BALWANT SINGH Vs. STATE OF M P

JUDGEMENT

(1.) THIS is a pretty new matter, the appeal being filed only a few days back. This was at the time of admission itself that first respondent's counsel entered opposition on the ground of non-maintainability of the appeal in law and I directed the matter to be listed for final hearing without noticing the other two respondents.

(2.) DEPUTY Government Advocate Shri Roman, appearing for the first respondent, State of Madhya Pradesh, has rightly pressed, in my opinion, the preliminary objection as to maintainability of the instant appeal relying on a number of decisions of different High Courts. It is counsel's contention that law is by now well-settled that when an appeal is dismissed as time-barred, the cross-objection fails with the appeal and does not survive for decision. It is his contention that in the instant case that is what has happened and, therefore, against the impugned order by which the appellants' cross-objection was dismissed, the instant appeal against that order is not maintainable.

(3.) STRONG reliance is placed by Shri Roman on the view expressed on the question by Chhagla, C. J. , speaking for the Division Bench in Charity Commissioner's (AIR 1956 Bom. 86) case. In that case what happened was that the appeal before their Lordships was time-barred and their Lordships refused to condone the delay under section 5 of the limitation Act. However, taking the view that the appeal was held as not maintainable on the ground of limitation, it was also held that the cross-objection did not survive on that ground. A learned Single Judge of Punjab High Court in a decision reported in karora Singh v. Kartar Singh (AIR 1951 Simla 170) also took the same view in same circumstances. His Lordship called in aid a decision of a Division Bench of Allahabad high Court in the case of Ramjiwan Mal v. Chand Mal (ILR 10 All. 587) as also that of a division Bench of Lahore High Court in Jai Gopal Singh v. Munnalal (AIR 1924 Lah. 43)to concur in the view expressed by the Allahabad and Lahore High Courts that unless an appeal was properly before the Court, the Court had no power to proceed merely with the cross-objection without assuming jurisdiction in respect of the appeal. A Full Bench of Madras High Court in the case of Alagappa v. Chockalingam (AIR 1919 Mad. 784)also took the same view that "when an appeal is dismissed as presented out of time, the memorandum of cross-objection cannot be heard. "wallis, C. J. , in that case, observed that the right of a respondent to proceed by way of memorandum of cross-objection is strictly incidental to the filing of the original appeal in time, and it will be open to a party against whom a memorandum of objections is filed to set up the bar against hearing of the cross-objections when the appeal itself was filed out of time.