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Parsu Antu Bardeshkar Vs. Tamas Shahu Bardeshkar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case Number Second Appeal No. 1060 of 1971
Judge
Reported in(1979)81BOMLR359; 1978MhLJ572
AppellantParsu Antu Bardeshkar
RespondentTamas Shahu Bardeshkar
DispositionAppeal dismissed
Excerpt:
.....against a co-respondent.;though, generally speaking, a respondent in an appeal cannot file cross-objections against a co-respondent, such cross-objections are nevertheless maintainable, if an exceptional case in. that behalf is made out and accepted by the court.;the question whether cross-objections filed by a respondent against a co-respondent are or are not maintainable has to be decided with reference to the facts of each case, and there cannot, in this behalf, be any uniform answer to the question in the abstract. much will depend upon the nature of the suit, the nature of the contention raised therein, the nature of the issues arising for determination and finally the nature of the decree passed.;paniia lal v. stale of bombay [1963] a.i.r. s.c. 1516, s.c. 66 bom. l.r. 100,..........the conclusion that the plaintiff as a respondent before the district court was entitled to file cross-objections against co-respondents in the appeal to the district court. according to him, the said cross-objections were not maintainable and the same were in law liable to be dismissed in limine. mr. abhyankar contended that the decision of the supreme court in parma lal v. state of bombay : [1964]1scr980 , has not been correctly construed by the learned district judge. on its correct interpretation. mr. abhyankar further contended, conclusion must follow that the impugned memorandum of cross-objections by respondent no. 1 - the original plaintiff before the district court was not maintainable and on that ground alone (apart from other grounds), the same was liable to be dismissed......
Judgment:

Pratap, J.

1. Apart from certain questions of fact which Mr. K. J. Abhyankar, the learned advocate for defendants Nos. 2 and 3, has unsuccessfully sought to raise in this second appeal, he has also, in addition thereto, raised for my determination a rather interesting question of law relating to the correct interpretation of the provisions of Order XLI, Rule 22 of the Code of Civil Procedure prior to its amendment by the Code of Civil Procedure (Amendment) Act, 1976.

2. [His Lordship, after stating the facts of the case and dealing with points not material to this report, proceeded.]

3. The last contention of Mr. Abhyankar, however, raises not merely a simple question of law but also an interesting question of law. It is the contention of Mr. Abhyankar that the learned district Judge erred in law in holding and coming to the conclusion that the plaintiff as a respondent before the District Court was entitled to file cross-objections against co-respondents in the appeal to the District Court. According to him, the said cross-objections were not maintainable and the same were in law liable to be dismissed in limine. Mr. Abhyankar contended that the decision of the Supreme Court in Parma Lal v. State of Bombay : [1964]1SCR980 , has not been correctly construed by the learned District Judge. On its correct interpretation. Mr. Abhyankar further contended, conclusion must follow that the impugned memorandum of cross-objections by respondent No. 1 - the original plaintiff before the District Court was not maintainable and on that ground alone (apart from other grounds), the same was liable to be dismissed. Mr. Divekar, the learned advocate for respondent No. 1 - the original plaintiff, has in reply contended that the cross-objections in question were perfectly maintainable and the finding in that behalf recorded by the learned district Judge was fully justified in law. According to him, the question whether cross-objections against co-respondents are or are not maintainable had to be decided with reference to the facts and facts of each case and there cannot, in this behalf, be any uniform answer to the question in the abstract. Much will depend upon the nature of the suit, the nature of the contentions raised therein, the nature of the issues arising for determination and finally the nature of the decree passed. If these factors, which are all, according to Mr. Divekar, relevant, are taken into consideration, there can be no difficulty in agreeing with the learned District Judge that the cross-objections before the District Court were maintainable.

4. Now, under the provisions of Order XLI, Rule 22 as the same stood at the relevant time, 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 may also take any cross-objection to the decree which he could have taken by way of appeal. On the plain wording of the said provision, therefore, the impugned cross-objections in the present case do appear to be ex facie maintainable because, in this case, the decree passed by the trial Court was partly against the plaintiff and it was therefore, open to the plaintiff to have filed an appeal therefrom and raised objections to that part of the decree which was against him. If that is so, then on the plain reading of Order XLI, Rule 22, the plaintiff could have raised the same objections to the impugned decree also by filing cross-objections against the same. But Mr. Abhyankar is right in his contention that, generally speaking, cross-objections are not maintainable against a co-respondent and the said contention of Mr. Abhyankar is indeed warranted by a number of decisions. Mr. Divekar also does not quarrel with the said general proposition, viz. that generally speaking cross-objections are not maintainable against a co-respondent,

5. It is, however, pertinent to note that some of the decisions which rightly hold that cross-objections are not maintainable against a co-respondent also further hold that in certain special and /or exceptional cases even such cross-objections against a co-respondent are indeed maintainable. So far as this Court is concerned, we have a Division Bench ruling in Nursey v. Harrison : (1913)15BOMLR781 , where, after laying down the general principle that cross-objections provided for by Order XLI, Rule 22 of the Code of Civil Procedure are objections which are aimed against an appellant and not objections against a co-respondent, the division Bench further observed that.There are, no doubt, exceptional cases in which the rule might be relaxed so as to allow a cross-objection by a respondent against a co-respondent;...(p. 782).

In that particular matter before them, however, the division Bench came to the conclusion that the case before them was not such a case and because the said case before them did not fall within the class of exceptional cases, the cross-objections therein were not permitted to be agitated. This position is further reiterated by another Division Bench of this Court in Lakshman v. Bhikchand [1930] A.I.R. Bom. 1 : 31 Bom. L.R. 1179, where after referring to the aforesaid earlier division Bench ruling, the Court held that even in the case before it no exceptional ground was made out as to why the cross-objections against a co-respondent should be allowed and, therefore, the Court did not think that a special indulgence should be granted to the cross-objectors in that case. Same is the interpretation of Order XLI, Rule 22 by at least a few other High Courts in this country and the question must now be held to have been finally settled by virtue of the Supreme Court ruling in Panna Lal v. State of Bombay (supra). In the said ruling, after reference to several decisions of different High Courts, the Supreme Court held as follows (p. 1520):

In our opinion, the view that has now been accepted by all the High Courts that Order 41, Rule 22 permits as a general rule, a respondent to prefer an objection directed only against the appellant and it is only in exceptional cases, such as where the relief sought against the appellant in such an objection is intermixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the question being re-opened between the objecting respondent and other respondents, that an objection under Order 41, Rule 22 can be directed against the other respondents, is correct.

If this then is the position settled more than once by different High Courts of this country and finally by the Supreme Court, I think it is too late in the day to now argue that a respondent to an appeal can in no circumstance file cross-objections against a co-respondent. The position is well settled that though, generally speaking, respondent in an appeal cannot file cross-objections against co-respondent, such cross-objections are nevertheless maintainable if an exceptional case in that behalf is made out and accepted by the Court.

6. The question, therefore, that arises for further determination in this case is whether the plaintiff as respondent No. 1 before the district Court can be said to have established that his particular case by way of cross-objections before the District Court fell within the class of exceptional cases. As rightly contended by Mr. Divekar, this question does not have a uniform answer and each case must be decided by reference to the nature of the dispute and the nature of the decree passed. As the facts of this case show, the original suit was for possession of entire pieces of agricultural lands on the basis of a gift-deed executed in favour of the plaintiff by one Antu. The defence of the contesting defendants was that the gifted properties did not belong to Antu alone but to Antu and his sons defendants Nos. 1, 2 and 3. This defence was partly accepted by the trial Court holding that the gifted properties were not exclusively of Antu's ownership but of Antu and his two sons defendants Nos. 1 and 2. A decree accordingly was passed in favour of the plaintiff only in respect of 2/3rd share in the property, the remaining I/3rd, according to the trial Court, belonging to defendant No. 2. It was further held by the trial Court that defendant No. 3 was not entitled to any share in the suit properties. This decree was challenged in appeal by defendant No. 3 contending that the suit properties should have been held to be the joint acquisitions not only of the father Antu and his two sons defendants Nos. 1 and 2 but of the father Antu and his three sons defendants Nos. 1 and 2 and defendant No. 3 himself. In the said appeal, the original plaintiff as respondent No. 1 preferred cross-objections against the decree contending that the suit properties should have been held to be the exclusive properties of Antu and that his suit should have been decreed in its entirety and not only with respect to 2/3rd share in the suit properties.

7. Now, in such a proceeding constituted by the confluence of the appeal and the cross-objections aforesaid, consideration of the said appeal would necessarily involve consideration of the question whether the acquisition was joint or exclusive. It would also involve consideration of the question as to what share defendant No. 3 would be entitled to in case it is found in his favour that he also was entitled to a share in the suit properties on the basis of his purported contribution to the purchase price thereof. Going into the appeal, therefore, necessarily involves also going into the contention of the plaintiff himself that the property was exclusively Antu's and, therefore, of the plaintiff's. Going into the cross-objections also necessarily involves going into the question whether the contention of joint acquisition by Antu and of his three sons including defendant No. 3 was correct or not. The contentions, therefore, are so intermixed that it is virtually impossible to separate one from the other. It is also virtually impossible to decide one without deciding the other. The reliefs claimed before the learned district Judge by the parties were also so intermixed that it was not possible to consider whether a particular relief should be granted or not without considering whether another relief should be rejected or not. In other words, relief claimed by the plaintiff in his cross-objections against defendant No. 2 was intermixed with the relief claimed by and/or to be granted to the appellant-defendant No. 3. To put it differently, relief claimed by the plaintiff before the district Court could not be finally dealt with and granted unless relief claimed by defendant No. 3 - appellant before the district Court was finally dealt with and rejected. It also cannot be ignored that the nature of the cross-objections filed by the plaintiff was such that even the appellant before the district Court was vitally interested therein and Was vitally affected thereby because, according to the said appellant-defendant No. 3, the property was joint, whereas, according to the plaintiff who had preferred cross-objections, the property was exclusively of Antu and thereafter of the plaintiff. Whether the property was joint or exclusive was a question which had to be decided not only in the appeal filed by defendant No. 3 but also in the cross-objections filed by the plaintiff. In these circumstances, the cross-objections cannot be said to be aimed only at a co-respondent. In fact, the true nature and effect of the said cross-objection was that it was directed not only expressly against a co-respondent but also effectively and impliedly against the appellant. Such has been the conjoint position in the appeal and the cross-objections because of the very nature of the suit, the defence raised therein by the contesting defendants, and the decree passed. Whereas the plaintiff had pleaded his exclusive interest in the suit properties, the contesting defendants had pleaded, if one may say so, a community of interest in that behalf in respect of the suit properties. The controversy thus arising in the suit was such that in an appeal from a decree therein as of the nature passed in the present case, any cross-objections filed by any of the respondents must necessarily involve reopening of the controversy which in turn necessarily involved an attack also against the contentions raised by the appellant. In my opinion, the position before the learned district Judge was such that the appeal before him involved reopening of the entire controversy in the suit and the cross-objections before him also involved reopening of the entire controversy in the suit. The very integrity of the decree, if one may say so, was put in jeopardy as a whole. These then are the peculiar and special facts and circumstances which must consequently bring the plaintiff's cross-objections in the district Court within the class of exceptional cases where a respondent would be entitled to file cross-objections against a co-respondent. If that be the position, the learned district Judge was right in entertaining the said cross-objections and holding the same to be maintainable.

8. In this context, a reference may also be made to a decision of a division Bench of the Allahabad High Court in Abdul Ghani v. Muhammad Fasih (1965) I.L.R. 28 All. 95, where it was laid down as follows (at p. 95):

Where it is necessary for the proper decision of an appeal before it, it is competent to an appellate Court to take into consideration objections filed under Section 561 of the Code of Civil Procedure by one of the respondents, not only as against the appellant, but, it may be, as against the co-respondents with the objector also, and to modify the decree as against them accordingly.

The said decision has also been succinctly referred to in Mulla's Code of Civil Procedure, thirteenth edn., vol. II at p. 1591, where, expressing in simple language the ratio of the aforesaid division Bench ruling of the Allahabad High Court, it is observed by the learned author as follows :.Similarly, when the decree appealed from, proceeds on a ground common to all the patties against whom it is passed, and the appeal is preferred by name only of such parties, e.g., where the suit is - A v. B and C, and a decree is passed both against B and C, and the appeal is - B v. A and C, A who is the plaintiff respondent may prefer cross-objections not only against B, the appellant, but against C, the co-respondent. A sues B and C to recover Rs. 5,000, alleged to be his share of the profits of certain lands. A decree is passed for A for Rs. 3,000 against B and C, B appeals from the decree. C does not join B in the appeal, and he is, therefore, made a party respondent. The appeal thus is - B v. A and C. In such a case, it is open to A to prefer cross-objections not only against B, but also against C, in respect of that portion of his claim that was disallowed by the Court of first instance namely Rs. 2,000.

The facts of the present case before me are, if I may say so, somewhat similar and the ratio of the Allahabad division Bench ruling is, in my view, directly applicable to this case. If under such circumstances, the division Bench there has come to the conclusion that such cross-objections were maintainable and it similar be the facts before me, I see no reason to take any different view of the matter in this case.

9. Adverting once again to the decision of the Supreme Court in Panna Lal v. State of Bombay, (supra) both Mr. Abhyankar as also Mr. Divekar, the learned advocates for the respective parties, strongly relied upon the same. Having carefully gone through the said decision as also through some of the High Court decisions referred to therein, 1 find that the aforesaid Supreme Court ruling supports in the present case the contentions of Mr. Divekar, the learned advocate for the plaintiff. Indeed, the trend of the Supreme Court decision is towards a somewhat liberal interpretation of the provisions of Order XLI. Rule 22 in keeping with such liberal interpretation already given to the said provision by various High Courts of this country. Indeed, the Supreme Court has in para. 18 of its judgment also observed that even the Legislature wanted to give effect to the views held by different High Courts that in exceptional cases an objection can be preferred by a respondent against a co-respondent. I may add that this intention of the Legislature is further liberalized by the recent amendment to the Civil Procedure Code by virtue of the Code of Civil Procedure (Amendment) Act of 1976. By virtue of the said amendment, cross-objections are now permitted even against a finding, a position well settled to the contrary prior to the said amendment. Whereas earlier to the said amendment cross-objections were not maintainable against a finding, the same are now maintainable by virtue of an express amendment to that effect in O, XLI, Rule 22. This distinct step forward indicates inter alia that the object ultimately of Order XLI, Rule 22, as indeed of the entire Code of Civil Procedure, is to do justice between the parties. Rules of procedure are, after all, handmaids of justice intended ultimately to bring about and establish justice between the parties. If that is so, then every rule of procedure should, as far as fairly possible and as far as reasonably amenable, be so interpreted as to result in the achievement of that raison d'etre.

10. In the circumstances and in this view of the matter that I take, I confirm the finding recorded, though upon a rather cryptic reasoning, by the learned district Judge to the effect that the cross-objections filed before him by the plaintiff-respondent No. 1 were maintainable.

11. In the result, this appeal fails and is consequently dismissed. However, in the circumstances of the case, I leave the parties to bear their respective costs of this appeal.


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