TMI Blog2011 (5) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... XLI Rule 22 of the Civil Procedure Code (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 Survey No. 616/1B/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 ₹ 31,650/- per acre. 2. Aggrieved, the claimants (landowners) filed references under section 18 of the Act. The Reference Court enhanced compensation to ₹ 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, Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived. The submission of Sri Kalagi that since the Division Bench did not fix a particular date for final hearing of the appeal, it would not satisfy the requirement of Order XLI 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 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 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' conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by way of appeal provided he has filed 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 as the Appellate Court may see fit to allow. Explanation- A respondent aggrieved by a finding of the court in the judgment on which the decree appealed 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 the 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 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 lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and the appeal was admitted in 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 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 achieving the ends of justice. The Courts would normally 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 expeditious disposal of the appeals keeping in mind the heavy 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 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other principles of statutory interpretation. However, the maxim De minimis non curat lex shall apply to such statutory provisions. 26. Bennion on Statutory Interpretation (5th Edn., 2008, at page 55) states that Where discretion exists The Court will be more willing to hold that a statutory requirement is merely directory if any breach of the requirement is necessarily followed by an opportunity to exercise some judicial or official discretion in a way which can adequately compensate for that breach. 27. In the case of Kailash v. Nanhku others, [(2005) 4 SCC 480], a Bench of three Judges of this Court while 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 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 he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted to the detriment of a person 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 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 38. First and foremost, we must explain what is meant by `hearing the appeal'. 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 appeal is heard ex-parte 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 the respondent to the appeal. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 date. If both these purposes are achieved any time prior to the service of a fresh notice then it would be an exercise in futility to issue a separate notice which is bound to result in inordinate delay in disposal of appeals which, in turn, would be prejudicial to the appellants. A law of procedure should always be construed to eliminate both these possibilities. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough 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 the caveator for the purposes of Order XLI 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht to have been passed in the facts of a given case. While dealing with this issue, this Court held as under: 18. The provision of Order XLI 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 such further or other decree or order as the case may require. Therefore, the power is very wide and in this 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. 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 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 state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode shall commence from the date of service of notice on him or his pleader of the day fixed for hearing the appeal. (c) Where a respondent in the appeal is a caveator or otherwise puts in appearance himself and argues the appeal on merits including for the purposes of interim order and the appeal is ordered to be heard finally on a date fixed subsequently or otherwise, in presence of the said respondent/caveator, it shall be deemed to be service of notice within the meaning of Order XLI Rule 22. In other words the limitation of one month shall start from that date. 56. Needless to notice that 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 the said application. We have already noticed that Order XLI Rule 22 of the Code itself provides a discretion 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 period of one month 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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