K. JAYASREE PRABHU and K. AKSHATHA PRABHU v. SPECIAL TAHSILDAR(LA), MINI CIVIL STATION, THALASSERRY; REGISTRAR, KANNUR UNIVERSITY; GOVERNMENT OF KERALA, rep. by DISTRICT COLLECTOR, KANNUR

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 16[TH] DAY OF JANUARY 2023 / 26TH POUSHA, 1944** **REVIEW PETITION NO. 927 OF 2022 AGAINST THE ORDER DATED 04.08.2022 IN C.M.APPL.NO.1 OF 2022 IN L.A.A.NO.284 OF 2022 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONERS/PETITIONERS/APPELLANTS:** - **1 K. JAYASREE PRABHU AGED 60 YEARS** **W/O.K.ASHOKA PRABHU, INLAND ELITE 203, RAMAN PAI HALL, NAVA BHARATH CIRCLE, P.O.KODIALBAIL, MANGALORE - 575 003.** - **2 K.AKSHATHA PRABHU AGED 36 YEARS** - **D/O.K.ASHOKA PRABHU, INLAND ELITE 203, RAMAN PAI HALL, NAVA BHARATH CIRCLE, P.O.KODIALBAIL, MANGALORE - 575 003.** **BY ADV K.RAJESH SUKUMARAN** ## **RESPONDENTS/RESPONDENTS/RESPONDENTS NO.1 TO 3:** - **1 THE SPECIAL TAHSILDAR(LA) MINI CIVIL STATION, P.O.THALASSERRY - 670 101.** - **2 THE REGISTRAR KANNUR UNIVERSITY, THAVAKKARA, P.O.CIVIL STATION, KANNUR - 670 002.** - **3 GOVERNMENT OF KERALA REP. BY DISTRICT COLLECTOR, KANNUR - 670 002. SMT DEVISHRI R., GOVT.PLEADER FOR R1 AND R3 SRI I.V.PRAMOD FOR R2** 2 Review Petition No.927 of 2022 in C.M.Appl.No.1 of 2022 in L.A.Appl.No.284 of 2022 **THIS REVIEW PETITION HAVING COME UP FOR FINAL HEARING ON 14.12.2022, THE COURT ON 16.01.2023 DELIVERED THE FOLLOWING:** 3 Review Petition No.927 of 2022 in C.M.Appl.No.1 of 2022 in L.A.Appl.No.284 of 2022 ## **O R D E R** ## P.G.Ajithkumar, J. L.A.A.No.284 of 2022 was filed by the petitioners against the judgment and decree in L.A.R.No.400 of 2011 dated 30.03.2013 of the Subordinate Judge’s Court, Thalassery. There was a delay of 2450 days in filing the appeal. As per the order dated 04.08.2022, C.M.Appl.No.1 of 2022 filed by the appellants seeking to condone the said delay was dismissed. Consequently the appeal was also dismissed. The petitioners have filed the Review Petition under Order XLVII, Rule 1 read with Section 114 of the Code of Civil Procedure, 1908 essentially contending that the observation in the said order that a Cross Objection should be filed within one month from the date of receipt of the consolidated notice in the petition to condone the delay and the appeal is an error. 2. Heard the learned counsel appearing for the petitioners, the learned Senior Government Pleader for 4 Review Petition No.927 of 2022 in C.M.Appl.No.1 of 2022 in L.A.Appl.No.284 of 2022 respondents 1 and 3 and the learned Standing Counsel appearing for the 2[nd] respondent. 3. A brief description as to what were transpired during the pendency of L.A.Appl.No.107 of 2014 is required to appreciate the contentions of the petitioners. Their counsel in fact filed Vakalath for these petitioners, who are respondent Nos.18 and 22 and also respondent No.7 in that appeal. He retained Vakalath for the present petitioners, but relinquished Vakalath for respondent No.7. This Court mistakenly omitted to show his name as counsel of respondent Nos.18 and 22 when the said appeal along with the delay condonation petition was listed. That resulted in his failure to appear before the Court when that appeal and petition were taken up for hearing. Therefore, the present petitioners could not file a Cross Objection in L.A.A.No.107 of 2014 before its disposal. Although the petitioners filed an application to reopen the appeal so as to enable them to file a Cross Objection, that was not permitted. Therefore, the 5 Review Petition No.927 of 2022 in C.M.Appl.No.1 of 2022 in L.A.Appl.No.284 of 2022 petitioners filed L.A.A.284 of 2022 and it was in such circumstances, the delay of 2450 days was occasioned in filing the appeal. 4. The petitioners would contend that this Court on a wrong premise that a Cross Objection should be filed within one month from the date of receipt of notice in the application for condonation of delay in filing the appeal, refused to condone the said delay. While dismissing C.M.Appl.No.1 of 2022 in L.A.A.No.284 of 2022 it was observed that the petitioners entered appearance in the C.M.Appl. and the appeal, L.A.A.No.107 of 2014, on 05.06.2014, and therefore, they ought to have filed Cross Objection within one month from that date. The Apex Court in **Mahadeva Govind Gharge and others v. Special Land Acquisition Officer, Upper Krishna Project Karnataka [(2011) 6 SCC 321]** held,- “55. If we examine the provisions of Order XLI Rule 22 of the Code in its correct perspective and in light of the above stated principles then the period of limitation 6 Review Petition No.927 of 2022 in C.M.Appl.No.1 of 2022 in L.A.Appl.No.284 of 2022 of one month stated therein would commence from the service of notice of the day of hearing of appeal on the respondent in that appeal. The hearing contemplated under Order XLI Rule 22 of the Code normally is the final hearing of the appeal but this rule is not without any exception. The exception could be where a party respondent appears at the time of admission of the appeal, as a caveator or otherwise and argues the appeal on merits as well as while passing of interim orders and the Court has admitted the appeal in the presence of that party and directs the appeal to be heard finally on a future date actual or otherwise, then it has to be taken as complete compliance of the provisions of Order XLI Rule 22 of the Code and thereafter, the appellant who has appeared himself or through his pleader cannot claim that period mentioned under the said provision of the Code would commence only when the respondent is served with a fresh notice of hearing of the appeal in the required format. If this argument is accepted it would amount to travesty of justice and inevitably result in delay while causing serious prejudice to the interest of the parties and administration of justice. Such interpretation would run contra to the legislative intent behind the provisions of Order XLI Rule 11 of the Code which explicitly contemplate that an appeal shall be heard expeditiously and disposed of as far as possible 7 Review Petition No.927 of 2022 in C.M.Appl.No.1 of 2022 in L.A.Appl.No.284 of 2022 within 60 days at the admission stage. All the provisions of Order XLI of the Code have to be read conjunctively to give Order XLI Rule 22 its true and purposive meaning. Having analytically examined the provisions of Order XLI Rule 22, we may now state the principles for its applications as follow: (a) Respondent in an appeal is entitled to receive a notice of hearing of the appeal as contemplated under Order XLI Rule 22 of the Code; (b) The limitation of one month for filing the crossobjection as provided under Order XLI Rule 22 of the Code shall commence from the date of service of notice on him or his pleader of the day fixed for hearing the appeal. (c) Where a respondent in the appeal is a caveator or otherwise puts in appearance himself and argues the appeal on merits including for the purposes of interim order and the appeal is ordered to be heard finally on a date fixed subsequently or otherwise, in presence of the said respondent/caveator, it shall be deemed to be service of notice within the meaning of Order XLI Rule 22. In other words the limitation of one month shall start from that date. 56. Needless to notice that the cross-objections are required to be filed within the period of one month from the date of service of such notice or within such 8 Review Petition No.927 of 2022 in C.M.Appl.No.1 of 2022 in L.A.Appl.No.284 of 2022 further time as the Appellate Court may see fit to allow depending upon the facts and circumstances of the given case. 57. Since the provisions of Order XLI Rule 22 of the Code itself provide for extension of time, the Courts would normally be inclined to condone the delay in the interest of justice unless and until the cross-objector is unable to furnish a reasonable or sufficient cause for seeking the leave of the Court to file cross-objections beyond the statutory period of one month.” 5. Even if it is taken that receipt of notice by a respondent in the application for condonation of delay and also the appeal together consequent to which they entered appearance is the starting point for the period of 30 days to file a Cross Objection, the court is well within its powers to extent the time for filing cross objection. As held by the Apex Court, the appellate court has certainly can reckon such a developments and allow filing of a cross objection. 6. The omission to show the name of the counsel of the petitioners in the cause list whilst listing L.A.A. No.107 of 2014 is not a disputed fact. It was for that reason the 9 Review Petition No.927 of 2022 in C.M.Appl.No.1 of 2022 in L.A.Appl.No.284 of 2022 petitioners could not appear in that appeal in time. If they appear in that appeal, they would have been able to file the Cross Objection; whether or not the court should have entertained it. 7. Having heard the learned counsel appearing for the petitioners and also the learned Senior Government Pleader and Standing Counsel for the 2nd respondent, we do not propose to go in detail to that controversy. 8. The maxim 'Actus Curiae neminem gravibit” which means that the act of the court shall prejudice no one applies to this case. Since such a lapse occasioned on the part of the Court, it is appropriate to take a lenient view in the matter. This Court while rendering the Order dated 04.08.2022 did not consider the said matter in such a perspective and therefore we are of the view that on taking a lenient view, the delay occasioned in filing L.A.A.No.284 of 2022 can be condoned. 10 Review Petition No.927 of 2022 in C.M.Appl.No.1 of 2022 in L.A.Appl.No.284 of 2022 9. In such circumstances, the Review Petition is allowed and consequently, C.M.Appl.No.1 of 2022 in L.A.A.No.284 of 2022 is allowed. List the appeal for admission. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr