SABITA DUTTA Vs. ABIR CHNAD DUTTA

JUDGEMENT

(1.) The appeal being F.A. No. 184 of 1986 out of which the present C. O. T. arises, was filed on 13.9.84. It appears that the respondent appeared through a Ld. Advocate sometime in March 1986. In or about July this year the appellant expressed his desire not to continue with the appeal and he wanted that the appeal be dismissed for non -prosecution. On 23.7.90 the respondent filed a cross -objection. The Ld. Stamp Reporter reported however, on 7.8.90 that the cross -objection was filed beyond the period of limitation. Hence this point has been taken up for decision before taking up the disposal of the cross -objection on merits and the appellant's prayer for dismissal of the appeal. Under Order 41 Rule 22(1) a cross -objection is to be filed within one month from the date of service of notice of the day fixed for hearing the appeal either on the respondent or his learned Advocate or within such further time as the Appellate Court may see fit to allow. In this case as stated above, the cross -objection was filed a long time after the filing of the appeal. It is admitted position that the notice mentioned in Order 41 Rule 22(1) being the notice described in item 6 of Appendix 'G' to the Civil Procedure Code was not served upon the respondent. It is urged, therefore, from the side of the respondent that the limitation of one month from the date of the service of the notice of appeal does not apply to the case of cross -objection filed by the respondent in this case. It is urged from the side of the appellant on the other hand that since the respondent appeared through her Ld. Advocate long ago her date of such appearance should be treated as the date of service of notice on her and that since she did not file her cross -objection within a month from that date her cross -objection should be held to be barred by limitation under the provisions of Order 41 Rule 22(1) of the Code.

(2.) As per the provisions of Order 41 Rule 22(1) the limitation of 30 days starts running only from the day of the service of the notice either on the respondent or on his learned Advocate. Since no notice was served in this case there was no starting point of limitation here, The learned Advocate for the respondent cites Kanti lal v/s. Ram Narayan, : AIR 1979 Cal. 152 and Labhuram v/s. Ram Partap, : AIR 1944 Lah 76 (F.B.). In both of these cases the cross -objection was filed before the service of the notice. These decisions are, therefore, not to the point so far as the present case is concerned. The learned Advocate, also cites G.C. Venkataraju v/s. G. Rambhaddirrajoo,, AIR 1942 Mac 403. This was a case where instead of the Advocate the notice was served on his clerk. It was held that service of the notice on the clerk could not be equated to service of the notice on the learned Advocate himself and hence no notice was served in this case at all. It was held that under such circumstances there could not be any limitation as contemplated under Order 41 Rule 22 of the Code. This is a decision on the point, no doubt, but the learned Advocate places his reliance mere upon two decisions of this Court being Lakshmi Kanta v/s. Beharilal, : 67 CWN 553 and Durga Duttta v/s. Dalhousie Properties., ILR (1969) Cal. 595. These were decisions on Sec. 17(1) of the West Bengal Premises Tenancy Act. Sec. 17(1) as it stood previously obliged the tenant to deposit all arrears of rent together with interest within a period of one month from the date of service of the notice on him. In both the cited cases the arrears were not deposited at all, and it was urged from the side of the defendant that they were not obliged to do that since no notice was served on them. It was urged from the side of the plaintiff that the date of appearance of the defendant might be treated as the date of service of the notice on them. This argument was repelled and it was held by this Court in Lakshmi Kanta v/s. Beharilal (supra) that the operation of Sec. 17(1) was not attracted since the deed of summons was not actually served on the defendant, and that he could not be obliged to make any deposit within one month from the date of his appearance. This decision was followed in Durga Dutta v/s. Dalhousie Properties (supra) where the defendant did not make any deposit at all. It was held that the tenant should not be saddled with any mischief or adverse consequences under Sec. 17 of the aforementioned Act for non -payment or non -deposit of any arrears of rent. The learned Advocate for the appellant argues strenuously that these decisions have no application to the facts of the present case. He points out that both these decisions dealt with summons whereas the Order 41 Rule 22 deals with notice of hearing of the appeal. He also urges that in Lakshmi Kanta v/s. Beharilal (supra) their Lordships we're inclined to treat the defendant with leniency since he was a tenant and that, therefore, the spirit of the decision could not be applied in this case where the facts are different. We do not find any great merit in this argument and we do not see why the principle on which the aforementioned two cases were decided could not be applied in this case also. The two cited cases dealt with situations in which the notice contemplated by the law was not served on the other side and it was held by this Court that the obligation following from service of the notice could not attach to the parties who were to be served with the notice. The principle as enunciated in these two decisions may certainly be applied to the case at hand. In this case as mentioned above the notice was not served upon the respondent at all. Since the period of limitation was to be counted according to Order 41 Rule 22(1) of the Code only from the date of the service of the notice it must be held that the period of limitation never started running in this case at all. In the spirit of the two decisions cited above we must also hold that the period of 30 days should not be counted from the date of the appearance of the respondent through his learned Advocate as her appearance could not be treated at a par with the service of the notice on her. In view of what has been stated above, we are inclined to hold that the cross -objection in this case, though it was filed a long time after the appearance of the respondent in the F.A. No. 184 of 1986, cannot be treated as barred by limitation.