Authored By : S.C. Ghose, J. Pratt

S.C. Ghose and J. Pratt, JJ.

1. Having disposed of the appeal of the Defendant No. 5,their Lordships continued:-We come to notice a cross-objection which has beenpreferred by the Plaintiff-Respondent under Section 561, Civil Procedure Code,on the 10th April 1901. We ought here to mention that the Sub D ordinate Judgewas of opinion that the claim of the Plaintiff as against the Defendants Nos. 1to 4 was barred by the law of limitation and the cross-objection preferred bythe Plaintiff seeks to impeach the correctness of the judgment of theSubordinate Judge on this head. The decree of the Subordinate Judge in thiscase was pronounced on the 11th September 1900. The appeal of the Defendant No.5, which is the appeal with which we are mainly concerned, was preferred on the8th of January 1901. The notice of this appeal was served upon the Plaintiff onthe 5th March 1901, but the cross-objection was not put in until the 10th April1901, that is to say, more than one month after the date when notice of theappeal was served on the Plaintiffs and thus the cross-objection is really outof time, having regard to the provisions of Section 561 of the Code. But beyondthis, if it was the intention of the Plaintiff to obtain any relief as againstthe Defendants Nos. 1 to 4 in spite of the judgment of the Subordinate Judge,it was her duty to serve the said cross-objection upon the said Defendants, butthis was not done. It will further be observed that the cross-objection issought to be pressed not against the Appellant (Defendant No, 5), but againstthe Plaintiffs co-Respondents, the Defendants Nos. 1 to 4 and it has beenargued on behalf of the Plaintiff that she is entitled to press it because thewording of Section 561 is very general so as to admit of a cross-objectionbeing pressed not only against the Appellant, but also against a co-Respondent.We are, however, unable to accept that view as correct. This question seems tohave been considered many a time in this Court under the old Civil ProcedureCode, as also under the new Civil Procedure Code. In the case of Anwar JanBibee v. Azmut Ali (1871) 15 W.R. 26, in which the facts were very similar tothose with which we are concerned in the present case, the learned Judges, indisallowing the cross-objection that was presented by one of the Respondents,observed as follows : "It has been held in a long series of decisions thatthe cross-appeal cannot reopen any questions which have been decided betweenthe co-Respondents, but must have reference to the Appellant and the pointswhich are in dispute between the Respondent who takes the cross-appeal and theAppellant. It is quite possible that there may be cases in which, when anAppellant succeeds in his appeal, questions will be opened up as between theco-Respondents -which would otherwise have been decided ; and it is alsopossible when interests are identical that a Respondent succeeding in hiscross-appeal may open up questions as between himself and his corRespondent.But that is not the case in this litigation." The same view was adopted ina comparatively recent case under the Code of 1882 and that is the case ofBishan Churn Roy Chowdhry v. Jogendra Nath Roy I.L.R. (1898) Cal. 114. Thelearned Judges in that case, after referring to various cases on the point,made the following observations:-"As a general rule the right of aRespondent to urge cross-objections should be limited to his urging themagainst the Appellants; and it is only by way of exception to this general rulethat one Respondent may urge cross-objections as against the other Respondents,the exception holding good (we do not attempt to lay down any definiteexhaustive rule on the point) among other oases In those in which the appeal ofsome of the parties opens out questions which cannot be disposed of completelywithout matters being allowed to be opened up as between co-Respondents. Oneinstance of this kind is to be found in cases of the class considered inUpendra Lil Mukerjee v. Girindra Nath Mukerjee I.L.R. (1898) Cal. 565 (which,we might here mention, was a case of contribution). The view we take is inaccordance with that taken in the case of Anwar Jan Bibee v. Azmut Ali (1871)15 W.B. 26 to which we have already referred. Is there anything in this casewhich may be taken as an exception to the general rule that the right of aRespondent to urge cross-objections should be limited to his urging themagainst the Appellants and could it be said that the appeal preferred by theDefendant No. 5 opens cat questions which cannot be disposed of completelywithout the matters decided against the Plaintiff by the Court below beingopened up as between the Plaintiff on one hand and the Defendants Nos. 1 to 4on the other We think not. For these considerations, we are unable to give anyeffect to the cross-objection that was preferred out of time by the Plaintiff-Respondent.

2. The learned vakils for the Plaintiff-Respondent, however,have, presented a petition to us, asking permission to file an appeal againstthe decree of the Subordinate Judge in this case so far as that decreedisallows her claim as against the Defendants Nos. 1 to 4; and they have urgedthat, having regard to the fact that the real Plaintiffs are minors and thatthey were advised that it was not necessary to prefer an appeal against thedecree of the Subordinate Judge, but that it would serve all purposes if across-objection were directed against the Defendants Nos. 1 to 4, we should nowreceive the appeal, though considerably beyond time. We have considered thismatter carefully, but we are bound to say that we do not see our way to grantsuch a prayer of the Respondent. No doubt Section 5 of the Limitation Act (XVof 1877) does not give any illustration as to what may or may not be asufficient cause for extending the time of limitation, within which a suit oran appeal ought to be preferred, but is there really anything in thecircumstances of this case which would justify us in relaxing the rule oflimitation and in holding that there was sufficient cause within the meaning ofSection 5 for the Plaintiff-Respondent not preferring her appeal against thedecree of the Court below within such a long time as has elapsed between the11th September 1900 and the present date We might here mention that thisapplication to prefer an appeal against the decree of the Subordinate Judge wasnot thought of until the arguments in the case had been practically closed. Thelearned vakils for the Plaintiff-Respondent have been throughout urging upon usthat we should treat the cross-objections preferred on the 10th April 1901 asobjections which could rightly be preferred not only against the Appellant, butalso against the Defendants Nos. 1 to 4 and it was not until the arguments cameto a close that a petition was presented to us asking that the Plaintiff shouldbe allowed now to file an appeal, though so much out of time, against thedecree of the Subordinate Judge. We accordingly refuse this application. Thepetition of appeal with the annexures which were placed before us will bereturned.

3. We observe that the petition of appeal is engrossed on astamp of Rs. 295. That clearly is due to a misapprehension of what fell fromthe Court the other day at the close of the arguments in this appeal.

4. The result is that the appeal is decreed and thecross-objection disallowed. The Appellant is entitled to recover his costs ofthis Court as well as that of the Lower Court from the Plaintiff-Respondent.

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