Jayamma vs M. Rajagopalareddy

Anand Byrareddy, J.—Respondents 1 and 2 are served and remain unrepresented. The petitioner has sought dispensation of notice to Respondents 3 and 4, who had remained ex-parte before the trial court as well as the appellate court.

The petitioners are the plaintiffs before the trial court in a suit for partition, which was decreed. The same is under challenge in an appeal. The petitioners had entered appearance in the appeal and sought to file cross objections under Order XLI Rule 22 of the Code of Civil Procedure, 1908 (Hereinafter referred to as the ''CPC'', for brevity), but there was a delay of 60 days in filing the same. The application to condone the delay was filed along with the cross objections. The court below had opined that no reasons are assigned to condone the delay and has consequently rejected the Cross Objections on the ground that it was not filed within 30 days from the date of service of notice.

From a reading of the provision, though 30 days is the time prescribed to file any such cross objections, this provision itself indicates that the appellate court may allow the cross objections to be filed even beyond such time. Therefore, it is not a mandatory provision, but merely is directory and depending on the circumstances, the appellate court has been vested with the discretion to allow such Cross Objections if filed even after delay. Therefore, the Cross Objections could have been rejected if it resulted in some prejudice being caused to the respondent or having the effect of taking away any accrued right in favour of the respondents. The appeal was yet to be heard finally. Therefore, if there were grounds that could be urged by way of Cross objections, there was no injustice caused to the other side and on the other hand, it would have enabled the court below to adjudicate on all points and issues that arise for consideration, which ought to have been considered in the interest of justice. Therefore, the rejection of the application seeking condonation of delay is not justified.

The writ petition is allowed. The order passed by the court below is set aside. The appellate court is directed to consider the cross objections filed by the petitioners and to dispose of the appeal in accordance with law.