TMI Blog2003 (2) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... y concern, was taken over by a private limited company as the respondents presently are while the DDA (Slum Wing) was taken over by the Municipal Corporation of Delhi. Whether or not the arbitration clause incorporated in the contract entered into between the parties as they were then, would be binding on and available to be invoked by the present parties, was the subject matter of controversy raised by the appellants but we need not enter into the details thereof inasmuch as that is irrelevant for adjudicating upon the neat questions of law arising for decision in these appeals. Disputes arose between the parties and on a petition under Section 8 of the Act filed by the respondents, the Court directed the same to be determined through arbitration by a retired Judge of the High Court. The order of the Court appointing the arbitrator and referring the disputes for determination by him achieved a finality as the appellants did not file any appeal thereagainst and both the parties submitted to the jurisdiction of the arbitrator. On 14.3.1997, the arbitrator gave an award. The award is a non speaking one. The arbitration agreement between the parties does not require the arbitrator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al court rejecting the objection petition filed by it and directing the award to be made a rule of the Court. The appeal was filed with a delay of 230 days. The appellants sought for condonation of delay in filing the appeal on the ground that it was awaiting the result of review petition and was persuaded to file an appeal because of the respondents having filed an appeal. The cause assigned by the appellants for seeking condonation of delay did not apparently amount to sufficient cause within the meaning of Section 5 of the Limitation Act. When the matter came up for hearing, the appellants submitted that the memo of appeal filed on 27.10.2001, if barred by time and hence not maintainable as an appeal, could still be treated as a cross objection under Order 41 Rule 22 of the CPC which having been filed within the prescribed period of limitation for filing cross objection the same deserved to be heard and decided on merits along with the first appeal filed by the respondents herein. On 12th July, 2002, the first appeal filed by the appellants has been directed to be dismissed by the Division Bench as barred by time consequent upon the dismissal of its application under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.2002, the two-Judge Bench entertaining some doubt about the correctness of the view taken in B. Subba Reddy s case deemed it proper for this appeal to be placed for hearing before a three-Judge Bench. We have heard Dr. K.S. Sidhu, Senior Advocate for the appellants and Mr. R.F. Nariman, Senior Advocate for the respondents. We answer the questions posed before us as under. Competence and maintainability of cross objections in an appeal preferred under Section 39 of the Arbitration Act, 1940? Sections 39 and 41 of the Act and Rule 22 of Order 41 of the Code of Civil Procedure provide as under: Arbitration Act, 1940 Sec.39 Appealable orders (1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorized by law to hear appeals from original decrees of the Court passing the order: An order (i) superseding an arbitration; (ii) on an award stated in the form of a special case; (iii) modifying or correcting an award; (iv) filing or refusing to file an arbitration agreement; (v) staying or refusing to stay legal proceedings where there is an arbitration agreement; (vi) setting aside or refusing to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. (5) The provisions relating to pauper appeals shall, so far as they can be made applicable, apply to an objection under this rule. Right of appeal is creature of statute. There is no inherent right of appeal. No appeal can be filed, heard or determined on merits unless the statute confers right on the appellant and power on the Court to do so. Section 39 of the Act confers right to file appeal, in so far as the orders passed under this Act are concerned, only against such of the orders as fall within one or other of the descriptions given in clauses (i) to (vi) of sub-Section (1) of Section 39. The Parliament has taken care to specifically exclude any other appeal being filed, against any order passed under the Act but not covered by clauses (i) to (vi) abovesaid, by inserting the expression and from no others in the text of sub-Section (1). Clause (a) of Section 41 extends applicability of all the provisions contained in the Code of Civil Proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in an election appeal under Section 116A of the Representation of the People Act, 1951 because the High Court as an Appellate Court hearing an appeal under Section 116A was enjoined to exercise the same powers, jurisdiction and authority and to follow the same procedure as it would have exercised or followed in respect of a civil appeal under the Code of Civil Procedure. In Ramasray Singh Ors. Vs. Bibhisan Sinha Ors., AIR 1950 Calcutta 372, the Division bench consisting of Harries, CJ and Bachawat, J. (as His Lordship then was) held that conferment of right of appeal by Section 38 of Bengal Money-Lenders Act, 1940 which spoke of the order being appealable in the same manner as if it were a decree of the court implied a right in the respondent to file cross objection inasmuch as the jurisdiction to hear appeal was conferred on a pre-established Civil Court namely the Court of the District Judge and nothing was expressly stated as to the procedure regulating such appeal. In A.L.A. Alagappa Chettiar Vs. Chockalingam Chetty Ors., AIR 1919 Madras 784, a Full Bench of the High Court of Madras presided over by Wallis, C.J. held that right of respondent to proceed by way of memoran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Available grounds of challenge against the judgment, decree or order impugned remain the same whether it is an appeal or a cross-objection. The difference lies in the form and manner of exercising the right; the terminus a quo (the starting point) of limitation also differs. In Superintending Engineer Ors. Vs. B. Subba Reddy (supra) a two-Judges Bench of this Court observed (vide para 24) if there is no right of cross-objection given under Section 39 of the Act, it cannot be read into Section 41 of the Act. Filing of cross objection is not procedural in nature. Section 41 of the Act merely prescribes that the procedure of the Code would be applicable to the appeal under Section 39 of the Act. We are, therefore, of the opinion that cross objection by the respondent was not maintainable. . Such observation is not correct and proceeds on certain wrong premises. Firstly, form of cross objection is procedural and is only a manner of exercising right of appeal which is substantive, as we have already stated. Secondly, it is not merely the procedure prescribed by the Code of Civil Procedure which has been made applicable to proceedings under the Arbitration Act by Section 41 (a) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained in sub-Rule (4) too would apply to appeals under Section 39 of the Act in view of the generality of the provisions contained in Section 41 of the Act. To put it briefly, if the Appellate Court forms an opinion that the original appeal itself was incompetent or not maintainable as it was filed against an order not falling within one of the clauses (i) to (vi) of sub-Section (1) of Section 39 then the cross objection shall also fall to the ground and cannot be adjudicated upon on merits. It has to be remembered that law of limitation operates with all its rigour and equitable considerations are out of place in applying the law of limitation. The cross-objector ought to have filed appeal within the prescribed period of limitation calculated from the date of the order if he wished to do so. Having allowed that opportunity to lapse he gets another extended period of limitation commencing from the date of service of the notice of the appeal enabling him putting in issue for consideration of the Appellate Court the same grounds which he could have otherwise done by way of filing an appeal. This extended period of limitation commences from the date of service of the notice of appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merits. In Charity Commissioner Vs. Padmavati Ors., AIR 1956 Bombay 86, Chagla, CJ speaking for the Division Bench held that in a time-barred appeal where the delay was refused to be condoned the appeal itself was rendered not maintainable and the cross objection would not survive for consideration. In A.L.A. Alagappa Chettiar Vs. Chockalingam Chetty Ors. (supra), Wallis, C.J. opined that the right of respondent to proceed by way of memorandum of objections is strictly incidental to the filing of the original appeal in time and it is open to a party against whom a memorandum of objections has been filed to set up the bar that the original appeal was filed out of time. We are in respectful agreement with the view of the law taken by several High Courts and noticed hereinabove. The cross objection is available to be heard if the original appeal is available for hearing on merits. A view to the contrary has been taken by a Division Bench of Allahabad High Court in Shankar Lal Anr.Vs. Sarup Lal Anr., (1912) 34 ILR Allahabad 140, and Nanak Bakhsh Ors. Vs. Wazir Singh Ors., (1909) 4 IC 625 (Punjab Chief Court). Both the decisions are not supported by any convincing reasoning ..... X X X X Extracts X X X X X X X X Extracts X X X X
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