Punjab University Chandigarh vs Dr. A.K. Kapoor and Others

Surinder Singh, J.—The present Revision Petition has been filed by the Punjab University against the order passed by the Additional District Judge, Rohtak, disposing of a preliminary objection raised by the petitioner at the time of hearing of two cross-matters between the parties. It may be mentioned, here that so far as the present matter is concerned, it is only respondent No. 1 who is contesting the Revision Petition and the other respondents are merely proforma. As such, the word respondent shall be used in the course of this judgment referring to respondent No. 1. As slated by the kerned counsel for the parties at the bar, a suit filed by Dr. A.K. Kapoor respondent against the petitioner-University was partly decreed by the trial Court. Against the aforesaid decree, the Punjab University filed an appeal before the District Judge. Rohtak, on December 19, 1979 which was entrusted to the Additional District Judge, for disposal. The respondent has also filed an appeal challenging the judgment and decree of the trial Court, in forma paupries, which appeal was also subsequently entrusted to the Additional District Judge. Apart from this, the respondent had also filed cross objections on June 4, 1980. It transpires that on one of the dates when these matters were before the Additional District Judge, the respondent withdrew his appeal and sought to continue with his cross objections, presumably because both the matters related to the same relief claimed by him. When the appeal of the University and the cross-objections of the respondent were taken up the Additional District Judge for consideration, a preliminary objection was raised that cross objections were barred by limitation and were therefore, not competent. It is this objection which has been decided by the learned Additional District Judge, giving rise to the present Revision Petition by the University.

Mr. Raj Kumar Aggarwal, learned counsel for the petitioner has referred to various orders passed in the litigation at the appellate stage and on the basis of these orders, sought to argue that the cross-objections were beyond limitation. These orders passed from time to time find mention in the Grounds of Revision The contention is that the appeal filed by the University before the District Judge was entrusted to the Additional District Judge who passed orders on December 19, 1979, admitting the appeal and issuing notice to the respondent on payment of process fee etc. It is urged that even though no notice for the hearing of the appeal was received by the respondent, he came to know about the appeal of the University and on December 22, 1979, he alongwith the counsel for the Punjab University appeared before the Additional District Judge who passed the following orders on December, 1979:

File called by me at the oral request of the applicant''s (appellant''s) counsel and respondent for fixation of some other date in the appeal instead of 28.1.80 for which date the lower Court file be called.

It is further submitted that on January 25, 1980, it was brought to the notice of the Additional District Judge that the Cross Appeal of the respondent was pending in the Court of the learned District Judge and the Additional District Judge passed suitable orders directing the parties to bring this fact to the notice of the District Judge, so that both the appeals could be heard by one and the same Court. The case was, therefore, adjourned to February 2, 1980. On the last mentioned date, when the matter was taken up by the Additional District Judge, it was stated before him that the District Judge had transferred the Cross Appeal to the Court of the Additional District Judge. The matter was, therefore, postponed to February 23, 1980. On February 23, 1980, and three or four subsequent dates of hearing, the only orders which the Additional District Judge passed, were adjourning the appeals. It was ultimately on June 3, 1980 that the Court passed the order fixing August 8, 1980 for arguments.

As regards the filing of the cross objections, it is the petitioner''s own case, as mentioned in the grounds of Revision that the respondent withdrew his appeal on June 4, 1980 and on June 5, 1980, he filed the cross objections alongwith an application under Order XLI, rule 22(5) read with order XLIV, Code of Civil Procedure, for permission to file the cross objections as an indigent person. As a matter of abundant caution, the respondent also filed an application under order XLI, rule 22(1), Code of Civil Procedure, read with sections 5 and 14 of the Limitation Act, for condonation of delay in filing the cross objections.

Coming to the point which falls for decision by this Court the same is the objection on behalf of the petitioner that the respondent was aware of the pendency of the appeal by the petitioner-University and the cross-objections ought to have been filed by him within thirty days of the knowledge of this appeal, irrespective of the fact as to whether he had been served with a notice for the hearing of the appeal or not. In order to decide this objection, a reference will have to be made to the provisions of Order XLI, rule 22, Code of Civil Procedure, the relevant portion of which is reproduced below for ready reference:-

Order XLI, rule 22. Upon hearing respondent may object to, decree as if he had preferred separate appeal.-(1) Any respondent though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour, and may also take any cross objection to the decree which he could have taken by way of appeal, provided he has filed such objections in the Appellate Court within one month from the dale 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 sec fit to allow.

The emphasis is on the words which have been underlined above "the day fixed for hearing the appeal" which are required to be interpreted.

According to Mr. Raj Kumar Aggarwal, learned counsel for the petitioner whenever an appeal is taken up by a Court in consequence of a previous order issuing notice to the opposite party, that date would be the day fixed for hearing of the appeal. I am not, however, in agreement with this interpretation. An appeal may be taken up for various reasons sometimes even without the service of the respondent. That does not mean that the same is fixed for hearing. It is well known and the Court can take judicial notice of the same that hundreds and thousands of appeals are filed every day in various Court in which the opposite party is summoned for a particular date. The purpose of fixing that date is evidently to serve the opposite party and complete the case in so far as the service of the opposite party is concerned. The question of hearing of an appeal will arise only when there is a specific order passed by the Court that the appeal shall be taken up for arguments Mr. Raj Kumar Aggarwal refers to the order passed by the Additional District Judge on December 22, 1979 in which the words used "appeal will be taken up on January 25, 1930", in order to press the contention that January 25, 1980 should be deemed to be the date of hearing of the appeal. This is not so. In fact, it is also apparent from the order which was actually passed on January 25, 1980 by which the Court postponed the appeal in order to await the transfer of the appeal filed by the respondent-through the District Judge Another strong circumstance which cannot be ignored is that the appeal which was filed by the respondent before the District Judge, was in forma pauperis and the question of hearing of this appeal along with the appeal of the petitioner could never arise until and unless the matter regarding his pauperism had been decided by the Court.

The lower appellate Court have given a serious consideration to the above aspects of the point under consideration and has also referred to certain authorities produced by the respondent by taking pains to place on record the photostate copies of certain reported decision which were ordinarily not available in the Court''s library and in these cases it has indeed been highlighted that the limitation for filing cross-objections starts only after the respondent is served with a notice for the actual hearing of the appeal and not for his mere presence. I am in complete agreement with the interpretation put by the lower appellate Court in this regard and affirm its decision in rejecting the preliminary objection to the effect that the cross objections are barred by limitation. At this stage, it may also be observed that even if the petitioner could succeed on some technical consideration, the respondent can fall back to his application for condonation of delay in filing the cross objections which application would deserve a favourable consideration in the circumstances of the case. However, in view of what has been found above, the question of condoning any such delay does not arise

The Revision Petition is consequently dismissed, but with no order as to costs. The Additional District Judge shall now proceed with the matter in accordance with law.