VASANT BUILDERS Vs. MOHAN

JUDGEMENT

(1.) The present reference arises out of the referral order dtd. 16/10/2020, by which the question raised in Writ Petition No.5099 of 2018 has been referred to the Division Bench for an authoritative answer. In Writ Petition No.5099 of 2018, the learned Single Judge (Shri R.B. Deo, J.) finding himself unable to accept the view as taken in V.I.D.C., through Executive Engineer, Wardha Vs. Kawadu Narayan Tandulakar and others, 2017 (6) Mh.L.J. 780, (Shri S.B. Shukre, J.) has framed the following question :-

(2.) Mr. Khapre, learned Senior Advocate, appearing for the petitioners, submits that the limitation for filing the cross-objection under Order XLI Rule 22 of C.P.C., is triggered when the respondent in appeal, puts in his appearance, either by having already filed a caveat, or by appearing suo moto, or upon service of notice of the appeal. He submits that once an appearance is put in by the respondent in the appeal proceedings, the limitation starts from the date of his appearance or the date of service of the notice of the appeal, whichever is earlier. He further submits, that considering the language of Order XLI Rule 22 of C.P.C., the respondent, then has to file a cross-objection within a period of one month thereafter. He further submits, that the expression "day fixed for hearing of the appeal" as occurring in Order XLI Rule 22 of C.P.C. has to be construed to mean the date of service of the notice of the appeal upon the respondent or his appearance otherwise in the proceedings and once he has entered appearance, no separate notice is required to be issued to the respondent, at any point of time of the proceedings in the appeal thereafter, and the cross-objection has to be filed within a period of 30 days from the date the respondent has entered appearance, in any form whatsoever.

(3.) Mr. Khapre, learned Senior Advocate further places reliance upon the provisions of Order XLI Rule 12 and 14 of C.P.C. along with Form - 6 in Appendix - C, to contend that the language thereof contemplates, issuance of a notice, of the appeal only once, for fixing the date of hearing and decision of the matter, and does not provide for issuing another notice for the same purpose. He submits that the entire purpose of expeditious decision of the appeal would be frustrated, if the Court is required to issue notices to the respondents at various stages during the pendency of the appeal. He further submits that the provisions of Order XLI of C.P.C. do not provide for preparation of any paper-book and a notice consequent to its preparation to the parties to the appeal. Such a provision, is contained in the Civil Manual, which is actually a set of guidelines for the purposes of implementation of the provisions of C.P.C. and cannot have an effect of overriding the provisions of the Code. He therefore submits that once the respondent enters appearance, it has to be construed to be good and valid for the purpose of the entire appeal and such appearance would continue to bind the respondent and his Advocate for the duration of the appeal. He therefore submits that the starting point of counting the limitation for the purpose of the limitation of one month for filing of the cross- objection, would be the date when the respondent enters appearance or is served, whichever is earlier. Mr. Khapre, learned Senior Advocate in support of his submissions places reliance upon the following judgments :-