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U.P. State Road Transport Corporation Vs. Smt. Janki Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 203 of 1976
Judge
Reported inAIR1982All296
ActsMotor Vehicles Act, 1939 - Sections 110D; Code of Civil Procedure (CPC) , 1908 - Sections 96 and 100 - Order 41, Rules 22 and 10
AppellantU.P. State Road Transport Corporation
RespondentSmt. Janki Devi and ors.
Appellant AdvocateS.K. Sharma, Adv.
Respondent AdvocateK.M. Pandey, Adv.
Cases ReferredHaryana Roadways and Amolak Singh Jain v. Smt. Satyawati
Excerpt:
.....22 of code f civil procedure, 1908 - right to appeal under section 110-d includes right to file cross objection - if appellant not filed appeal within period of limitation - has right to file cross objection when appeal filed by other party - procedure under rule 22 applicable to appeal under section 110-d - ' court' read as 'tribunal' and 'decree' as 'award'. - - it is a well settled rule 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. these have to be in the form of a memorandum like an appeal, and may be heard and determined even if original appeal is withdrawn or is dismissed for default. in the law of torts negligence is a well established ground for claim for..........by that order. the memorandum of cross-objection is but one form of appeal. it takes the place of crossappeal.'it must, therefore, be held that the right to take a cross-objection in an appeal is nothing but the exercise of the same right of appeal which is given to an aggrieved party and is not any new right conferred by order 41, rule 22 or order 42-a, rule 10 of the code.7. it was next contended that order 41, rule 22 or order 41-a, rule 10 has no application in an appeal preferred under section 110-d of the motor vehicles act as the aforesaid provisions apply to an appeal from a decree and since the tribunal is not a court and the award given by it is not a decree, there is no right to file a cross-objection. it may be borne in mind that the claim for compensation made by the.....
Judgment:

K.N. Seth, J.

1. The following question has been referred to this Bench for decision.

'Whether a cross-objection as contemplated by Order XLI, Rule 22 of the C.P.C. is maintainable before the High Court at the instance of respondent to an appeal filed under Section 110-D of the Motor Vehicles Act, 1939 ?

2. A bus owned by the U. P. State Road Transport Corporation met with an accident at Malviya Bridge on 13-12-1973. As a result of the incident Paras Nath Gupta an employee of the State Bank of India, Varanasi, received injuries which proved fatal. The heirs of the deceased made an application before the Motor Accidents Claims Tribunal under Section 110-D of the Motor Vehicles Act claiming Rs. 2,50,000/- as compensation. The Claims Tribunal by its order dated 21-1-1976 awarded a sum of Rs. 95,942/- as compensation to the claimants. Aggrieved by the award of the Claims Tribunal the U. P. State Road Transport Corporation preferred the above noted appeal to this Court. The claimants did not appeal against the award but filed a cross-objection in the appeal filed by the U. P. State Road Transport Corporation claiming the balance amount of Rs. 2,50,000/- and also interest on the amount claimed as compensation. When the appeal and the cross-objection came Up for hearing before a Division Bench of this Court the Bench felt doubt about the correctness of the view taken in Virendra Singh v. Smt. Phoolmati (1978 All LR 862) and Surjan Singh v. Smt. Sharda Devi (1979 All LJ 316) that cross-obiection to an appeal against the award of the Claims Tribunal is not maintainable.

3. Section 110-D of the Motor Vehicles Act confers on a person aggrieved by an award of a Claims Tribunals' right to prefer an appeal to the High Court within ninety days from the date of the award. The Act does not lay down the procedure to be followed by the High Court in the appeals filed before it. In such a contingency the special Act being silent in regard to the procedure by the appellate court, the appellate jurisdiction has to be exercised in the same manner as the High Court exercises its general appellate jurisdiction and the appeal so filed must be regulated by the practice and procedure of the High Court. It is a well settled rule 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. Viscount Haldane L. C. in National Telephone Company Limited and His Majesty's Postmaster General (1913 AC 546) stated this rule in the following words.

'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 decisions likewise attaches.

In Secretary of State for India v. Chellikani Rama Rao (AIR 1916 PC 21) a similar question arose for consideration, Section 10 of the Madras Forest Act (V of 1882) provided for an appeal to the District Court against the order of the Forest Settlement Officer. Against the decision of the District Court the matter was taken up in appeals to the Madras High Court which reversed and varied the decree of the District Court. In appeals filed before the Privy Council it was contended that the appeals before the Madras High Court were in component as there was no provision for further appeals against the decision of the District Court. The Privy Council overruled the objection and held 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 P. C. apply. The Privy Council approved the Full Bench decision of the Madras High Court in Kamaraju v. Secretary of State, ((1888) ILR 11 Mad 309). The same view was reiterated in Ba Thaw Moung v. Ma Pin where the question was whether an appeal against the order of the High Court passed under Section 75 of the Provincial Insolvency Act was maintainable to the Privy Council. Again in Hem Singh v. Basant Das the Privy Council laid down that when a right of appeal is given to one of the ordinary courts of the country the procedure, orders and decrees of that Court will be governed by the ordinary rules of the Civil P. C. The same view was expressed by the Privy Council in Adaikappa Chettiar v. Chandresekhara Thevar in these words:--

'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 right of appeal.

4. This principle came up for consideration before the Supreme Court in National Sewing Thread Company Limited v. James Chandvick and Brothers Limited : [1953]4SCR1028 . In that case against an order of the Registrar of Trade Marks an appeal was preferred to the High Court under Section 76 of the Trade Marks Act. A learned single Judge allowed the appeal which was in turn reversed by a Division Bench of the Court in appeal under Clause 15 of the Letters Patent of the Bombay High Court. Before the Supreme Court it was contended that the decision of the learned single Judge was not open to appeal. After approving the principle laid down by the Privy Council in the cases referred to earlier, the Supreme Court observed (at p. 360):

'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 of 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 judgment becomes subject to appeal under Clause 15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act.'

The same principle has been reiterated by the Supreme Court in Collector, Varanasi v. Gauri Shanker Misra : [1968]1SCR372 .

5. It is obvious from the authorities referred to above that when an appeal from an order passed under a special statute reaches the ordinary courts of the country with regard to those procedure, orders and decrees the rules of Civil P. C. apply not only the ordinary incidents of the procedure of that Court are to attach but any general right of appeal from its decision likewise attaches. In the case in hand the question is not of any further right of appeal against the decision of the Court but the right to prefer a cross-objection in the appeal pending in the Court against the order of the special statute which provides for such an appeal.

6. That brings us to the question of nature of right to prefer a cross-objection in a pending appeal. In our opinion the right of filing a cross-objection is not different in nature than the right to prefer an appeal by an aggrieved party as provided by the statute. Section 110-D of the Motor Vehicles Act confers on a person aggrieved by an award of a Claims Tribunals' right to prefer an appeal to the High Court. It is this very right which an aggrieved party exercises when he prefers a cross-objection in an appeal brought to the High Court by the other aggrieved party. Rule 10 of Order XLI-A introduced by this Court which is in same terms as Clause (1) of Rule 22 of Order XLI of the Civil P.C., enables a respondent who 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 had filed such objection within one month from the day fixed for his appearance in the notice served upon him or within such further time as the Court may deem fit to allow. This provision does not confer any new right on the respondent but only affords him a fresh opportunity to exercise the very same right which he had either under the Civil P. C. or under the special statute. If a person has a right of appeal under Section 96 or Section 100 of the Civil P. C. he may exercise that right within a period of limitation prescribed under the law of limitation and in case he fails to do so, the Court enables him to exercise that very right when the other party has preferred an appeal to the Court competent to hear it. The right to avail of the same procedure is available to a person who has a right of appeal conferred by the special statute, i. e. the right to file a cross-objection is included in the right to appeal conferred by the Statute. Indeed unless the respondent was entitled to appeal, he has no right to take any cross-objection. In the cross-objection he can take only those pleas which he could have taken try way of his right of appeal. These have to be in the form of a memorandum like an appeal, and may be heard and determined even if original appeal is withdrawn or is dismissed for default. All these incidents indicate that there is no material difference between an appeal and a cross-objection except the stage of the proceedings. A Full Bench of the Madras High Court in A. L. A. Alagappa Chettiar v. Chockalingam Chetty (AIR 1919 Mad 784) rules that every party to the insolvency proceedings is given the substantial right of appeal (just as every aggrieved party is given a right of appeal under Sections 96, 97, 100 C.P.C.) and that the respondent (who as a party has such a right of appeal) is merely allowed to avail himself of an additional rule of procedure by way of a memorandum of objection as provided for in Order 41, Rule 22 in exercise of his said right of appeal.

The nature of the right of cross-objection was considered by the Madhya Pradesh High Court in Inayatullah Khan v. Diwanchand Mahajan : AIR1959MP58 . There the question was about the right of cross-objection in an appeal filed under Section 116-A of the Representation of the People Act which provided for an appeal to the High Court from the order of the Tribunal. It was further provided that the High Court shall have the same powers, jurisdiction and authority and follow the same procedure with respect to an appeal as if the appeal were from original decree passed by the Civil Court. Hidayatullah, C. J. speaking for the Bench after considering a number of authorities held:--

'There is thus authority for the proposition that a cross-objection may be filed where an appeal lies and has to be disposed of in accordance with the Civil P. C., even though there may be no express provision to confer the right of filing a cross-objection.'

It is true that Sub-section (2) of Section 116-A of the Representation of the People Act provided that while hearing an appeal the High Court shall have the same powers, jurisdiction and authority and follow the same procedure, with respect to an appeal under that statute as if the appeal were an appeal from an original decree passed by a civil court but that makes no difference. Once the appeal is before an etablished Court it imports that the ordinary incidents of the procedure of that Court are to attach to the hearing of the appeal which includes the right to file a cross-objection in the appeal preferred by the other party. The nature of the right of cross-objection has been considered by the Supreme Court in Sahadu Gangaram Bhagade v. Special Deputy Collector, Ahmednagar : [1971]1SCR146 , while deciding the question of court-fee payable under the relevant provisions of the Bombay Court-fees Act on the cross-objection filed in an appeal under Section 11 of the Requisitioning and Acquisition of Immovable Property Act 1952, it was observed.

'The question is whether a cross-objection filed by a respondent in an appeal can be considered as a memorandum of appeal. We have no doubt that it is a memorandum of appeal in substance though not in form. It is a right given to a respondent in an appeal to challenge the order under appeal to the extent he is aggrieved by that order. The memorandum of cross-objection is but one form of appeal. It takes the place of crossappeal.'

It must, therefore, be held that the right to take a cross-objection in an appeal is nothing but the exercise of the same right of appeal which is given to an aggrieved party and is not any new right conferred by Order 41, Rule 22 or Order 42-A, Rule 10 of the Code.

7. It was next contended that Order 41, Rule 22 or Order 41-A, Rule 10 has no application in an appeal preferred under Section 110-D of the Motor Vehicles Act as the aforesaid provisions apply to an appeal from a decree and since the Tribunal is not a court and the award given by it is not a decree, there is no right to file a cross-objection. It may be borne in mind that the claim for compensation made by the relatives of the deceased is in its nature a claim for damages. In the law of Torts negligence is a well established ground for claim for damages. Such a claim has been a part of common law for many years and has been entertained by the civil courts in their ordinary jurisdiction. Prior to the enactment of the Motor Vehicles Act which for the first time empowered the State Government to constitute one or more Motor Accidents Claims Tribunals claim for damages for injuries caused by the persons incharge of the motor vehicle was entertained by ordinary civil courts in India. It is only in respect of those areas for which such Claims Tribunals are constituted, that the jurisdiction of the civil courts is taken away by the Claims Tribunals. The nature of the jurisdiction of the Claims Tribunal is the same as that of the civil court although the Claims Tribunal is not a civil Court. The decision of the Tribunal is called an award. The word 'award' has not been defined in the Act and has to be construed in its general sense. The ordinary dictionary meaning of an award is a judicial decision. It is true that the decision of an Arbitrator is also called an award, but it would not be correct to equate it with the decision of the Claims Tribunal. In Halsbury's Laws of England (III Edition) it is stated.

'It is however, a question in each case whether a particular tribunal set up by a statute for dealing with particular questions, is an arbitration tribunal. Where the express 'arbitration' is not used, and other essential features of arbitration are absent, the presumption is that such a tribunal is not an arbitration tribunal but either a Court of law or a special tribunal governed exclusively by its own Code.'

The Motor Accidents Claims Tribunal is neither a court nor an arbitration tribunal but is a statutory tribunal, the incidents of which are governed entirely by the provisions of the Act.

8. The nature of the jurisdiction dealing with an appeal under Section 110-D of the Motor Vehicles Act has to be considered in this background. The claim for compensation caused by negligence is independent of any statute and is well known to the law of torts. This common law right was not intended to be changed or modified by the Motor Vehicles Act. By enacting Section 110-F the jurisdiction of the Civil Court is barred only to entertain the original claim as a trial court and the bar operates in the area where the Claims Tribunals have been set up. In other area the civil courts continue to entertain such claims. While hearing an appeal under Section 110-D of the Motor Vehicles Act the High Court has to consider the claim in the same manner as it would consider the claim in an appeal from a civil court from an area in which the Claims Tribunal has not been established. It is, therefore, obvious that the proceedings before the Claims Tribunal do not have any similarity or semblance with the arbitration proceedings although in the Act the decision of the Claims Tribunal is called an award but that would not lead to the inference that the proceedings before the Claims Tribunal are in the nature of the arbitration proceedings and the Claims Tribunal decides the matter as an Arbitrator. The words award has been used in the Act in a sense of a decree or akin to a decree since the award given by the Tribunal in such claim cases determines the rights of the parties. Since the procedure contemplated by Order 41, Rule 22 is applicable to the appeal preferred under Section 110-D of the Motor Vehicles Act, the word 'Court' may be read as 'Tribunal' and the word 'decree' may be read as 'award'. We find support for this view from the decision in The Municipal Corporation of Delhi v. Kuldip Lal Bhandari : AIR1970Delhi37 , Smt. Shanti Devi v. General Manager, Haryana Roadways and Amolak Singh Jain v. Smt. Satyawati : AIR1980Delhi16

9. Our attention was invited to a very large number of cases decided by other High Courts dealing with the question referred to us for opinion. It is not necessary to refer to them individually. We find that practically all the High Courts in India barring a few exception have taken a view contrary to the view expressed in Virendra Singh's case (1978 All LR 862) (supra) that a cross-objection as contemplated by Order 41, Rule 22 of the Civil P. C. is maintainable before the High Court at the instance of a respondent to an appeal filed under Section 110-D of the Motor Vehicles Act.

10. In the light of the above discussion we are of the opinion that the view taken by this Court is in Virendra Singh's case and followed in other decisions of this Court is not warranted by law and a cross-objection as contemplated by Order 41, Rule 22 of the Civil P. C. is maintainable before the High Court at the instance of a respondent to an appeal filed under Section 110-D of the Motor Vehicles Act, 1939.

11. Let the papers be laid before the Bench concerned for deciding the appeal and the cross-objection on merit.


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