1. Shri Harathi Adirajaiah has preferred this Miscellaneous First Appeal under Section 110-D of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act) against the award made by the Motor Accidents Claims Tribunal (hereinafter referred to as the Tribunal), in Misc. Case No 358 of 1966. Respondent No. 1. Smt. Savandamma, has preferred cross-objections involving the provisions of Order XLI, Rule 22 of the Code of Civil Procedure. She filed a petition on 16-4-1966 under Section 110-A of the Act before the Tribunal and prayed that a compensation of Rs. 20,000/- be awarded on account of the death caused to her husband. K. C. Nagaraju, on 9-5-1965 as a result of an accident caused by the rash and negligent driving of the driver of the Vehicle MYD 1797 owned by the appellant. It is alleged in the application that the deceased was a P.W.D. Contractor aged about 28 years who was earning an income of about Rs. 300/- per month.
It is not disputed that Nagaraju boarded the bus at Dobspet at about 9 P.M. on 9-5-1965 with a view to go to cinema in Tyamagondlu and that he died as a result of an accident that occurred about two miles away from Tyamagondlu on the right side of the road. The case of the claimant is that the driver was driving the vehicle rashly and negligently and that therefore the vehicle swerved to the right and collided against a tree, as a result of the impact of which the deceased Nagaraju was thrown out of the vehicle and died immediately on account of the injuries sustained by him. It has also come in evidence that the deceased Nagaraju has left behind him not only his widow Smt. Savandamma, but also three minor sons who are all his dependants. An application for condonation of the delay in presenting the application was also filed.
2. The application was resisted not only by the appellant, the owner of the vehicle, but also by respondent No. 2, the General Insurance Company, with whom the vehicle was insured. The application for condonation of delay was opposed and it was contended that there was no sufficient cause for condoning the delay in preferring the application. That Nagaraju was travelling in the vehicle on the date of the accident and that he died as a result of the accident caused to the vehicle is not disputed. The claim for compensation was resisted mainly on the ground that the accident was not as a result of any rash or negligent driving on the pert of the driver of the vehicle. It was contended that even though all reasonable care was taken for the maintenance of the vehicle and its tyres, the front tyre on the right side of the vehicle suddenly burst when the vehicle was going at a moderated speed in the centre of the road, as a result of which the vehicle swerved to the right.
It was further alleged that the deceased Nagaraju was sitting by a window seat behind the driver's seat and was putting his head out of the window and vomiting. Even though the driver warned him not to put his head out, the deceased Nagaraju continued to put his head out. It was alleged that it is because Nagaraju put his head out of the window, that when the vehicle suddenly swerved to the right the cut branch of a tree on the right side of the road hit against the head of Nagaraju causing him injuries. When the vehicle was stopped. Nagaraju was brought out of the vehicle and the driver rushed to secure medical aid. By the time medical aid could be secured, Nagaraju had expired. In the alternative, it was contended that Nagaraju was guilty of contributory negligence.
3. The Tribunal, after considering the evidence and the material placed by the parties, condoned the delay in preferring the application and awarded a compensation of Rs. 8,100/- to Smt. Savandamma. As regards the liability of the second respondent, the General Insurance Company the Tribunal restricted the same to a sum of Rupees 2,00 0/-.
4. In this appeal, the learned counsel for the appellant raised the following three contentions:--
1. That the Tribunal was not justified in condoning the delay in presenting the application under Section 110-A of the Act.
2. That the Tribunal committed an error in holding that on account of rash and negligent driving by Kuppuswamy, the driver of the vehicle that the accident occurred, resulting in the death of Nagaraju.
3. That the compensation awarded by the Tribunal is excessive.
5. The application for compensation was filed under Section 110-A of the Act (as it then stood). Sub-section (3) of the said section provides that no application should be entertained, if it is not made within 60 days of the occurrence of the accident. The proviso to the said sub-section empowers the Tribunal to entertain an application after the expiry of the period of 60 days, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time. The accident occurred in this case on the 9th of May, 1965 and the application was filed on the 16th of April, 1966, more than 60 days after the date of occurrence. Along with the application, an affidavit was filed stating the reasons for the delay in presenting the application and praying for condonation of delay. No formal application for condonation of delay, however, accompanied the said affidavit. After this irregularity was realised, an application was filed for condonation of delay on the 20th of July, 1966, seeking condonation of delay for the reasons stated in the affidavit already filed. In the circumstances, we are of the opinion that as the affidavit seeking condonation of delay was filed on the 16th of April 1966 though formal application was filed later, we have to examine as to whether the delay in presentation of the application up to 16-4-1966 was rightly condoned by the Tribunal or not.
6. The application for condonation of delay was by consent of parties, considered at the time of final hearing. The applicant Smt. Savandamma has examined herself in support of her case. In the affidavit filed by her seeking condonation of delay, she has stated that she was in confinement when the accident occurred and that she received a shock on receiving the news of the death of her husband in the accident. She has further stated that she became very weak and that the doctor who treated her, warned her not to worry or think about anything, as otherwise the same would tell seriously on her health and effect it beyond repairs. She has stated that that was the advice tendered by her brother also.
In the course of her evidence before the Tribunal, she has stated that at the time of the accident, she had delivered 1 1/2 months prior to the death of her husband and was actually in confinement at the time of his death. She has also stated that she was shocked and had a nervous breakdown when she heard the news of death of her husband and that she suffered for 9 or 10 months. She has stated that one Dr. Mohan was treating her and that the doctor is no more. She has stated that after she regained her composure, she has presented the petition. Smt. Parvathamma the mother of the applicant, who has been examined in the case, has supported the version of the applicant. There is no evidence to the contrary, from which any inference can be drawn that Smt. Savandamma was physically and mentally in a fit condition to be able to present the application on any date earlier than 16-4-1966. Dr. Mohan who was treating Savandamma has not been examined, as he had died by that time. In these circumstances, we do not find any good grounds to reject the statement of Savandamma that on account of nervous break-down she was not in a position to present the application within the prescribed time.
7. It was next urged that an application filed by the appellant on 24-9-1968 under Order XVIII. Rule 17 read with Section 151 of the Code of Civil Procedure requesting the Tribunal to recall Savandamma for further cross-examination was wrongly rejected, thereby denying him an opportunity of placing material on record to show that Savandamma was physically and mentally in a fit condition to present the application well within the prescribed period of limitation. Savandamma was examined on 21-8-68. She was the last witness examined on the applicant's side. The recording of the evidence on the side of the appellant was over on 18-9-1963. The aforesaid application was filed on 24-9-1968. It is stated in the affidavit in support of that application that Savandamma had filed a petition under Section 372 of the Indian Succession Act in the Court of the District Judge on 10th February, 1966 and that the said circumstances would show that Savandamma was in a position to approach the Court and to present the application more than two months before the application was filed in the present case.
In the affidavit filed in support of that application it is stated as follows :
'I submit that I was not aware of this fact till today. Yesterday night while my Advocate was preparing himself for arguing the above case, put me a question as to whether the petitioner has made any application for obtaining the Succession Certificate. I said that I was not aware. Then today myself and my Advocate came and made enquiries in the Office of the District Judge, Bangalore and got all the above particulars and I have applied for certified copy of the petition and also order sheet dated 10-2-1966 by emergent copy application.'
The aforesaid averments would disclose that no attempt was made by the applicant or his counsel till 23-9-1968 to ascertain if Savandamma had applied for succession certificate in the District Court. The enquiry in that behalf was for the first time made after the evidence of both the sides was closed and the case was set down for arguments. No explanation whatsoever is forthcoming as to why that enquiry was not made earlier. The necessary enquiry should have been made and proper questions put when Savandamma was in the witness box. In these circumstances, it cannot be said that the Tribunal committed an error in rejecting the belated application filed for recalling Savandamma for further cross-examination.
8. The Tribunal has, after considering the facts and circumstances, believed the version of Savandamma and condoned the delay in presenting the application for compensation. We do not find any good grounds to interfere with the exercise of the said discretion by the Tribunal.
9. It was next urged that the Tribunal committed an error in holding that on account of rash and negligent driving of the vehicle by the driver that the accident occurred, resulting in the death of Nagaraju. The following facts, which are established by the evidence on record, were not disputed by the learned counsel for the appellant:--
(1) That the accident resulting in the death of Nagaraju occurred not in the main road, but on the footpath on the right side of the road.
(2) That the accident resulting In the death of Nagaraju occurred because the vehicle left the main road and went on the footpath on the right side of the road.
(3) That Nagaraju who was a passenger in the vehicle died as a result of the injuries which he sustained on the footpath on the right side of the road.
(4) That the vehicle and the body of the deceased Nagaraju were on the footpath on the right side of the road immediately after the occurrence. As the aforesaid undisputed and proved facts establish that the vehicle left the main road end the accident resulting in the death of Nagaraju occurred on the footpath of the right side of the road, a presumption has to be drawn that the accident was caused by the negligence on the part of the driver of the vehicle, applying the principle laid down by Asquith, J. in Barkway v South Wales Transport (1948) 2 All ER 460 (471), which principle was approved by our Supreme Court in Gobald Motor Service Ltd. v. Veluswami, reported in : 1SCR929 . It is, therefore, for the appellant to rebut the aforesaid presumption.
10. The case of the appellant is that all reasonable care and caution was taken to ensure that the vehicle was fitted with good and road-worthy tyres and that the same were in good condition on the date of the accident. The case of the appellant further is that when the vehicle was going at a reasonable speed in the middle of the road, the front right side tyre suddenly burst, as a result of which the vehicle suddenly swerved to the right side end went on the footpath. Shri Nagaraju, who was a passenger in the vehicle was putting his head outside and was vomiting and did not withdraw his head inside even though asked to do so by the driver. As Nagaraju had put his head in the window, when the vehicle went on the footpath, a cut branch of the tree hit his head. When the vehicle stopped. Nagaraju was brought outside the vehicle and laid on the footpath, where he died before medical aid could be secured by the driver. The contention of the learned counsel for the appellant is that having taken all reasonable care, if the accident was a result of sudden burst of the tyre when the vehicle was moving at a reasonable speed in the centre of the road, it cannot be said that the accident occurred on account of any rash and negligent act on the part of the driver. The learned counsel for the appellant submitted that the evidence placed on behalf of the appellant establishes that the tyre suddenly burst on the centre of the road.
11. The driver Kuppuswamy has been examined as R.W. 2. He has stated that he checked the vehicle before he took it on the road, that the tyre was in good condition end that on the date of the accident, he was as usual driving the vehicle at a speed of about 20 miles per hour. He has stated that when he went a distance of 3 1/2 miles from Dabaspet, the front right tyre burst and that the bus dragged towards the right, went near a tree and that a stump of a branch of the tree hit Nagaraju on his head and chest end the vehicle stopped beyond 5 or 6 feet from that place. He has denied the suggestion that the bus was overcrowded and that he lost control over the bus, as a result of which it went and dashed against a tree and that in the process the tyre burst and Nagaraju was killed. It is necessary to note that this witness is undoubtedly a very interested witness and therefore much value cannot be attached to his evidence.
12. The next witness is T.V. Subbaiah, who has been examined as R.W. 3. He claimed to be a passenger in the vehicle on the date of the accident. This witness has stated that before the accident actually occurred. 10 or 12 yards before the place of accident, he heard a sound when the driver told that the tyre burst and that the passengers should be cautious. He has further stated that the bus went about 10 yards towards right and it touched a tree and came to a halt within 3 or 4 feet from the tree. He has stated that a branch of the tree, which had become stump after cutting, hit Nagaraju on his head and forehead. In cross-examination, he has stated that the driver Kuppuswamy and himself hail from the same place Tyamagoundlu. Even if, the tyre had burst in the centre of the road, it was neither probable nor practicable for the driver to have cautioned the passengers on hearing the sound of bursting of the tyre, to be cautious. This witness has obviously come to support the driver Kuppuswamy, who comes from the same place.
13. The next witness examined is Vardaiah R.W. 4. He also claims to be a fellow passenger in the vehicle. He has stated that when the bus was on the bridge, the driver shouted that all passengers should keep their hands and heads inside the bus, when they heard a 'THUD' sound. He has further stated that the bus went in a zig zag manner and went towards right side and came to a halt within 4 or 5 feet of a tree and that Nagaraju was hit by a cut branch stem of the tree on his forehead. He has denied the suggestion that the driver Kuppuswamy is his friend. He has, however, admitted that Kuppuswamy and himself hail from the same place and that he knows him from the age of discretion. The evidence of this witness suffers from the same weakness as that of R.W. 3 Subbaiah.
14. The only other relevant evidence in this behalf is that of R.W. 1 Sri N. H. Ramamurthy, the Motor Vehicles Inspector. He has stated that on the requisition of the Sub-Inspector of Police, Tyamagondlu, he went and inspected the vehicle on 10-5-1965 at about 3 P.M. He has stated that he inspected the vehicle and did not find any mechanical defects but for the front right tyre, which was burst. He has opined that the accident is due to sudden burst of front right side tyre. In cross-examination, he has stated that since there were no drag marks, the burst could not have happened as a result of the impact. He has stated that there was a cut mark on the outside tyre. In re-examination, he has stated that after the burst, there was drag mark but not earlier on the spot on the road. The statement elicited in re-examination of this witness indicates that there are no drag marks on the road, but there are drag marks, after the tyre was burst. Exhibit P-3A is the reply given by him to a query made as per Exhibit P-1 by the Circle Inspector of Police in connection with the accident. The same was put to him and he has admitted having made the statement as per Exhibit P-3A. He has stated in Exhibit P-3A as follows:--
'I write to inform you that the bursting of front right tyre could have happened after the first impact with the tree had taken place, considering the fact that there were no drag marks before the first impact.'
The Statement at Exhibit P-3A read with statement in the re-examination of this witness, makes it quite clear that there were no drag marks whatsoever on the road and that there were drag marks commencing from the tree upto the place where the vehicle was standing stationary on the footpath on the right side of the road, after the vehicle had collided with the tree. The evidence of this independent witness establishes an important circumstance, viz., that there were no drag marks on the main road and that there were drag marks only after the vehicle had collided with the tree. This circumstance clearly belies the case of the appellant as well as the evidence given by his witnesses that the front right side tyre of the vehicle burst when the vehicle was moving on the centre of the road. If the tyre had burst on the centre of the road, there would have been traces of drag marks from the centre of the road upto the tree. But, we find that there are drag marks only from the tree up to the place where the vehicle became stationary after colliding with the tree. This circumstance clearly establishes that the swerving of the vehicle to the right side and its going on the footpath was not on account of bursting of the tyre in the centre of the road but that the bursting of the tyre itself was the result of the collision of the vehicle with the tree on the footpath on the right side of the road. We are, therefore, of the opinion that the tyre of the vehicle did not burst in the centre of the road, as contended by the appellant, but that the tyre got burst only as a result of the collision of the vehicle with the tree on the footpath. The appellant has, therefore, failed to rebut the presumption. Even without the said aid of the presumption, the only conclusion possible from the evidence and circumstances of the case is that on account of rash and negligent act of the driver, the vehicle left the centre of the road and swerved to the right, collided with the tree, resulting in Nagaraju's receiving fatal injuries. We also find it difficult to believe the story that Nagaraju was putting his head outside for the purpose of vomiting and that he continued to keep his head outside the window notwithstanding the warning of the driver and therefore he is guilty of contributory negligence.
15. The next contention is regarding the quantum of compensation awarded. The Tribunal has awarded compensation of Rs. 8,100/-. The Tribunal has come to the conclusion that the income of Nagaraju was not less than Rs. 150/- per month. The Tribunal has also come to the conclusion that the family had no other source of income. It has come in evidence that Nagaraju was 28 years old at the time of his death and was working as a P. W. D. Contracter. Savandamma the widow and three minor children are his dependants. Having regard to the normal expectancy of life of Nagaraju and the income which he was deriving at the time of his death, the compensation has to be determined, applying the principle laid down by this Court in the decision in Krishnamma v. Alice Veigas, reported in (1966) 2 Mys LJ 588. The evidence placed by Savandamma is to the effect that her husband was getting an income between Rs. 200/- to Rs. 300/-. The learned counsel for the appellant had to concede that if the principle laid down in the aforesaid decision of this Court is applied, the compensation awarded by the Tribunal cannot be said to be excessive. It is, therefore, unnecessary to deal with this matter in any great detail. Consequently, all the contentions raised by the Appellant in support of his appeal fail.
16. Respondent No. 1 Smt. Savandamma has filed Cross Objections on 28-10-1969 under Order XLI, Rule 22 of the Code of Civil Procedure and sought enhancement of Compensation. It is stated that Savandamma was served with the notice of the appeal on 13-10-1969 and that the Cross Objections have been filed within 30 days from the date of service of the notice of the memorandum of the appeal.
17. The Appellant contended that the Cross Objections are not maintainable and that if the memorandum of Cross Objections are treated as on independent appeal, the same has to be dismissed as being barred by limitation.
18. We will first address ourselves to the question as to whether the Cross Objections filed are maintainable under Order XLI, Rule 22 of the Code of Civil Procedure. Section 110 of the Act provides that the State Government may, by Notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter referred to as Claims Tribunals) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving death of, or bodily injury to, persons arising out of the use of motor vehicles. It further provides that the Claims Tribunal shall consist of such number of members as the State Government may think fit to appoint and where it consists of two or more members, one of them shall be appointed as the Chairman thereof. It further provides that a person shall not be qualified for appointment as a member of a Claims Tribunal unless he is, or has been, a Judge of a High Court, or is, or has been a District Judge, or is qualified for appointment as a Judge of the High Court.
Section 110-A provides that an application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 110 shall be made to the claims Tribunal having jurisdiction over the area in which the accident occurred. Section 110-B provides that on receipt of an application under Section 110-A, the Claims Tribunal shall, after giving the parties an opportunity of being heard, hold an inquiry and make an award. Section 110-C prescribes the procedure and powers of the Claims Tribunal. Sub-section (1) of the said Section provides that in holding any inquiry under Section 110-B, the Claims Tribunal may subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit. Sub-section (2) of the same Section provides that the Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898. Section 110-D provides that 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. The proviso to the said Section states 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.
Section 110-E provides for recovery of money from the insurer as arrear of land revenue. Section 110-F bars the jurisdiction of Civil Courts in certain matters. It provides that where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the Claim for compensation shall be granted by the Civil Court. The scheme of the law is to constitute Special Tribunals called the Claims Tribunal and to oust the jurisdiction of the ordinary Civil Courts in regard to matters in respect of which jurisdiction has been conferred on the Claims Tribunals. Detailed provisions have been made in regard to constitution of the Claims Tribunals, the Application 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.
19. The High Court, when it functions as an appellate authority under Section 110-D of the Act, does not function as an ordinary Civil Court, but as a special appellate forum constituted under the Act. Section 110-C of the Act states that subject to Section 110-B and subject to any rules made in that behalf, the claims Tribunal may follow such procedure as it thinks fit. Special rules prescribed to be followed by the Claims Tribunal are contained in Chapter VII of the Mysore Motor Vehicles Rules, 1963. Detailed provisions have been made in that Chapter for the presentation of applications; examination of the applicants notice to parties; examining witnesses, appearance of legal practitioners; local inspection; inspection of the vehicle; power of summary examination; method of recording evidence; adjournment of hearing; co-opting of persons during inquiry; framing of issues; determination of issues; diary; judgment and award of compensation; the provisions of Code of Civil Procedure that are made applicable form and number of appeals against the decision of Claims Tribunal; fees to be paid; form of appeals and contents of memorandum and officer authorised to require production of Certificate of Insurance. Rule 360 states that the provisions of Order V, Rules 9 to 13 and 15 to 30. Order IX, Order XIII, Rules 3 to 10 Order XVI, Rules 2 to 21. Order XVII and Order XXXIII. Rules 1 to 3 in the First Schedule to the Code of Civil Procedure 1908, only are made applicable. Sub-section (2) of Section 110-C states that the Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery end production of documents and material objects and for such other purposes as may be prescribed and that the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXXV of the Code of Criminal Procedure.
It is, therefore, clear that the provisions of Order XLI, Rule 22 of the Code of Civil Procedure, wherein provision for 'filing Cross Objections has been made, has not been made applicable to appeals under Section 110-D of the Act against the awards of the Claims Tribunal. Rule 363 prescribes the form of appeal and contents of memorandum. It states that every appeal against the award of the Claims Tribunal shall be preferred in the form of a 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 set forth 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. The explanation states that for the purposes of Sub-rule (1) the expression 'Pleader' shall have meaning assigned to it in the Code of Civil Procedure, 1908.
Though the Code of Civil Procedure does contain similar provisions under Order XLI. Rule 1 in regard to the form of appeal and contents of memorandum a specific Rule No. 363 has been made under the Rules as the relevant rule under the Code of Civil Procedure, in that behalf has not been made applicable. Rule 363 makes provisions only in respect of an appeal and not in respect of Cross Objections. The provisions of Section 110-C of the Act as well as the rules framed in that behalf contain detailed provisions regulating the procedure to be followed. The jurisdiction of the Civil Court is ousted by Section 110-F of the Act. It is only certain provisions of the Code of Civil Procedure that are made applicable by Section 110-C and the rules made under the Act. Section 110-D is a self contained code, which does not make any provision for filing cross objections. Any aggrieved party has, therefore, to file an appeal under Section 110-D within the prescribed time. The proviso to Sub-section (1) of Section 110-D empowers the High Court to entertain appeal after expiry of the period of limitation, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. The only remedy of an aggrieved party is to prefer an appeal under Section 110-D. If it is hold that the cross objections can be filed under Order XLI. Rule 22 of the Code of Civil Procedure, then it follows that Cross Objections can be filed as provided under Order XLI, Rule 22 within 30 days of the receipt of notice of the appeal. If by the time notice of the appeal is received, the period prescribed for preferring an appeal under Section 110-D has expired the party receiving the appeal memo would be entitled to another 30 days' time from the date of receipt of the appeal memo. That would mean that the respondent would be entitled to file Cross Objections after a period of 90 days of the passing of the award by the Claims Tribunal, beyond the period of appeal prescribed under Section 110-D of the Act. The examination of the relevant provisions referred to above, leads to the inference that the application of Order XLI Rule 22 is excluded by necessary implication. Besides as the award made by the Claims Tribunal is not a decree as defined in the Code of Civil Procedure. Cross Objections cannot be filed invoking Order XLI, Rule 22 of the Code, inasmuch as such Cross Objections can be filed only in an appeal against a decree as defined in the Code of Civil Procedure.
20. This Court had occasion to consider the question of maintainability of Cross Objections in appeals filed under Section 11 of the Requisitioning and Acquisition of Immovable property Act. 1952 in the decision in Union of India v. Narasiyappa, reported in (1970) 1 Mys LJ 319. Section 11 of the said Act, which is analogous to Section 110-D of the Act, with which we are concerned, read as follows:--
'Any person aggrieved by an award of the arbitrator made under Section 8 may, within thirty days from the date of such award, prefer an appeal to the High Court within whose jurisdiction the requisitioned or acquired property is situate;
Provided that the High Court may entertain the appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.'
In an appeal filed under Section 11 of that Act, the Respondent filed Cross Objections. This Court came to the conclusion that in appeals preferred under Section 11 of that Act, no Cross Objections by the respondent is possible but that the High Court may treat the Cross Objections as a separate appeal subject to the period of limitation and the power of the High Court to condone the delay. This Court pointed out that there is no provision in that Act or in the rules made thereunder providing for Cross Objections being presented by the respondent in the appeal under Section 11 and that the right to file cross objections not being different from the right of appeal which is a substantive right, it must be conferred by a statute. We are in respectful agreement with the principle laid down by this Court in the said decision.
The principle laid down in the aforesaid decision equally applies to this case, as Section 110-D is analogous to Section 11 of that Act dealt with and considered in the aforesaid decision.
21. Shri Puttasiddaiah, learned counsel appearing for Respondent No. 1 relied upon the decision of the Delhi High Court reported in : AIR1969Delhi183 between Ishwar Devi Malik v. Union of India. The learned counsel relied upon paragraph 51 of the judgment, which reads as follows:--
'In this appeal, the eldest son, Jagjit Kumar, who was one of the Claimants before the Tribunal, was added as respondent 6 in the appeal. However, as the cause of action for all the claimants was the same, and we are going to make an order which ought to have been made by the Claims Tribunal we are of the opinion that in exercise of our Power under Order 41, Rule 33 read with Section 151. Code of Civil Procedure, we should make an order for compensation in favour of Jagjit Kumar also in order to do complete justice between the parties.'
It is necessary to note that in the said case the High Court of Delhi was not considering the question of maintainability of cross objections under Order XLI, Rule 22 of the Code. Their Lordships of the Delhi High Court have applied the provisions of Order XLI, Rule 33 of the Code and made an award in favour of the respondent, who had not preferred an appeal. No reasons are stated for coming to the conclusion that the provisions of Order XLI, Rule 33 are applicable. It is quite likely that the said question was not debated before their Lordships. The decision of the Delhi High Court, in our opinion, is therefore not of assistance to decide the question that has arisen in this case, The next decision relied upon by Shri Puttasiddaiah is another decision of the Delhi High Court reported in 1971 Acc CJ 324 (Delhi) between W. S. Bhagsingh and Sons v. Om Prakash. The learned counsel relied upon paragraph 6 of the Judgment, which reads as follows:--
'The next question to be considered is with regard to the quantum of compensation awarded to the petitioners by the learned Tribunal. While the respondents in their appeal contend that the compensation was excessive, the petitioners have filed the cross objections for enhancement of the compensation. The learned counsel for the respondents has raised a preliminary objection regarding the maintainability of the cross objection filed by the petitioners. The learned counsel contends that the Act is self contained and it did not provide for the filing of any cross objection. In reply the learned counsel for the petitioners contends that where the Act is silent, the provisions of the Civil Procedure Code would apply and that under the said Code where one party files an appeal, the opposite party is at liberty to file cross objections. In support of this contention the learned counsel for the petitioners has referred to a decision of the Madhya Pradesh High Court in Manjula Devi v. Manjusri Raha, 1968 Acc CJ 1 (Madh Pra) wherein it was held that 'as soon as this Court becomes seized of an appeal, even where en appellate jurisdiction is conferred under a special statute, the rules of practice and procedure of this Court applicable to a civil appeal will, in the absence of any specific rule to the contrary govern such appeal. In support of this view, their Lordships of the Madhya Pradesh High Court have referred to a decision of the Privy Council in Secy. of State for India v. Chelikani Rama Rao, AIR 1916 PC 21 and also to a decision of the Supreme Court in N.S. Thread Co. v. James Chadwick and Bros. : 4SCR1028 . The learned counsel for the respondents has not been able to cite any decision contrary to the one cited by the learned counsel for the petitioners and which would support his own contention. The practice in this Court also appears to permit the filing of cross objection when appeals are filed against Judgment of the Tribunal. I, therefore, hold that Cross objections filed by the petitioners ere maintainable.'
It is clear from the Judgment of his Lordship that on the basis of the rules and practice of that High Court, it was held that cross objections are maintainable. Shri Puttasiddaiah was not able to place before us the rules and practice of that High Court on the question. On examination of the relevant provisions of the Act and the rules made thereunder, we have come to the conclusion that cross objections under Order XLI, Rule 22 of the Code of Civil Procedure are not maintainable in appeals filed under Section 110-D of the Act. With respect, we find ourselves unable to agree with the view expressed by the Delhi High Court that the maintainability of Cross Objections in an appeal filed under Section 110-D of the Act depends upon the rules and practice of the High Court.
22. For the reasons stated above, we hold that in an appeal filed under Section 110-D of the Act. Cross objections are not maintainable and that the provisions of Order XLI, Rule 22 of the Code of Civil Procedure are not applicable.
23. Though we have held that the cross objections, as such, are not maintainable, the same can be treated as an appeal filed by respondent. No. 1. The Cross objections were filed on 28-10-1969, long after the expiry of the period of limitation for preferring an appeal. After the appeal was heard for some time, respondent No. 1 filed an application for condonation of delay. The provisio to Sub-section (1) of Section 110-D does empower the High Court to entertain an appeal after the expiry of the prescribed period of limitation of 90 days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. In the affidavit filed in support of the application for condonation of delay, Smt. Savandamma has stated as follows:--
'During the third week of December, 1968, I approached my Advocate to file the appeal against the award, for which he told me that the opposite party is filing an appeal questioning the award passed by the Claims Tribunal and I would get the notice of the appeal filed by the Appellant and afterwards I could file the cross objections in the matter and I need not worry about the case, and I honestly believed the statement made by the Advocate,'
The award was made by the Tribunal on 28-9-1968. The period prescribed under Section 110-D being 90 days, it is obvious that respondent No. 1 approached her advocate well in time. But, it is difficult to believe her assertion that she was told by her advocate that the other party is filing the appeal and that after receipt of the notice, she could file her cross objections. The affidavit of the Advocate whom she consulted, has not been filed. It is difficult to believe that the advocate for the other side would have told, the advocate of Smt. Savandamma that he is going to prefer an appeal in a particular case. We wonder how that Advocate could have come to know that a particular Advocate is going to be engaged by Smt. Savandamma. We are, therefore, of the opinion that the explanation offered by respondent No. 1 is not a true one. We, therefore, do not find any good grounds to condone the delay in preferring the appeal (the cross objections filed by respondent No. 1 having been treated by us as an appeal preferred by her) by respondent No. 1.
24. For the reasons stated above, the appeal filed by the appellant as well as the appeal filed by Respondent No. 1 (described as Cross objections) are dismissed. In the circumstances, the parties are directed to bear their respective costs.