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Abhijit ppp (no)     02 January 2017

Cross objection by defendant after limitation

Hello Sir,
1)Plentiff filed suit for Specific Performance in civil court.
2)Court ordered money decree in favour of Plentiff.
3)Plentiff preferred appeal in High Court.
4)Defendent got notice and appeared through lawyer in high court.
5)During hearing, due to change in rule below 1 Cr. matter got transferred to District court, without any order in matter.
5)All the process took 3 years from judgement.
6)Defendent appeared before ADJ.
7)50 days after appearence defendent gave Application of "Cross Objection" (pending for argument and order).

Now, What are the options for Plentiff to get relief.
Please Guide. 
 

 


Learning

 2 Replies

Tejas   07 March 2017

Hon Supreme Court on May 10, 2011 in Mahadev Govind Gharge Vs. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka A bench of Justice Ashok Kumar Ganguly and Justice Swatanter Kumar held 

  1. “the limitation of one month for filing cross-objections as provided under Order XLI Rule 22 commences from the date of service of notice on the respondent in the appeal or his pleader of the day fixed for hearing the appeal”.
  2.  The provisions of Order XLI, Rule 22 gives right to a respondent to file cross- objections to the decree under appeal which he could have taken by way of an appeal. This right is available to the respondent provided he had filed such objections 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.
  3. “the cross-objections are required to be filed within the period of one month from the date of service of such notice or within such further time as Appellate Court may see fit to allow depending upon the facts and circumstances of the given case.

d)     “Since Order XLI Rule 22 itself provide for extension of time, the Courts would normally be inclined to condone the delay in the interest of justice unless and until the cross-objector is unable to furnish a reasonable or sufficient cause for seeking the leave of the Court to file cross-objections beyond the statutory period of one month,”

  1. In para 22 - Rule 22 do not provide for any consequences, leave any adverse consequence, in the event the respondent-cross objector defaults in filing the cross objections within the statutory period of one month. On the contrary they provide that the cross objections can be filed within such further time as the Court may see fit to allow. The expression `or within such further time as the court may see fit to allow’ clearly shows that wide judicial discretion is vested in the courts to permit the filing of the cross-objections even after the expiry of 30 days or for that matter any period which, in the facts and circumstances of the case, is found to be just and proper by the Court.
  2. In para 23 - Rule 22 is not only silent on the consequences flowing from such default from filing appeal within one month, from the period fixed hereunder, but it even clothes the Court with power to take on record the cross-objections even after the expiry of the said period. Thus, right of the cross-objector is not taken away in absolute terms in case of such default. The Courts exercise this power vested in them by virtue of specific language of Rule 22 itself and thus, its provisions must receive a liberal construction.
  3. In para 25 - Such provisions should be construed on their plain meaning and it may not be necessary for the Court to bring into service other principles of statutory interpretation. However, the maxim De minimis non curatlex shall apply to such statutory provisions.

h)     In para 35 - Procedural laws, like the Code, are intended to control and regulate the procedure of judicial proceedings to achieve the objects of justice and expeditious disposal of cases. The provisions of procedural law which do not provide for penal consequences in default of their compliance should normally be construed as directory in nature and should receive liberal construction. The Court should always keep in mind the object of the statute and adopt an interpretation which would further such cause in light of attendant circumstances.

Abhijit ppp (no)     01 August 2017

Sir,

But what about the money decree, in the lower court, in favour of plentiff.

 


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