IMPORTANT POINT
Provisions of Order XLI Rule 22 interpreted and principles of their application stated.

Headnote:(a) Code of Civil Procedure, 1908 – Order XLI rule 11 and 12 – Hearing and final hearing – The provision denotes the substantive right of being heard – 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) – Legislative intent is to expedite conclusion of the litigation. (Para 21)
        (2003) 3 SCC 272; (1976) 1 SCC 719 – Relied upon
        (b) Code of Civil Procedure, 1908 – Order XLI rule 22 – Courts have wide discretion to permit filing of the cross-objections even after the expiry of 30 days or for that matter any period which, is found to be just and proper by the Court – Thus right of the cross-objector is not taken away in absolute terms in case of such default – Provisions of the rule must receive a liberal construction. (Paras 22 and 23)
        (c) Code of Civil Procedure, 1908 – Order XLI, Rule 22 – Provisions like Order XLI, rule 22, CPC should be construed on their plain meaning – However, the maxim De minimis non curat lex shall apply – Provisions of a statute should be construed to achieve the ends of justice, advance the interest of public and to avoid multiplicity of litigation – By barring a remedy by efflux of time to one party, rule 22 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 – Still, if it is just and proper to permit filing of cross-objection even after expiry of the statutory limitation of one month, Court is certainly vested with power to grant the same, but only after hearing the other party. (Paras 25, 28 and 32)
        (2005) 4 SCC 480; (1955) 2 SCR 1; (1992) 1 SCC 31; (2001) 8 SCC 115 –Relied upon
        91 (2001) Delhi Law Times 664 (DB); 46 (1992) DLT 364; 1999 (49) DRJ 166; AIR 1996 Karnataka 380; AIR 2008 Raj. 131 – Referred
        (d) Code of Civil Procedure, 1908 – Order XLI, rule 22 – There is no complete or indefeasible extinguishment of right to file cross objections after expiry of statutory period of limitation – Cross-objections are to be treated as separate appeal. (Para 32)
        (e) Code of Civil Procedure, 1908 – Order XLI Rule 22 – A cross-objector who was heard and participated in the hearing at the admission stage itself cannot claim at the time of final hearing (after passage of substantial time) 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. (Para 34)
        (f) Code of Civil Procedure, 1908 – Order XLI, rule 22 – Date of hearing – Date of hearing is normally 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, 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. (Para 38, 39)
        (1993) 4 SCC 406 – Relied upon
        (g) Code of Civil Procedure, 1908 –Order XLI, rule 22 – Filing of cross-objections is a remedy which a party can avail as alternative of filing a separate appeal in its own right – Purpose of one month’s time is to give notice of the admission of the appeal and provide reasonable opportunity to the party to file cross-objection – If both these purposes are achieved any time prior to the service of a fresh notice as in case when the respondent was heard and represented at the admission stage, then issue of a separate notice which is bound to result in inordinate delay in disposal of appeals will be futile. (Para 42, 43)
        (2003) 1 SCC 49 – Relied upon
        (2002) 5 SCC 377 – Distinguished
        (h) Code of Civil Procedure, 1908 – Section 148A – A caveator is to be heard by the court before any interim order can be passed against him – Appellant appearing and arguing at the admission stage itself not only in relation to grant of an interim order but also on the merits of the appeal – He cannot make any grievance on that ground. (Para 46)
        (i) Code of Civil Procedure, 1908 – Order XLI, Rule 22 – Appellant appearing and participating in the proceedings – Appeal finally heard without fixing any particular date – Requirement of fixing a final date separately must be deemed to be waived by the parties. (Para 48)
        (j) Code of Civil Procedure, 1908 – Order XL, rule 22 – Period of limitation of one month would commence from the service of notice of the day of hearing of appeal on the respondent – However, where a party respondent appears at the time of admission of the appeal, as a caveator or otherwise and argues the appeal on merits as well as while passing of interim orders and the Court has admitted the appeal in the presence of that party and directs the appeal to be heard finally on a future date actual or otherwise, then it has to be taken as complete compliance of the provisions – The party respondent cannot claim that limitation period would commence only when the respondent is served with a fresh notice of hearing of the appeal in the required format. (Para 55)
        (2010) 10 SCC 458 – Relied upon
        91 (2001) Delhi Law Times 664 (DB); 2002 (2) ALT 715 – Cited with approval
        AIR 2008 Raj. 131; 46 (1992) DLT 364 – Distinguished
        (k) Code of Civil Procedure, 1908 – Order XLI Rule 22 – Principles of application stated. (Para 56)
        (l) Code of Civil Procedure, 1908 – Order XLI, rule 22 – Appellant filing petition or condoning the delay giving reasons – High Court dismissing the same without assigning any reason – Appellate court should normally grant extension of time or condone the delay beyond limitation period – This approach should be adopted even without aid of section 5, Limitation Act, 1963. (Para 61)
       Facts of the case:
        1. Interesting questions involving interpretation of Order XLI Rule 22 of the Civil Procedure Code fall for decision in this case.
        2. A preliminary notification under section 4(1) of the Land Acquisition Act, 1894 was issued on 24.4.1997, for acquisition of land. The award was passed considering the land acquired to be dry land .
        3. The Reference Court enhanced the compensation with all statutory benefits.
        4. The respondents filed an appeal against the judgment of the Reference Court to the High Court. The state also filed an appeal.
        5. The High Court dismissed both the appeals.
       Finding of the Court:
        The High Court has therefore to hear afresh the appeal of the State as also the cross objections of the landowners.
       Result : Appeals disposed of.

JUDGMENT

Ganguly, J. —

1. Interesting questions involving interpretation of Order 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 Rs.31,650/- per acre.

2. Aggrieved, the claimants (landowners) filed references under section 18 of the Act. The Reference Court enhanced compensation to Rs.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, Rule 22 of CPC, along with an application for condonation of delay of 404 days in filing the cross-objections.

4. On 22.10.2003, the High Court, vide the first impugned judgment, dismissed the appeal of the State holding that the point for consideration in the appeal was squarely covered by the judgment of that court dated 12.8.2003 in M.F.A. No. 3278 of 2001, as a result of which the appeal was liable to be dismissed. The High Court also held that the landowners were entitled to interest with effect from the date of the award, i.e. from 13.4.1999. Against the said judgment, the State came up in the present appeal before this court i.e. Civil Appeal No. 5113 of 2005.

5. On the same day, the High Court, vide the second impugned judgment, also dismissed the cross objections filed by the landowners. In the appeal dismissing the cross objections, two points came up for consideration before the High Court:

(i) Whether the limitation period of one month prescribed under Order XLI Rule 22 (1) of CPC shall run from 12.9.2001 as contended by learned government advocate or from the date of service of notice of date of hearing of appeal fixed by the court, as contended by the learned advocate of the landowner.

(ii) If the limitation of one month prescribed under Order XLI Rule 22(1) of CPC did not begin to run with effect from 12.9.2001, whether the alternative argument by way of explanation offered by the cross objectors would constitute ‘sufficient cause’ warranting condonation of delay in filing the cross objection?

6. The High Court stated that the Division Bench had admitted the appeal on 12.9.2001 and had also stayed the operation of the impugned award subject to the land acquisition officer depositing 50% of the enhanced compensation with statutory benefits. On the same day, the Division Bench had directed the office to list the appeal for final hearing after the records were received. Accordingly, the office called for the records and they were received by the office. Subsequently, on 25.1.2002, the Division Bench permitted the cross objectors to move for an early hearing of the appeal. It held as follows:

“Therefore, it is quite clear that on 12.9.2001 itself, the Division Bench thought it appropriate to hear the appeals out of turn and accordingly directed the office to post the appeal for hearing immediately after the records are received. 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

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2011 Supreme(SC) 509

IMPORTANT POINT Provisions of Order XLI Rule 22 interpreted and principles of their application stated.

Cases Referred (13)

IMPORTANT POINT
Provisions of Order XLI Rule 22 interpreted and principles of their application stated.