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K. Chandrashekara Naik and anr. Vs. Narayana and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKarnataka High Court
Decided On
Case NumberMisc. First Appeal No. 279 of 1973
Judge
Reported inAIR1975Kant18; 1974(2)KarLJ433
ActsMotor Vehicles Act, 1939 - Sections 110, 110A to 110F and 111-A; Code of Civil Procedure (CPC), 1908 - Order 41, Rule 22; Karnataka Motor Vehicles Rules, 1963 - Rules 263 and 363; Motor Vehicles (Amendment) Act, 1956; Requisition and Acquisition of Immovable Property Act, 1952 - Sections 11 and 22; Trade Marks Act - Sections 76 and 77; Defence of India Act, 1939 - Sections 19(1); Limitation Act, 1963
AppellantK. Chandrashekara Naik and anr.
RespondentNarayana and anr.
Appellant AdvocateU.L. Narayana Rao, Adv.
Respondent AdvocateB.P. Holla and ;Udaya Holla, Advs.
Excerpt:
.....16. the principle therefore is that the right to file cross-objection is not different from the right to appeal which is a substantive right and not a mere matter of procedure. the rule is well settled that when a statute directs that an appeal shall lie to a court already established, then that appeal must be regulated by the practice and procedure of that court. in their lordships' opinion this objection is not well founded. the rule is well settled that when a statute directs that an appeal shall lie to a court already established, then that appeal must be regulated by the practice and procedure of that court. but, as the supreme court has, in [1968]1scr372 ,dissented from its earlier view in hanskumar's case, [1959]1scr1177 ,the view expressed by the division bench of this court..........the following question:--in an appeal under section 110-d of the motor vehicles act, 1939, are cross-objections by a respondent maintainable?2. in harathi adirajaiah v. savandamma, (1973) 1 mys lj 247 = (air 1973 mys 213) and a. rahman v. wabber, (1973) 1 mys lj 376 = (1973 cri lj 1682) two division benches of this court have taken the view that in an appeal under section 110-d of the motor vehicles act, 1939, (hereinafter referred to as the 'act') cross-objections cannot be filed invoking the provisions of order 41, rule 22 c. p. c.3. in view of the decision of the supreme court in collector, varanasi v. gauri shanker : [1968]1scr372 , the division bench which has referred the above question to a full bench, was of the opinion that the above rulings of this court require.....
Judgment:

1. The Division Bench of this Court which heard the appeal, has referred to the Full Bench the following question:--

In an appeal under Section 110-D of the Motor Vehicles Act, 1939, are cross-objections by a respondent maintainable?

2. In Harathi Adirajaiah v. Savandamma, (1973) 1 Mys LJ 247 = (AIR 1973 Mys 213) and A. Rahman v. Wabber, (1973) 1 Mys LJ 376 = (1973 Cri LJ 1682) two Division Benches of this Court have taken the view that in an appeal under Section 110-D of the Motor Vehicles Act, 1939, (hereinafter referred to as the 'Act') cross-objections cannot be filed invoking the provisions of Order 41, Rule 22 C. P. C.

3. In view of the decision of the Supreme Court in Collector, Varanasi v. Gauri Shanker : [1968]1SCR372 , the Division Bench which has referred the above Question to a Full Bench, was of the opinion that the above rulings of this Court require reconsideration.

4. Mr. B. P. Holla, learned Advocate for the first respondent, contended that in view of the pronouncement of the Supreme Court in National Sewing Thread Co. Ltd. v. James Chadwick and Bros. Ltd. : [1953]4SCR1028 and : [1968]1SCR372 , the view taken by the Division Benches of this Court in the aforesaid two decisions, is not correct. He urged that in the absence of any special procedure prescribed in the Act or the rules thereunder, the appeal must he regulated by the general practice and procedure of this Court in appeals. He therefore urged that by necessary implication the provisions of the Code of Civil Procedure relating to appeals to the High Court are to be followed and that cross-objections filed in appeals under Section 110-D of the Act are maintainable.

5. On the other hand, Mr. T. S. Krishna Bhat, learned Advocate for the appellants, contended the right to file cross-objections is a substantive right which must be conferred expressly by the statute and that in the absence of express conferment of such a right, cross-objections are not maintainable. He further contended thatif the right to file cross-objections is permitted, it enlarges the period of limitationprescribed in the Act for preferring appeals. Therefore, he urged that the cross-objections are not maintainable.

6. Before we proceed to consider the validity of the rival contentions put forward by learned counsel, it is necessary to refer to the relevant provisions of the Act and the rules made thereunder. The Act was radically amended by the Motor Vehicles (Amendment) Act, 1956 (Central Act No. 100 of 1956) which substituted Section 110 of the Act and added Sections 110-A to 110-F. Section 110 of the Act, as it stands now, provides, inter alia for constitution by the State Government, by a Notification in the Official Gazette, of Motor Accidents Claims Tribunals, in such areas as may be specified thereunder, for the purpose of adjudication of claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles.

7. Section 110-D of the Act, which provides for appeals after awards of Claims Tribunals, reads as under.

'(1) Subject to the provisions of Sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court:

Provided that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. (2) No appeal shall lie against any award of a Claims Tribunal, if the amount in dispute in the appeal is less than two thousand rupees.'

8. Section 111-A of the Act empowers the State Government to make rules for the purpose of carrying into effect the provisions of Sections 110 to 110-E and in particular, such rules may provide for the form and the manner in which, and the fees on payment of which, an appeal may be preferred against an award of a claims Tribunal.

9. In exercise of the powers conferred by Section 111-A and other enabling Sections of the Act, the Government or Karnataka has framed Rules called the Karnataka Motor Vehicles Rules, 1963. The title of Chapter VII of those Rules in the Motor Accidents Claims Tribunal Rules.

10. Rule 363 prescribes that every appeal against the award of the Claims tribunal shall be preferred in the form of memorandum signed by the appellant or his pleader and presented to the High Court or to such officer as it appoints in this behalf, and that memorandum shall be accompanied by a copy of the award. It further provides that the memorandum shall setforth concisely and under distinct heads the grounds of objection to the award appealed from without any argument or narrative and such grounds shall be numbered consecutively.

11. Except providing for an appeal to the High Court under Section 110-D, the Act does not expressly lay down the procedure to be followed by the High Court in dealing with appeals filed before it. The Karnataka Motor Vehicles Rules, also do not contain any provision as to such procedure. In Union of India v. Narasiyappa, (1970) 1 Mys LJ 319, the question of maintainability of cross-objections in appeals filed under Section 11 of the Requisition and Acquisition of Immovable Property Act, 1952, came up for consideration. A Division Bench of this Court followed certain observations of the Supreme Court in Hanskumar Kishan Chand v. Union of India : [1959]1SCR1177 and said thus in paras 15 and 16 of the judgment.

'15. There is no provision either in the Act, or in any rules made under Section 22 thereof providing for a cross-objection being presented by a respondent in an appeal presented under Section 11 of the Act. The cross-objection presented under Rule 22 of Order XLI of the C. P. C. is clearly in the nature of appeal itself not only because the cross-objector is himself a person who could have appealed against the decree which is the subject of appeal but also because in recognition of the same, the Code itself provides that even a withdrawal of the main appeal will not put an end to the cross-objection but that the same should be proceeded with, heard and disposed of as if it were an independent appeal,

16. The principle therefore is that the right to file cross-objection is not different from the right to appeal which is a substantive right and not a mere matter of procedure. The right to appeal therefore has to be expressly conferred upon a party by the relevant statute, and a right already conferred by a statute is not lost unless it is taken away by another statutory provision either expressly or by necessary intendment.

It has to be held therefore that in appeals preferred under Section 11 of the Requisitioning and Acquisition of Immoveable Property Act, 1952, no cross-object ion by a respondent is possible.'

In (1973) 1 Mys LJ 247 = (AIR 1973 Mys 213) the question of maintainability of cross-objection in appeals filed before the High Court under Section 110-D of the Act, directly arose for consideration. The Division Bench of this Court while dealing with that question, followed the view taken in (1970) 1 Mys LJ 319 and observed:--

'..... The scheme of the law is toconstitute Special Tribunals called the Claims Tribunals and to oust the jurisdiction of the ordinary civil Courts in regard to matters in respect of which jurisdiction hasbeen conferred on the Claims Tribunals. Detailed provisions have been made in regard to the constitution of the Claims Tribunals, the applications for compensation and the period of limitation for presenting such applications, as also for condonation of delay in presentation of such applications, for the powers and procedure to be followed by the Tribunals and provision for appeals against the awards of the Claims Tribunals. As the Act, makes provision for constitution of Special Tribunals ousting the jurisdiction of ordinary Civil Courts and further makes provision regarding the procedure and powers of such Tribunals, the necessary legal implication is that the Special Tribunal which is created under a special enactment enjoys the powers specifically conferred by the Act and is enjoined to follow the procedure prescribed by that Act. The appellate authority under Section 110-D of the Act also functions as a Special Statutory Appellate Forum constituted under the Act.'

12. The same view was taken by an other Division Bench of this Court in ((1973) 1 Mys LJ 376) = (1973 Cri LJ 1682).

13. The ratio of the above decisions, is that right of appeal is a substantive right which has to be expressly conferred by the relevant statute, that cross-objections are in the nature of an appeal, that the right to file cross-objections is not different from the right to appeal and, therefore, must be expressly conferred by the statute and is not a mere matter of procedure and that the appellate authority under Section 110-D of the Act functions as a special forum constituted under the Act and is enjoined to follow the procedure prescribed by the Act.

14. In view of the pronouncement of the Supreme Court in : [1953]4SCR1028 and : [1968]1SCR372 to which we will presently refer, the view taken by the Division Benches of this Court relating to the maintainability of cross-objections in appeals to the High Court under Section 110-D of the Act, is in our opinion, unsustainable.

15. In : [1953]4SCR1028 , the question that arose for determination was whether a Letters Patent Appeal would lie to a Division Bench of the High Court from an appellate judgment of a single Judge of the High Court in an appeal under me Trade Marks Act. Section 76 of the Trade Marks Act provided that an appeal shall lie to the High Court from a decision of the Registrar under that Act or the rules thereunder. The Trade Marks Act did not provide for a further appeal from a decision of a single Judge of the High Court. Dealing with that question, the Supreme Court observed thus:--

'The Trade Marks Act does not provide or lay down any procedure for the future conduct or career of that appeal in the High Court, indeed Section 77 of the Act provides that the High Court can if it likes make rules in the matter. Obviously after the appeal had reached the High Court ithas to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the charter under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court. This rule was very succinctly stated by Viscount Haldane L. C. in 'National Telephone Co.Ltd. v. Post Master General', (1913) AC 546 in these terms:-- 'When a question is stated to be referred to an established Court without more, it in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches.'

The same view was expressed by their Lordships of the Privy Council in Adaikappa Chettiar v. Chandrasekhara Thevar , wherein it was said:--

'Where a legal right is in dispute and the ordinary courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal.'

Again in 'Secy. of State for India v. Chellikini Rama Rao AIR 1916 PC 21, when dealing with the case under the Madras Forest Act their Lordships observed as follows:--

'It was contended on behalf of the appellant that all further proceedings in Courts in India or by way of appear were incompetent, these being excluded by the terms of the statute just quoted. In their Lordships' opinion this objection is not well founded. Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the country, with regard to whose procedure, orders and decrees the ordinary rules of the Civil Procedure Code apply.'

Though the facts of the cases laying down the above rule were not exactly similar to the facts of the present case, the principle enunciated therein is one of general application and has an apposite application to the facts and circumstances of the present ease. Section 76, Trade Marks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such or the appellate jurisdiction conferred by Section 76, it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a single Judge, his judgmentbecomes subject to appeal under Clause 15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act.'

16. In : [1968]1SCR372 , the Supreme Court has explained that its earlier decision in Hanskumar's case : [1959]1SCR1177 , proceeded on the premise that the High Court to which an appeal was provided, under Section 19(1) (f) of the Defence of India Act, 1939, functioned as a designated authority and not as a Court. The Supreme Court dissented from the view in Hanskumar's case and held that while acting under Section 19 (1) (f), the High Court functioned as a Court and not as a designated person. In : [1968]1SCR372 , the Supreme Court reiterated the proposition laid down in : [1953]4SCR1028 . Hegde, J., who spoke for the Court said thus:--

'..... We were informed that neitherthe Act nor the rules framed thereunder prescribe any special procedure for the disposal of appeals under Section 19 (1) (f). Appeals under the provision have to be disposed of just in the same manner as other appeals to the High Court. Obviously after the appeal had reached the High Court, it had to be determined according to the rules of practice and procedure of that Court. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court.'

17. From the rulings of the Supreme Court in National Sewing Thread Co.'s case : [1953]4SCR1028 and the Collector, Varanasi v. Gauri Shanker Misra's case : [1968]1SCR372 , it is clear, that when a Special statute merely prescribes that an appeal shall lie to the High Court without prescribing the procedure to be followed by tne High Court, such an appellate jurisdiction has to be exercised in the same manner as the High Court exercises its general appellate jurisdiction and that the appeal so filed must be regulated by the practice and procedure of tne High Court. It is true that the enunciation of law by the Supreme Court is with reference to the provisions of the Trade Marks Act in the one and those of the Defence of India Act in the other, which merely provided for appeals to the High Court. But the law so enunciated by the Supreme Court is of general application.

18. In (1970) 1 Mys LJ 319 this Court relied upon the decision of the Supreme Court in : [1959]1SCR1177 , in coming to the conclusion that cross-objections are incompetent when the statute provides for an appeal to the High Court. But, as the Supreme Court has, in : [1968]1SCR372 , dissented from its earlier view in Hanskumar's case, : [1959]1SCR1177 , the view expressed by the Division Bench of this Court in (1970) 1 Mys LJ 319, following the decision of the Supreme Court in Hanskumar's case, is no longer good law.

19. In the light of the elucidation of the law by the Supreme Court in National Sewing Thread Co.'s case : [1953]4SCR1028 and the Collector, Varanasi's case : [1968]1SCR372 , we hold that the rulings of the Division Benches of this Court in Harathi Adirajaiah's 1973 (1) Mys LJ 247 = (AIR 1973 Mys 213) and A. Rahman's, 1973 (1) Mys LJ 376 = (1973 Cri LJ 1682), as to the maintainability of cross-objection in appeals filed to the High Court under Section 110-D of the Act, are not correct.

20. Order 41, Rule 22, C. P. C. provides that any respondent, though he may not have appealed from any part of the decree may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided that he filed such objection to 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. The above rule is apparently a special provision which gives a respondent, who in the first instance is satisfied with partial success in the Court below, another opportunity of challenging the part of the decree which has gone against him upon his opponent preferring an appeal. In the appeal filed from any part of the decree before this Court, the procedure laid down in Order 41, Rule 22, C. P. C. has to be followed by this Court. Therefore, we are of the view, that cross-objections are maintainable, in appeals that lie to the High Court under Section 110-D of the Act.

21. Mr. Krishna Bhat contended that if it is held that cross-objections are maintainable in appeals to the High Court under Section 110-D of the Act, the respondent who has not himself preferred an appeal within the period prescribed in that Section, will have further time to prefer cross-objections and that thereby the period of limitation prescribed in Section 110-D of the Act, for preferring appeals, would be enlarged.

22. Such a consequence is nothing peculiar to cross-objections filed in appeals under Section 110-D of the Act. The Second Division of the First Schedule to the Limitation Act, 1963, prescribes several periods of limitation for various categories of appeals under the Code of Civil Procedure. In all such appeals, the respondents who prefer cross-objections, will have further time as provided in Order 41, Rule 22, C. P. C. That a respondent will have such further time for preferring cross-objections, cannot be a ground for holding that cross-objections are not maintainable in appeal under Section 110-D of the Act.

23. For the reasons stated above, our answer to the question referred to the Full Bench is:--In an appeal under Section 110-D ofthe Motor Vehicles Act, 1939, cross-objec-tions by a respondent are maintainable.

24. Answer accordingly.


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