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TMI Blog2011 (5) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... Aggrieved, the claimants (landowners) filed references under section 18 of the Act. The Reference Court enhanced 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 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 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 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be said that the Division Bench did not direct final hearing of the appeal 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 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 XLI Rule 22(1) CPC is misconceived and untenable." 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. 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. 9. Both the appeals were heard together by this Court. 10. Before this court, the landowners in their appeal (Civi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wholly or in part, in favour of that respondent. 14. Notice of this Court was drawn to the judgments of different High Courts where the provisions of Order XLI Rule 22 of CPC came up for consideration. 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 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 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 XLI, Rule 12. 16. In Shibu Ram Mittal (supra), the Division Bench of the Delhi High Court specifically held as follows: "9. A bare perusal of the relevant provisions contained in Sub-Rule (1) of Rule 22 of Order XLI C.P.C makes it cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour the interpretation which will achieve the said object. In the case of Sardar Amarjit Singh Kalra (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 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." 20. Similar views are also expressed by this Court in the case of The State of Punjab and another v. Shamlal Murari and another [(1976) 1 SCC 719] where the Court held as under: - "...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. Where the non-compliance, tho' procedural, will thwart fair hearing or prejudice doing of justice to par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rden 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 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 the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Code, which has more stringent language and provides no such discretion to extend the limitation as provided to the Courts in Order XLI Rule 22, had observed that despite the use of such language in the provisions of Order VIII Rule 1 of the Code, the 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: "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 opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions 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." 28. Thus, it is an undisputed principle of law that the procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a rule which must be applied with great care. "The argument ab 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, 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 and therefore, if the consequence of non-compliance is not provided, the 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 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 provisions of a statute are normally construed to achieve the ends of justice, advance the interest of public and to avoid multiplicity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorises 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 emphasises this. 34. This Court has reiterated the above dictum with approval in the case of Kailash (supra). The above-stated principles require the Court to give precedence to the right of 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 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 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 a fresh notice on him or h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt', 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 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 & 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 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 the court proposes to apply its mind to determine the points in contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... du v. Union of India [(2003) 1 SCC 49] while examining the constitutional validity 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 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be passed against him. But in the present case when the 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 following order: "Admit. Heard the counsel for the appellant and respondent. Interim stay as prayed, in I.A. II/01 subject to the appellant depositing 50% of amount awarded with all statutory benefits etc., before the reference court, within eight weeks. 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. 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 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments 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 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. 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the Appellate Court may see fit to allow depending upon the facts and circumstances of the given case. 57. Since the provisions of Order XLI Rule 22 of 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 the Court to file cross-objections beyond the statutory period of one month. 58. Examining the case in hand within the legal framework afore-stated, it has to be held that the case falls squarely within 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 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 proceedings before that Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 the cross-objector. 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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