Order XLI of the Code deals with appeals from original decrees. Rules 1 and 2 give the right to file an appeal against a decree in the manner and on the grounds specified therein.
Rule 3 provides for rejection of the memorandum of appeal.
Rule 3A which was added by the Amendment Act 104 of 1976 (w.e.f. February 1, 1977) provides for application for condonation of delay where the appeal is filed beyond the period of limitation.
Rule 5 defines power of the Court to grant stay, conditional or otherwise, of the decree under appeal.
Rule 11 is an important provision which requires the Appellate Court to fix a day for hearing the appellant or his pleader and, on hearing, it may even dismiss the appeal at that very stage. The expression `after fixing a date for hearing the appellant’ is of some significance. It obviously means that the Court should fix a date for hearing the appellant on the merits of the appeal.
The hearing contemplated under Rule 11 is not an empty formality but denotes the substantive right of being heard, available to the appellant(s). The Court has to apply its mind to the merits of the appeal and then alone the Court can pass an order of dismissal. In terms of Rule 12, unless the Appellate Court dismisses the appeal under Rule 11, it shall fix a day for hearing of the appeal.
The hearing contemplated under Rule 12 is normally called `final hearing’. Between the day of hearing fixed 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.
Rule 22- Cross Objection
The provisions of Rule 22 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.
Rule 22(1) makes it clear that the limitation for filing a cross-objection is one month from the date of service of notice of date fixed for the hearing of appeal. The relevant provision read as follows:
“22. Upon hearing respondent may object to decree as if he had preferred a separate appeal-
(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour;
and may also take any cross-objection to the decree which he could have taken 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.”
The primary intention to give one month’s notice, is, obviously, to give him a reasonable opportunity to file cross-objections in the appeal filed by the other party. It may be noticed that filing of cross-objections is not an exclusive but, an alternate remedy which a party can avail as alternative of filing a separate appeal in its own right.
The language of Order XLI Rule 22 of the Code fixes the period of limitation to be computed from the date of service of notice of hearing of the appeal upon the respondent/cross-objector and within one month of such date he has to file cross-objections.
Thus, the crucial point of time is the date on which the notice of hearing of the appeal is served. This could be a notice for actual date of hearing or otherwise. There appears to be a dual purpose emerging from the language of Order XLI Rule 22 of the Code.
Firstly, to grant time of one month or even such further time as the Appellate Court may see fit to allow; and Secondly, to put the party or his pleader at notice that the appeal has been admitted and is fixed for hearing 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.
The Supreme Court in ‘Mahadev Govind Gharge v. Spl. Land Acq Officer (2011)’ said that,
“The expression `or within such further time as the court may see fit to allow‘ clearly shows that wide judicial discretion is vested in the courts to permit the filing of the cross-objections even after the expiry of 30 days or for that matter any period which, in the facts and circumstances of the case, is found to be just and proper by the Court.
Rule 22 is not only silent on the consequences flowing from such default from filing appeal within one month, from the period fixed hereunder, but it even clothes the Court with power to take on record the cross-objections even after the expiry of the said period.
Thus, right of the cross-objector is not taken away in absolute terms in case of such default. The Courts exercise this power vested in them by virtue of specific language of Rule 22 itself and thus, its provisions must receive a liberal construction. Such provisions should be construed on their plain meaning and it may not be necessary for the Court to bring into service other principles of statutory interpretation.
However, the maxim De minimis non curat lex (The law does not concern itself with trifles) shall apply to such statutory provisions.”
In the case of Kailash v. Nanhku & others, [(2005) 4 SCC 480], a Bench of three Judges of Supreme 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 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.”
In ‘Mahadev Govind Gharge (supra)’, the court further said, “It is an undisputed principle of law that the procedural laws are primarily intended to achieve the ends of justice and, normally, not to shut the doors of justice for the parties at the very threshold. We have already noticed that there is no indefeasible divestment of right of the cross-objector in case of a delay and his rights to file cross-objections are protected even at a belated stage by the discretion vested in the Courts.
But at the same time, the Court cannot lose sight of the fact that meaning of `ends of justice’ essentially refers to justice for all the parties involved in the litigation. It will be unfair to give an interpretation to a provision to vest a party with a right at the cost of the other, particularly, when statutory provisions do not so specifically or even impliedly provide for the same.
The provisions of Order XLI Rule 22 of the Code are akin to the provisions of the Limitation Act, 1963, i.e. when such provisions bar a remedy, by efflux of time, to one party, it gives consequential benefit to the opposite party. Before such vested benefit can be taken away, the Court has to strike a balance between respective rights of the parties on the plain reading of the statutory provision to meet the ends of justice. If a cross-objector fails to file cross-objections within the stipulated time, then his right to file cross-objections is taken away only in a limited sense.
To that extent a benefit is granted to the other party, i.e. the appellant, of having their appeal heard without such cross-objections. Still, however, if the Court is of the opinion that it is just and proper to permit the filing of cross-objection even after the expiry of the statutory limitation of one month, it is certainly vested with power 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. Strict construction of a procedural law is called for where there is complete extinguishment of rights, as opposed to the cases where discretion is vested in the courts to balance the equities between the parties to meet the ends of justice which would invite liberal construction.
For example, under Order XLI Rule 22 of the Code, cross objections can be filed at any subsequent time, even after expiry of statutory period of one month, as may be allowed by the Court. Thus, it is evidently clear that there is no complete or indefeasible extinguishment of right to file cross objections after the expiry of statutory period of limitation provided under the said provision. Cross-objections within the scheme of Order XLI Rule 22 of the Code are to be treated as separate appeal and must be disposed of on same principles in accordance with the provisions of Order XLI of the Code.
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 his pleader, in terms of Order XLI Rule 22 of the Code.
Such an interpretation would jeopardize the very purpose and object of the statute and prejudicially affect the administration of justice as the appeal which has come up for final hearing and disposal would again be lost in the bundle of pending cases on this pretext. It is trite that justice must not only be done but must also appear to have been done to all the parties to a lis before the Court. Procedural laws, like the Code, are intended to control and regulate the procedure of judicial proceedings to achieve the objects of justice and expeditious disposal of cases.
The provisions of procedural law which do not provide for penal consequences in default of their compliance should normally be construed as directory in nature and should receive liberal construction. The Court should always keep in mind the object of the statute and adopt an interpretation which would further such cause in light of attendant circumstances. To put it simply, the procedural law must act as a linchpin to keep the wheel of expeditious and effective determination of dispute moving in its place.
The procedural checks must achieve its end object of just, fair and expeditious justice to parties without seriously prejudicing the rights of any of them.” Now, we would proceed to examine the language of Order XLI Rule 22 of the Code. The stipulated period of one month is to commence from the date of service, on the concerned party or his pleader, of notice of the day fixed for hearing the appeal. A cross-objection may also be filed within such further time as the Appellate Court may see fit to allow.”
Reference
Mahadev Govind Gharge v. Spl. Land Acq Officer (2011)