KAKALI DAS NEE SIL Vs. NILANGSHU MOHAN DAS

JUDGEMENT

(1.) The judgment and decree dated April, 2003 passed by the learned Additional District Judge, 2nd Court, Hooghly in Matrimonial Suit No.322 of 2007 is under challenge in this first appeal. The suit, which had been instituted by the respondent for dissolution of marriage, was decreed by the learned judge on the ground of irretrievable break down of marriage although the respondent had sought for divorce on the ground of cruelty and desertion.

(2.) At the time of hearing of the appeal, Mr. Chatterjee, leaned senior advocate for the respondent submitted that he had presented a cross-objection urging that the suit ought to have been decreed on the grounds set out in the plaint. He further submitted that even if we were minded to hold that the marriage could not have been dissolved on the ground of its breaking down irretrievably, the ground of cruelty and desertion ought to be considered.

(3.) On perusing the order-book of this appeal, we noticed that the respondent entered appearance through his learned advocate at the initial stage when the application for stay was considered by a coordinate Bench. He had also been represented by his learned advocate when a coordinate Bench endeavoured to bring about a reconciliation between the parties but such endeavour failed because of the respondent's adamant attitude. Almost six months later, the cross-objection was presented by the respondent without the same being accompanied by an application under Section 5 of the Limitation Act. Citing Order 41, Rule 22 of the Code of Civil Procedure (hereafter the CPC), Mr. Chatterjee contended that notice of appeal had not been served on the respondent and, therefore, limitation had not commenced and that the cross-objection could not be held to be barred by time. Reliance was placed by Mr. Chatterjee on two decisions of coordinate Benches of this Court reported in 1991 (1) CHN 377 (Sabita Dutta v. Abir Chandra Dutta) and 2003 (1) CHN 287 (Gopal Chandra Das v. Saraswati Basak) in support of his submissions.