EAST INDIA HOTELS LTD Vs. MAHENDRA KUMARI

JUDGEMENT

(1.) CROSS-OBJECTION under Order 41, Rule 22 of the Code of Civil Procedure (in short the 'code') has been filed by Shri jitendra Singh, legal representative of deceased plaintiff-respondent No. 1 Smt. Mahendra Kumari, in first appeal filed by the appellant-defendant No. 2 the East India Hotels Ltd. against the judgment and decree dated 30-11-2005 passed by additional District Judge (Fast Track) No. 4, jaipur City, Jaipur in Civil Suit no. 243/2003 (Old No. 43/1986) whereby the suit of partition, cancellation of sale deed and permanent injunction was partly decreed but the trial Court dismissed the plaintiff's suit in so far as she claimed preferential right under Section 22 of the Hindu Succession act, 1955. This part of the decree was assailed by the plaintiff-respondent No. 1 by way of filing this cross-objection. An application under Order 41, Rule 22 of the Code read with Section 5 of the Limitation Act was also filed for condonation of delay and extension of time to file the cross-objection.

(2.) HEARD learned counsel for the parties on the application for condonation of delay and extension of time for filing the cross-objection.

(3.) LEARNED counsel appearing for the respondent-objector submitted that according to the provisions contained in sub-rule (1)of Rule 22 of Order 41 of the Code the period of limitation for filing the cross-objection starts from the date of service of the notice on the respondent or his pleader of the day fixed for hearing of the appeal and in the instant case no notice under Order 41, Rule 14 of the Code was ever served upon the respondent-objector, rather the case was never fixed for hearing of the appeal and that stage would come after preparation of the paper book, therefore, in the instant case period of limitation for filing the cross-objection under Order 41, Rule 22 of the Code did not start to run, hence the cross-examination was filed well within the period of limitation. Reliance was placed on the judgment delivered in the case of Union of India v. Jhuttar Singh, reported in 46 (1992) DLT 364 (DB) wherein though notice of filing of the appeal was served on the respondent but no notice of the day of hearing of the appeal was served on him, therefore it was held that notice was not in compliance with the provisions of Order 41, Rule 22 of the Code. Reliance was also placed on the judgment delivered in the case of Union of India v. Shibu Ram Mittal, reported in 76 (1998) DLT 577, wherein it was held that notice informing a farzi date is not a notice of fixing the date of hearing of the appeal, therefore, the cross-objection filed by the respondent held to be well within limitation. Reliance was also placed on the judgment delivered in the case of Rashida Begum v. Union of India, reported in 91 (2001) DLT 664 : (AIR 2001 (NOC) 81 (Del)) wherein notice containing only the date of hearing of stay application was not considered to have confirmed specific requirement of law contained in Order 41, Rule 14 of the Code and therefore it does not offer starting point of limitation for filing cross-objection.