1. This is an application by Radhey Shyam praying that the cross-objections filed by him should be heard on merits. The application has come for decision in the following circumstances:
2. In S. B. Civil Regular First Appeal No. 126 of 1958, Ram Kripal v. Seth Radhey Shyam, a learned Single Judge of this Court pronounced his judgment on 10th July, 1969. By that judgment Ram Kripal's appeal was partially allowed and the decree of the trial Court was modified. Radhey Shyam did not choose to prefer any appeal against the judgment and decree of the learned single Judge, although the limitation for presenting the appeal expired on 9th August, 1969. Ram Kripal however, preferred an appeal on 9th September, 1969. 'After the usual checking by the office the appeal was registered on 16th September, 1969, and was fixed for a preliminary hearing on 21st Octo-ber, 1969. On 21st October, 1969, Radhey Shyam filed cross-objections. The preliminary hearing fixed for 21st October, 1960, was adjourned to 13th November, 1969. In the meanwhile on 3rd November, 1969, the appellant Ram Kripal submitted an application withdrawing the appeal and the appeal was allowed to be withdrawn and dismissed on 5th November, 1969. After withdrawal of the appeal, the counsel for Radhey Shyam, respondent in Ram Kripal's appeal, has pressed for the hearing of the cross-objections on the merits. He submitted a written application contending that under sub-rule (4) of Order 41, Rule 22, C. P. C., he is entitled to the hearing of the cross-objections on merits. Subsequently he submitted another application stating that in case the cross-objections cannot be heard on merits, under sub-rule (4) of Order 41, Rule 22, C. P. C., he should be allowed to treat the cross-objections as an appeal aod the delay in presentation of the appeal should be condoned. In canvassing for the hearing of the cross-objections on merits, the learned counsel has relied upon the language of sub-rule (4), which reads as under:--
'Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.'
According to the learned counsel, the appeal was fixed for hearing on 21st October, 1969, and, consequently, after the fixation of the appeal for hearing the withdrawal of the appeal by the appellant was of no consequence and he is entitled to hearing on merits.
3. Opposing the contention of the learned counsel for the respondents the appellant's contention is that sub-rule (4), contemplates a fixation of hearing after an order' of the Court directing the issue of a notice to the respondent, and that the fixation of the appeal for a preliminary hearing does not give a right to the respondent to file cross-objections. Sub-rule (1) of Rule 22 of Order 41, C. P. C., provides for cross-objections to be filed on behalf of the respondent The right of cross-objection has been given along with the right to the respondent to support the decree of the trial Court at the time of hearing on any of the grounds decided against the respondent. The combination of these two rights in Order 41, Rule 2,2, C. P. C., clearly indicates that the stage for filing of the cross-objections arises only after the issue of the notice of the appeal to the respondent. It follows as a. corollary that the cross-objections under sub-rule, (1) can be filed only after an order for the issue of the notice to the respondent. The counsel for the respondents took us through the scheme of Order 41. He contended that Order 41, Rule 9 contemplates the registration of the appeals and that Order 11, Rule 11 contemplates the hearing of the appellant. It is true, the learned counsel concedes that the appeal can be dismissed at that stage, but if the appeal is not dismissed the appeal has to be fixed for further hearing both of the appellant and the respondent. According to the learned counsel there should be no distinction between the preliminary hearing contemplated under Order 41, Rule 11 and final hearing ol the appeal in the presence of both the parties. We regret, we cannot accept this interpretation canvassed on behalf of the respondents' counsel. At the preliminary hearing there can be no question of the respondents supporting the decree on the grounds decided against him as contemplated under Sub-rule (1) of Order 41, Rule 22. Order 41, Rule 22, C. P. C., cannot at least for some purpose be co-related to the hearing contemplated under Order 41, Rule 9, C. P. C. It will be, therefore, hardly proper to relate the right of cross-objection to the preliminary hearing contemplated under Order 41, Rule 11, C. P. C. There is thus no force in the submission made on behalf of the respondents. The cross-objections filed by Radhey Shyam cannot be treated to have been filed under Order 41, Rule 22, Sub-rule (1) as that stage can arise only after the preliminary hearing when the Court directs the issue of the notice to the respondents. It is only after the direction for the issue of the notice to the respondents that the respondents can file cross-objections and that cross-objections can be treated as having been filed under Sub-rule (4). In our opinion, the respondent is not entitled to a hearing of the cross-objection on merits.
4. Taking up the second prayer for treating the cross-objections as a regular appeal and entertaining the same after condoning the delay, under Section 5, Limitation Act, we need only add that the prayer is entirely unacceptable. The respondents did not choose to file any appeal till 9th August, 1969, when the limitation for presenting appeal expired. The present cross-objections, if treated as appeal, are time barred by 42 days. There is no explanation for such delay. The respondents' submission that he did not file an appeal on an understanding that on the submission of the appeal by the appellant he would be in a position to file cross-objections and was thus misled, is altogether without force. Such a submission cannot be accepted. The prayer for treating the cross-objections as an appeal is also rejected. There will be no order as to costs. The respondents will be entitled to the refund of half the court-fees.