How to ascertain limitation for filing of cross objection if caveater was present before court at the time of hearing?

 If we examine the provisions of Order XLI Rule 22 of the Code in its correct perspective and in light of the above stated 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 XLI 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 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 of the provisions of Order XLI Rule 22 of the Code and thereafter, the appellant  who has appeared himself or through his pleader cannot claim that 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 XLI 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 XLI of the Code have to be read conjunctively to give Order XLI Rule 22 its true and purposive meaning. Having analytically examined the provisions of Order XLI Rule 22, we may now state the principles for its applications as follow:

(a) Respondent in an appeal is entitled to receive a notice of hearing of the appeal as contemplated under Order XLI Rule 22 of the Code;

(b) The limitation of one month for filing the cross-objection as provided under Order XLI 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 subsequently or otherwise, in presence of the said respondent/caveator, it shall be deemed to be service of notice within the meaning of Order XLI Rule 22. In other words the limitation of one month shall start from that date.

Reportable

Supreme Court of India

Mahadev Govind Gharge & Ors vs Spl.Land Acq Officer ... on 10 May, 2011

Bench: Ashok Kumar Ganguly, Swatanter Kumar

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Whether High court can grant exparte interim order without admitting appeal?

 Submission of the learned senior counsel for the
appellant is that Order XLI Rule 5 confers jurisdiction on
the High Court while dealing with an appeal under Section
100 CPC to pass an ex parte order and such an order can
be passed deferring formulation of question of law in grave
situations. Be it stated, for passing an ex parte order the
Court has to keep in mind the postulates provided under
sub-rule (3) of Rule 5 of Order XLI. It has to be made clear
that the Court for the purpose of passing an ex parte order
is obligated to keep in view the language employed under
Section 100 CPC. It is because formulation of substantial
question of law enables the High Court to entertain an
appeal and thereafter proceed to pass an order and at that
juncture, needless to say, the Court has the jurisdiction to
pass an interim order subject to the language employed in
Order XLI Rule 5(3). It is clear as day that the High Court
cannot admit a second appeal without examining whether it
raises any substantial question of law for admission and
thereafter, it is obliged to formulate the substantial question
of law. Solely because the Court has the jurisdiction to
pass an ex parte order, it does not empower it not to
formulate the substantial question of law for the purpose of
admission, defer the date of admission and pass an order of
stay or grant an interim relief. That is not the scheme of
CPC after its amendment in 1976 and that is not the tenor
of precedents of this Court and it has been clearly so stated
in Ram Phal (supra). Therefore, the High Court has
rectified its mistake by vacating the order passed in IA No.
1/2015 and it is the correct approach adopted by the High
Court. Thus, the impugned order is absolutely impregnable.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3190 OF 2016

Raghavendra Swamy Mutt Vs  Uttaradi Mutt 
Dated: March 30, 2016.

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