TMI Blog2016 (11) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... objections failing which the appeal would stand rejected and it was accordingly rejected. Rule 907 does not give any right to the Appellant, over and above what is provided under Order 41 Rule 22 Sub-Rule (4). All that it does is to enable the cross objector to seek hearing of the Cross Objection as if the same were Cross Appeal, during pendency of the appeal and nothing more. In the circumstances having considered the various judgments relied upon by the Applicants and the submissions of the counsel we are of the view that present Cross Objection is not maintainable in view of the fact that the Appeal itself was rejected. - CROSS OBJECTION NO. 14 OF 2010 ARISING IN INCOME TAX APPEAL (L) NO.1589 OF 2010 - - - Dated:- 9-8-2016 - M. S. SANKLECHA A. K. MENON, JJ. Mr. Nitesh Joshi a/w Netaji Gawade i/b. Sanjay Udeshi Co. for the petitioner. Mr. Ashok Kotangle a/w Ms. Padma Diwakar for the respondents. JUDGMENT (PER A.K. MENON, J.) 1. The short point that arises in the present Cross Objection pertains to its maintainability in view of the fact that the Income Tax Appeal bearing Lodging No.1589 of 2010 was rejected vide order dated 9th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Division Bench consisting of Hon'ble Shri Justice V. C. Daga Hon'ble Shri Justice R. M. Savant for non compliance of the order within prescribe time. 6. In the meantime, the present Cross Objection came to be numbered after a 'filing' Order on 9th November, 2010. The Cross Objection has since remained pending. The Cross Objection came up for hearing and on 5th July, 2016 at the request of learned counsel for the applicant it came to adjourned to 12th July, 2016 and thereafter for a few dates by consent of parties. On 26th July, 2016 the matter was heard for some time when we questioned the maintainability of the Cross Objection on an objection was raised by the Revenue. 7. Mr. Kotangle, the learned counsel appearing for the Revenue pointed out that the Income Tax Appeal (L)No.1589 of 2010 had already been rejected. We, therefore, queried counsel for the Applicant as to how the Cross Objection is maintainable in view of the fact that Order 41 Rule 22 clearly provides that the Cross Objection can be entertained during the pendency of an appeal and even if an original appeal is withdrawn or is dismissed for default, the Cross Objection will nevertheles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of removal of office objections and pendency of the Cross Objections and the resultant disability that the Cross Objector may face on account of the main appeal being rejected. Mr. Joshi, the learned counsel for the applicant submitted, with the help of various judicial pronouncements that the Cross Objection was still maintainable notwithstanding the disposal of the appeal as aforesaid. In this behalf, Mr. Joshi relied upon a decision of the Supreme Court in the case of Sushil Kumar Sabharwal v/s. Gurpreet Singh and others (2002) 5 SCC 377 and submitted that in that case the Supreme Court set aside the exparte decree on the ground of non-service of summons and held that the defendant's knowledge about pendency of a suit does not amount to knowledge of the date of hearing. In the present case. Mr. Joshi contended that the applicant had knowledge of the date of hearing and therefore the Cross Objection was maintainable. 10. Mr. Joshi then referred to the decision of Patna High Court in the matter of Mowar Sheobaksh Singh v/s. Mowar Thakur Dayal Singh A.I.R. 1919 Patna 219(1) where in a First Appeal it was held that Cross Objections could be heard and disposed of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed only on account of the appellants failure to pay the paper book charges and as as a result, the Cross Objection continued to remain on the file and was directed to be heard. In the case of P. K. Bhimasena Rao (supra) also the appeal was part of the record of the Court that the appellants defaulted in furnishing the security for costs and as a result the appeal came to be dismissed for default and the Cross Objection was allowed to proceed. According to Mr. Kotangle these cases cited as precedents are of no assistance to the applicant since in the present case the appeal itself came to be rejected without being registered in the file of this Court. He similarly sought to distinguish the facts situation in the present case from those in Sushil Kumar Sabharwal (supra). 12. In rejoinder Mr. Joshi submitted that the case of Mahadev Govind Gharge (supra) in fact supports the applicants, in that case the Caveat had been filed by the appellant, the appeal in question was admitted on 12th September, 2001 and the same was fixed for early hearing on 25th January, 2002, Cross Objections were filed on 19th November, 2002. The appeal came to be dismissed on 22th October, 2003. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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] (2) Form of objection and provisions applicable thereto. Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto. [***] (4) Where, in any case in which any respondent has under this 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. 15. Ordinarily on a plain reading of the aforesaid provision, it is clear that a respondent who has not filed an appeal is entitled to file a Cross Objection on issues that he could have taken by way of appeal, provided that, such Cross Objection is filed before the appeal Court within one month of the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew, the submission of Mr. Joshi that notice of filing of the appeal and service of notice of the hearing on 23rd August, 2010 should be construed as notice of hearing of the appeal as contemplated in Rule 22 cannot be accepted. Under Rule 4 the original appeal is required to be withdrawn or dismissed for default in order to enable the respondent to maintain its memorandum of Cross Objection. 19. In the present case, the appeal was not dismissed for default or withdrawn but it came to be rejected, not on merits, but for failure to remove Office Objections. This view may appear harsh considering that non removal of objections may seem a formality. However this non-removal of objections cannot be trivialised. Compliance with office objections is a necessary process and part of the justice administration system and reflecting on parties conduct of the case. Non-removal of objections despite repeated adjournments as in the instant case or even generally, within the time specified signifies inability or a conscious decision on the part of a litigant to not pursue the case. Once a case is rejected for non compliance with objections and more particularly after time was extend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected at the very preliminary stage. Since the applicant had filed its Cross Objections even before the appeal was heard for admission, the issue of limitation may not arise. However, filing of the Cross Objection before time in that sense does not entitle the applicant to a hearing of the Cross Objection on merits in the absence of the appeal being admitted. 21. In the instant case, there is nothing to show that the Court had assumed jurisdiction and the merits of the matter has been considered. The contention of Mr. Joshi that the matter was shown as a covered matter is of no consequence because it appears that the said appeal was listed was the caption of matters which were possibly covered by an earlier decision of this or of another court. There is nothing to indicate that the matter was actually covered by any prior decision of Court. The operative portion of the order merely reads as follows:- PC : By Consent. Stand over to 30/08/2010. 22. The order of the Court therefore simply adjourns the matter by a week. Subsequently and as we have seen from the order sheets the matter came to be adjourned on 6 occasions for this very same reason i.e. by co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the merits of the case. The Supreme Court observed in the said judgment that in a criminal case the matter can be said to have commenced only when the Court applies its mind to frame a charge etc. and similarly under civil law it is only when the Court actually applies its mind to averments made by the parties, has to be considered as a hearing of the case. In paragraph 45 the Supreme Court observed that there appears to be dual purpose in the language of Order 41 Rule 22, firstly to grant a month's time (or such extended period as the Court may grant) and secondly to put the party or his pleader at notice that the appeal has been admitted and fixed for hearing and the Court will pronounce the rights and contentions of the parties on the merits of the appeal. It is on such notice being served, the period of limitation starts running. The Court further observed that if both these purposes are achieved prior to the service of a fresh notice then, it would be futile to issue a separate notice which would result in delay in disposal of the appeals. 25. The Court observed that a law of procedure should be construed in a manner so as to eliminate both these possibilities of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n if the Appeal is already rejected for non removal of office objections. Under High Court Rule 986, an appeal can be rejected by the Prothonotary and Senior Master if the Appellant does not remove office objections within 30 days of lodging an Appeal. In the present case it is the Court that has granted additional time to remove office objections failing which the appeal would stand rejected and it was accordingly rejected. Rule 907 does not give any right to the Appellant, over and above what is provided under Order 41 Rule 22 Sub-Rule (4). All that it does is to enable the cross objector to seek hearing of the Cross Objection as if the same were Cross Appeal, during pendency of the appeal and nothing more. In the circumstances having considered the various judgments relied upon by the Applicants and the submissions of the counsel we are of the view that present Cross Objection is not maintainable in view of the fact that the Appeal itself was rejected. 28. As an alternate submission, Mr. Joshi suggested that in the event the Court is against the Applicant he may be allowed to treat the Cross Objection as an Appeal and delay in filing it may be condoned. As far as this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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