(KANCHERLA) PUSHKARAMBA Vs. KANCHERLA NAGARATNAMMA

JUDGEMENT

(1.) In this case a notice in the form (No. 6-A.) appended to Order 41-A., Schedule 1, Civil P.C., made by the High Court was received by the 1 respondent (1st petitioner) on 21 December 1923, and the 2nd respondent (2nd. petitioner) on 5 January 1924. A memorandum of cross-objections was filed on 11 February 1924. The respondent's vakil claims that he is in time as he has not yet received a notice fixing the date of hearing and it is only within 30 days from the receipt of such a notice that he was to file his memorandum of cross-objections. In framing Order 41-A., and Form 6-A. fixing time for appearance, Civil P.C. Order 41, Rule 22, seems to have been overlooked. Order 41, Rule 12, requires that a day for hearing should be fixed and even if we can construe Order 41-A as making this unnecessary, there must be some rule guiding the litigants as to how Order 41, Rule 22, should be complied with. There is no rule saying that the day fixed for appearance shall be regarded as the day fixed for hearing within the meaning of Order 41, Rule 22, Civil P.C.

(2.) The actual notice now in use cannot be construed as fixing a day for hearing by implication. The appellant's (respondent s) vakil contends that the 25 day from receipt of notice should be regarded as the day fixed for hearing. This cannot be, as the case cannot be heard on the 25 day. It cannot be earlier than the 26th. But Rule 39 of the Rules of the High Court, Appellate Side, shows that it cannot be within 3 months after the admission of the appeal. This last consideration shows the undesirability of implying the date fixed for hearing. Either Order 41, Rule 22 must itself be modified by the High Court, or some other rule must be made to provide for its working.

(3.) We are constrained to hold that the memorandum of cross-objections is not out of time.