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Manthena Ramanamma Vs. Special Tahsildar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCross-objections in S.R. No. 1065 of 1975 in A.S.S.R. No. 1312 of 1971
Judge
Reported inAIR1976AP81
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rules 9, 11, 12 and 22
AppellantManthena Ramanamma
RespondentSpecial Tahsildar
Advocates:P. Sitarama Raju, Adv.
Excerpt:
civil - effect of deficit court fees - order 41 rules 9, 11, 12, and 22 of code of civil procedure, 1908 - appeal filed belatedly against enhancement of compensation in lieu of acquisition - cross-objection filed against appeal - observed in event of non-payment of proper court-fee appeal was not accepted at all and it was as good as no appeal - until the delay is condoned and deficit court-fee is paid the memorandum has no force - held, under circumstances cross-objection was not maintainable in absence of appeal. - - it is not registered and numbered until the full court-fee is paid and every other preliminary formality as prescribed by the code is satisfied......hearing the appeal. sub-rule (4) as :'where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the court things fit.' 6. reading these two sub-rules together, it is manifest that in order to file and maintain cross-objections, there should be an appeal. we may go to earlier provisions to find out the procedure for admission of appeals. rule 9 of order 41, c.p.c. says that where a memorandum of appeal is admitted, the appellate court or the proper officer of that court shall endorse thereon the date of presentation, and shall register the appeal in a book to be kept for the purpose......
Judgment:

A. Sambasiva Rao, A.C.J.

1. This S.R. number is given to cross-objections in an appeal proposed to be filed by the Government which has been numbered as S.R. No. 1312 of 1971. This related to land acquisition and arises out of O.P. No. 96 of 1968 on the file of the District Court, Visakhapatnam.

2. An extent of Ac. 3-98 cents in survey Nos. 43 and 222 in the village of Dondaparthi in Visakhapatnam Municipal are was sought to be acquired. Section 4(1) notification was issued on 14-2-1966. The Land Acquisition Officer fixed the market value of this land at 0.78 Ps per square yard. On reference the lower court enhanced it to Rs. 1.00

3. The Government attempted to file an appeal against this enhancement and that was S.R. No. 1312 of 1971. But they did not pay full court-fee payable on the memorandum of appeal. Consequently, they filed C.M.. No. 11449/1972 for condoning he delay in payment the deficit court-fees. So far the appeal was not registered. Only notice in the condonation petition was ordered by this Court on 21-12-1972. Long after receiving the notice, the claimant has, presented the memorandum of cross-objections on 15-1-1975 claiming at the rate of Rs. 5 per square yard. The learned Government Pleader did not press C.M.P. No. 11449 of 1972 for condonation of the delay and that petition was rejected by this Court on 3-2-1975.

4. Sri P. Sitarama Raju, the learned counsel for the proposed cross-objector maintains that despite the withdrawal of the petition for condonation of delay in paying the deficit court-fee, his cross-objections are maintainable and they should be decided on merits. The learned Government Pleader demurs to this contention saying that cross-objections are not maintainable.

5. Cross-objections in any Appeal are permitted by Rule 22 of Order 41, C.P.C. Sub-rule (1) of that Rule reads as follows :-

'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 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.'

A plain reading of sub-rule (1) shows that cross-objections can be filed within one month from the date of service on the respondent cross-objector or his pleader of the notice of the day fixed for hearing the appeal. Sub-rule (4) as :

'Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the court things fit.'

6. Reading these two sub-rules together, it is manifest that in order to file and maintain cross-objections, there should be an Appeal. We may go to earlier provisions to find out the procedure for admission of Appeals. Rule 9 of Order 41, C.P.C. says that where a memorandum of appeal is admitted, the Appellate Court or the proper officer of that Court shall endorse thereon the date of presentation, and shall register the appeal in a book to be kept for the purpose. Rule 11 empowers the Appellate Court to dismiss the appeal without sending notice to the court fro whose decree the appeal is preferred and without serving notice on the respondent or his pleader after sending for the record if it thinks fit and after fixing day for hearing the appellant or his pleader.

Rule 21 says that unless the appellate court dismisses the appeal under Rule 11, it shall fix a day for hearing the appeal. It can be therefore accepted that it is the day thus fixed for hearing the appeal that should be informed to the respondent in the Appeal and within 30 days thereof after receipt of the notice, he can present memorandum of Cross-objections. All these provisions demonstrate in ample measure that the Code insists that there should be a registered appeal before any cross-objections are entertained therein. It should follow therefrom that if there is no registered appeal, no cross-objections can be fixed or are maintainable.

7. When an appeal is presented without paying court-fee thereon, it is not regular presentation of the appeal. It is not registered and numbered until the full court-fee is paid and every other preliminary formality as prescribed by the Code is satisfied. Until then, the memorandum that is presented in court cannot be treated as an appeal. As can be seen from the circumstances of this case, the proposed appeal has not been registered as an appeal. It was given only a S.R. number. S.R. is nothing more than a serial number to all papers filed into court and had no more validity or sanction behind it. That is why the Government field C.M.P. No. 11449 of 1972 for condoning the delay in paying the deficit court-fee. If that delay is condoned and deficit court-fee is paid, then the time would be ripe for numbering and registering the appeal. Then certainly, a day will be fixed for the hearing and a notice will accordingly issue to the respondent. Then only the respondent will have locus standi to the cross-objections. In this case the petition been withdrawn and dismissed with the consequence that there is no appeal at all in this court. When there is no appeal, the respondent cannot prefer cross-objections.

8. Sri P. Sitarama Raju relies upon a single Judge's decision in Ayilu Reddi v. Venkata Reddi, AIR 1931 Mad 133, but that is of no use to him because there the appeal was numbered and the notice of appeal went to the respondent. The consequence of that was that the requirements of Rule 22 which empowers a respondent to file cross-objections existed in that case. As we have pointed out, there is no numbering or registering of the appeal in this matter and notice of the appeal, as such, has not been sent to the respondent. Only notice of the petition for condoning the delay in paying the deficit court-fees was sent. It is thus clear that there is no appeal which would give scope for the respondent to prefer cross-objections. We are supported in this view by the decision in Venkata Subbamma v. Ramanadhayya, (1932) 63 Mad LJ 845 = (AIR 1932 Mad 722) and Ramji v. Rambhusan, : AIR1960Pat242 .

9. Further, there is no explanation why the respondent has not filed an appeal by himself. Added to this even after service of notice on him of the petition for condoning of delay, he waited for quite a long time in presenting the memorandum of cross-objections which he did only a few days back. We are not saying this to hold that had be acted promptly the cross-objections would have been maintainable. Certainly not. We are only trying to show that there are no bona fides also in filing these cross-objections.

10. Accordingly, we hold that these cross-objections are not maintainable and reject them. There will be no order as to costs. The court-fee paid on the proposed memorandum of cross-objections shall be refunded.

11. Cross-objections rejected.


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