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2004(2) JLJ 9
(FULL BENCH)
Kumar Rajaratnam, C.J., Dipak Misra and Shantanu Kemkar, JJ.
Jabalpur Development Authority v. Y.S. Sachan and others
L.P.A. No. 721 of 2003; on reference by Division Bench;
Decided on 12.2.2004.
The question that falls for consideration before the Full Bench is framed thus :
‘Whether in a writ appeal preferred under Clause 10 of the Letters Patent, an intra-Court appeal, being an appeal on the appellate side of the Court arising from a case decided in exercise of jurisdiction under Articles 226 and 227 of the Constitution of India, a cross-objection under Order 41, Rule 22 of the Code of Civil Procedure would be entertainable or in the alternative, whether filing of such cross-objection is contemplated in a writ preferred under Article(s) 226 and/or 227 of the Constitution.‘ [Para 2
Held : Cross-objection as envisaged under Order 41, Rule 22 of the Code of Civil Procedure would not be maintainable in a Letters Patent Appeal that arises from a proceeding under Articles 226 and 227 of the Constitution but the same would be maintainable if the Letters Patent Appeal is preferred from an appeal under section 96 of the Code of Civil Procedure and further the respondents in LPA, if aggrieved by any part of the judgment of the writ Court, can file an independent appeal within the time frame provided under Rule 13 of the High Court Rules and Orders for preferring the appeal and may seek condonation of delay, and in addition may defend or assail the findings recorded by the learned Single Judge on different grounds that find mention in the order. AIR 1983 AP 259 dissented from. AIR 1996 SC 1092 followed. (1999) 7 SCC 435, AIR 2000 SC 659, (1998) 3 SCC 540 and AIR 1965 SC 669 discussed and relied on. [Para 14
(2) Letters Patent--Cl, 10--Rule XIII--Letters Patent Appeal--should be filed within 30 days--Court can condone the delay on sufficient ground. [Para 10
(3) Constitution of India--Art. 226--writ petition--no cross objection is filed in writ petition. [Paras 10 & 11
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Rajaratnam, C.J.--1. In this appeal preferred under Clause 10 of the Letters Patent the legal validity of the order dated 5.8.2003 passed by the learned Single Judge in W.P. No. 3411/2000 [since reported in 2003(4) MPLJ 219] has been called in question whereby the learned -ingle Judge has allowed the writ petition preferred under Articles 226 and 227 of the Constitution of India in part. During the pendency of this appeal the respondent No.1 preferred a cross-appeal. The Division Bench expressed the view that the matter involved an important question of law and thought it appropriate that the matter should be placed before the Full Bench. An added importance, which the Division Bench felt, is the Division Bench decision of the High Court of Andhra Pradesh rendered in the case of Chittoor Co-op. Town Bank Ltd. v. T. Krishaiah Chetty and another AIR 1983 Andhra Pradesh 259. Though the said judgment, strictly speaking, is not a binding precedent on this Court but has the persuasive effect, yet such a pronouncement would have far reaching effect, it was thought apposite to clarify the position and accordingly the matter was recommended to be heard by a larger Bench. In this background, the matter has been placed before us.
2. The question that falls for consideration before the Full Bench is framed thus :
"Whether in a writ appeal preferred under Clause 10 of the Letters Patent, an intra-Court appeal, being an appeal on the appellate side of the Court arising from a case decided in exercise of jurisdiction under Articles 226 and 227 of the Constitution of India, a cross objection under Order 41, Rule 22 of the Code of Civil Procedure would be entertainable or in the alternative, whether filing of such cross-objection is contemplated in a writ preferred under Article(s) 226 and/or 227 of the Constitution ?"
3. At the outset we think it necessary to reproduce the reasonings ascribed by the High Court of Andhra Pradesh in the case of Chittoor Co-op. Town Bank Ltd. (supra). In paragraph eight therein it has been held as under :
"Under Order 41, Rule 22 of the Code of Civil Procedure there is a specific provision for the filing of cross-objections. These provisions admittedly apply to all appeals filed under CI. 15 of the Letters Patent. So much so, against the judgment rendered by the learned Single Judge upon a first appeal when a Letters Patent Appeal is filed, in that Letters Patent Appeal, Cross-objections could be filed by the respondent therein. We fail to see how and when the writ appeal also is filed under Clause 15 of the Letters Patent, the provisions of Order 41, Rule 22, Civil Procedure Code could be excluded, there is no rule in the Writ Proceedings Rules which can be said to be inconsistent with Order 41, Rule 22, Civil Procedure Code. In fact the rules are silent as to whether cross-objections could be filed or not. We may add that the Writ Proceeding Rules by themselves do not provide any remedy. They regulate the proceedings which may be instituted by virtue of some other provisions of substantive law, the writ petitions are filed under Art. 226 of the Constitution and the writ appeals are filed under Clause 15 of the Letters Patent. It is to govern these proceedings that the writ proceedings Rule have been framed. This was necessity for the reason that in the Appellate Side Rules, there is no specific provision governing the writ petitions. Moreover, specific procedure had to be divised for regulating the petitions filed before this Court on the Original Side invoking the extraordinary jurisdiction of the High Court. The rules are procedural rules and do not confer or take away the substantive right of appeal or the right of filing of cross-objections. On the other hand there is an express provision in Rule 24 that in relation to causes and matters coming up before the High Court on the Original side or the Appellate Side, the provisions of the Code of Civil Procedure will govern. We, therefore, feel no hesitation
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