file the memorandum of cross-objections in forma pauperis.
Macpherson, J.
4. I agree.