M. KR. RM. Ramaswami Chettiar vs OM. PL. RM. Ramanathan Chettiar

Aagiriswami, J.—The plaintiff in the case is the appellant. This appeal arises out of a final decree passed in a suit for accounts. There were

as many as 48 items of expenditure incurred by the defendant in the course of his management of the plaintiff''s firm in respect of which the plaintiff

wanted to surcharge the defendant to the extent of Rs. 50,000. The trial court gave a decree in respect of items 10, 30 and 22, in all for a sum of

Rs. 1362-15. The plaintiff appealed to the lower appellate court in respect of the disallowance of claims under items 4,613, 15, 37 and 47 alone.

The defendant filed it memorandum of cross objections. The lower appellate court dismissed the plaintiff''s appeal and in respect of the

Memorandum of cross objections filed by the defendant the finding on item 10 was confirmed. So, the cross objections regarding item 30 was

allowed and cross objections in respect of item 22 was allowed in part. Regarding item 22, I must say even at the beginning that it is admitted by

the respondent that the lower appellate court''s judgment proceeds on a mistake and therefore, the decree of the trial court for Rs. 312-15 with

regard to this item may be restored. It will accordingly be done. Finally two other points were taken by the plaintiff. One was that the lower

Appellate Court was wrong in treating the memorandum of cross objections as filed in time. The facts are these: The date fixed for the hearing of

the appeal was 28th February 1964 and notice was issued returnable on 7th February 1964. The notice was not returned by 7th February 1964.

But on that day Mr. G. K. Ramachandra lyer undertook to appear for him. That undertaking was accepted and the hearing date was fixed as 28th

February 1964. The cross objections were filed actually on 1st April 1964. The lower appellate court held that the memorandum of cross

objections was filed in time because the notice was actually not served on the defendant or his pleader. Order 41 rule 22 C. P. C. reads as

follows:

Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided

against him in the court below, but take any cross objection to the decree which he could have taken by way of appeal provided he has filed such

objections In the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal,

or within such further time as the Appellate Court may see fit to allow.

Read literally, it might support the contention which found favour with the lower appellate court. But I think it is a very artificial way of looking at

things. When either the defendant has appeared in court, even though before the date fixed for the hearing an advocate undertakes to appear for

him on the date fixed for the hearing, there would be no further need of service on him. The service of notice is for the purpose of intimating to the

respondent the date of hearing of the appeal. The respondent had notice of the date of hearing and had engaged an advocate for him. There was

therefore no need for serving a notice on him intimating the date of hearing.

The question, whether the memorandum of cross objections were filed in time should really be decided on considerations other than a literal

interpretation of Order 41 rule 22 C P. C. When Order 41, rule 22 speaks of the date of service on the respondent or his pleader of the notice of

the day fixed for hearing of the appeal, it obviously refers to the provision of Order 41 rule 14, which deals with the service of notice of appeal.

That rule provides that the notice of the day fixed under rule 12 shall be served on the respondent or on his pleader in the appellate court in the

manner provided for the service on a defendant of summons to appear and answer all the provisions applicable to such summons and to

proceedings with reference to the service thereof, shall apply to the service of such notice. Order 5 rule 2 C. P. C. which deals with service of

summons on a defendant to appear and answer provides that every summon shall be accompanied by a copy of the plain or if so permitted by a

concise statement. It therefore, follows that Order 41 rule 14 contemplates that a notice to be served on a defendant or on his advocate about the

date of hearing should contain not merely the date of the hearing, but also the memorandum of appeal. In this case, there is no evidence that a copy

of the memorandum of appeal was actually served either on 28th February, 1964 or before that date either on the defendant or on his pleader. The

Importance of the service of the copy of Memorandum of appeal is merely that it would enable the respondent to know about the scope of the

appeal filed and to decide whether be should file any memorandum of cross objections or not. In the absence of a copy of Memorandum of

appeal, it would not be possible for the respondent to decide whether to file a Memorandum of cross objections or not. It is on this basis, that

decisions of this court have held that where orders passed by administrative authorities are served on parties merely informing them that a petition

or an appeal has been allowed or dismissed, the period of limitation for the purpose of filing an appeal should be calculated from the date when

they get the copy of the order itself showing the reasons for the order and not from the date of the order alone without the reasons therefor.

Therefore, the service of notice of the date of hearing is not a mere formality informing the respondent of the date alone, but it would also inform

him of the scope of the appeal and thus enable him to decide whether to file cross objections or not. In this view, therefore, as there is no proof

that a copy of memorandum of appeal was actually served on the defendant or his advocate, the provisions of Order 41, rule 22 C.P.C. cannot be

said to have been complied with and it cannot, therefore, be said that the Memorandum of cross objections filed is out of time. I, therefore, agree

with the lower appellate court on this point. As regards interest, the lower appellate court has given interest only from the date of the decree, which

is clearly wrong. The plaintiff is entitled to interest from the date of suit. The second appeal will thus be allowed in respect of item 22 as indicated

already and in respect of the interest from the date of suit. The parties will bear their own costs.