ORDER
1. ORDER REGARDING OFFICE NOTE ON CROSS-OBJECTIONS AND C.D. IN RE-FILING THE CROSS-OBJECTIONS :
The case is posted for orders before us on the office note on cross-objections, to consider the application for condonation of delay in filing cross-objections (I.A.I.) and regarding posting of Cross-appeal along with the main appeal.
2. The appeal was filed by the Land Acquisition Officer against the decree in L.A.C. No. 54 of 1988 on the file of the Additional Civil Judge at Gulbarga. In the appeal, a Division Bench of this Court passed an order dated 26-10-1994 issuing notice and also called for the records. On receipt of the notice, the respondent filed a cross-objection on 3-2-1995 within time. The same was returned with certain office objections. On 12-7-1995, the cross-objection was refiled without payment of full court-fee which was later paid on 26-7-1995.
3. In the meanwhile, the appeal came up before the Bench on 8-2-1995. It was directed by the Court to put up along with cross-objections and to post the matter next week. The matter again came up before the Bench on 31-3-1995. The learned Government Advocate and Sri. S. P. Shankar, learned counsel for respondent were heard in part. It was also stated that the respondent had filed a cross-objection. Ultimately, the Court directed the cross-objection to be put up and to post the case on 4-4-1995 to hear further on admission. The matter thereafter came up before the Bench on 14-6-1995 when the Government Advocate and learned Counsel for respondent were heard. The case was adjourned by two days and the fact that the respondent had filed a cross-objection which was returned to cure certain defects was also noted in the order sheet. The matter then came up before the Bench on 10-7-1995. The Court heard the appellant and the learned Counsel for the respondent who it is stated in the order is served with notice regarding admission. The Court ultimately held that there is no ground to interfere with the
judgment and award and dismissed the Appeal.
4. It is thereafter that the cross-objection was refiled on 12-7-1995 with a petition to condone the delay in refiling the same. In the affidavit in support of the same filed by the Advocate who is working with Sri. S.P. Shankar, learned Counsel for the respondent, it is stated that though an order for return of the papers was passed on 13-2-1995 the papers were returned only on 5-6-1995 as the papers were mixed with some other papers in the registry. It is further alleged that the papers could hot be refiled till 12-7-1995 as it took some time to rectify the office objections. The affidavit is filed by the learned Advocate and we do not find any reason not to accept the averments made therein. The cross-objection is filed in time and there is delay only in refiling the same. Accepting the reasons given in the affidavit we condone the delay in refiling the cross-objection.
5. When once the delay is condoned, the further question to be considered is as to whether the cross-objection can be entertained as the appeal has already been dismissed on 10-7-1995. It is to be noted that notice was ordered in the appeal and records called for by order dated 26-10-1994. In other words, the appeal was admitted on that day after the matter was considered under Order 41, Rule 11 of the Code of Civil Procedure which alone is the provision applicable to the appeal. As in the case of writ petitions for which separate provision is made in the High Court Rules, there is no further stage of considering the case for admission. In regard to appeals which are governed by the provisions of the Code of Civil Procedure, the only provision by which an appeal can be dismissed at the admission stage is Order 41, Rule 11. We are not shown any other Rule prescribing a different procedure. When once the Court orders notice after hearing the appellant, the appeal is admitted by the Court and there is no question of hearing the appeal again for admission after hearing the respondent. Thereafter, the appeal has to be finally disposed of after hearing both parties.
The position may be different if the Court orders notice to the respondent on the question of admission. If without any reservation the Court issues notice, the appeal is admitted and notice will have to be issued to the Respondent. In this case, notice was ordered on 26-10-1994. After service of notice, the respondent has filed the Cross-objection within the time allowed by law 3-2-1995. The same was returned for rectifying the defects but was not refiled in time. As we have condoned the delay in re-filing, it is to be deemed that the cross-objection were filed on 3-2-1995. At best, it was in suspended animation on 10-7-1995 when the appeal was dismissed.
6. The further question is as to whether the cross-objection can be entertained when the appeal is already dismissed. We have already held that the cross-objection must be deemed to have been filed on 3-2-1995 and accordingly, it has to be deemed to be pending on the date when the appeal was dismissed. Order 41, Rule 22(4) is not a bar for entertaining the cross-objection, for, it is only an enabling provision making provision in the case of withdrawal of an appeal or the same be dismissed for default of the appellant. That provision cannot debar the Court from considering the cross-objection even if the appeal is disposed of. There may be cases in which, sometimes, while disposing of the appeal, the Court may omit to consider and dispose of cross-objection either by inadvertence or for any other reason. The disposal of the appeal on merits does not preclude the Court from considering the cross-objections filed in Court independently though it may be desirable that the appeal and cross-objections are considered and disposed of together.
7. The decision in Ram Kripal v. Radhey Shyam, can have no application to the facts of this case. The cross-objection was filed in that case even before notice was issued to the respondent and it is in such circumstances that the Court held that a cross-objection could not be entertained when the appeal is dismissed at the admission stage itself. In this case, notice
was ordered on the appeal and cross-objections were filed thereafter within time.
8. We direct the Office to entertain the cross-objections. We further order that the cross-objections be posted for final hearing on 11-9-1995.
9. Order accordingly.