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Sm. Nripjit Kaur Vs. Sardar Satinder Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Misc. Petn. Nos. 17-D and 22-D of 1954
Judge
Reported inAIR1955P& H190
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 22
AppellantSm. Nripjit Kaur
RespondentSardar Satinder Singh
Appellant Advocate Bakhshi Gurcharan Singh, Adv.
Respondent Advocate B. Mehtab Singh, Adv.
Cases ReferredMihan Singh v. Tilak Ram
Excerpt:
.....high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a..........in 'forma pauperis' is within time and (2) whether the memorandum of appeal can he treated as cross-objections under order 41, rule 22, civil p. c.2. the suit was decided by a decree dated .10-8-1953 and the appeal was tiled in this court on 22-1-1954 by nirpat kaur in person. the application for leave to appeal in 'forma pauperis' should have been filed within thirty days, but it was filed long after that period hud elapsed, but mr. gurbachan singh bakhshi submits that his memorandum of appeal should be treated as cross-objection and he relied on a full bench judgment of the lahore high court in -- 'labhu ram and others v. ram partap', air 1944 lah 76 (a), where it was held that although cross-objections cannot be presented after the expiry of thirty days from the date of service.....
Judgment:

Kapur, J.

1. The matter to be decided in these two petitions (Civil Misc. Nos. 17-D and 22-D of 1954) is (1) whether the application for leave to appeal in 'forma pauperis' is within time and (2) whether the memorandum of appeal can he treated as cross-objections under Order 41, Rule 22, Civil P. C.

2. The suit was decided by a decree dated .10-8-1953 and the appeal was tiled in this Court on 22-1-1954 by Nirpat Kaur in person. The application for leave to appeal in 'forma pauperis' should have been filed within thirty days, but it was filed long after that period hud elapsed, but Mr. Gurbachan Singh Bakhshi submits that his memorandum of appeal should be treated as cross-objection and he relied on a Full Bench judgment of the Lahore High Court in -- 'Labhu Ram and others v. Ram Partap', AIR 1944 Lah 76 (A), where it was held that although cross-objections cannot be presented after the expiry of thirty days from the date of service of the notice on the respondent, the right to submit cross-objections accrues as soon as an order is made issuing notice of the date of hearing of the appeal to him and it is not necessary for him to wait until the service is actually effected on him.

The respondent in such a case can appear on the date of hearing and present his objections though he is not served. At page 87 Din Mohammad J. said;

'In other words, could it be the intention of the Legislature in enacting Order 41, Rule 22, to specify the point of time in which such cross-objections could be filed at both ends? After giving this matter my careful consideration, I have reached the conclusion that it could serve no purpose to restrict the right of a respondent to prefer his cross-objections in the manner suggested. No doubt, they cannot be presented after the expiry of one month from the date of the service of the notice on him or his pleader, but the right to submit his cross-objections, in my view, accrues to a respondent as soon as an order is made issuing notice of the date of hearing of the appeal to him and it is not necessary for him to wait until the service is actually effected on him.

It is even open to him to appear in a Court of appeal on the date of hearing and present his objections there and then though not served at all. To put the restricted interpretation upon the provision of law would create situations which may look anomalous'.

If the respondent could appear on the day when an appeal is admitted and cross-object, is it not possible for him to ask after an appeal is admitted to treat his time-barred appeal as cross-objections. In my opinion, there is nothing in law which says to the contrary. As a matter of fact, it has been held in -- 'Bhagat Ram v. Raghbar Dyal', AIR 1925 Lah 57 (B) that a time barred appeal can be treated as cross-objections. In this case -- 'Bawa Singh v. Thakar Singh', AIR 1922 Lah 423 (C), was followed.

AIR 1925 Lah 57 (B) was followed by Hilton J- in -- 'Mihan Singh v. Tilak Ram', AIR 1934 Lab-273 (C). We are therefore of the opinion that this-memorandum of appeal can be treated as cross-objections and should he. allowed to be so treated in the present proceedings.

3. It is contended on behalf of the respondent.(the appellant in Regular First Appeal No. 11-D of1954) that the case does not fall under Order 44, Rule 1Civil P. C, After perusing the judgment & decree weare of the opinion that this objection is not sustain-able, and I would therefore allow the memorandumof appeal to be treated as cross-objections and asthe cross-objector has been found to be a pauper,leave is given to file cross-objections in 'formapauperis'. There will be no order as to costs in theseproceedings.

Bishan Narain, J.

4. I agree.


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