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Ramswarup Vs. the State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal Nos. 134 and 135 of 1971
Judge
Reported inAIR1973Raj157
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 22
AppellantRamswarup
RespondentThe State of Rajasthan
Appellant Advocate S.K. Keshote, Adv.
Respondent Advocate M.L. Shrimal, Addl. Govt. Adv.
DispositionAppeals dismissed
Cases ReferredRam Kripal v. Radhey Shyam
Excerpt:
- - satinder singh, air 1955 punj 190. 3. on the other hand the learned additional government advocate has urged that the appeals filed by the plaintiff in the court below were clearly barred by time and the applications under section 5 of the limitation act having been dismissed, there was no alternative left to the court but to dismiss the same under section 3 of the limitation act. however, it has been clearly mentioned in the full bench case of the lahore high court air 1944 lah 76 that the right to submit cross-objections accrues to a respondent as soon as an order is made issuing notice of the date of hearing of the appeal to him and the same cannot be presented after the expiry of one month from the date of service of notice......of the present case the appeals filed by the plaintiffs could not have been treated as crossobjections. in support of ms contention he has relied upon.-mohd. sarwar khan v. ghafoor beg, air 1944 pesh 7; ram krishna bera v. bejoy kumar addya. (19361 164 ind cas 935 (cal); ram kripal v. radhey shyam, air 1970 raj 234. 4. there is no doubt, that the lahore high court and punjab high court have taken the view that where both the parties appealed from the same judgment and decree and the appeal of one of them is time-barred while that of the other is still pending, it is permissible to convert the time barred appeal into a cross-objection. however, it has been clearly mentioned in the full bench case of the lahore high court air 1944 lah 76 that the right to submit.....
Judgment:

C.M. Lodha, J.

1. Only one identicalquestion is involved in both these appeals and, therefore, they can conveniently be disposed of a single judgment. Theplaintiff Ramswarup filed two suits for recovery of money alleged to be due to him from the State of Rajasthan on the basis of certain work contract granted to him. Both these suits were decreed in part. Consequently, both the parties filed appeals in the Court of the District Judge, Aimer. It is not disputed that the appeals filed by the plaintiff were barred by limitation, and consequently the plaintiff filed applications under Section 5 of the Limitation Act for excusing the delay. The applications under Section 5 of the Limitation Act were dismissed on 13-8-70. Notices in the appeals filed by the State of Rajasthan were issued on 31-7-1968 and were served on the plaintiff on 18-8-1968. On 28-8-1968 the plaintiff filed applications under Section 151 of the Civil P. C. praying that the appeals may be treated as cross-objections under Order 41, Rule 22, Civil P. C. From the order-sheets of the lower appellate Court it appears that the Court was not asked to decide these applications and the cases were adjourned from time to time for arguments on the applications under Section 5 of the Limitation Act. However, on 12-8-1970 the plaintiff made fresh applications under Section 151. Civil P. C., again praying that the appeals may be treated as cross-objections. These applications were dismissed by the learned District Judge by his order dated 6-11-1970. By the same order the appeals were also dismissed as time barred. In these circumstances the plaintiff has filed these appeals.

2. As already stated above, the only question for decision in these appeals is whether the learned District Judge was in error in refusing to treat the appeals filed by the plaintiff as cross-objections under Order 41, Rule 22. Civil P. C.? Learned counsel for the appellant has relied upon the following authorities in support of his contention that they can be so treated,--

Bawa Singh v. Thakur Singh, AIR 1922 Lah 423; Bhagat Raj v. Raghbar Dial, AIR 1925 Lah 57; Mihan Singh v Tilak Ram. AIR 1934 Lah 273; Labhu Ram v. Ram Pratap, AIR 1944 Lah 76; Smt. Nripjit Kaur v. Satinder Singh, AIR 1955 Punj 190.

3. On the other hand the learned Additional Government Advocate has urged that the appeals filed by the plaintiff in the Court below were clearly barred by time and the applications under Section 5 of the Limitation Act having been dismissed, there was no alternative left to the Court but to dismiss the same under Section 3 of the Limitation Act. He has further submitted that in the facts and circumstances of the present case the appeals filed by the plaintiffs could not have been treated as crossobjections. In support of Ms contention he has relied upon.-

Mohd. Sarwar Khan v. Ghafoor Beg, AIR 1944 Pesh 7; Ram Krishna Bera v. Bejoy Kumar Addya. (19361 164 Ind Cas 935 (Cal); Ram Kripal v. Radhey Shyam, AIR 1970 Raj 234.

4. There is no doubt, that the Lahore High Court and Punjab High Court have taken the view that where both the parties appealed from the same judgment and decree and the appeal of one of them is time-barred while that of the other is still pending, it is permissible to convert the time barred appeal into a cross-objection. However, it has been clearly mentioned in the full Bench case of the Lahore High Court AIR 1944 Lah 76 that the right to submit cross-objections accrues to a respondent as soon as an order is made issuing notice of the date of hearing of the appeal to him and the same cannot be presented after the expiry of one month from the date of service of notice.

5. In AIR 1970 Raj 234 it wasobserved that the stage for filing cross-objections arises only after preliminary hearing when the Court directs the issue of notice to the respondent. It is only after that stage that the respondent can file cross-objections and insist on their hearing on merit. In AIR 1944 Pesh 7 the learned Judge examined this matter from the stand-point of Section 3, Limitation Act and came to the conclusion that the question is conclusively determined by the wordings of Section 3. Limitation Act, which provides that subject to the provisions of certain later sections, an appeal, which is time-barred when presented shall be dismissed. It was observed that when the legislature directs that the appeal shall be dismissed, it is not open to a Court, instead of dismissing the appeal, to treat it as cross-objections. In this view of the matter it was held that the time-barred appeal of the defendant before the District Judge should have been dismissed and not treated as cross-objections to the plaintiffs appeal.

6. There is no direct case of this Court on the point-whether a time barred appeal can be treated as a cross-objection in the appeal filed by the other party? After having carefully examined the case law on the point I have come to the conclusion that in the facts and circumstances of the present case the District Judge was right in refusing to convert the appeals filed by the plaintiff into cross-objections (as the right to file cross-objections) accrued to the plaintiff only after order had been passed in the appeals filed by the defendant to issue notice to the plaintiff. In the present case the plaintiff had admittedly filed appeals before the State filed cross appealsand consequently on the date on which the appeals were preferred by the plaintiff, the right to file cross-objections had not accrued to him. If the appeals had been filed after the direction had been given in the appeals filed by the defendant to issue notice to the plaintiff there might have been a room for argument that his appeals may be treated as cross-objections, but that argument is not open to the plaintiff in the present case. Then, again the applications which he made on 28-8-1968 for treating the appeals as cross-objections were not under Order 41. Rule 22, Civil P. C. but under Section 151. Civil P. C., praying that in the alternative the appeals may be treated as cross-objections. These applications were not even pressed at any stage and fresh applications were filed on 12-8-1970 long after the expiry of 30 days from the date of service of notice of the defendant's appeals on the plaintiff that the appeals may be treated as cross-objections. These applications were not filed within thirty days of service of notice of the defendants appeals.

7. I may also state here that I feel inclined to agree with the view taken in AIR 1944 Pesh 7, which takes notice of the impact of Section 3 of the Limitation Act. It may be noticed that in one of the cases decided by the Lahore High Court and the Punjab High Court the attention of the learned Judges was drawn to Section 3 of the Limitation Act. However, so far as the present case is concerned I am of opinion that no case was made out for converting the appeals filed by the plaintiffs into cross-objections and I do not see any adequate reason for interfering with the judgments and decrees of the Court below.

8. The result is that I dismiss both the appeals, but in the circumstances of the case, I leave the parties to bear their own costs.

9. Learned counsel for the appellant prays for leave to appeal to Division Bench. However, in the facts and circumstances of this case I do not consider it a fit case to grant leave. The prayer is disallowed.


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