B.B. Deb, J.
1. The question pertaining to interpretation of the provision of Order XLI Rule 22(1) of the Code of Civil Procedure is involved identically in both the cases and as such these are taken together for hearing and disposal.
2. The petitioners in both the cases challenged the order dated 10.7.2002, passed by the learned first appellate court in Cross-objection No. 21 of 2001 (arising out of Title Appeal No. 7 of 2001) and Cross-objection No. 22 of 2001 (arising out of Title Appeal No. 8 of 2001), by which the learned appellate court condoned the delay in filing the Cross-objections toy the defendant-respondents.
3. The petitioners of CRP No. 48 of 2002 filed a Civil Suit as plaintiffs in Title Suit No. 14 of 1999 seeking numerous reliefs. Likewise, the petitioners of CRP No. 49 of 2002 filed Title Suit No. 11 of 1999 seeking a good number of reliefs. The learned trial court decreed the suits in both the cases granting some reliefs to the plaintiff-petitioners while had refused to grant some other reliefs. Being aggrieved, the plaintiff-petitioners preferred the aforementioned two Title Appeals before the learned District Judge, South Tripura, Udaipur with condonation petitions under Section 5 of the Limitation Act as they could not prefer the appeals within the period prescribed under the Limitation Act. The learned Government Pleader entered appearance and after hearing the parties, the learned first appellate court on condoning the delay admitted the appeals vide Order dated 21.8.2001 (in both the cases). The learned Government Pleader marked his appearance in both the appeals and filed Cross-objections wider Order XLI Rule 22(1) CPC, in both the appeals on 28.11.2001. The appellants, petitioners herein in both the cases filed preliminary objections on 12.12.2001 contending, inter alia, that the Cross-objections having been filed after the expiry of statutory period of thirty days had been liable to be rejected in limine. The matter on the preliminary objections was heard and a date was fixed as on 26.4.2002 for judgment regarding entertainment of Croass-objectlons. Judgments could not be delivered as the learned Government Pleader prayed for time. Thereafter, the Cross-objections, respondents herein, filed condonation petition under Section 5 of the Limitation Act on 31.5.2002 in one case and on 1.6.2002 in another case. The learned appellate court after hearing the parties allowed the condonation petitions vide impugned order dated 10.7.2002.
4. The main crux of attack in the present revision petitions is that the respondents herein filed Cross-Objections after the expiry of thirty days and that was also having not sought for leave of the court seeking extension of time and as such according to the petitioners, the learned first appellate court should not have passed the impugned judgments/ orders entertaining the cross-objections.
5. Mr. S. Talapatra, learned counsel appearing for the petitioners submits that in view of Order XLI Rule 22(1) CPC, Cross-Objection ought to have been filed within one month from the date of service of notice upon the respondents or within such time as the learned appellate court would allow the same.
On the other hand, Mr. U. B. Saha, learned senior Government Advocate being assisted by Mr. S. Chakraborty, learned counsel for the respondent submits that since no date was fixed for hearing of the cross-objections, the condonation petitions filed on 1.6.2002 (31.5.2002) seeking extension of time have been correctly entertained by the learned first appellate court vide impugned orders dated 10.7.2002. Mr. Saha further submits that in view of Section 148 CPC the learned appellate court correctly enlarged the time in entertaining the cross-objections.
For convenience sake, the provision of Order XLI Rule 22(1) CPC is reproduced below :-
'22. Upon hearing, respondent may object to decree as if he had preferred separate appeal
(1) Any respondent, thought he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour ; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection 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 :'
6. Mr. Talapatra, learned counsel for the petitioners submits that the appeals were admitted on 21.8.2001 after condoning the delay and that had been passed in open court in presence of the learned Government Pleader appearing for the defendants, respondents herein, but the respondents had not filed the cross-objections within a month, instead they filed the cross-objections after three months on 28.11.2001 and that had also been done without seeking extension of time. The appellants, petitioners herein raised preliminary objections by filing formal petitions supplying copies to the learned Government Pleader on 12.12.2001 contending, inter alia, that the cross-objections having been filed beyond the statutory period were liable to be rejected in limine. The respondents did not care to file any petition seeking extension of time and allowed the preliminary objections so raised to be heard and decided by the learned first appellate court. The learned appellate court heard the matter regarding entertainment of cross-objections and fixed 26.4.2002 for judgments. The judgements could not be delivered as the learned Government Pleader sought for adjournment and only on 1.6.2002 (31.5.2002) the respondents filed condonation petitions under Section 5 of the Limitation Act for entertaining the cross-objections filed on 28.11.2001. Mr. Talapatra submits that cross-objections could be filed by the respondents in pending appeals within thirty days from the date of service of notice upon the respondents or within such time as the court would allow.
In the present case, cross-objections were filed without seeking extension of time and those were heard finally on 6.4.2002 and the learned appellate court reserved the judgments to be delivered on 26.4.2002 (in another case on 25.4. 2002). Since the judgments could not be delivered on the date so fixed, the respondents herein filed condonation petitions on 1.6.2002 (31.5.2002). In the condonation petitions, the respondents made averments, inter alia, that at the time of argument on cross-objections, it was revealed from the record that the cross-objections had been filed after the expiry of period of limitation and at the time of filing the cross-objections, no petition for condonation of delay could be filed as it escaped the attention of the learned Government Pleader.
7. Mr. Talapatra, learned counsel for the petitioners having referred the preliminary objection petitions vehemently submits that in the preliminary objection petitions dated 12.12,2001, the petitioners categorically pointed out that the crose-objections having been filed after the expiry of period prescribed could not be entertained and were liable to be rejected in limine.
On scrutiny of the preliminary objection petitions dated 12.12.2001, it is transpired without any shadow of doubt that the respondents were apprised of the fact of filing of time barred cross-objections, but the respondents instead of taking any step seeking extension of time, participated in the hearing over cross-objections on 6.4.2002. These toeing the admitted positions, available from the record, it appear a that the respondents made a distorted averment in their condonation petitions stating that only at the time of argument, they could detect the inordinate delay caused in filing the cross-objections without accompanying any petition seeking extension of time.
8. Cross-objection normally cannot be entertained unless it is filed within a month from the date fixed by the court for hearing of the appeal and for genuine reason the court may extend the time for filing cross-objection. In the present case, the respondents neither filed the cross-objections within a month from the date of service of notice of hearing the appeal nor filed any petition seeking extension of time, rather they participated in the hearing on cross-objections on 6.4.2002 and having realised the consequence to be followed, the respondents filed condonation petitions under Section 5 of the Limitation Act on 1.6.2002 (31.5.2002).
9. It is correct that the learned appellate court could extend the time permitting the respondents to file cross-objection even after the expiry of period prescribed under Order XLI Rule 22(1) CPC, but in any case that must be done before the hearing of cross-objection. The appellant-petitioners by filing preliminary objection petitions on 12.12.2001 brought it to the notice of the respondents that their cross-objections had been hopelessly time barred. They did not choose to file any petition seeking extension of time. Extension of time for filing cross-objection under Order XLI Rule 22(1) CPC cannot be allowed after conclusion of argument but in the present case, the learned appellate court concluded the argument on 6.4.2002 and kept judgments reserved to be delivered on 26.4.2002 (25.4.2002) and the condonation petitions were filed on 1.6.2002 (31.5.2002).
10. Mr. Saha, learned senior Government Advocate relying on a decision of the Hon'ble Apex Court in Commissioner of Income-tax, Jullundur, Appellant v. Ajanta Electricals, Punjab, Respondent, reported in AIR 1995 SC 2172 submits that in view of Section 148 CPC, the application for extension of time for filing the cross-objection could be allowed even after expiry of the period stipulated in the Code.
The application for extension of time for filing the return under the Income Tax Act cannot be equated with a petition seeking extension of time for filing cross-objection in a pending appeal under Order 41 Rule 22(1) CPC and as such in my considered opinion, the decision of Commissioner of Income-tax (supra) is not applicable in the present case.
Mr. Saha also placed strong reliance on another decision of the Hon'ble Apex Court in Superintending Engineer and Ors., Appellants v. B. Subba Reddy, Respondent, reported in AIR 1999 SC 1747 and submits that even after expiry of the time prescribed by law, cross-objection could be entertained by the learned appellate court allowing extension of time.
On perusal of the decision rendered by the Hon'ble Apex Court in Superintending Engineer (supra), it appears that the learned appellate court could allow the respondents reasonable time to file cross-objections even after expiry of prescribed period of one month. In the present case, the respondent never sought for extension of time to file cross-objections, rather they filed the cross-objections on 28.11.2001, after expiry of one month stipulated under Order XLI Rule 22(1) CPC and extension of time was sought for on 1.6.2002 (31.5.2002) after the conclusion of argument over the cross-objections on 6.4.2002 and as such in my considered opinion, the decision of Superintending Engineer (supra) is not applicable in the present case.
12. It is the settled proposition of law, as has been enunciated by the Hon'ble Apex Court that before ascertaining the binding precedent under Article 141 of the Constitution of India, the court is to examine the ratio of a decision rendered by the Hon'ble Apex Court. A preferable reference may be had to the decision of the Hon'ble Apex Court in Delhi Administration (Now NCT of Delhi), Appellant v. Manoharlal, Respondent, reported in AIR 2002 SC 3088. The Hon'ble Apex Court in case of Superintending Engineer (supra) has never been called upon to decide whether a time barred cross-objection already filed without seeking extension of time could be cured by filing a petition seeking extension of time after hearing was concluded keeping the judgment reserved to be delivered and as such the case of Superintending Engineer (supra) has no manner of application In the present case.
13. Cross-objection is to be filed within the time prescribed under Order XLI Rule 22(1) CPC or may be filed getting extension of time granted by the appellate court, but in the present case, neither of the aforesaid conditions are fulfilled. The learned first appellate court in passing the impugned orders has miserably failed to construe the provision of law regarding filing of cross-objection within the meaning of Order XLI Rule 22(1) CPC, and as such in my considered opinion, the learned first appellate court failed to exercise its jurisdiction vested in it in accordance with the provision of law and thus the Impugned orders entertaining the time barred cross-objections suffer from jurisdictional error and are liable to be quashed/set aside.
14. In the result, both the revision petitions are allowed. The impugned orders dated 10.7.2002, passed in both the cases entertaining the cross-objections, filed by the respondents are hereby quashed/set aside.
No order as to costs.