Supreme Court of India
MAHADEV GOVIND GHARGE & OTHERSversusTHE SPECIAL LAND ACQUISITION OFFICER, UPPER KRISHNA PROJECT, JAMKHANDI, KARNATAKA
- Citation
- 2011 INSC 375
- Decided
- 10 May 2011
- Disposal
- Disposed off
- Bench
- A K GANGULY
Holding
The one‑month period under Order XLI Rule 22 commences from the date the appellate court orders the appeal to be listed for hearing (i.e., service of notice of hearing), and the court may, in appropriate cases, condone delay beyond that period.
Summary
The landowners, who were caveators, appealed the award of compensation under the Land Acquisition Act and filed cross‑objections under Order XLI Rule 22 of the CPC, but delayed filing them by 404 days. The High Court dismissed both the State's appeal and the cross‑objections, holding that the one‑month limitation period began only after a fresh notice of the hearing date was served. The Supreme Court held that the limitation period starts from the date the High Court ordered the appeal to be listed for hearing, which served as notice, and that the court has discretion to extend the period. Since the landowners showed sufficient cause, the delay was condoned, the High Court's order was set aside, and the appeal was disposed of without a separate order on the State's appeal.
Issues considered
- The commencement date of the one‑month limitation period for filing cross‑objections under Order XLI Rule 22 of the CPC.
- Whether the delay of 404 days in filing cross‑objections can be condoned.
- Whether the High Court erred in interpreting ‘notice of hearing’ and dismissing the cross‑objections.
- Effect of a caveator’s appearance on the computation of the limitation period.
Legislation cited
- Code of Civil Procedure, 1908s. Order XLI Rule 11, s. Order XLI Rule 12, s. Order XLI Rule 22, s. Order XLI Rule 33, s. Section 148A
- Land Acquisition Act, 1894s. Section 18, s. Section 4(1)
- Limitation Act, 1963s. Section 5
Subjects
CPC Order XLI Rule 22cross‑objectionlimitation periodcondonation of delaycaveatorprocedural law interpretationLand Acquisition Act
Judgment
[2011) 8 S.C.R. 829
MAHADEV GOVIND GHARGE & OTHERS A
v.
THE SPECIAL LAND ACQUISITION OFFICER, UPPER
KRISHNA PROJECT, JAMKHANDI, KARNATAKA
(CIVIL Appeal No. 5094 of 2005)
B
MAY 10, 2011
[ASOK KUMAR GANGULY AND SWATANTER
KUMAR, JJ.]
Code of Civil Procedure, 1908 - Order XU, Rule 22 - C
Interpretation of - Service of notice of hearing of appeal -
Filing of cross-objections - Period of limitation -
Commencement of - Condonation of delay - Held: The
limitation of one month for filing cross-objection as provided
under Order XU Rule 22 commences from the date of service D
of notice on the respondent in the appeal or his pleader of
the day fixed for hearing the appeal - The cross-objections
are required to be filed within the period of one month from
the date of service of such notice or within such further time
as Appellate Court may see fit to allow depending upon the E
facts and circumstances of the given case - Since Order XU
Rule 22 itself provide for extension of time, the Courts would
normally be inclined to condone the delay in the interest of
justice unless and until the cross-objector is unable to furnish
a reasonable or sufficient cause for seeking the leave of the F
Court to file cross-objections beyond the statutory period of
one month - In the instant case, the cross-objectors were
caveators before the High Court and they were heard not only
while passing of interim orders but the appeal itself was
admitted in their presence - In the circumstances, one month G
of prescribed period in terms of Order XL/ Rule 22
commenced from the date on which the High Court ordered
that the appeal may be listed for hearing - As the period for
filing the cross objection had long expired, application for
829 H
830 SUPREME COURT REPORTS [2011] 8 S.C.R.
A condonation of delay was filed - High Court dismissed the
application without recording any specific reasons as to why
the averments of the cross-objector were disbelieved - In the
peculiar facts and circumstances of the case, the cross-
objectors were able to show sufficient/reasonable cause for
B grant of further time to file the cross objections beyond the
period of one month in terms of Order XU Rule 22 - Delay
in filing the cross-objections thus condoned.
Code of Civil Procedure, 1908- Order XU, r.22- Cross-
objections - Nature of - Held: Cross-objections within the
C scheme of Order XU Rule 22 are to be treated as separate
appeal and must be disposed of on same principles in
accordance with the provisions of Order XU.
Code of Civil Procedure, 1908 - s.148A - Rights of a
D caveator - Held: The rights of a caveator are different from
that of cross-objectors per se - A caveator has a right to be
heard mandatorily for the purposes of passing of an
interlocutory order - A caveator is to be heard· by the court
before any interim order can be passed against him.
E
Procedural Law - Hearing of appeal - Stages of - Held:
Hearing of the appeal can be classified in two different stages;
one at the admission stage and the other at the final stage.
Procedural Law - Date of hearing - Held: Date of hearing
F has normally been defined as the date on which the court
applies its mind to tf1e merits of the case - In a criminal
matter the hearing of the case is said to be commenced by
the Court only when it applie_s its mind to frame a charge etc.
- Similarly, under civil law it is only when the Court actually
G applies its mind to averments made by party/parties, it can
be considered as hearing of the case - 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
H may be a 'step in the proceeding', essentially, may not mean
MAHADEV GOVIND GHARGE v. SPL. LAO UPPER KRISHNA 831
PROJECT JAMKHANDI, KARNATAKA
a 'hearing' by the. Court - Necessary ingredients of 'hearing' A
thus are application of mind by the court and address by the
party to the suits.
Procedural law - Purpose and interpretation of - Held:
Justice between the parties to a case is the essence of 8
procedural law - Unless the statute expressly prohibits or put
an embargo, the Courts would interpret the procedural law so
as to achieve the ends of justice - Strict construction of a
procedural law is called for where there is complete
extinguishment of rights, as opposed to the cases where C
discretion is vested in the courts to balance the equities
between the parties to meet the ends of justice which would
invite liberal construction - The provisions of procedural law
which do not provide for penal consequences in default of their
compliance should normally be construed as directory in
nature and should receive liberal construction. 0
A preliminary notification under section 4(1) of the
Land Acquisition Act, 1894 was issued for acquisition of
land. Th~ Special Land Acquisition Officer awarded
compensation. Aggrieved, the claimants-landowners filed E
references under section 18 of the Act. The Reference
Court enhanced compensation along with all statutory
benefits. The respondents filed appeal before the High
Court on 12.09.2001. The landowners were on a caveat.
The High Court admitted the appeal on the same day and F
directed the office to post the same for hearing after the
LCR were received. The appellants filed cross-objections
before the High Court, under Order XLI, Rule 22 of CPC,
along with an application for condonation of delay of 404
days in filing the cross-objections. G
The High Court dismissed the appeal of the State and
also held that the landowners were entitled to interest
with effect from the date of the award. Against the said
judgment, the State came up in appeal before this Court.
H
832 SUPREME COURT REPORTS [2011) 8 S.C.R.
A The High Court also dismissed the cross objections
filed by the landowners. The High Court held that it was
clear that on 12.9.2001 itself, the Court thought it
appropriate to hear the appeals out of turn and
accordingly directed the office to post the appeal for
B hearing immediately after the records are received and
that the cross objections were not filed either within one
month from the date of fixing the date of the appeal or
from the date the records of the lower court were received
hy the registry of the court and therefore, the cross
c objectors' contention based on the provisions of Order
XLI Rule 22(1) CPC was misconceived and untenable. The
High Court further held that the explanation offered by the
cross objectors for the delay of 404 days was vague and
did not amount to sufficient cause so as to condone the
delay. Against the dismissal of cross objections, the
0
landowners-cross objectors approached this court by
filing Civil Appeal.
The landowners contended before this court that (i)
the limitation period of one month, prescribe.d under
E Order XLI Rule 22, would not begin to run till an actual
date was fixed for hearing by the High Court and notice
of it was served on the cross objectors, i.e. landowners;
ii) that powers of an appellate Court are very wide under
Order XLI Rule 33 and relief could be granted to the
F landowners even under the said provision; iii) that the
landowners had shown sufficient cause for the delay and
iv) that land of the landowners was compulsorily acquired
and the court was duty bound to award just
compensation to the landowners.
G
Disposing of the appeals, the Court
HELD:1.1. The Code of Civil Procedure, 1908 (CPC)
is a law relating to procedure and procedural law is
always intended to facilitate the process of achieving the
H ends of justice. The Courts would normally favour the
MAHADEV GOVIND GHARGE v. SPL. LAO UPPER KRISHNA 833
PROJECT JAMKHANDI, KARNATAKA
interpretation which will achieve the said object. [Para 19] A
[852-H; 853-A]
1.2. Order XLI of the CPC deals with appeals from
original decrees. The provisions of Order XLI, Rule 22
gives right to a respondent to file cross-objections to the 8
decree under appeal which he could have taken by way
of an appeal. This right is available to the respondent
provided he had filed such objections in the Appe!late
Court within one month from the date of service on him
or his pleader of notice of the day fixed for hearing the C
appeal, or within such further time as the Appellate Court
may see fit to allow. [Para 21] [853-G; 854-G-H; 855-A]
1.3. Rule 22 do not provide for any consequences,
leave any adverse consequence, in the event the
respondent-cross objector defaults in filing the cross D
objections within the statutory period of one month. On
the contrary they provide that the cross objections can
be filed within such further time as the Court may see fit
to allow. The expression 'or within such further time as
the court may see fit to allow' clearly shows that wide E
judicial _discretion is vested in the courts to permit the
filing of the cross-objections even after the expiry of 30
days or for that matter any period which, In the facts and
circumstances of the case, is found to be just and proper
by the Court. [Para 22] [855-8-C] F
1.4. Rule 22 is not only silent on the consequences
flowing from such default from filing appeal within one
month, from the period fixed hereunder, but it even
clothes the Court with power to take on record the cross-
objections even after the expiry of the said period. Thus, G
right of the cross-objector is not taken away in absolute -
terms in case of such default. The Courts exercise this
power vested in them by virtue of specific language of
Rule 22 itself and thus, its provisions must receive a
liberal construction. [Para 23] [855-D-E] H
834 SUPREME COURT REPORTS [2011] 8 S.C.R.
A 1.5. Such provisions should be construed on their
plain meaning and it may not be necessary for the Court
to bring into service other principles of statutory
interpretation. However, the maxim De minimis non curat
lex shall apply to such statutory provisions. [Para 25]
8 [856-B]
Sardar Amarjit Singh Katra (dead) by LRs. v. Pramod
Gupta (Smt.) (dead) by LRs. and others 2003 (3) SCC 272:
2002 (5) Suppl. SCR 350 and The State of Punjab and
C another v. Sham/al Murari and another (1976) 1 sec 719:
1976 (2) SCR 82 - relied on.
Rashida Begum (since deceased now represented
through LRs) v. Union of India (2001) Delhi Law Times 664
(DB); Union of India v. Jhutter Singh 46 (1992) DLT 364;
D Union of India v. Shibu Ram Mittal 1999 (49) DRJ 166;
Karnataka State Road Transport Corporation v. R. Sethuram
& Anr. AIR 1996 Karnataka 380 and The East India Hotels
Ltd. v. Smt. Mahendra Kumari and another AIR 2008 Raj. 131
- referred to.
E
Maxwell on The Interpretation of Statutes 12th Edn., by
P. St. J. Langan and Bennion on Statutory Interpretation 5th
Edn., 2008 - referred to.
2.1. The procedural laws are primarily intended to
F achieve the ends of justice and, normally, not to shut the
doors of justice for the parties at the very threshold.
There is no indefeasible divestment of right of the cross-
objector in case of a delay and his rights to file cross-
objections are protected even at a belated stage by the
G discretion vested in the Courts. But at the same time, the
Court cannot lose sight of the fact that meaning of 'ends
of justice' essentially refers to justice for all the parties
involved in the litigation. It will be unfair to give an
interpretation to a provision to vest a party with a right
H at the cost of the other, particularly, when statutory
MAHADEV GOVIND GHARGE v. SPL. LAO UPPER KRISHNA 835
PROJECT JAMKHANDI, KARNATAKA
provisions do not so specifically or even impliedly A
provide for the same. The provisions of Order XLI Rule
22 of the Code are akin to the provisions of the Limitation
Act, 1963, i.e. when such provisions bar a remedy, by
efflux of time, to one party, it gives consequential benefit
to the opposite party. Before such vested benefit can be B
taken away, the Court has to strike a balance between
respective rights of the parties on the plain reading of the
statutory provision to meet the ends of justice. If a cross-
objector fails to file cross-objections within the stipulated
time, then his right to file cross-objections is taken away c
only in a limited sense. To that extent a benefit is granted
to the other party, i.e. the appellant, of having their appeal
heard without such cross-objections. Still, however, if the
Court is of the opinion that it is just and proper to permit
the filing of cross-objection even after the expiry of the 0
statutory limitation of one month, it is certainly vested
with power to grant the same, but of course, only after
hearing the other party. That is how the rights of the
parties are to be balanced in consonance with the
scheme of Order XLI Rule 22 of the Code. [Para 28] [857- E
C-H; 858-A]
2.2. The provisions of a statute are normally
construed to achieve the ends of justice, advance the
interest of public and to avoid multiplicity of litigation.
Strict construction of a procedural law is called for where F
there is complete extinguishment of rights, as opposed
to the cases where discretion is vested in the courts to
balance the equities between the parties to meet the ends
of justice which would invite liberal construction. Under
Order XLI Rule 22 of the Code, cross objections can be G
filed at any subsequent time, even after expiry of statutory
period of one month, as may be allowed by the Court. It
is evidently clear that there is no complete or indefeasible
extinguishment of right to file cross objections after the
expiry of statutory period of limitation provided under the H
836 SUPREME COURT REPORTS [2011] 8 S.C.R.
IA said provision. Cross-objections within the scheme of
Order XLI Rule 22 of the Code are to be treated as
separate appeal and must be disposed of on same
principles in accordance with the provisions of Order XLI
of the Code. [Para 32) [858-G-H; 859-A-D]
B
2.3. The Court is required to give precedence to the
right of a party to put forward its case. Unnecessary and
avoidable technical impediments should not be
introduced by virtue of interpretative process. At the same
C time any irreparable loss should not be caused to a party
on whom the right might have vested as a result of
default of other party. Furthermore, the courts have to
keep in mind the realities of explosion of litigation
because of which the Court normally takes time to
dispose of appeals. It would be a travesty of justice, if
0 after passage of substantial time when the appeal is taken
up for final hearing a cross-objector who was heard and
participated in the hearing at the admission stage itself,
claims that the limitation period for. him to file his cross-
objection will commence only from the date of service of
E a fresh notice on him or his pleader, in terms of Order XLI
Rule 22 of the Code. Such an interpretation would
jeopardize the very purpose and object of the statute and
prejudicially affect the administration of justice as the
appeal which has come up for final hearing and disposal
F would again be lost in the bundle of pending cases on
this pretext. It is trite that justice must not only be done
but must also appear to have been done to all the parties
to a /is before the Court. [Para 34] [860-C-F]
G 2.4. Procedural laws, like the Code, are intended to
control and regulate the procedure of judicial
proceedings to achieve the objects of justice and
expeditious disposal of cases. The provisions of
procedural law which do not provide for penal
H consequences in default of their compliance should
MAHADEV GOVIND GHARGE v. SPL. LAO UPPER KRISHNA 837
PROJECT JAMKHANDI, KARNATAKA
normally be construed as directory in nature and should A
receive liberal construction. The Court should always
keep in mind the object of the statute and adopt an
interpretation which would further such cause in light of
attendant circumstances. To put it simply, the procedural
law must act as a linchpin to keep the wheel of B
expeditious and effective determination of dispute
moving in its place. The procedural checks must achieve
its end object of just, fair and expeditious justice to
parties without seriously prejudicing the rights of any of
the·m. [Paras 35, 36] [860-G-H; 861-A-C] c
Kai/ash v. Nanhku & others (2005) 4 SCC 480: 2005 (3)
SCR 289 and Sangram Singh v. Election Tribunal, Kotah
(1955) 2 SCR 1 - relied on.
Dondapati Narayana Reddy v. Duggireddy D
Venkatanarayana Reddy & others 2001 (8) SCC 115 and
Byram Pestonji Gariwala v. Union Bank of India & others
[(1992) 1 sec 31] - referred to.
Justice G.P. Singh's ·Principles of Statutory E
Interpretation 11th Edn., 2008 and Crawford's Statutory
Construction - referred to.
3. The stipulated period of one month in Order XLI,
Rule 22 of CPC is to commence from the date of service,
on the concerned party or his pleader, of notice of the day F
fixed for hearing the appeal. A cross-objection may also
be filed within such further time as the Appellate Court
may see fit to allow. [Para 37] [861-C-D]
Date of hearing: G
4.1. Hearing of the appeal can be classified in two
different stages; one at the admission stage and the other
at the final stage. Date of hearing has normally been
defined as the date on which the court applies its mind
to the merits of the case. If the aooeal is heard er-nart"" H
838 SUPREME COURT REPORTS [2011] 8 S.C.R.
A for admission under Order XLI Rule 11 of the Code, the
Court could dismiss it at that very stage or admit the
same for regular hearing. Such appeal could be heard in
the presence of the other party at the admission stage
itself, particularly, in cases where a caveat is lodged by
B the respondent to the appeal. [Para 38] [861-E-F]
4.2. 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
C 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 party/parties, it can be
considered as hearing of the case. [Para 39] [861-G-H;
862-A]
D
4.3. 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
E 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. [Para 40] [862-E-F]
F Siraj Ahmad Siddiqui v. Prem Nath Kapoor1993 (4) SCC
406: 1993 (2) Suppl. SCR 254 - referred to.
5.1. The primary intention of giving one month's time
and notice to the respondent to file cross-objection is to
give him a reasonable opportunity to file cross-objections
G in the appeal filed by the other party. Filing of cross-
objections is not an exclusive but, an alternate remedy
which a party can avail as alternative of filing a separate
appeal in its own right. [Para 41] [862-G-H]
5.2. The language of Order XLI Rule 22 of the Code
H
't
MAHADEV GOVIND GHARGE v. SPL. LAO UPPER KRISHNA 839
PROJECT JAMKHANDI, KARNATAKA
fixes the period of limitation to be computed from the date A
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 B
date of hearing or otherwise. [Para 42) [863-A-BJ
5.3. There appears to be a dual purpose emerging
from the language of Order XLI Rule 22 of the Code.
Firstly, to grant time of one month or even such further C
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 D
Order XLI 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 E
appeals which, in turn, would be prejudicial to the
appellants. A law of procedure should always be
construed to eliminate both these possibilities. [Para 43)
[863-C-E]
F
6.1. In the present case, the appellant appeared and
argued at the admission stage of the appeal which was
admitted in their presence and an order was also passed
for final hearing. The appellants had also filed caveat in
the appeal. In law, the rights of a caveator are different G
from that of cross-objectors per se. In terms of Section
148A of the Code, a caveator has a right to be heard
mandatorily for the purposes of passing of an
interlocutory order. The law contemplates that a caveator
is to be heard by the court before any interim order can H
840 SUPREME COURT REPORTS [2011] 8 S.C.R.
A be passed against him. But in the present case when the
appeal was listed for hearing at the admissjon stage
itself, the appellants had appeared and argued the matter
not only in relation to grant of an interim order but also
on the merits of the appeal. As evident from order dated
B 12-9-2001 of the High Coul'.t, the records were required
to be called for from the lower courts and thereafter, the
appeal was to be heard finally. Though the court had not
actually fixed any particular date, it had directed the
appeal to be listed for hearing. Then again, vide a
c subsequent order, the High Court had directed the
appellant(s) to. move an application for early hearing of
the appeal. On all these occasions, the appellant(s), or his
pleader, was present and participated in the proceedings
before the Court. Thus, the appellant(s) not only had the
0 knowledge of pendency of the appeal but also had notice
of fixing of hearing of the appeal. Even on a further
subsequent date, the High Court took notice of the cross-
objection and counsel for the appellant(s)/cross objector
was directed to furnish copies of the cross-objection
E within three weeks to the Additional Advocate General.
After the records from lower courts were received, the
matter was heard and judgment impugned in the present
appeal was pronounced by the High. Court in the year
2003. [Paras 45, 46 and 47] [865-B-H; 866-A-E]
F 6.2. In the circumstances, it is difficult for this Court
to hold that the period of 30 days, as contemplated under
Order XLI Rule 22 of the Code, never commenced even
till final disposal of the appeal. Such an interpretation will
frustrate the very purpose of the Code and would be
G contrary to the legislative intent. The appeal was finally
heard without fixing any particular date and in presence
of the appellant(s). Under such circumstances, the
requirement of fixing a final date separately must be
deemed to be waived by the parties. [Para 48] [866-F-G]
H
MAHADEV GOVIND GHARGE v. SPL. LAO UPPER KRISHNA 841
PROJECT JAMKHANDI, KARNATAKA
7.1. Justice between the parties to a case is the A
essence of procedural law and unless the statute
expressly prohibits or put an embargo, the Courts would
interpret the procedural law so as to achieve the ends of
justice. [Para 54] [869-D]
B
7.2. If the provisions of Order XLI, Rule 22 of the
Code are examined in the correct perspective and in light
of the above stated principle, then the period of limitation
of one month stated in Order XLI Rule 22 of the Code
would commence from the service of notice of the day
of hearing of appeal on the respondent in that appeal. The C
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 D
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 E
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 F
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 G
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 H
842 SUPREME COURT REPORTS [2011] 8 S.C.R.
A to give Order XLI Rule 22 its true and purposive meaning.
[Para 55] [869-E-H; 870-A-C]
7.3. The principles for application of the provisions
of Order XLI Rule 22 are : (a) Respondent in an appeal is
8 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
C his pleader of the day fixed for hearing the appeal and
(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
D 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. [Para 55] [870-C-G]
E 7.4. The cross-objections are required to be filed
within the period of one month from the date of service
of such notice or within such further time as the
Appellate Court may see fit to allow depending upon the
facts and circumstances of the given case. Since the
F provisions of Order XLI Rule 22 Qf the Code itself provide
for extension of. time, the Courts would normally be
inclined to condone the delay in the interest of justice
unless and until the cross-objector is unable to furnish
a reasonable or sufficient cause for seeking the leave of
G the Court to file cross-objections beyond the statutory
period of one month. [Paras 56, 57] (870-H; 871-A-B]
7.5. The· instant case falls squarely within the
principles formulated in clause (c). The appellant(s) herein
were caveators before the High Court and they were
H heard not only while passing of interim orders but the
MAHADEV GOVlND GHARGE v. SPL. LAO UPPER KRISHNA 843
PROJECT JAMKHANDI, KARNATAKA
appeal itself was admitted in their presence. Further, the A
Court directed that the records from lower court be called
and after receipt of such record the appeal was directed
to be listed for final disposal. Thus, the cross-objector
not merely had the knowledge of pendency of the appeal
and order of the High Court for its final disposal but he B
actually participated at all the stages of the proceedings
before that Court, i.e. at the stage of admission of appeal,
passing of interim orders and variation thereof and at the
stage of consideration of application of the cross-
objector, moved for early hearing of the appeal and, in c
fact, the appeal had been directed to be heard finally in
his presence. Thus, in these circumstances, one month
of prescribed period in terms of Order XLI Rule 22 of the
Code shall commence from 12th September, 2001, i.e. the
· date on which the High Cou.rt ordered that the appeal 0
may be listed for hearing. [Para 58] [871-C-F]
7.6. As the period for filing the cross objection had
long expired, the application for condonation of delay was
filed. The appellants in this Court themselves admitted
that they had received the notice of the appeal through E
their counsel and the period of one month came to an
end on 12th October, 2001. This submission has been
made in the affidavit annexed to the application filed by
the cross-objector before the High Court under Section
5 of the Limitation Act, 1963, along with the cross- F
objections, praying for condonation of delay and leave
of that Court to file their cross-objections beyond the
statutory period of one month as provided in Order XLI
Rule 22 of the Code. [Para 59] [871-G-H; 872-A-B]
G
7.7. Delay was sought to be condoned on the ground
that the appellants have appeared before the Court and
despite receipt of the notice of final hearing they could
not file cross-objections within the prescribed time as
they were out of their native place and have gone H
844 SUPREME COURT REPORTS [2011) 8 S.C.R.
A elsewhere to earn their livelihood and they could not
therefore receive the letter and that too within one month.
Later, the appellant fell down and his leg was twisted and
because of swelling and pain he was not able to drive and
consult his counsel. It is only after he got well, he met his
8 counsel and filed the cross-objections on 19th
November, 2002, i.e. after a delay of 404 days. The High
Court did not find any merit in the reasons shown for
condonation of delay and dismissed the said application.
Order XLI Rule 22 of the Code itself provides a discretion
c to the Appellate Court to grant further time to the cross-
objector for the purposes of filing cross-objections
provided the cross-objector shows sufficient or
reasonable cause for his inability to file the cross-
objections within the stipulated perio~ of one month
0 from the date of receipt of the notice of hearing of appeal.
No specific reasons have been recorded by the High
Court in the impugned judgment as to why the said
averments did not find favour and was disbelieved. There
is nothing on record to rebut these averments made by
E the cross-objector. [Para 60] [872-C-F]
7.8. In the peculiar facts and circumstances of this
case, to do complete justice between the parties, the
landowner's appeal is allowed by setting aside the order
of the High Court, limited to the extent that the appellants
F have been able to show sufficient/reasonable cause for
grant of further time to file the cross objections beyond
the period of one month in terms of Order XLI Rule 22 of
the Code. This approach could even be adopted without
the aid of Section 5 of the Limitation Act, 1963, which
G provisions may also find application to such matters. The
appellants were entitled to file cross-objections by grant
of further time be.fore the High Court. Delay in filing the
cross-objections is thus condoned. The High Court has
therefore to hear afresh the appeal of the State as also
H the cross objections of the landowners. In that view of
. MAHADEV GOVIND GHARGE v. SPL. LAO UPPER KRISHNA 845
PROJECT JAMKHANDI, KARNATAKA
the matter, there is no need of passing a separate order A
on the appeal filed by the State before this Court and the
same is thus disposed of. [Paras 61 and 62] [872-G-H;
873-A-C]
· The East India Hotels Limited v. Smt. Mahendra Kumari 8
AIR 2008 Raj. 131 - distinguished.
Pra/had & others v. State of Maharashtra and another
2010 (10) sec 458: 2010 (1"1) SCR 916 - relied on.
Sa/em Advocate Bar Association, Tamil Nadu v. Union c
of India (2003) 1 SCC 49: 2002 (3) Suppl. SCR 353; Sushi/
Kumar Sabharwal v. Gurpreet Singh & others 2002 (5) SCC
377: 2002 (3) SCR 352; Rashida Begum (since deceased
now represented through LRs) v. Union of India (2001) Delhi
Law Times 664 (DB); Union of India v. Jhutter Singh 46 D
(1992) DLT 364 and Mutyam Agaiah v. Special Deputy
Collector, (NTPC) L.A. Unit. 2002 (2) ALT 715 - referred to.
Case Law Reference:
(2001) Delhi Law referred to Paras 15, 49 E
Times 664 (DB)
(1992) DLT 364 referred to Paras 15, 49
1999 (49) DRJ 166 referred to Para 15
F
AIR 1996 Karnataka 380 referred to Para 17
AIR 2008 Raj. 131 referred to Para 18
2002 (5) Suppl. SCR 350 relied on Para 19
1976 (2) SCR 82 relied on Para 20 G
2005 (3) SCR 289 relied on Para 27 ·
(1955) 2 SCR 1 relied on Para 30
(1992) 1 sec 31 referred to Para 31
H
846 SUPREME COURT REPORTS [2011) 8 S.C.R.
A 2001 (8) sec 115 referred to Para 32
1993 (2) Suppl. SCR 254 referred to Para 39
2002 (3) Suppl. SCR 353 referred to Para 44
2002 (3) SCR 352 referred to Para 45
B
AIR 2008 Raj. 131 distinguished Para 49
2002 (2) ALT 715 referred to Para 50
2010 (11) SCR 916 relied on Para 53
c
CIVIL APPELLATE JURISDICTION : Civil Appeal NO.
5094 of 2005.
From the Judgment & Order dated 22.10.2003 of the High
Court of Karnataka at Bangalore in MFA CROB No. 201 of
D 2002 in MFA No. 3279 of 2001.
WITH
C.A. No. 5113 of 2005.
Kiran Suri, S.J. Amith, Syed Tabinda, Sanjay R. Hegde,
E V.N. Raghupathy for the appearing parties.
The Judgment of the Court was delivered by
GANGULY, J. 1. Interesting questions involving
interpretation of Order XLI Rule 22 of the Civil Procedure Code
F (hereinafter "CPC") fall for decision in this case in which the
relevant facts are that a· preliminary notification under section
4(1) of the Land Acquisition Act, 1894 (hereinafter referred to
as 'the Act') was issued on 24.4.1997, for acquisition of land
in Survey No. 616/1/1 measuring 2 acres 29 guntas and in
G Survey No. 616/18/1 measuring 1 acre 2 guntas. The award
was passed by the Special Land Acquisition Officer on
13.04.1999; he considered the land acquired to be dry land and
fixed compensation amount at the rate of Rs.31,650/- per acre.
2. Aggrieved, the claimants (landowners) filed references
H
MAHADEV GOVIND GHARGE v. SPL. LAO UPPER KRISHNA 84 7
PROJECT JAMKHANDI, KARNATAKA [ASOK KUMAR GANGULY, J.]
under section 18 of the Act. The Reference Court enhanced A
compensation to Rs.3,50,000/- per acre, along with all statutory
benefits.
3. The respondents filed an appeal against the judgment
of the Reference Court to the High Court of Karnataka on 8
12.09.2001. The landowners were on a caveat. The High Court
admitted the appeal on the same day and directed the office
to post the same for hearing immediately after LCR were
received.
On 19.11.2002, the appellants filed cross-objections C
before the High Court, under Order XLI, Rule 22 of CPC, along
with an application for condonation of delay of 404 days in filing
the cross-objections. ·
4. On 22.10.2003, the High Court, vide the first impugned o
judgment, dismissed the appeal of the State holding that the
point for consideration in the appeal was squarely covered by
the judgment of that court dated 12.8.2003 in M.F.A. No. 3278
of 2001, as a result of which the appeal was liable to be
dismissed. The High Court also held that the landowners were E
entitled to interest with effect from the date of the award, i.e.
from 13.4.1999. Against the said judgment, the State came up
in the present appeal before this court i.e. Civil Appeal No.
5113 of 2005.
5. On the same day, the High Court, vide the second F
impugned judgment, also dismissed the cross objections filed
by the landowners. In the appeal dismissing the cross
objections, two points came up for consideration before the
High Court:
G
(i} Whether the limitation period of one month
prescribed under Order XLI Rule 22 (1) of CPC
shall run from 12.9.2001 as contended by learned
government advocate or from the date of service
. of notice of date of hearing of appeal fixed by the H
848 SUPREME COURT REPORTS (2011) 8 S.C.R.
A court, as contended by the learned advocate of the
landowner.
(ii) If the limitation of one month prescribed under
Order XLI Rule 22(1) of CPC did not begin to run
B with effect from 12.9.2001, whether the alternative
argument by way of explanation offered by the cross
objectors would constitute 'sufficient cause'
warranting condonation of delay in filing the cross
objection?
c 6. The High Court stated that the Division Bench had
admitted the appeal on 12.9.2001 and had also stayed the
operation of the impugned award subject to the land acquisition
officer depositing 50% of the enhanced compensation with
statutory benefits. On the same day, the Division Bench had
D directed the office to list the appeal for final hearing after the
records were· received. Accordingly, the office called for the
records and they were received by the office. Subsequently, on
25.1.2002, the Division Bench permitted the cross objectors
to move for an early hearing of the appeal. It held as follows:
E
"Therefore, it is quite clear that on 12.9.2001 itself, the
Division Bench thought it appropriate to hear the appeals
out of turn and accordingly directed the office to post the
appeal for hearing immediately after the records are
received. The submission of Sri Kalagi that since the
F
Division Bench did not fix ;:i particular date for final hearing
of the appeal, it would not satisfy the requirement of Order
XU Rule 22(1) CPC, is not acceptable to us. We can take
judicial notice of the fact that quite often courts direct the
final hearing of the matters out of turn or in regular course
G without fixing a specific date for final hearing of cases.
Once an order is made by the court for final hearing, the
registry, in compliance with the direction and having regard
to the workload of the court concerned, would post cases
for final hearing. Therefore, it could not be said that the
H
MAHADEV GOVIND GHARGE v. SPL. LAO UPPER KRISHNA 849
PROJECT JAMKHANDI, KARNATAKA [ASOK KUMAR GANGULY, J.]
Division Bench did not direct final hearing of the appeal A ·
on 12.9.2001. The language implied by the Division Bench
would go to show that the High Court wanted the registry
to post the appeal for final hearing out of turn immediately
after the records were received. It is quite apparent from
the records that the cross objection was not filed either B
within one month from the date of fixing the date of the
appeal or from the date the records of the lower court were
received by the registry of this court. Therefore, the cross
objectors' contention based on the provisions of Order XU
Rule 22(1) CPC is misconceived and untenable." c
7. On the second point, the High Court was of the opinion
that the explanation offered by the cross objectors for the delay
of 404 days was vague and did not amount to sufficient cause
so as to condone the delay. Consequently, the cross objections
were dismissed.
0
8, Thus, the landowners (cross objectors) approached this
court by filing Civil Appeal No. 5094 of 2005 against the
impugned judgment of the High Court.
E
9. Both the appeals were heard together by this Court.
10. Before this court, the landowners in their appeal (Civil
Appeal No. 5094 of 2005), raised the following contentions:
a. The limitation period of one month, prescribed F
under Order XLI Rule 22, would not begin to run till
an actual date was fixed for hearing by the High
Court and notice of it was served on the cross
objectors, i.e. landowners.
G
b. Powers of an Appellate Court are very wide under
Order XLI Rule 33 and relief could be granted to
the landowners even under the said provision.
c. The landowners had shown sufficient cause for the
delay. H
850 SUPREME COURT REPORTS [2011] 8 S.C.R.
A d. Land of the landowners was compulsorily acquired
and the court was duty bound to award just
compensation to the landowners.
11. The State, in its appeal (Civil Appeal No. 5113 of
2005), contended as follows:
8
a. The High Court wrongly dismissed the appeal by
relying on M.F.A. No. 3278 of 2001 since there was
absence of evidence to show that the land in
question and the land covered by the said judgment
C were similar in all respects.
b. The High Court erred in awarding interest from the
date of the award and the same was contrary to
section 28 of the Act.
D
12. We have heard the parties and perused the material
on record.
13. Rule 22{1) makes it clear that the limitation for filing a
cross-objection is one month from the date of service of notice
E of date fixed for the hearing of appeal. The relevant provision
read as follows:
22. Upon hearing respondent may object to decree
as if he had preferred a separate appeal- (1) Any
respondent, though he may not have appealed from any
F
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 depree which
he could have taken by way of appeal provided he has filed
G 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
0
as the Appellate Court may see fit to allow.
H Explanation- A respondent aggrieved by a finding of the
MAHADEV GOVlND GHARGE v. SPL. LAO UPPER KRISHNA 851
PROJECT JAMKHANDI, KARNATAKA [ASOK KUMAR GANGULY, J.]
court in the judgment on which the decree appealed A
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 t~e 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 B
favour of that respondent.
14. Notice of this Court was drawn to the judgments of
different High Courts where the provisions of Order XU Rule
22 of CPC came up for consideration.
c
15. In the case of Rashida Begum (since deceased now
represented through LRs) v. Union of India reported in 91
(2001) Delhi Law Times 664 (DB), the High Court while
considering other judgments of the same High Court in Union
of India v. Jhutter Singh [46 (1992) DLT 364) and Union of D
India v. Shibu Ram Mittal [1999 (49) DRJ 166) held that
limitation for the purpose of filing cross objection under Order
XLI, Rule 22 will run only after the appellate court has fixed the
date of hearing of the appeal and notice thereof has been
served on the respondent or his pleader. In coming to the said E
conclusion, the courts sought to make a distinction between the
date of hearing of the appeal under Order XLI, Rule 11 and date
for hearing of the appeal under Order XU, Rule 12.
16. In Shibu Ram Mittal (supra), the Division Bench of the
Delhi High Court specifically held as follows:
F
"9. A bare perusal of the relevant provisions contained in
Sub-Rule (1) of Rule 22 of Order XU C.P.C makes it clear
that the limitation would begin to run from the date of
service of notice on the respondent or his pleader of the G
day fixed for hearing of the appeal. A notice informing the
respondent that an appeal has been admitted against hlm
and intimating a Farzi (tentative) date of hearing cannot
be taken as the notice envisaged under this provision. The
provision is specific- "notice of the date fixed for hearing H
852 SUPREME COURT REPORTS (2011) 8 S.C.R.
A the appeal". A Farzi date cannot be said to be the date
fixed for hearing the appeal. Simply because a counsel
appeared for the respondents· does not displace the
requirement of service of notice of actual date of hearing
of appeal. The emphasis on the words "notice of date fixed
B for hearing an appeal" cannot be allowed to be diluted. The
provision ensures that the appellant has advance notice
before the hearing of the appeal about the cross objections
by the respondent."
C 17. In the case of Karnataka State Road Transport
Corporation v. R. Sethuram & Anr., reported in AIR 1996
Karnataka 380, the Karnataka High Court has taken a similar
view by holding that the provisions of limitation are to be strictly
construed and the rule does not speak of limitation from the
date of knowledge of appeal, rather it speaks of limitation from
0
the date of service of notice which would indicate the date of
fixation of hearing of appeal by the High Court.
18. However, a different view has been taken by the
Rajasthan High Court in the case of The East India Hotels Ltd.
E v. Smt. Mahendra Kumari and another, reported in AIR 2008
Raj. 131. In the said case, the cross objector has put in his
appearance before the High Court and a caveat had been
lodged even before admission of the appeal. It also appears
that the counsel was present and the appeal was admitted in
F his presence. Under those circumstances, the High Court held
that notice prescribed under Order XLI, Rule 14 was not be
essential to be served upon the respondents who participated
in the proceedings.
19. De hors the facts of the present case, it will be
G appropriate for us to examine the legislative scheme as well
as the principles governing the application of Order XLI and its
various rules of the Code of Civil Procedure, 1908 (in short the
'Code'). The Code is a law relating to procedure and
procedural law is always intended to facilitate the process of
H
MAHADEV GOVIND GHARGE v. SPL. LAO UPPER KRISHNA 853
. PROJECT JAMKHANDI, KARNATAKA [ASOK KUMAR GANGULY, J.)
achieving the ends of justice; The Courts would normally favour A
the interpretation which will achieve the said object. In the case
of Sardar Amarjit Singh Katra (dead) by LRs., v. Pramod
Gupta (Smt.) (dead) by LRs. and others [2003 (3) SCC 272],
a Constitution Bench of this court held, "laws of procedure are
meant to regulate effectively, assist and aid the object of doing B
substantial and real justice and not to foreclose even an
adjudication on merits of substantial rights of citizen under
personal, property and other laws. Procedure has always been
viewed as the handmaid of justice and not meant to hamper
the cause of justice or sanctify miscarriage of justice." c
20. Similar views are also expressed by this Court in the
case of The State of Punjab and another v. Sham/a/ Murari
and another [(1976) 1 sec 719] where the Court held as
under: -
D
" ... We must always remember that processual law is not
to be a tyrant but a servant, not an obstruction but an aid
to justice. It has been wisely observed that procedural
prescriptions are the handmaid and not the mistress, a
lubricant, not a resistant"in the administration of justice. E
Where the non-compliance, tho' procedural, will thwart fair
hearing or prejudice doing of justice to parties, the rule is
mandatory. But, grammar apart, if the breach can be
corrected without injury to a just disposal of the case, we
should not enthrone a regulatory requirement into a F
dominant desideratum. After all, courts are to do justice,
not to wreck this end product on technicalities .. ."
21. Order XU of the Code deals with appeals from original
decrees. Rules 1 and 2 give the right to file an appeal against
a decree in the manner and on the grounds specified therein. G
Rule 3 provides for rejection of the memorandum of appeal.
Rule 3A which was added by the Amendment Act 104of1976
(w.e.f. February 1, 1977) provides for application for
condonation of delay where the appeal is filed beyond the
period of limitation. Rule 5 defines power of the Court to grant H
854 SUPREME COURT REPORTS [2011] 8 S.C.R.
A stay, conditional or otherwise, of the decree under appeal. Rule
11 is an important provision which requires the Appellate Court
to fix a day for hearing the appellant or his pleader and, on
hearing, it may even dismiss the appeal at that very stage. The
expression 'after fixing a date for hearing the appellant' is of
B some significance. It obviously means that the Court should fix
a date for hearing the appellant on the merits of the appeal.
The hearing contemplated under Rule 11 is not an empty
formality but denotes the substantive right of being heard,
available to the appellant(s). The Court has to apply its mind
c to the merits of the appeal and then alone the Court can pass
an order of dismissal. In terms of Rule 12, unless the Appellate
Court dismisses the appeal under Rule 11, it shall fix a day for
hearing of the appeal. The hearing contemplated under Rule
12 is normally called 'final hearing'. Between the day of hearing
0 fixed under Rule 11 and that fixed under Rule 12 there is a
requirement to issue notice to the respondent(s). Besides this
two other aspects need to be highlighted. First is that Rule 11A
of the Code requires the Court to hear the appeal under Rule
11 as expeditiously as possible and to conclude such hearing
E within 60 days from the date on which the memorandum of
appeal is filed. Second is that the fixation of the appeal for
hearing under Rule 12 would be on such day which the court
may fix with reference to the current business of the court. As
is evident, the intention of the legislature is to ensure
expeditfous disposal of the appeals keeping in mind the heavy
F burden on the courts. The Appellate Court is vested with very
wide powers including framing of additional -issues, permitting
additional evidence, remanding a case, pronouncing judgments
in accordance with law and even admitting an appeal for re-
hearing where the appeal was dismissed in default. The
G provisions of Rule 22 which have been reproduced by us above
gives right to a respondent to file cross-objections to the decree
under appeal which he could have taken by way of an appeal.
This right is available to the respondent provided he had filed
such objections in the Appellate Court within one month from
H the date of service on him or his pleader of notice of the day
4i
l
MAHADEV GOVlND GHARGE v. SPL. LAO UPPER KRISHNA 855
PROJECT JAMKHANDI, KARNATAKA [ASOK KUMAR GANGULY, J.)
fixed for hearing the appeal, or within such further time as the A
Appellate .court may see fit. to allow.
22. A bare reading of the provisions of Rule 22 clearly
show that they do· not provide for any consequences, leave any
adverse consequence, in the event the respondent-cross B
objector defaults in filing the cross objections within the statutory
period of one month. On the contrary they provide that the cross
objections can be filed within such further time as the Court may
see fit to allow. The expression 'or within such further time as
the court may see fit to allow' clearly shows that wide judicial C
discretion is vested in the courts to permit the filing of the cross-
objections even after the expiry of 30 days or for that matter
any period which, in the facts and circumstances of the case,
is found to be just and proper by the Court.
23. Rule 22 is not only silent on the consequences flowing D
.from such default from filing appeal within one month, from the
period fixed hereunder, but it even Clothes the Court with power
to t~ke on record the cross-objections even after the expiry of
the said period. Thus, right of the cross-objector is not taken
away in absolute terms in case of such default. The Courts E
exercise this power vested in tl'lem by virtue of specific
language of Rule 22 itself and thus, its provisions must receive
a liberal construction. ·
~4. Maxwell on The Interpretation of Statutes, (12th Edn., F
by P. St. J. Langan), states as follows:-
"A reference to the power of a court being exercisable "at
any time thereafter" will receive a literal construction {L. v.
L. [1962) P.101}. But where something is to be done
"forthwith" by some person or body, a court will not require G
instantaneous compliance with the statutory requirement
[Sameen v. Abeyewickrema (1963) A.C. 597)" 'Forthwith,'
" Harman L.J. has said, "is not a precise time and, provided
that no harm is done, 'forthwith' means any reasonable
time thereafter," and so may, according to the H
856 SUPREME COURT REPORTS [2011] 8 S.C.R.
A circumstances, involve action within days or years
[Hilfingdon London Borough Council v. Cutler (1968) 1
Q.B. 124]"
25. Such provisions should be construed on their plain
B meaning and it may not be necessary for the Court to bring into
service other principles of statutory interpretation. However, the
maxim De minimis non curat lex shall apply to such statutory
provisi~ns.
26. Bennion on Statutory Interpretation (5th Edn., 2008, at
C page 55) states that
"Where discretion exists The Coµrt will be more willing to
hold that a statutory requirement is merely directory if any
breach of the requirement is necessarily followed by an
o opportunity to exercise some judicial or official discretion
in a way which can adequately compensate for that
breach."
27. In the case of Kai/ash v. Nanhku & others, ((2005) 4
SCC 480], a Bench of three Judges of this Court while
E interpreting the provisions of Order VIII Rule 1 of the Code,
which has more stringent language and provides no such
discretion to extend the limitation as provided to the Courts in
Order XU Rule 22, had observed that despite the use of such
language in the provisions of Order VIII Rule 1 of the Code, the
F judicial discretion to extend the limitation contained therein has
been a matter of legal scrutiny for quite some time but now the
law is well settled that in special circumstances, the Court can
even extend the time beyond the 90 days as specified therein
and held as under:
G
"The object is to expedite the hearing and not to scuttle
the same. The process of justice may be speeded up and
hurried but the fairness which is a basic element of justice
cannot be permitted to be buried ... In an adversarial
system, no party should ordinarily be denied the
H
MAHADEV GOVIND GHARGE v. SPL. LAO UPPER KRISHNA 857
PROJECT JAMKHANDI, KARNATAKA [ASOK KUMAR GANGULY, J.]
opportunity of participating in the process of justice A
dispensation. Unless compelled by express and specific
language of the statute, the pr..Q_visions of CPC or any other
procedural enactment ought not to be construed in a
manner which would leave the court helpless to meet
extraordinary situations in the ends of justice." B
28. Thus, it is an undisputed principle of law that the
procedural laws are primarily intended to achieve the ends of
justice and, normally, not to shut the doors of justice for the
parties at the very threshold. We have already noticed that there
is no indefeasible divestment of right of the cross-objector in C
case of a delay and his rights to file cross-objections are
protected even at a belated stage by the discretion vested in
the Courts. But at the same time, the Court cannot lose sight
of the fact that meaning of 'ends of justice' essentially refers to
justice for all the parties involved in the litigation. It will be unfair D
to give an interpretation to a provision to vest a party with a
right at the cost of the other, particularly, when statutory
provisions do not so specifically or even impliedly provide for
the same. The provisions of Order XU Rule 22 of the Code are
akin to the provisions of the Limitation Act, 1963, i.e. when such E
provisions bar a remedy, by efflux of time, to one party, it gives
consequential benefit to the opposite party. Before such vested
benefit can be taken away, the Court has to strike a balance
between respective rights of the parties on the plain reading
of the statutory provision to meet the ends of justice. If a cross- F
objector fails to file cross-objections within the stipulated time,
then his right to file cross-objections is taken away only in a
limited sense. To that extent a benefit is granted to the other
party, i.e. the appellant, of having their appeal heard without
such cross-objections. Still, however, if the Court is of the G
opinion that it is just and proper to permit the filing of cross-
objection even after the expiry of the statutory limitation of one
month, it is certainly vested with power to grant the same, but
of course, only after hearing the other party. That is how the
rights of the parties are to be balanced in consonance with the H
858 SUPREME COURT REPORTS [2011] 8 S.C.R
A scheme of Order XLI Rule 22 of the Code.
29. In Justice G.P. Singh's Principles of Statutory
Interpretation (11th Edn., 2008), the learned author while
referring to judgments of different Courts states (at page 134)
that procedural laws regulating proceedings in court are to be
8
construed as to render justice wherever reasonably possible
and to avoid injustice from a mistake of court. He further states
(at pages 135 and 136) that: "Consideration of hardship,
injustice or absurdity as avoiding a particular construction is a
rule which must be applied with great care. "The argument ab
C inconvenienti", said LORD MOULTON, "is one which requires
to be used with great caution"."
30. The learned author while referring to the judgments of
this Court in the case of Sangram Singh v. Election Tribunal,
D Kotah [(1955) 2 SCR 1] recorded (at page 384) that "while
considering the non-compliance with a procedural requirement,
it has to be kept in view that such a requirement is designed
to facilitate justice and further its ends c:.nd therefore, if the
consequence of non-compliance is not provided, the
E requirement may be held to be directory ... "
31. This Court in the case of Byram Pestonji Gariwala v.
Union Bank of India & others [(1992) 1 SCC 31] referred to
Crawford's Statutory Construction (para 254) to say that:
"Statutes relating to remedies and procedure must receive a.
F liberal construction 'especially so as to secure a more effective,
a speedier, a simpler, and a less expensive administration of.
law'."
32. The consistent view taken by this Court is that the
G provisions of a statute are normally construed to achieve the
ends of justice, advance the interest of public and to avoid
multiplicity of litigation. In the case of Dondapati Narayana
Reddy v. Duggireddy Venkatanarayana Reddy & others [2001
(8) SCC 115], this Court expressed similar view in relation to
H amendment of pleadings. The principles stated in this judgment
MAHADEV GOVIND GHARGE v. SPL. LAO UPPER KRISHNA 859
PROJECT JAMKHANDI, KARNATAKA [ASOK KUMAR GANGULY, J.]
may aptly be applied generally in relation to the interpretation A
of provisions of the Code. Strict construction of a procedural
law is called for where there is complete extinguishment of
rights, as opposed to the cases where discretion is vested in
the courts to balance the equities between the parties to meet
the ends of justice which would invite liberal construction. For B
example, under Order XLI Rule 22 of the Code, cross
objections can be filed at any subsequent time, even after
expiry of statutory period of one month, as may be allowed by
the Court. Thus, it is evidently clear that there is no complete
or indefeasible extinguishment of right to file cross objections c
after the expiry of statutory period of limitation provided under
the said provision. Cross-objections within the scheme of Order
XU Rule 22 of the Code are to be treated as separate appeal
and must be disposed of on same principles in accordance with
the provisions of Order XU of the Code. D
33. This Court in the case of Sangram Singh (supra) while
dealing with the principles of interpretation of provisions of the ·
Code, laid down three principles which have to be kept in mind
while interpreting any portion of the Code and held as under:
E
"31. In our opinion, Wallace, J., and the other judges who
adopt the same line of thought, are right. As we have
already observed, our laws of procedure are based on the
principle that, as far as possible, no proceeding in a Court
of law should be conducted to the detriment of a person F
in his absence. There are of course exceptions, and this
is one of them. When the defendant has been served and
has been afforded an opportunity of appearing, then, if he
does not appear, the Court may proceed in his absence.
But, be it noted, the Court is not directed to make an ex G
parte order. Of course the fact that it is proceedings ex
parte will be recorded in the minutes of its proceedings
but that is merely a statement of the fact and is not an order
made against the defendant in the sense of an ex parte
decree or other ex parte order which the Court is H
860 SUPREME COURT REPORTS [2011] 8 S.C.R.
A authorised to make. All that Rule 6(1 )(a) does is to remove
a bar and no more. It merely authorises the Court to do
that which it could not have done without this authority,
namely to proceed in the absence of one of the parties.
The contrast in language between rules 7 and 13
B emphasises this.
34. This Court has reiterated the above dictum with
approval in the case of Kai/ash (supra). The above-stated
principles require the Court to give precedence to the right of
C a party to put forward its case. In other words unnecessary and
avoidable technical impediments should not be introduced by
virtue of interpretative process. At the same time any
irreparable loss should not be caused to a party on whom the
right might have vested as a result of default of other party.
Furthermore, the courts have to keep in mind the realities of
D explosion of litigation because of which the Court normally takes
time to dispose of appeals. It would be a travesty of justice, if
after passage of su.bstantial time when the appeal is taken up
for final hearing a cross-objector who was heard and
participated in the hearing at the admission stage itself, claims
E that the limitation period for him to file his cross-objection will
commence only from the date of service of a fresh notice on
him or his pleader, in terms of Order XLI Rule 22 of the Code.
Such an interpretation would jeopardize the very purpose and
object of the statute and prejudicially affect the administration
F of justice as the appeal which has come up for final hearing
and disposal would again be lost in the bundle of pending
cases on this pretext. It is trite that justice must not only be done
but must also appear to have been done to all the parties to a
lis before the Court.
G
35. Procedural laws, like the Code, are intended to control
and regulate the procedure of judicial proceedings to achieve
the objects of justice and expeditious disposal of cases. The
provisions of procedural law which do not provide for penal
H consequences in default of their compliance should normally be
MAHADEV GOVIND GHARGE v. SPL. LAO UPPER KRISHNA 861
PROJECT JAMKHANDI, KARNATAKA [ASOK KUMAR GANGULY, J.)
construed as directory in nature and should receive liberal A
construction. The Court should always keep in mind the object
of the statute and adopt an interpretation which would further
such cause in light of attendant circumstances.
36. To put it simply, the procedural law must act as a 8
linchpin to keep the wheel of expeditious and effective
determination of dispute moving in its place. The procedural
checks must achieve its end object of just, fair and expeditious
justice to parties without seriously prejudicing the rights of any
of them.
c
37. Now, we would proceed to examine the language of
Order XLI Rule 22 of the Code. The stipulated period of one
month is to commence from the date of service, on the
concerned party or his pleader, of notice of the day fixed for
hearing the appeal. A cross-objection may also be filed within D
such further time as the Appellate Court may see fit to allow.
Date of hearing
38. First and foremost, we must explain what is meant by
'hearing the appeal'. Hearing of the appeal can be classified E
in two different stages; one at the admission stage and the
other at the final stage. Date of hearing has normally been
defined as the date on which the court applies its mind to the
merits of the case. If the appeal is heard ex-parte for admission
under Order XLI Rule 11 of the Code, the Court could dismiss F
it at that very stage or admit the same for regular hearing. Such
appeal could be heard in the presence of the other party at the
admission stage itself, particularly, in cases where a caveat is
lodged by the respondent to the appeal.
G
39. 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
H
862 SUPREME COURT REPORTS [2011] 8 S.C.R.
A only when the Court actually applies its mind to averments made
by party/parties, it can be considered as hearing of the case.
This Court in the case of 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 &
B 'Eviction) Act, 1972, referring to the concept of first hearing, held
as under:
"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
c 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
D 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."
40. The date of hearing must not be confused with the
E 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
F and address by the party to the suits.
41. Now we would proceed to discuss the purpose of
giving one month's time and notice to the respondent to file
cross-objection. The primary intention is, obviously, to give him
a reasonable opportunity to file cross-objections in the appeal
G 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 alternative of filing a separate appeal in its
own right.
H
MAHADEV GOVIND GHARGE v. SPL. LAO UPPER KRISHNA 863
PROJECT JAMKHANDI, KARNATAKA [ASOK KUMAR GANGULY, J.]
42. The language of Order XLI Rule 22 of the Code fixes A
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 B
notice for actual date of hearing or otherwise.
43. There appears to be a dual purpose emerging from
the language of Order XLI Rule 22. of the Code. Firstly, to grant
time of one month or even such further time as the Appellate C
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
XLI Rule 22 of the Code will obviously start running from that D
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 E
construed to eliminate both these possibilities.
44. A Bench of three Judges of this Court in the case of
Salem Advocate Bar Association, Tamil Nadu v. Union of India
[(2003) 1 ·sec 49) while examining the constitutional validity F
of various amended provisions of the Code, (amended or
introduced by Amendment Act 46 of 1999 and Amendment Act
22 of 2002) discussed requirements of Section 27 of the Code
which relates to issuance of summons to the defendants to
appear and answer the claim. Such summons are required to
be issued within one month from the date of institution of the G
suit. The Court held that once steps in furtherance to issuance ·
of summons within one month are taken by the plaintiff, then
even if the summons are not served within that period, it will
be substantial compliance of the provisions of Section 27 of H
864 SUPREME COURT REPORTS [2011] 8 S.C.R.
A the Code. Following dictum of the court can be usefully noticed
at this stage.
"7. It was submitted by Mr. Vaidyanathan that the words
"on such day not beyond thirty days from the date of the
B institution of the suit" seem to indicate that the summons
must be served within thirty days of the date of the
institution of the suit. In our opinion, the said provisions
read as a whole will not be susceptible to that meaning.
The words added by amendment, it appears, fix outer time
frame, by providing that steps must be taken within thirty
c days from the date of the institution of the suit, to issue
summons. In other words, if the suit is instituted, for
example, on 1st January, 2002, then the correct addresses
of the defendants and the process fee must be filed in the
Court within thirty days so that summons be issued by the
D Court not beyond thirty days from the date of the institution
of the-snit.The object is to avoid long delay in issue of
summons for want of steps by the plaintiff. It is quite evident
that if all that is required to be done by a party, has been
performed within the period of thirty days, then no fault can
E be attributed to the party. If for any reason, the court is not
in a position or is unable to or does not issue summons
within thirty days, there will, in our opinion, be compliance
with the provisions of Section 27 once within thirty days of
the issue of the summons the party concerned has taken
F steps to file the process fee along with completing the other
formalities which are required to enable the court to issue
the summons."
45. The learned counsel for the appellant also relied upon
G the judgment of this court in the case of Sushil Kumar
Sabharwal v. Gurpreet Singh & others [2002 (5) SCC 377] to
contend that knowledge of appeal cannot be equated to notice
of date of hearing. There is no doubt that this Court in para 11
of that judgment made a distinction between the knowledge of
the date of hearing and the knowledge of pendency of suit.
H
MAHADEV GOVIND GHARGE v. SPL. LAO UPPER KRISHNA 865
PROJECT JAMKHANDI, KARNATAKA[ASOK KUMAR GANGULY, J.]
Referring to the evidence in that case, this Court held that the A
version of the defendant should have been believed by the
courts concerned because he was denied a reasonable
opportunity to present his case before the Court. In the present
case this distinction is hardly of any help to the counsel for the
appellant inasmuch as they have appeared and argued at the B
admission stage of the appeal which was admitted in their
presence and an order was also passed for final hearing.
46. Adverting to the facts of the present case, as already
noticed, the appellants had also filed caveat in the appeal. In C
law, the rights of a caveator are different from that of cross-
objectors per se. In terms of Section 148A of the Code, a
caveator has a right to be heard mandatorily for the purposes
of passing of an interlocutory order. The law contemplates that
a caveator is to be heard by the court before any interim order
can be passed against him. But in the present case when the 0
appeal was listed for hearing at the admission stage itself, the
appellants had appeared and argued the matter not only in
relation to grant of an interim order but also on the merits of
the appeal. The High Court, on 12th of September, 2001, after
applying its mind to the merits of the case had passed the E
following order:
"Admit.
Heard the counsel for the appellant and respondent.
F
Interim stay as prayed, in I.A. 11/01 subject to the appellant
depositing 50% of amount awarded with all statutory
benefits etc., before the reference court, within eight
weeks.
G
Respondents permitted to withdraw 25% of the amount.
Remaining 25% amount shall be kept in fixed deposit for
the term of six months.
Call for records.
H
866 SUPREME COURT REPORTS [2011] 8 S.C.R.
A List for hearing immediately after the records are received
with connected cases."
47. As is evident from the above order, the records were
required to be called from the lower courts and thereafter, the
8 appeal was to be heard finally. Though the court had not actually
fixed any particular date, it had directed the appeal to be listed
for hearing. Then again, vide its order dated 25th January,
2002, the High Court had directed the appellant(s) to move an
application for early hearing of the appeal. On all these
C occasions, the appellant(s), or his pleader, was present and
participated in the proceedings before the Court. Thus, the
appellant(s) not only had the knowledge of pendency of the
appeal but also had notice of fixing of hearing of the appeal.
Even on 18th September, 2003, the High Court took notice of
the cross-objection and counsel for the appellant(s)/cross
D objector was directed to furnish copies of the cross-objection
within three weeks to the Additional Advocate General. After
the records from lower courts were received, the matter was
heard and judgment impugned in the present appeal was
pronounced by the High Court on 22nd October, 2003.
E
48. In these circumstances, it is difficult for this Court to
hold that the period of 30 days, as contemplated under Order
XLI Rule 22 of the Code, never commenced even till final
disposal of the appeal. Such an interpretation will frustrate the
F very purpose of the Code and would be contrary to the
legislative intent. We may also notice that the_ appeal was finally
heard without fixing any particular date and in presence of the
appellant(s). Under such circumstances, the requirement of
fixing a final date separately must be deemed to be waived by
G the parties.
49. It may be noticed that somewhat divergent views have
been taken by different High Courts while interpreting the
provisions of Order XLI Rule 22 of the Code. The High Court
of Rajasthan in the case of The East India Hotels Limited v.
H
MAHADEV GOVIND GHARGE v. SPL. LAO UPPER KRISHNA 867
PROJECT JAMKHANDI, KARNATAKA [ASOK KUMAR GANGULY, J.)
Smt. Mahendra Kumari [AIR 2008 Raj. 131) took the view that A
respondent cross-objector had put in appearance through his
counsel as a caveator and the appeal was admitted on 28th
March, 2006 in his presence and participation. As the appeal
was admitted in their presence, the Rajasthan High Court
opined that no notice thereafter was required to be served on B
the caveator for the purposes of Order XU Rule 22 and period
of limitation of one month would start from 28th March, 2006
(i.e. the date of admission) for filing of cross-objection. The
filing of the cross objection in that case was delayed by 507
days. On the issue of condonation the High Court felt that the c
delay could not be condoned in the facts and circumstances
of the case and thus dismissed the cross-objections as barred
by time. It also needs to be noticed that the judgments of the
Delhi High Court in the case of Jhutter Singh (supra) and
Rashida Begum (supra) were also examined by the Rajasthan
High Court and are distinguished on facts as in those cases D
at no point of time the objector or respondent had participated.
50. The Rajasthan High Court also relied upon the
judgment of the High Court of Andhra Pradesh in the case of
Mutyam Agaiah v. Special Deputy Collector, (NTPC) L.A. E
Unit. [2002 (2) ALT 715] wherein that High Court while
accepting the submissions of the respondent had held that:
" ... We have to understand the issue of notices in the
proper perspective. The notices are meant for giving F
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 G
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 ....... " H
868 SUPREME COURT REPORTS [2011) 8 S.C.R.
A 51. In the case of Rashida Begum (supra) the Delhi High
Court had noticed that limitation for filing the cross objection
would start from the date of service of notice of hearing of the
appeal. A notice containihg only the date of hearing of the stay
application but not the appeal would not be 'notice' as
B contemplated under Order XU Rl1le 22 of the Code.
52. The view taken by the Delhi High Court is more in line
with the intent of the provisions of Order XU Rule 22 while the
decision of the Rajasthan High Court was on its own facts and
C cannot be treated to be stating a preposition of law. The
application of law would always depend upon the facts and
circumstances of a given case and what is the true and correct
construction of Order XU Rule 22 we shall shortly proceed to
state.
D 53. In the case of Pralhad & others v. State of Maharashtra
and another [2010 (10) SCC 458], a Bench of this Court to
which one of us was a member was dealing with the object and
scope of the powers vested in the Court in terms of Order XU
Rule 33 of the Code. This Court observed that Rule 33
E empowers the Appellate Court to pass any decree or make any
order which ought to have been passed or made and also to
pass or make such further decree or order as the case may
require. The Appellate Court can exercise this power
notwithstanding that appeal is only with respect to a part of
F decree. This power may be exercised in favour of any of the
respondents or the parties although such respondent or party
may not have filed any appeal or objections. In other words, the
Court has been vested with the power to pass such orders
which ought to have been passed in the facts of a given case.
G While dealing with this issue, this Court held as under:
"18. The provision of Order XU Rule 33 CPC is clearly an
enabling provision, whereby the appellate court is
empowered to pass any decree or make any order which
ought to have been passed or made, and to pass or make
H such further or other decree or order as the case may
MAHADEV GOVIND GHARGE v. SPL. LAO UPPER KRISHNA 869
PROJECT JAMKHANDI, KARNATAKA [ASOK KUMAR GANGULY, J.]
require. Therefore, the power is very wide and in this A
enabling provision, the crucial words are that the appellate
court is empowered to pass any order which ought to have
been made as the case may require. The expression
"order ought to have been made" would obviously mean
an order which justice of the case requires to be made. B
This is made clear from the expression used in the said
rule by saying "the court may pass such further or other
order as the case may require". This expression "case"
would mean the justice of the case. Of course, this power
cannot be exercised ignoring a legal interdict or a c
prohibition clamped by law."
54. The Court clearly held that the expression "order ought
to have been made" obviously means an order which justice
demands in facts of the case. The dictum of law stated by this
Court clearly demonstrates that justice between the parties to D
a case is the essence of procedural law and unless the statute
expressly prohibits or put an embargo, the Courts would
interpret the procedural law so as to achieve the ends of justice.
55. If we examine the provisions of Order XU Rule 22 of E
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 XU Rule 22 of the Code F
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 G
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 XU Rule 22 of the Code and thereafter,
the appellant who has appeared himself or through his pleader
H
870 SUPREME COURT REPORTS [2011] 8 S.C.R.
A cannot claim that period mentioned under the said provision
of the Code would commence on_ly.yt_hen the respondent is
~-
served with a fresh notice of hearing of the appeal in the
~...
-,I---
- required format. If this argument is accepted it would amount
to travesty of justice and inevitably result in delay while causing
B 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 XU Rule
11 of the Code which explicitly contemplate that an appeal shall
be heard expeditiously and disposed of as far as possible
c within 60 days at the admission stage. All the provisions of
Order XU of the Code have to be read conjunctively to give
Order XU Rule 22 its true and purposive meaning. Having
analytically examined the provisions of Order XU Rule 22, we
may now state the principles for its applications as follow:
D (a) Respondent in an appeal is entitled to receive a
notice of hearing of the appeal as contemplated
under Order XU Rule 22 of the Code;
(b) The limitation of one month for filing the cross-
'. j
E objection as provided under Order XU 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
F 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
'
G be deemed to be service of notice within the
meaning of Order XU Rule 22. In other words the
f
~ limitation of one month shall start from that date.
\ 56. Needless to notice that the cross-objections are
H required to be filed within the period of one month from the date
..
MAHADEV GOVIND GHARGE v. SPL. LAO UPPER KRISHNA 871
PROJECT JAMKHANDI, KARNATAKA [ASOK KUMAR GANGULY, J.]
of service of such notice or within such further time as the A
Appellate Court may see fit to allow depending upon the facts
and circumstances of the given case.
57. Since the provisions of Order XU Rule 22 of the Code
itself provide for extension of time, the Courts would normally 8
be inclined to condone the delay in the interest of justice unless
and until the cross-objector is unable to furnish a reasonable
or sufficient cause for seeking the leave of the Court to file
cross-objections beyond the statutory period of one month.
58. Examining the case in hand within the legal framework C
afore-stated, it has to be held that the case falls squarely wifhin
the principles formulated in clause (c). The appellant(s) herein
were caveators before the High Court and they were heard not
only while passing of interim orders but the appeal itself was
admitted in their presence. Further, the" Court directed that the D
records from lower court be called and after receipt of such
record the appeal was directed to be listed for final disposal.
Thus, the cross-objector not merely had the knowledge of
pendency of the appeal and order of the High Court for its final
disposal but he actually participated at all the stages of the E
proceedings before that Court, i.e. at the stage of admission
of appeal, passing of interim orders and variation thereof and
at the stage of consideration of application of the cross-
objector, moved for early hearing of the appeal and, in fact, the
appeal had been directed to be heard finally in his presence. F
Thus, in these circumstances, one month of prescribed period
in terms of Order XU Rule 22 of the Code shall commence
from 12th September, 2001, i.e. the date on which the High
Court ordered that the appeal may be listed for hearing.
59. As the period for filing the cross objection had long G
expired, the application for condonation of delay was filed. It is
interesting to note that the appellants in this Court themselves
admitted that they had received the notice of the appeal through
their counsel and the period of one month came to an end on
12th October, 2001. This submission has been made in H
872 SUPREME COURT REPORTS [2011] 8 S.C.R.
A paragraph 3 of the affidavit annexed to the application filed by
the cross-objector before the High Court under Section 5 of the
Limitation Act, 1963, along with the cross-objections, praying
for condonation of delay and leave of that Court to file their
cross-objections beyond the statutory period of one month as
B provided in Order XU Rule 22 of the Code.
60. Delay was sought to be condoned on the ground th~t
the appellants have appeared before the Court and despite
receipt of the, notice of final hearing they could not file cross-
C objections within the prescribed time as they were out of their
native place and have gone to Karwar to earn their livelihood
and they could not therefore receive the letter and that too within
one month. Later, the appellant fell down and his leg was
twisted and because of swelling and pain he was not able to
drive and consult his counsel in Bangalore. It is only after he
D got well, he met his counsel and filed the cross-objections on
19th November, 2002, i.e. after a delay of 404 days. The High
Court did not find any merit in the reasons shown for
condonation of delay and dismissed tt.e said application. We
have already noticed that Order XU Rule 22 of the Code itself
E provides a discretion to the Appellate Court to grant further time
to the crqss-objector for the purposes of filing cross-objections
provided the cross-objector shows sufficient or reasonable
cause for his inability to file the cross-objections within the
stipulated period of one month from the date of receipt of the
F notice of hearing of appeal. No specific reasons have been
recorded by the High Court in the impugned judgment as to why.
the said averments did not find favour and was disbelieved.
There is nothing on record to rebut these averments made by
the cross-objector.
G
61. In the peculiar facts and circumstances of this case,
to do complete justice between the parties, we allow the
landowner's appeal by setting aside the order of the High Court,
limited to the extent that the appellants herein have been able
H to show sufficient/reasonable cause for grant of further time to
MAHADEV GOVIND GHARGE v. SPL. LAO UPPER KRISHNA 873
PROJECT JAMKHANDI, KARNATAKA [ASOK KUMAR GANGULY, J.]
file the cross objections beyond the period of one month in
terms of Order XLI Rule 22 of the Code. This approach could
even be adopted without the aid of Section 5 of the Limitation
Act, 1963, which provisions may also find application to such
matters. Be that as it may, we do not consider it necessary to
delve on this issue in any further detail. Suffice it to say that the
appellants were entitled to file cross-objections by grant of
further time before the High Court. Delay in filing the cross-
objections is thus condoned.
62. The High Court has therefore to hear afresh the appeal
of the State as also the cross objections of the landowners. In
that view of the matter, there is no need of passing a separate
order on the appeal filed by the State before this Court and the
same is thus disposed of.
63. Since considerable time has elapsed, we request the
High Court to dispose of the appeal and the cross objections
as early as possible, preferably within a period of three months
from the date of production of this order before the High Court.
64. Parties to bear their own costs.
B.B.B. Appeals disposed of.
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