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Union Of India v. Jagtar Singh
Delhi High Court
Sep 4, 1979
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Judgment Summary: Avadh Behari Rohatgi, J.
Factual and Procedural Background
The Union of India (appellant) filed an appeal on January 20, 1976 against an order of the Additional District Judge dated August 28, 1975, which had enhanced compensation for land acquired from the owner-respondent in village Jaitpur. The appeal was admitted on April 14, 1976 by B.C. Misra, J., who ordered the records to be printed. The Union also filed an application (C.M. 208 of 1976) under Order 41 Rule 5, Code of Civil Procedure, seeking a stay of payment of the enhanced compensation; notice of that application was issued. A composite notice dated May 3, 1976 (headed as C.M. No. 208-76 and R.F.A. 87-76) was served personally on the respondent on May 14, 1976; it informed the respondent of admission of the appeal and listed the C.M. for hearing on May 27, 1976. On May 27, 1976 Mr. V.K. Kapila appeared for the respondent and the judge ordered payment of the enhanced compensation on furnishing security. The main appeal was later listed before the court (the present bench) and on August 8, 1979 the respondent's counsel asked for time to file cross-objections; cross-objections were filed on August 9, 1979 with an application under Section 5 of the Limitation Act. The central procedural question for decision was whether the respondent's cross-objections filed in 1979 were within time.
Legal Issues Presented
- Whether, after admission of an appeal, the appellate court is bound to issue a separate notice to the respondent specifying the day fixed for the hearing of the appeal under Order 41 Rules 12 and 14 of the Code of Civil Procedure, and whether failure to give such a specific day notice prevents the respondent from being time-barred in filing cross-objections.
- Whether the respondent's cross-objections filed in 1979 are barred by limitation given the earlier composite notice (dated May 3, 1976) that informed him of the admission of the appeal.
- Whether the court should extend time under Rule 22 of Order 41 of the Code of Civil Procedure on the ground that a formal notice of the day fixed for hearing was not issued to the respondent.
Arguments of the Parties
Respondent's Arguments
- The respondent (through counsel) contended that the cross-objections filed in 1979 were within time because he was never given the notice of the actual hearing date of the appeal as required by Rules 12 and 14 of Order 41 of the Code of Civil Procedure.
- It was argued that only a notice of the miscellaneous application (C.M. 208 of 1976) was issued and that no proper notice of the hearing of the appeal itself had been served.
- Counsel relied on rules 12, 14 and 22 of Order 41 and on Form No. 6 of Appendix 'G' (First Schedule to the Code) as showing that a respondent must be served with a notice of the day fixed for hearing after the appeal is admitted; several cases were cited in support of the submission that the appellate court must issue such a notice after admission of the appeal.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Pushkaramba v. Nagaratnamma (1939 Oudh Weekly Notes 539) | Cited by respondent's counsel to support the proposition that after admission of an appeal the appellate court must issue notice to the respondent of the day fixed for hearing the appeal. | The court regarded this case as distinguishable on the short ground that in the instant case there was a local rule (Rule 8 of Chapter III-A, Volume 5, Punjab High Court Rules) and that counsel had appeared for the respondent; thus the principle relied upon did not apply unchanged to the facts before the court. |
| Mt. Koshalia v. Riaz-ud-din, AIR 1936 Lahore 362 | Cited for the same general proposition that a notice of the day fixed for hearing should be issued to the respondent after admission of the appeal. | The court distinguished this authority because, unlike the present case, the local practice/rule relied upon in the present court (Rule 8) and the fact of counsel's appearance were not present in that case. |
| Sundaram v. Subha Rao, AIR 1942 Madras 402 | Cited by respondent's counsel to support the contention that after admission a respondent should receive notice of the hearing date. | The court considered it distinguishable on the basis that in the present case a counsel had appeared pursuant to a composite notice and the court's rules provided for no separate actual-date notice when counsel represents a party. |
| Kantilal & Bros. v. Ramarani Debi, AIR 1979 Cal. 152 | Referred to by respondent's counsel in support of the submission that a specific notice of the hearing date is mandatory after admission. | The court found the case distinguishable for the same practical reasons: the presence of counsel and the court's own practice/rule meant no separate day-fixed notice was necessary in the instant matter. |
| Jones v. Nicholls ((1844) 13 M & W 361) | Quoted (Pollock C.B.) for the phrase that it is necessary to "import a little common sense" into certain procedural situations. | The court invoked this phrase to justify a pragmatic approach: where counsel had appeared and a composite notice had been served, insisting on a separate formal day-fixed notice would be an idle formality contrary to common sense in local practice. |
| Chandra Nath v. Nabadwip Chandra, AIR 1931 Cal. 476 | Quoted (Rankin C.J.) for the phrase condemning purely technical requirements as "merely piling unreason upon technicality". | The court relied on this caution against technicality to reject the respondent's insistence on a separate day-fixed notice when counsel had appeared pursuant to a composite notice; the court treated the requirement as an avoidable technicality in the circumstances. |
Court's Reasoning and Analysis
The court's reasoning proceeds in discrete steps, grounded in the record and in the court's local procedural rules:
- Composite Notice and Appearance: The May 3, 1976 notice was a composite notice advising the respondent both of the admission of the appeal and of the application (C.M. 208 of 1976). That notice was personally served on the respondent on May 14, 1976, and the respondent's counsel, Mr. V.K. Kapila, appeared before the court on May 27, 1976 in response to it. The court treats that appearance as effective notice of the appeal.
- Rule-based Local Practice: The court refers to Rule 8 of Chapter III-A, Volume 5 of the Punjab High Court Rules (made under Section 122 of the Code), which provides that parties and their advocates are required to attend on days their cases are set down, and that a registered A.D. postcard intimation of a fixed date is to be sent only to parties not represented by counsel. The court reads this rule to mean that when a party is represented by counsel, a separate "actual date" notice need not be sent to the party personally.
- Representation and Power of Attorney: Although counsel did not file a power of attorney in the record for the respondent (a lapse), the court held that the respondent could not take advantage of that lapse to claim he had not been represented; by authorizing counsel to appear, the respondent effectively chose to be represented and cannot later claim lack of representation for procedural advantage.
- Practicality and Necessity of a Separate Date Notice: The court explained that after admission the record had to be printed and the actual date for hearing could not be foretold. Given that counsel had entered appearance, issuing a separate day-fixed notice to the party would be unnecessary and impracticable. Advocates practising in the court are expected to keep themselves informed and attend when the case is set down.
- Precedents and Distinguishment: The cases cited by the respondent were recognized as authorities for the proposition that a respondent should receive notice of the day fixed for hearing. However, the court found them distinguishable because in those cases there was no local rule like Rule 8 and no counsel had appeared for the respondent. The presence of counsel and the local rule made the procedural posture of the instant case materially different.
- Technicality vs. Substance: The court characterized the respondent's insistence on a separate day-fixed notice as a "mere technicality" that would not have served a useful purpose and would amount to piling technical requirements where justice and the court's own rules make such a requirement unnecessary.
- Rule 22, Order 41 (extension power): The court noted that the respondent also invoked Rule 22 of Order 41 (power to extend time), but that no other ground was pleaded to justify an extension beyond the same argument about lack of a day notice; since that foundational argument was rejected, extension under Rule 22 was not warranted.
- Conclusion of Analysis: On the basis that the respondent had received notice of the appeal, had counsel appear, and that the local rule obviated the need for a separate day-fixed notice to the represented party, the court concluded the cross-objections filed in 1979 were barred by limitation.
Holding and Implications
Holding:
Cross-objections dismissed on the ground of limitation.
Direct Consequences for the Parties:
- The respondent's cross-objections filed in 1979 are held to be time-barred and are dismissed.
- The court's decision rests on the factual finding that the respondent had been given a composite notice of admission of the appeal and that counsel appeared for him, thereby obviating the need for a separate notice of the day fixed for hearing under the court's local practice.
Broader Implications:
The opinion emphasizes that appellate courts may regulate their own practice under Section 122 of the Code and that local rules (here Rule 8 of Chapter III-A) which limit the requirement of an "actual date" notice to unrepresented parties can render a separate day-fixed notice unnecessary where counsel has appeared. The court distinguished earlier authorities on the basis that they lacked such a local rule and did not involve counsel's appearance. The opinion did not purport to lay down a new general principle overriding the statutory rules; it applied existing local practice and distinguished cited cases on their facts.
Avadh Behari Rohatgi, J.:— On January 20, 1976, the appellant Union of India brought an appeal from the order of the Additional District Judge dated August 28, 1975 in a land acquisition case in which the court had enhanced the compensation for the acquired land of the owner-respondent in village Jaitpur.
2. On April 14, 1976, B.C Misra, J. admitted the appeal to a division bench and made an order for printing the records.
3. In the appeal the Union of India also moved an application (C.M 208 of 1976) under O. 41 rule 5, Code of Civil Procedure praying for an order of stay of payment of the enhanced compensation to the owner. Of this application B.C Misra, J. issued notice. Accordingly a notice dated May 3, 1976 was sent to the respondent informing him that “an appeal and miscellaneous application (copies enclosed) have been filed in this court in the case noted above and the same have been admitted to hearing by an order of this court dated 14th of April, 1976”. The notice then went on to say that the C.M will be listed before the court on May 27, 1976 (actual) on which date “you may appear before the court either in person or through counsel”. This notice is headed as a notice in “C.M No. 208-76 in and R.F.A 87-76”. This notice was served on the respondent personally on May 14, 1976 and he signed it in token of acknowledgement.
4. This application was listed for hearing on May 27, 1976 before B.C Misra J. No one appeared on behalf of the Union of India Mr V.K Kapila appeared for the respondent. The judge made an order that the amount of enhanced compensation be paid to the respondent on furnishing security. So far as this application was concerned this was the end of the matter.
5. The appeal was listed for hearing before me on August 8, 1979. On that date counsel for the respondent, Shri R.B Tahilramani, asked for time to file cross-objections. At his request I adjourned the matter. The respondent filed cross-objections on August 9, 1979 with an application under s. 5 of the Limitation Act.
6. The question at issue is: Are the cross-objections within time? Counsel for the respondent contends that cross-objections are within time as at no time notice of the actual hearing of the appeal was issued to the respondent as required by rules 12 and 14 of Order 41 of the Code. It is said that only a notice of the application (C.M 208 of 1976) was issued but no notice of the hearing of the appeal was ever issued to the respondent. In this connection counsel called attention to rules 12, 14 and 22 of O. 41 where a notice of the day fixed for the hearing of the appeal is required to be issued to the respondent if the appellate court does not dismiss the appeal under rule 11 of O. 41 of the Code. He has also drawn my attention to Form No. 6 of Appendix ‘G’ of the First Schedule to the Code of Civil Procedure where a model form of notice to respondent of the day fixed for the hearing of the appeal under Order 41 rule 14 is given. I was referred to 1939 Oudh Weekly Notes 539,(1) Pushkaramba v. Nagaratnamma, AIR 1926 Madras 283,(2) Mt. Koshalia v. Riaz-ud-din, AIR 1936 Lahore 362 (3) Sundaram v. Subha Rao, AIR 1942 Madras 402 (4) and Kantilal & Bros. v. Ramarani Debi, AIR 1979 Cal. 152 (5) in support of the submission that after admission of the appeal it is incumbent upon the appellate court to issue a notice to the respondent of the day fixed for the hearing of the appeal. As this was not done, counsel contends, the respondent is entitled to file cross-objections immediately the appeal was shown on board.
7. One important point in this case is that the notice was sent to the respondent of the application as well as of the appeal. In the notice dated May 3, 1976 he is informed of the admission of the appeal as also of the application. It is a notice not merely in C.M 208 of 1976. It is also a notice in the appeal (R.F.A 87 of 1976). It is in pursuance of this notice that the respondent's counsel Mr V.K Kapila appeared on May 27, 1976. Therefore, it can safely be concluded that the respondent had notice both of the appeal and the application. Once counsel has entered appearance for his client, respondent in this case, in answer to the notice of appeal given to the party he cannot insist upon a second notice of the hearing of the appeal. A notice of the day for the hearing of the appeal cannot in the nature of things be issued by this court when counsel has put in appearance. An actual date notice to the party is given when the parties are not represented by counsel. Rule 8 of Chapter III-A of Volume 5 of the Rules and Orders of the Punjab High Court applicable to this court reads as under :—
“Parties and their Advocates are required to attend the court on the day or days for which their cases are set down, and on subsequent days until their cases are disposed of or are postponed.
Provided that intimation of the pacca date fixed in a case will be sent by registered post card (A.D) to such parties as are not represented by counsel. Such post card shall be sent to an address to be given by the party in response to the original notice of appeal calling upon him to furnish an address for service for the purposes of the appeal, or if he fails to give such address within one month of the service of such notice of appeal, to his address as given by the appellant in the memorandum of appeal. The posting of such post card shall be deemed to be sufficient intimation to the party of the date fixed in the case.
Provided further that in a case in which an Advocate not ordinarily resident in Chandigarh has to appear, the Deputy Registrar may fix an ‘actual date’ if such Advocate puts in a written request for that date to which he himself has obtained the consent of other counsel in the case. Such date shall not be altered except by any order of the Bench concerned, or of the first Division Motion Bench if the case is not listed before a particular Bench.”
8. The rule clearly shows that the party is not entitled to an “actual date” notice if he is represented by a counsel. Here the respondent's counsel was present. No further notice was required to be sent.
9. This rule has been framed by the High Court under s. 122 of the Code which empowers it to make rules regulating its own procedure and thereby “annual, alter or add to” all or any of the rules in the First Schedule.
10. From the record it appears that Mr V.K Kapila, Advocate did not file his power of attorney in this case on behalf of the respondent. But that is a lapse of which the respondent cannot take advantage. Having authorised counsel to appear he cannot turn round and say that he was not represented by counsel in court. He cannot have the best of both worlds. Nor is this his case in the application he has now made. The sole ground on which he founds his right to file cross-objections in 1979, though notice of the appeal was given to him on May 3, 1976, is that he was never served in the appeal and in any case the notice issued to him dated May 3, 1976 is not a notice as required by law as it does not give a date for the hearing of the appeal. That the notice sent to him did not give a date for the hearing of the appeal is true. But he had notice of the appeal alright. His counsel appeared. Therefore, he was not entitled to another “notice of the day fixed for hearing the appeal”, as he now claims. The reason is that the record had to be printed. How long will that take nobody could say? Now was it possible to foretell when the appeal will be heard. Counsel had been engaged. It is the duty of counsel to attend the court on the day or days for which his case is set down for hearing until it is disposed of. This is the rule. Therefore, the requirement of notice of the hearing of the appeal on which counsel insists so much was in this case a mere formality, an idle formality which would not have served any useful purpose. Actual date of hearing could not be fixed because the respondent was represented by counsel. If he had not been represented by counsel he was entitled to a registered A.D notice.
11. A farzi date notice is issued to the respondent according to the practice and procedure of this court. But that is also not a notice for hearing the appeal. It is necessary to “import a little common sense” into cases such as this, to use a phrase of Pollock C.B in Jones v. Nicholls, (1844) 13 M & W 361(6). The practice and procedure of this court was regulated by our rules has to be kept constantly in mind. In my opinion, the respondent has no right to file cross-objections in 1979 when he had himself received the notice of the appeal on May 14, 1976. That it was not a notice of the day fixed for hearing the appeal is true. But it was neither necessary nor practicable. It was not necessary because the respondent had engaged a counsel who put in appearance on his behalf. It was not practicable because after printing the appeal was to be set down for hearing. When a party is represented by a counsel notice is not necessary because advocates practising here are not entitled to any notice as they are expected to keep themselves informed about the cases fixed for hearing.
12. The cases to which I was referred are distinguishable on the short ground that neither was there in those cases a rule (rule 8) such as we have nor did any counsel appear in them. The central fact in the instant case is the appearance of the respondent by his counsel pursuant to a composite notice.
13. It was said that the notice of appeal served in this case on the respondent was a nullity because it was not in conformity with rules 12 and 14 of O. 41. Code as it did not fix a day for the hearing of the appeal. In my opinion, this argument is without substance. The notice was a composite notice. It was a notice of the appeal as well as of the C.M That the notice did not fix a day for hearing the appeal is a mere technicality. What is of essence is that a party must have notice that an appeal against him has been brought in the court which has not been dismissed in limine and has been admitted to a hearing. From this notice of appeal the right to file cross-objections springs.
14. We regulate our own practice and procedure. That power is given to the court by s. 122 of the Code. There is one limitation on this power. Whatever we do must not conflict with the principles contained in the body of the Code. Subject to this the court can devise its own procedure best suited to advance justice. To accept the argument of a separate notice after counsel has entered appearance on behalf of a party would be “merely piling unreason upon technicality”, to use the words of Rankin C.J (Chandra Nath v. Nabadwip Chandra, AIR 1931 Cal. 476 (478)(7).
15. Then it was said that the court had the power to extend the time under rule 22 of O. 41, Code. No other ground is urged to extend the time in this case except the ground which I have already considered and rejected.
16. For these reasons I hold that the cross-objections are barred by time. The cross-objections are, therefore, dismissed on the ground of limitation.
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