IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Civil Application No. 1218 of 2017 in Cross Objection ST. No. 14274 of 2017 and First Appeal No. 818 of 2013
Decided On: 13.10.2017
Kawadu Narayan Tandulakar and Ors.
Hon’ble Judges/Coram:S.B. Shukre, J.
Citation: 2017(6) MHLJ 780
1. By this application, the respondent Nos. 1 and 2/claimants, seek condonation of delay that has occurred in filing of the cross-objection. Clause (a) of the prayer made in the application indicates that, according to the claimants, there may be a delay of about 1243 days.
2. The ground stated in the application is that after admission of the appeal filed by the acquiring body on 10.11.2014 and waiving notice after admission by them on the very day, they could not file cross-objection due to financial constraints. It is further stated in the application that now the claimants have made necessary arrangements by mobilizing the funds and so are filing the cross-objection with an application filed for condonation of delay.
3. Learned counsel for the applicants submits that really speaking there is no delay because even though the appeal has been admitted, it is yet to be fixed for final disposal and the period of one month contemplated under Order 41 Rule 22(1) of the Civil Procedure Code (for short, “CPC”) begins to run from the day on which notice for final hearing of the appeal is received by the party desirous of filing of cross-objection. He also submits that delay occurred has been explained sufficiently. Thus, learned counsel for the applicant submits that this application be allowed without imposing any condition.
4. Learned counsel for the original appellant/acquiring body submits that there has been no proper explanation given for the huge delay that has occurred in the present case and that it is wrong to say that no notice of final hearing of the appeal was ever received by the claimants/cross-objectors for, it is the practice of this Court to always fix the appeal for final hearing on a future date upon it’s admission. He also submits that there is a prescribed form for issuance of notice after admission to the respondents and this form indicates that whenever notice after admission is issued to the respondents, it is always issued for final disposal of the appeal.
5. Under Order 41 Rule 22(1) of the CPC a cross-objection to the decree can be filed by way of an appeal within one month from the date of service of notice upon the cross objector regarding the day fixed for hearing the appeal or within such further time as the appellate Court may think fit to allow. Now, it is settled law that power conferred upon the appellate Court to allow the cross-objection even after the expiry of period of one month is not akin to the power of the Court to condone the delay under Section 5 of the Limitation Act. It is also settled law that even if the delay is to be condoned by exercising power under Section 5 of the Limitation Act, in land acquisition cases, the Court is required to take more pragmatic and liberal view given the plight of the land holders, whose lands are taken away for public purposes. A useful reference in this regard may be had to the cases of State of Maharashtra v. Kalu Ladku Mhatre, reported in MANU/MH/1874/2011 : 2011 (6) ALL MR 242, Panna Lal v. State of Bombay, reported in MANU/SC/0240/1963 : AIR 1963 SC 1516, Dhiraj Singh (dead), through Legal Representatives and others v. State of Haryana and others, reported in MANU/SC/0778/2014 : (2014) 14 SCC 127, Imrat Lal and others v. Land Acquisition Collector and others, reported in MANU/SC/1375/2013 : (2014) 14 SCC 133 and Basawaraj and another v. Special Land Acquisition Officer, reported in MANU/SC/0850/2013 : (2013) 14 SCC 81. It is also useful to note in this context that in none of these cases, has it been laid down that even when the delay is condoned or time to file cross-objection is extended in terms of the power of the Court under Order 41 Rule 22(1) of the CPC, the Court would not be within the limits of its power to impose reasonable conditions.
6. The position that now emerges is that while extending the time for filing of the cross-objection under Order 41 Rule 22(1) of the CPC same principles governing the discretion of the Court under Section 5 of the Limitation Act do not apply and it is the principle of fitness of the case, depending on fact-situations of cases, that applies, and that this fitness principle should always be applied in a liberal and pragmatic way. It is also clear that there is no fetter on the power of the Court to impose suitable conditions while extending the time for filing of the cross-objection, as long as conditions imposed are reasonable. So, the argument of learned counsel for the applicant that whenever it is found that there is a fit case for extending the time to file cross-objection, no condition be imposed in doing so must fail and it does.
7. As regards the manner in which time of one month stipulated for filing cross-objection must be calculated, the law is equally well settled. In the case of Mahadev Govind Gharge and others v. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, reported in MANU/SC/0597/2011 : AIR 2011 SC 2439, it has been held that the expression “after fixing a date for hearing the appellant” obviously means the date fixed for hearing the appeal on merits. In other words the period of one month contemplated under Order 41 Rule 22(1) of the CPC must be calculated from the date of service of the notice upon the cross objector of final hearing of the appeal. It is also held that this date should not be confused with the date fixed for taking some steps in between admission of the appeal and fixing of the appeal for final hearing.
8. Now, in the light of the above referred principles of law let us examine the facts of the present case.
9. The appeal filed by the acquiring body was admitted by this Court by the order passed on 10th January, 2014. This order reads as under:
Notice, returnable on 07.02.2014.
Shri Deshpande, learned counsel waives notice for respondent Nos. 1 and 2.
Shri Kankale, learned AGP waives notice for respondent No. 3.
Ad interim order to continue.”
10. This order does not specifically indicate that the notice that was received by the cross-objectors when their learned counsel waived the same, was the one issued to them for hearing of the appeal on merits. Learned counsel for the acquiring body or the original appellant would submit that such notice could be taken as notice for final disposal of the appeal some time in future, having regard to the standardization of notice to be issued after admission of the appeal made under Rule 3 of Chapter VII of the Bombay High Court Appellate Side Rules, 1960, I do not think the submission can be accepted and I would rather not, when it is seen that inspite of issuance of such a notice and its receipt by the cross objectors, the fact has remained that the appeal was not immediately fixed for hearing on merits. This would only indicate that though the notice was issued after admission of the appeal and it was received by the cross objectors, the notice that was so issued gave no clear indication of the fact that the appeal was to be listed on board for final hearing. The events that took place subsequently, on the contrary, indicated that the appeal was not listed for final hearing and was listed just for taking some steps before the date or time of final hearing was fixed. This is evident from various orders passed by this Court and also the note submitted by the Registry.
11. A close perusal of the record shows that on a date subsequent to admission of the appeal, the date of 7th February, 2014, the appeal was listed on board for passing order on the stay application and the order indeed was passed by this Court by confirming the interim stay order. Thereafter, on 19th January, 2015, the appeal was listed on board for hearing on application filed by the cross objectors for seeking permission to withdraw the decreetal amount deposited in this Court and this application was partly allowed by this Court as per the order passed on that very date. The record further shows that an office-note was placed before the Court to the effect that in view of the practice note No. 20, any first appeal in which record and proceedings are received and in which printing of the paper book has not been made, and this appeal being so, be treated as ready for final hearing and the appeal be listed before the Court for dispensing with printing and directing the appellant to supply private paper book within the time stipulated by the Court. This note of the Registry also shows that the record and proceedings of the case were received. This note is of the date 27th August, 2015, which date now can be safely taken to be the date of receipt of record and proceedings. So, this note would show that the appeal has to be treated as ready for final hearing only after receipt of record and proceedings, provided the private paper book is filed. When the appeal was taken up for passing of order on this note of the Registry, on 11th September, 2015, this Court passed an order in such terms as follows:
“Printing dispensed with. Private paper-book with necessary decree form be supplied within six months.”
12. Following this direction, private paper book, however, was not filed within the time stipulated rather it’s extension was sought, which was granted. Thereafter, the time for filing of the private paper book came to be extended by this Court on further occasions as well. Ultimately, the private paper book was filed on 8th February, 2017.
13. So, the order passed by this Court admitting the appeal on 10th January, 2014, the act of learned counsel for the cross-objectors in waiving notice on behalf of the cross-objectors after admission of the appeal and the order passed by this Court on 11th September, 2015 accepting the note of the Registry would have to be considered together and when they are so considered, the conclusion that can reasonably be made is that the appeal was ready for final hearing on any date after filing of the private paper-book by the original appellant, that it was so ready after 8th February, 2017 and that its notice was also received by the appellant on 8th February, 2017. It would then follow that from this date onwards, one can reasonably presume that the cross-objectors had the notice of fixing of the appeal for hearing on merits and, therefore, the cross-objection, ought to have been filed within one month from 8th February, 2017, in terms of order 41 Rule 22(1) of the CPC.
14. The time of one month from 8th February, 2017 expired on 7th March, 2017. The cross-objection, however, has been filed on 3rd July, 2017. There is thus delay of 3 months and 26 days. The argument of learned counsel for the cross-objectors that strictly speaking there is no delay in filing of the cross-objection is, therefore, fallacious.
15. Now, the question would be whether the time to file cross-objection in the present case should be extended or not and if it is to be extended, on what condition it should be done and the answer to the question would have to be found out by further examining the facts of the case, in the light of the explanation given and the applicable law.
16. The only explanation given by the cross-objectors is that they were under financial stress which prohibited them from filing the cross objection. The cross-objectors who are the agriculturists and who have lost their only source of livelihood can also be reasonably accepted to be living under financial duress by taking a pragmatic and liberal view of the matter, as held by the Hon’ble Apex Court in the cases referred to earlier. But, one would also expect the cross objectors to give some explanation of the circumstances which put an end to their financial crisis thereby enabling them to approach the court of law with the cross-objection ready in their hands. Unfortunately, the cross- objectors have not given any specific or reasonable explanation in this regard. But, considering the fact that existence of the financial difficulty of the cross-objectors for some time has been accepted by this Court and the law that this Court has to apply a different yard stick while extending the time to file cross-objection particularly in land acquisition cases, as held by the Hon’ble Apex Court in its various judgments referred to earlier, I am of the view that substantive rights of the cross-objectors should not be allowed to be defeated simply on the ground that though there is some explanation, there is absence of specifics in the explanation given for occurrence of delay in filing of the cross-objection. This would enable me to find that this application deserves to be allowed. But, allowing of the application, in a case like this would also require imposition of some reasonable condition to offset the inconvenience caused to the original appellant and that can be best done by imposing the usual condition of not letting the cross-objectors claim any interest for the delayed period on the enhanced compensation, if any.
17. In view of above, the application is allowed.
18. The delay occurred in filing of the cross-objection is condoned and time to file cross-objection is extended, subject to the condition that the cross objectors/claimants shall not claim any interest on the enhanced compensation, if any, for the delayed period i.e. from 3rd July, 2017 till date.
19. Cross-objection be registered.
Application is disposed of.
CROSS OBJECTION ST. No. 14274 of 2017.
22. Shri P.B. Patil, learned counsel waives notice for original appellant.