Sunday, 25 November 2018

When limitation for filing cross objection will start running?

 Hon'ble Supreme Court of India in Mahadev Govind Gharge's (supra) has held in para 45 as under:-

"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 the 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."
7. As per the said judgment of Hon'ble Supreme Court language of Order 41 Rule 22 of the CPC has dual purpose, i.e., 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. Hon'ble Supreme Court has held that once such notice is served, period of limitation will start running.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CMP(M) No. 622 of 2018 in Cross-objections No. ..... of 2018 in FAO No. 554 of 2017

Decided On: 07.09.2018

Santosh Devi  Vs. Hari Singh and Ors.

Hon'ble Judges/Coram:
Ajay Mohan Goel, J.

Citation: AIR 2018 HP170


1. This is an application filed under Section 5 of the Limitation Act for condonation of delay in filing the cross-objections, which are stated to be barred by 94 days. However, strangely, when this application was taken up for consideration, learned counsel for the cross-objector/Insurance Company, rather than making his submissions praying for condonation of delay in filing the cross objections has argued that there is no need for any condonation of delay in filing the cross objections, as the same are within limitation. On more than one occasion, this Court called upon the learned counsel for the cross objector to make up his mind as to whether he wants to make his submissions for condonation of delay in filing the cross objections or not. Learned counsel for the cross objector has insisted that he shall not be making any submissions for condonation of delay, as the cross objections are within limitation.

2. It is pertinent to mention at this stage that as per averments made in the application for condonation of delay in filing the cross objections, they are barred by 94 days. Learned counsel for the cross objector has argued that summons stood served upon the cross objector-Insurance Company on 19.1.2018, but as it was not mentioned in the said summons so served on the cross objector-Insurance Company on 19.1.2018 that the matter was to be finally heard on a date already fixed by the Court, therefore, there was no question of there being any delay in filing the cross objections, because the limitation for filing cross objections starts running from the date when a notice is served upon the respondent from the Court, wherein it is expressly mentioned that a date has been fixed for the matter to be finally heard and such date is reflected in the notice itself. In support of his contention, learned counsel has relied upon the judgment of Hon'ble Supreme Court of India in Mahadev Govind Gharge and others Vs, Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, MANU/SC/0597/2011 : (2011) 6 SCC 321.

3. No other point was urged.

4. I have heard learned counsel for the cross objector-Insurance Company. It is not in dispute that summons stood served upon the cross objector-Insurance Company on 19.1.2018 and the cross objections have been filed on 2.5.2018, i.e., beyond the statutory period of 30 days', after service of notice upon the party.

5. Order XLI Rule 22 of the Code of Civil Procedure, 1908 provides that any respondent, though he may not have appealed from any part of the decree, may, inter alia, file such objections 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.

6. Hon'ble Supreme Court of India in Mahadev Govind Gharge's (supra) has held in para 45 as under:-

"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 the 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."
7. As per the said judgment of Hon'ble Supreme Court language of Order 41 Rule 22 of the CPC has dual purpose, i.e., 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. Hon'ble Supreme Court has held that once such notice is served, period of limitation will start running.

8. In the present case, the appeal was admitted on 29.12.2017 and post admission notices were issued to the respondent returnable for 15.3.2018. The fact that the appeal stood admitted by the Court and actual date notices were sent to the respondent is self speaking that notice of admission stood issued, as also date for hearing to decide the right of the parties stood fixed by this Court at the time of admission of the appeal. The contents of notice issued to the cross objector-Insurance Company made it aptly clear that the case was fixed by this Court for hearing of the appeal on 15.3.2018 or on any subsequent date. The relevant portion of the notice is reproduced herein below:-

"IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA-I.

(Order 41, Rule 14 of Act No. V of 1908, Chapter XVIII Rule 1 & 2) (APPELLATE CIVIL JURISDICTION)

F.A.O. (MVA) 554/2017

Santosh Devi & ors....Appellant(s).............
Versus
Sh. Hari Singh & ors....Respondent(s)...........

Appeal from the Judgment/Order of the Court of Ld. Motor Accident Claims Tribunal(I), Solan, Distt. Solan, (H.P), Dated 31.07.2017

R-1 Sh. Hari Singh, son of Amar Singh, resident of Village Androali, Post Office Bhojnagar, Tehsil and District Solan, H.P. (Owner cum Driver of Vehicle Maruti Car No. HP-14D-0529)

R-2 The New India Assurance Company Ltd. Through its Branch manager, The Mall Solan, Tehsil and District Solan, H.P. (Insurer of Vehicle) Maruti Car No. HP014D-0529)

Take notice that an appeal from the award dated in the case 31.07.2017 has been presented by Sh. Pratap Singh Goverdhan Advocate(s) and registered in this Court that the 15th March 2018(15.03.2018) (A.D.) has been fixed by this Court, for hearing of the appeal and that the case will be laid before the Court on such date or on any subsequent day.

If you do not engage counsel, notice of any alternation in the date fixed for the hearing of this appeal will be given to you by Registered post. You should inform Deputy Registrar, or this Court, within one month of the receipt of this notice of appeal, of your address for service during this appeal. If you fail to furnish such address, your address, as contained in this notice of appeal which is the address given in the Memo of appeal will be deemed to be your correct address and all further notice posted to the latter addresses by Registered post will be deemed to be sufficient for the purpose of the appeal.

If no appearance is made on your behalf by yourself, your counsel or by someone by law authorized to act for you in this appeal, it will be heard and decided ex parte in your absence.

Given under my hand and the seal the Court this 10th January, 2018.

Encls: Copy of appeal attached."

9. The contents of notice thus clearly and categorically demonstrate that in the notice issued by this Court (which was served upon the respondent/cross-objector on 19.1.2018), it clearly stood mentioned that this Court had fixed the case for hearing on 15.3.2018 or any other subsequent date.

10. As from the date of receipt of notice in which the date of hearing was also mentioned, the cross objections have not been filed within the statutory period of 30 days. Despite there being an application for condonation of delay, the same has not been pressed by learned counsel for the cross objector and he has strenuously argued that there is no delay in filing of the cross objections. In my considered view, the submissions raised, in this regard, by learned counsel for the cross objector are totally misconceived. As is evident from facts enumerated herein above, by no stretch of imagination, it can be said that cross objections filed by the cross-objector are within limitation, yet the application filed for condonation of delay has not been pressed by the learned counsel.

In these circumstances, this Court has no option but to dismiss the prayer made by learned counsel for the cross-objector/Insurance Company to take the cross objections on record. Similarly, application filed under Section 5 of the Limitation Act is also dismissed as not pressed.


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