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Deoki Nandan Vs. Makhan Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 926 of 1949
Judge
Reported inAIR1961All386
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 - Order 41, Rules 22 and 33; Limitation Act, 1908 - Sections 3
AppellantDeoki Nandan
RespondentMakhan Lal and ors.
Appellant AdvocateB.L. Chaturvedi, Adv.
Respondent AdvocateS.B.L. Gaur, Adv.
DispositionAppeal allowed
Excerpt:
(i) civil - discretion of court to extend time limit - order 41, rule 22 of code of civil procedure, 1908 - court enjoys discretionary power in extending time limit - discretion to be exercised judicially on sufficient reason being shown - when no cause is shown by defaulter or reasons given are false on face of it court should not exercise discretion. (ii) limitation - res judicata - section 3 of limitation act, 1908 and section 11 and order 41, rule 33 of code of civil procedure, 1908 - plea of limitation raised in trial court and decided against defendant - no appeal by defendant against decree - plaintiff filed appeal against part of decree - appellate court suo moto took decision on limitation and reversed order of trial court - section 3 of limitation act subject to principle of.....s.s. dhavan, j.1. this is a plaintiff's second appeal against the decree of the learned district judge, agra dismissing his suit for redemption of a mortgage. this mortgage was made in the year 1874 by one tulfi in favour of a man called kan-hayia ram. the amount borrowed under the mortgage was rs. 99/- repayable within 5 years together with simple interest at rs. 1/4/- per mensem. the mortgage contained a condition that the mortgagee would be entitled to take possession of the land in the event of default in payment of any instalments of one year's interest. it appears that such a default did take place with the result that kanhayia ram filed a suit for possession which was decreed and possession delivered to him. after this, the mortgage became usufructuary.the plaintiff appellant.....
Judgment:

S.S. Dhavan, J.

1. This is a plaintiff's second appeal against the decree of the learned District Judge, Agra dismissing his suit for redemption of a mortgage. This mortgage was made in the year 1874 by one Tulfi in favour of a man called Kan-hayia Ram. The amount borrowed under the mortgage was Rs. 99/- repayable within 5 years together with simple interest at Rs. 1/4/- per mensem. The mortgage contained a condition that the mortgagee would be entitled to take possession of the land in the event of default in payment of any instalments of one year's interest. It appears that such a default did take place with the result that Kanhayia Ram filed a suit for possession which was decreed and possession delivered to him. After this, the mortgage became usufructuary.

The plaintiff appellant Farasram is the succes-sor-in-interest of the mortgagor Tulfi and the defendant respondents of the mortgagee Kanhayia Ram. It is not necessary to relate how they acquired their respective interests. In 1939 the appellant Panisram filed his suit for redemption of the mortgage. The defendants contested it on several grounds and pleaded inter alia that it was time-barred. He even denied the execution of the mortgage. Tho trial court framed an issue on the question of limitation and held that the suit was within time.

He further held that the plaintiff Parasram is a representative of the original mortgagor and therefore entitled to redeem the mortgage. He held the defendants to be the mortagees of the land in dispute. He decreed the plaintiff's suit for redemption, but held that the contractual rate of interest was excessive and should be reduced. Accordingly, he changed it from Rs. 1/4/- per mensem simple interest to 12 per cenf compound interest with six monthly rests for the period between 1878 and 1929, 7 per cent compound interest with yearly rests from 1930 to 1935, 6 per cent compound interest from 1935 to 1941.

But, instead of being reduced as a result of this change, the total amount of interest was increased from Rs. 900/- to the huge total of Rs. 75,116/7/-. Obviously the learned Judge did not care to verify by actual calculation the results of his changing simple interest into compound. It he had, he would have discovered that instead of reducing the total amount of interest he had unwillingly increased it to a fantastic amount.

2. The defendants did not appeal against the decree. But the plaintiff was dissatisfied with the finding of the trial court that he was entitled to redeem an area of 5 bighas 17 biswas only whereas his suit was for 17 bighas 5 biswas. He also felt aggrieved with the learned Judge's directions changing the rate of interest from simple to compound which had the effect of swelling the total amount to the enormous total of Rs. 75,116/7/3. He filed an appeal against these two parts of the decree and prayed that the directions of the trial court regarding the amount of interest be replaced by proper directions for taking accounts.'

3. Seven years after the filing of the appeal, the defendants filed a cross-objection. The learned District Judge condoned the delay and admitted it. As his decision to condone the delay has beenchallenged in this appeal, it is necessary to relate in some detail the chronology of events in the appellate court. Parasram's appeal was filed or 30-1-1941. The office reported a deficiency ir court-fee of Rs. 6/12/- which was made good On 22-2-1941 the appeal was registered, and or 21-3-1941 it was admitted after a preliminary hear-ing under Order 41, Rule 11, C. P. C.

However, on 8th April 1941 the office agair raised the question of court-fee and on 31-5-1941 the learned District Judge passed an order directing the plaintiff to pay court-fee ad valorem within three months. Meanwhile, on 20-5-1941 a memorandum of appearance was filed on behalf of Gulab Rai and others by Mr. R. C, Gupta who had conducted the case for the defendants in the trial court. It stated that he was appearing 'for pleading only'. Between 1941 and 1946 no further progress was made in the appeal as the plaintiff had come to this Court in appeal against the order of the District Judge directing him to pay court-fee ad valorem.

The appeal was dismissed for default and a subsequent application for restoration was also rejected on 16-2-1945. On the return of the record, the plaintiff appellant paid, on 11-4-1946, Rs. 7/8/-towards the deficiency in court-fee and on 27-4-1046 the court accepted this amount by an order stating that the appeal was sufficiently stamped. It is difficult to reconcile this order with the previous

order on 31-5-1941, but Mr. B. L. Chaturvedi, who connected the case in the lower courts stated that the District Judge was persuaded to revise his pre-vious opinion and take the view that there was no deficiency in court-fee after payment of Rs. 7/8/-. On 4-8-1946 the plaintiff appellant deposited the process fee and notice was issued to the defendant respondents fixing 29-5-1946 as the date of the final bearing of the appeal. On 12-5-1946 notice was served on the respondents by affixation which was subsequently held by the court to be sufficient.

On 27th May another memorandum of appearance was filed by Mr. R. C. Gupta, Advocate on behalf of the defendant Jwala Prasad. This too stated that he was appearing 'for pleading only'. On 9-7-1946 the appeal was called up, when Mr. R. C. Gupta appeared on behalf of the defendants Jwala Prasad and Gulab Rai and the other defendants were noted as absent. The court, in the presence of counsel for the parties, fixed 25-7-1946 for final hearing of the appeal but the appeal could not be heard on that day because an application for adjournment was made on 9-7-1946 on behalf of the defendant Jwala Prasad. Eventually, the final hearing commenced on 10-10-1946 when counsel for the defendant respondents again raised a preliminary objection about the deficiency of

The learned Judge upheld the preliminary objection and called upon the plaintiff appellant to pay, within six months, court-fee ad valorem upon the sum of money held to be payable by the trial court as a condition of redemption. It may be noted at this stage that the appellate court passed different orders on different dates on the questionof court-fee. On 22-2-1941 Mr. S. P. Chandira-mani held that the deficiency had been made good and directed the appeal to be registered.

On 31-5-1941 he directed the plaintiff, to pay court-fee ad valorem. On 11-4-1946. when the plaintilf paid a further fee of Rs. 7/8/-, the court (Mr. Padam Nabhan) held that the appeal was sufficiently stamped. Finally on 10-10-1946 he directed the plaintiff to pay court-fee ad valorem on the amount held by the trial court to be payable on redemption. The plaintiff took time for making good the deficiency which amounted to nearly Rs. 2600/-.

The final hearing was also delayed by the death of the original plaintiff Parasram and the substitution of his son Deoki Nandan (the present appellant) in his place. Finally, the deficiency was made good on 20-8-1947 and the appeal was ready for hearing once again. On 22-12-1947 the court fixed 9th February 1948 for the final hearing and counsel for the parties were informed. This date was, however, adjourned to 1-4-1948 at the instance of the plaintiff appellant.

4. On 17-2-1948 the defendant respondents filed a cross-objection accompanied by an application (supported by an affidavit) for condonation of the delay in filing it. The affidavit was sworn by the defendant Sri Jwala Prasad who alleged that 'no notices were issued to the respondents after the admission of the appeal and payment of court-fee'. He further stated that 'the respondents came to know about the appeal and the date fixed only about two weeks back through his counsel's clerk Mr. Darbari Lal.'

He. therefore, claimed that the cross-objection was within limitation but if the court held otherwise, he prayed for condonation of the delay in filing it. Jwala Prasad's allegation that he knew about the appeal only two weeks prior to 9-2-1948 was obviously untrue, but the cross-objection resulted in the adjournment of the final hearing of the appeal itself. Ultimately after several adjournments the appeal was finally heard on 31-3-1949. The learned District Judge condoned the delay in the filing of the cross-objection and heard it on merits with the appeal.

On 11-4-1949 the learned District Judge upheld all the objections raised by the defendants in their cross-objection. He held that the entire suit was barred by limitation. He also upheld the other objection that the plaintiff had failed to establish that the land in dispute was the same as that mortgaged in 1874. Accordingly, he dismissed the plaintiff's suit in toto, with the result that he was deprived even of the decree which he had obtained from the trial court. Aggrieved by this decision the plaintiff has come to this Court in second appeal.

5. There were five respondents in this appeal Makhan Lal, Gulab Rai, Ram Charan, Jwala Prasad and Janki Prasad. They are brothers. During the pendency of this appeal. Ram Charan died. No steps were taken to bring his representatives on record, with the result that the appeal abated as against Ram Charan. When the appeal was called up for hearing before Hon'ble Upadhya, J. thesefacts were not brought to his notice with the result that he heard and decided the appeal in ignorance of the fact that it had already abated as against one of the respondents.

The learned Judge delivered his judgment on 24-8-1956 when he allowed the appeal. He did not interfere with the discretion of the District Judge in condoning the delay in the filing of the cross-objection, but. disagreed with him on the merits of the case. He held that the plaintiff's suit was not barred by limitation and also disagreed with the District Judge on the question of the identity of the mortgaged property sought to be remedied. He did not approve of the trial court's decision on the question of interest and described the amount of Rs. 75,116,-7/3 as 'an amusing figure'. Allowing the appeal with costs he remanded the case to the District Judge for a fresh decision in accordance with the observations made by him.

After the decree had been passed, an application was moved on 16-10-1956 on behalf of the four surviving respondents for a review of the decision on the ground that, after the death of the defendant Ram Charan, the appeal abated as a whole and there was no subsisting point which could be heard, there having been no substitution within the period of limitation. The application was moved by Mr. S. B. L. Gaur, learned counsel who had argued the appeal on behalf of the surviving respondents. The plaintiff appellant too made an application for the setting aside of the abatement of the appeal and condoning the delay in substitution. The learned Judge condoned the delay and set aside the abatement. He also allowed the application for review and set aside the decree passed by him in second appeal.

6. When the case was listed before the learned Judge for the re-hearing of the appeal after the necessary substitution had been made, an oral request was made by Mr. Gaur that the case should be heard by some other Judge in view of the fact that Upadhya, J. had already expressed his opinion in his judgment in the absence of the parties who were subsequently brought on the record.

This request was opposed by Mr. B. L. Chatur-vedi, learned counsel for the plaintiff-appellant, who contended that it was an improper request. It appears from the order-sheet that Mr. Gaur was asked to address the Court on the question of the competence of the Judge to re-hear the appeal after he had delivered the judgment in the absence of one of the parties. Mr. Gaur stated that he was not sufficiently prepared to argue this point and asked for time which was granted. He was also permitted to make a formal application, supported by an affidavit, incorporating his request that the case be heard by another Judge.

On the next date of hearing, however, Mr. Gaur did not appear nor was any formal application filed. The learned Judge observed that it was not possible for him to decide how far Mr. Gaur's request was legally proper or justified. At the same time he observed that he would not like to keep the appeal tied up with him and directed that it should be listed before some other Judge.

7. On 25th August, 1959 the appeal was list-ed for hearing before me. Mr. Chaturvedi con-tended on behalf of the appellant that the decree passed by Upadhya, J. must be deemed to haste become final as against all the respondents other than the representatives of the deceased Ram Charan. He emphasised that the four surviving respondents are Ram Charan's brothers and they could have raised the question of the abatement of the entire appeal during the hearing before Upadhya, J. but they did not do so and allowed the appeal to be heard on merits. Learned counsel for the appellant contended that, in these circumstances these respondents were guilty of a fraud on the court, for they deliberately kept back the fact of their brother Ram Charan's death which was obviously in then knowledge. Learned counsel suggested that their motive obviously was to keep the card of the abatement up their sleeves to be played only in the event of the appeal being decided against them. Mr. Chaturvedi argued vehemently that the decision of Upadhya, J. in the second appeal against these four respondents is not a nullity, but, on the contrary, operates as res judicata against them.

He also argued that the effect of the order of Upadhya, J. setting aside the decree must be deemed to be limited in its effect to the heirs of the deceased Ram Charan. According to learned counsel, Upadhya, J. could not have intended that the decree which had become final against the four respondents should be set aside. On the other hand, Mr. S. B. L. Gaur contended on behalf of the defendant respondents that the effect of the abatement of the appeal against Ram Chandra was that it abated as a whole.

He argued that, in view of the nature el the plaintiff's suit, the appeal could not proceed after it had abated against one of the respondents. According to Mr. Gaur, the obvious intention ol the order of Upadhya, J. in setting aside the decree was to vacate it against all the respondents and that there was nothing in his order to indicate that the learned Judge meant a, partial vacation.

8. Mr. Chaturvedi also contended on behalf of the appellant that, in a case like this, whew the court hears and decides the case in complete ignor-ance of the death of one of the parties, it was not necessary to hear the entire appeal de nove. All that is required, according to learned counsel, is to complete the formalities by bringing the repre-sentatives of the deceased party on record and delivering judgment in their presence. Mr. Chatur-vedi pointed out that the same counsel -- Mr. Gaur -- who fully argued the appeal on merits before Upadhya, J. now represents the substituted heirs.

Mr. Chaturvedi contended before me that the request made before Upadhya, J. that he should not hear the appeal was improper and that the learned Judge was fully competent to hear the parties after the representatives of Ram Charan had been brought on record. In fact, learned counsel suggested that it was eminently desirable that the same Judge should re-hear the appeal as otherwise the plaintiff appellant would be penalised for what he described as the fraud of the respondents.

9. As the argument of the learned counsel raised the question of ascertaining the meaning and scope of the order of Upadhya, J, by which he set aside the decree passed by him, J directed the case to be listed before the learned Judge once again. But by his order dated 16-9-1959 the learned Judge directed the case to be sent back to me. During an oral discussion I tried to persuade my learned brother to take the case baek on his file as I was reluctant to be placed in a position, on the re-hearing of the appeal, in which I may have to take a view different from his. However, my learned brother was not inclined to have the case on his file, and I had to hear de ncvo on merits. Before leaving this topic, I would like to point out that no explanation whatsoever was given to the Court, in spite of repeated questions, for the failure of the respondents at the time of the previous hearing, to inform the learned Judge of the death of one of the respondents.

10. Mr. Chaturvedi attacked the decree of the learned District Judge on the following grounds : First, the appellate court wrongly exercised its discretion in favour of the defendant respondents when he admitted, on insufficient grounds, their cross-objection which was filed long after the prescribed period had expired. Secondly, he contended that the finding of the learned Judge that the plaintiff's suit was barred by limitation is erroneous. Thirdly, his finding that the plaintiff had failed to prove the identity of the property sought to be redeemed is wrong.

Fourthly, the plaintiff appellant has been denied the opportunity of challenging the part of the decree of the trial court fixing the rate of interest at (sic) Rs. 75,116/7/3. The first question before me is whether the learned District Judge was justified in admitting the cross-objection which had been admittedly filed after the prescribed period of one month had expired. Under Order 41, Rule 22, C. P. C. any respondent can take any cross-objection to the decree which could have been taken by way of appeal provided he files it

'within one month from the date of service on him or his pleader of notice of the date fixed for hearing the appeal, or within such further time as the appellate court may see fit to allow'. , Thus, a cross-objection has to be filed ordinarily within one month from the date when the respondent or his counsel is served with notice of the date fixed for the hearing of the appeal. The court, however, has the power to extend the time if it thinks fit. In the present case, the cross-objection was not filed within time but the court condoned the delay. The power to extend the time has to be judicially exercised, on aufficient cause being shown.

If the appellate court is satisfied that there is sufficient cause to justify the extension of time, it may exercise its discretion jn favour of a party and admit a time-barred cross-objection, but the exercise of the discretion has to he judicial and is open to review by the higher court. The question before me is whether the learned District Judge was justified in admitting the cross-objection of the respondents. After hearing learned counseland examining the record, I have come to the conclusion that he was not.

In his affidavit supporting the application for condonation of delay in filing the cross-objection, the respondent Jwala Prasad stated that no notices were issued to the respondents after the admission. of the appeal and payment of court-fees. He fur-ther stated that 'the respondents came to know about the appeal and the date fixed only about 2, weeks back through his counsel's clerk Mr. Darbari Lal'. The affidavit having been filed on 9-2-1958, Jwala Prasad's allegation meant that he was informed of the appeal and of the date of hearing sometime in the third week of January.

This is obviously false. The record shows that as early as 25-7-1946, a memorandum of appearance on behalf of Jwala Prasad was filed by his counsel Mr. R. C. Gupta. Further an application was made on his behalf on 8-7-1946 praying for the adjournment of the final hearing of the appeal from 25-7-1946 to some other date, on the ground that his counsel had an engagement in Lucknow on that date. In view of these undisputed facts, Jwala Prasad's allegation that the respondents came to know about the appeal only two weeks before 9-2-1948 was false to his knowledge.

Some of the other respondents knew of the appeal as early as 1941, for, on 20-5-1941 Mr. R. C. Gupta, Advocate filed a memorandum of appearance under instructions from 'Gulab Rai and other respondents'. It states that the counsel would appear in the case 'on behalf of Gulab Rai. respondent'. There is some contradiction here Unlearned counsel stated on the one hand that he had instructions from 'Gulab Rai and others' and also stated on the other hand that he appeared 'for Gulab Rai respondent'.

But, in any case, it is common ground between the parties that Mr. Gupta entered appearance on 20-5-1941 on behalf of Gulab Rai. Therefore, Jwala Prasad's statement that the other respondents were ignorant of the appeal is also untrue. Further facts, as revealed by the record, confirm this. On 27-8-1946 the court directed that the final hearing of the appeal would take place on 10-10-1946. The order-sheet contains an entry to this effect which was signed by Mahmood Khan, the clerk of Mr. R. C. Gupta, who was authorised under the General Rules framed by this Court to accept such a notice.

On 10-10-1946 the hearing actually took place and counsel for the respondents argued the question of court-fee. His contention was upheld and the plaintiff appellant was directed to make good a deficiency of court-fee amounting to nearly Rs. 2600/-. In the face of these facts, the allegation that Jwala Prasad or the other respondeats had no knowledge, prior to February 1948 of the appeal or the date fixed for its hearing is false,

11. Jwala Prasad's affidavit contains no other explanation for the delay in the filing of the cross-objection, apart from the alleged ignorance of the appeal. It is clear from the record that, at least since 10-10-1946. when the final hearing of the appeal commenced, the respondents were aware of the appeal and their counsel had been servedwith notice of the date fixed for its hearing. (The very fact that he argued the appeal on 10-10-1946 proves it, and there is also the signature of his clerk on the order-sheet dated 27-8-1946).

The respondents were uader a duty to explain why they filed no cross-objection during all this period. Mr. Gaur learned counsel for the respondents was asked by this Court to give some explanation for the failure of the respondents to file their cross-objection between the period 7-8-1947 and 17-2-1948, but he stated that he had nothing to add beyond the statement made in Jawala Pra-sad's affidavit and the reasons given by the learned Judge. He relied on both.

12. Learned District Judge condoned the delay in the filing of the crass-objection for reasons which are best described in his own words :

'It was in 1941 that the plaintiff appellanl was ordered by the court to pay up the deficit court-fee. But the appellant did not make good the deficiency till 1947. Had the appellant not paid the full court-fee, the filing of the cross-objection would have been useless. The principal amount of the mortgage was Rs. 99/-. The trial court ordered the plaintiff to pay a sum exceeding Rs. 75,000/-. No reasonable man would pay a sum of Rs. 75,000/- to redeem a property, which was mortgaged for Rs. 99/-. So the decree passed by the learned Civil Judge was almost equiva-Jent to a decree dismissing the plaintiff's suit. That seems to be the reason why the defendants did not care to file a cross-appeal or cross-objection. Considering that the appellant himself took more than six years to pay the full court-fee, the delay made by the respondents in filing the cross-objection should be condoned. I, therefore, admit the cross-objection, although it was filed several years after the filing of the appeal.'

It is clear that 'what seems to be the reason' to the learned Judge was not the reason given by the respondents in their application for condonation of delay and the learned Judge unconsciously created a reason for them. This he was not entitled to do.

13. The first reason of: the learned Judge appears to be that the respondents were justified in postponing the filing of their cross-objection until after the plaintiff appellant had paid the entire court-fee. This, however, ignores the fact that on 27-4-1946 the court had held the memorandum of appeal to be sufficiently stamped and served notice on the respondents, fixing 29-5-1946 for the final hearing of the appeal.

It also ignores the vital fact that the final bearing actually did take place on 10-10-1946 when the respondents raised their objection regarding the deficiency of the court-fee. It also ignores the fact that the deficiency in court-fee was finally made good on 20-8-1947 after which there was no further excuse left for the respondents to postpone the filing of their cross-objection. It also ignores the important fact that even after 22-12-1947 when the court fixed 9-2-1948 for the final hearing of the appeal, the respondents took nearly two months in filing the cross-objection. (It was actually filed on 17-2-1948).

It is true that the court has the power to extend the time for filing a cross-objection, but only on sufficient cause being shown. The court may have wide discretion in showing indulgence in the interests of justice, to a party in default but it must be shown only after the party has given some explanation for the delay. When, however, no cause whatsoever is shown or if the explanation tendered by the party is false on the face of it, the court should not extend the period. It the court exercises its indulgence without any cause being shown, the provision fixing one month's limitation would be rendered meaningless.

14. The learned Judge has also observed that 'considering that the appellant himself took more than six years to pay the full court-fee, the delay made by the respondents in filing the cross-objection should be condoned'. With great respect, I do not see how the conclusion follows from the argument. Each day of the so-called delay by the plaintiff appellant in making good the deficiency in court-fee is accounted for. He either went up in appeal against the order of the court below or asked for extension of time for payment of court-fee.

The respondents on the other hand made no application for extension before the statutory period expired nor gave any explanation for the delay when they did file the cross-objection. (It would be more accurate to say that they gave an explanation which is false.) Moreover, a party called upon to pay a court-fee of Rs. 2600/- and a respondent required to file a cross-objection are not in the same position. Rupees 2600/- is not .1 trifling amount and the plaintiff appellant required time to mobilise his sources and raise certain funds.

But there is nothing which the respondents after 8th August 1947 had to do to enable them to file the cross-objection except to file it. For all these reasons I am of the opinion that, as no cause whatsoever was shown by the respondents for the delay in the filing of the cross-objection, the learned Judge should not have admitted it. Disagreeing with his decision I reject the cross-objection.

15. It was pointed out by Mr. Chaturvedi that the cross-objection was filed by Mr. R. C. Gupta, Advocate, whose authority in appeal was limited by the words of the memorandum of appearance signed by him in which it was expressly stated that he was appearing 'for pleading only'. Learned counsel also emphasised the fact that the appellate court had at the hearing of the appeal on 29-7-1946 held all the respondents other than Jawala Prasad and Gulab Rai, to be absent. Relying on these facts Mr. Chaturvedi contended that! Mr. R. C. Gupta had no authority to file a cross-objection on behalf of the respondents. However, it is not necessary for me to consider this technical objection as I have held that the cross-objection should not have been admitted by the learned Judge in the absence of any explanation for the delay in filing it.

16. I have now to consider the effect of the rejection of the cross-objection. The plaintiff appellant had obtained a decree for possession overplot No. 468 of 5 bighas 12 biswas on condition that he paid to the defendants Rs. 99/- as principal and Rs. 75,017/7/3, as interest. The defendants submitted to this decree and filed no appeal against it. The plaintiff, however, appealed against the part curtailing the area of the land to be redeemed and requiring him to pay interest at the rate fixed by the court.

The learned District Judge did not decide the plaintiff's appeal as the allowed the defendants' cross-objection that the entire suit was time-barred. If the cross-objection is removed, the question arises whether the learned Judge could have dismissed the plaintiff's whole suit and thus deprive him of the decree against which the defendants had not appealed and which had become final.

17. Mr. Gaur defended the learned Judge's decision to dismiss the entire suit as time-barred. He relied upon Section 3 of the Limitation Act which provides that

'every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the first schedule shall be dismissed although limitation has not been set up as a defence''.

Mr. Gaur contended that the appellate court had not only the power to decide the question of limitation but, indeed, it was to consider it and to dismiss the suit if it appeared time-barred even, though the trial court had held that it was not,

Mr. Chaturvedi on the other hand contended that the provisions of Section 3 must be applied consistently with the other legal principles, one of them being that a question of limitation having been decided by the trial court on merits is final and binding on the parties and on the appellate court unless there is an appeal against it. He also contended that the powers and duties of the appellate court under Section 3 of the Limitation Act are subject to the general principle that an appellate court cannot take away from the appellant any decree already passed in his favour against which there has been no appeal by the other side and that its powers are limited to the allowing or rejecting, in whole or in part, of the appeal before it.

18. A large number of authorities was cited before me by both the learned counsel in respect of their respective contentions, but it is not necessary to consider all of them.

19. The sheet-anchor of Mr. Gaur's argument is Section 3 of the Limitation Act read with Order 41, Rule 33, C. P. C. Learned counsel contended that Section 3 imposes a duty on the appellate court to dismiss a suit if it appears to it that it is barred by limitation and the decision of the trial court was wrong on this point. According to Mr. Gaur it is immaterial whether an appeal has or has not been filed against any part of the decree, as the appellate court has very wide powers once the matter comes up before it in appeal. He relied upon Order 41, Rule 33, C. P. C. which provides that

'the appellate court shall have power to pass any decree and make any order which ought to liave been passed or made and to pass or makesuch further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.'

Mr. Gaur contended that the language of this rule is wide enough to empower the appellate court to modify or reverse even those parts of the decree against which there has been no appeal.

20. The language of Section 3 of the Limitation Act is obviously mandatory. It requires the Court to dismiss a suit or an appeal which is time-barred irrespective of whether the ground of limitation has or has not been taken by the other side. But the question in the present case does not relate to the duty of the Court when a suit before it appears time-barred, but concerns its powers when the question of limitation has already been raised before the trial court which held, after hearing the parties, that the suit was within limitation.

If the plaintiff, feeling dissatisfied with a part of the decree, appeals against it, can the appellate court, in the exercise of its duty under Section 3 go behind and reverse the decision of the trial court on the question of limitation even if the defendant has submitted to the decree and filed no appeal on the ground that the suit is time-barred? To put the question in a nut-shell, will the principle of res judicata prevail and prevent the appellate court from reversing the decision of the trial court on the question of limitation? In my opinion, the principle should prevail.

This question has been settled by several decr-sions of the Privy Council and by a Full Bench of this Court. In Raja of Ramnadi v. Velusarni Tevar, 19 All LJ 168 ; (AIR 1921 PC 23), the Privy Council refused permission to a party to raise the plea of limitation after it had been decidL ed by the court of first instance. The controversy arose out of execution proceedings in which the judgment-debtor pleaded limitation in opposition to an application for attachment made in the execution court. The application was allowed and a subsequent attempt by the judgment-debtor to obtain a review of this decision on the ground that execution is barred by time failed.

Subsequently, the Subordinate Judge permitted the judgment-debtor to raise again the plea of limitation and dismissed the application for execution as time-barred. The High Court upheld this decision but the Privy Council reversed both the decisions and held that the plea of limitation, once having been filed, could not be raised again. Their Lordships observed:

'no appeal was brought against the order (holding that the execution was within limitation), and, therefore, it stands as binding between the parties'.

21. In G.H. Hook v. Administrator-General of Bengal, 19 All LJ 366 : (AIR 1921 PC 11), the Privy Council held that when a question at issue between the parties to a suit is heard and finally decided, the judgment given on it is binding onthe parties at all subsequent stages of the suit. Their Lordships observed that the binding force of the decision

'depends not upon the Civil P. C., Section 11, but upon general principles of law. If it were not binding there would be no end to litigation''.

The case did not relate to the question of limitation, but it is noteworthy that the Privy Council laid down no exception to the general principle.

22. In Genda Lal v. Hazari Lal : AIR1936All21 , a Full Bench of this Court had to consider whether the principle of res judicata applied to a decision on the question of limitation. Sulaiman, C. J., observed,

'A matter which has been finally decided between the parties in a previous suit is, subject to the conditions mentioned in the section, res judicata between the parties' and cannot be re-agitated in a second suit'. He further observed

'In cases where there is an express adjudication in an execution proceeding, the matter must certainly be final as between the parties'.

He recorded his conclusion in these words,

'Where there has been an express adjudication (on the question of limitation) by the Court in the presence of parties, then the question must be considered to have been finally decided, no matter whether it is raised again at a subsequent stage of the same proceeding, or in a subsequent execution proceeding'.

Niamatulla, J. observed as follows :

'The conclusion at which I have arrived that the judgment-debtor is not barred by the principle of res judicata unless (1) there was an express adjudication on the question of limitation against him in an earlier proceeding or at an earlier stage of the same proceeding.....'.

23. I am therefore, of the opinion that the provisions of Section 3 of the Limitation Act are subject to the principle that where a question of limitation has been expressly adjudicated upon and there is no appeal against it, the decision is binding on the parties and on the appellate court.

24. Mr. Gaur relied upon two decisions of the Patna and the Nagpur High Courts respectively in support of his argument that the appellate court can consider the question of limitation even if there has been no appeal against it. In Byomesh v. Madhabji Mepa Maru. AIR 1939 Pat 421 it was held that the Court must take notice of the point of limitation if it appears to it that the suit is barred by time. In that case, however, the question of limitation had not been decided by the trial court and was raised for the first time in appeal.

Therefore, the question whether the appellate court was bound by any previous decision did not arise. The Patna decision, therefore, cannot serve as a guide in the controversy in the present case. In Alaf Khan v. Kurbankhan, AIR 1948 Nag 41 it was held that where in an appeal by the plaintiff against a partial decree the suit appears to be patently time-barred and the point can be decided without any evidence being taken, it is the duty of the appellate court to take judicial notice of the law and to dismiss the whole suit even though the defendants have not appealed against the decree.

In this case a distinction was made between suits in which bar of limitation is patent and those in which it is not. The attention of the Nagpur High Court was expressly drawn to a decision of this Court in Ahmad Ali v. Waris Husain, ILR 15 All 123 in which it was held that once a decree had been passed it became absolute and the appellate court could not take action unless the party adversely affected filed an appeal against the judgment^ but it preferred not to follow that decision on the ground that in the Allahabad case the bar of limitation was not patent upon the proceedings.

With deep respect, the decision of Nagpur High Court is against the view of this Court and of the Privy Council. In any case it is limited to cases in which the bar of limitation is patent on the face of the proceedings. If would not, therefore apply to the present case in which the question of limitation had to be decided on evidence after the suit had been filed.

25. Mr. Gaur, however, contended that the appellate court has powers under Order 41, Rule 33, C. P. C. which are wide enough to enable it to reverse a decision of the trial court even if there has been no appeal against that part of the decision. It is, therefore, necessary to consider the scope of the powers conferred by this rule. The matter was considered by a Full Bench of this Court. In Rangam Lal v. Jhandu, ILR 34 All 32 the Court observed that the language of this Rule 'is no doubt very wide', but it laid down one principle which must be borne in mind by the appellate court when exercising its very wide powers under this Rule.

The principle was enunciated thus:

''The Courts in the exercise or the powers conferred by Order 41, Rule 33, should not lose sight of the other provisions of Civil P. C. nor of the Court-fees Act nor of the Law of Limitation'.

The Court also took notice of Rule 22 and observed,

'This rule clearly shows that it was intended that, prima facie at least, a respondent should not be allowed to take exception to so much of a decree as was against him without complying with the provisions of the Rule. In a case in which there is. no sufficient reasons for a respondent neglecting either to appeal or to file objection we think the court should hesitate before allowing him to object at the hearing of the appeal filed by the appellant'. This principle would apply to the present case. The respondents raised the issue of limitation before the trial court which was decided against them and the suit held to be within limitation. They filed no appeal. No satisfactory reason has been advanced for their neglecting either to appeal or to file objections. In the circumstances, they cannot be permitted to appeal to Section 3 of the Limitation Act and ask the court to reverse the decision of the trial court which operates as res judicata.

26. Mr. Gaur cited several decisions in which the Court, in the exercise of its very wide powers-under Order 41, Rule 33, modified or reversed a part of the decree of the trial court which was not appealed against. I have carefully examined these deersions. It is no doubt true that in all of them the appellate court did interfere with the decision of the trial court even as regards the part of the decree which, had become final. But the thread of a common principle runs through all these decisions which I would enunciate as the principle of 'compensatory relief'.

The appellate court, in considering the relief to be granted to the appellant, thought it just and proper to give some compensatory relief to the respondent even though he had not filed any appeal

or cross-objection. The court acted on what, for want of a better expression, I have called the principle of compensatory relief to the respondent which was really a condition or term of granting relief to the appellant.

In all these cases the court decided the question of the relief to which the appellant before them was entitled according to justice, and gave him some relief smaller than his own demand-- that is to say, a relief modified by some compensatory reliet to the other side. The appellant was put to conditioas hut he was not the loser as a whole. But it is one thing to invoke the principle of compensatory relief to the respondent when giving some relief to the appellant, but quite another thing to deprive the appellant even of a decree which has become final, when no question of compensatory justice arises.

27. The first decision cited by Mr. Caur is that of Iqbal Ahmad, J. in Secretary of State v. Basti Begam, 1937 All LJ 804. In that case a woman Basti Begum obtained a decree for Rs. 2000/- as damages from the East India Railway for the death of her son in an accident. She was satisfied with the decree but the defendant appealed. It was allowed in part and the amount of damages reduced to Rs. 1020/-. The appellate court allowed the plaintiff proportionate costs of the trial court but directed the parties to bear their own costs of the appeal. It also directed the plaintiff to pay a court-fee, on 'Rs. 1020/- only on the plaint.

The defendant filed a second appeal in the High Court, one of the grounds being that the plaintiff should have been required to pay a court-fee ot Rs. 357/8/- which was higher than the amount demanded by the lower, appellate court. Iqbal Ahmad, J. was compelled to hold that, under the law, the plaintiff widow must pay the higher sum as court-fee and allowed this part of the appeal But by way of compensation to her, it modified the decree of the appellate court as regards damages and increased the amount. It was objected that he could not do so in the absence of an appeal or cross-objection by the plaintiff.

He overruled the objection and held that the court had the jurisdiction by virtue of Order 41, Rule 33 and relied upon the observations of the Full Bench in ILR 34 All 32:

'that the object of Rule 33 is manifestly to enable the court to do complete justice between the parties to the appeal..... Where it is essential in order to grant relief to an appellant that some relief should at the same time be granted to the respondent also, the court may grant relief to the respondent although he has not assailed the decree appealed against either by means of an appeal or by a cross-objection,'

If I may say so with respect, the principle of compensatory relief could not bo more effectively enunciated.

28. The second case cited by Mr. Gaur is Ganga Prasad v. Mt. Hardei : AIR1932All32 . Here again, the appellant was given possession of the property, but the court, acting under Order 41, Rule 33, virtually directed him to pay Rs. 450/- to the defendant, because, otherwise, he would get the property and also the benefit of the redemption made by the defendants from their own pocket. Another case of compensatory relief to the respondent while granting' a relief to the appellant.

29. The next case is a decision of the Privy Council in Iswarayya v. Swarnam Iswarayya . A wife was granted an alimony for herself andi her children. She was satisfied with the amount and did not appeal. The husband, however, did, and his appeal was allowed to this extent that the High Court held that the children were not entitled and the provision made in their favour by the lower court was excluded. But, at the same time, they increased the wife's allowance from Rs. 120/- to Rs. 260/- a month.

The husband appealed to the Privy Council, on the ground that the Court had no jurisdiction to alter the decree in favour of the wife when she had not appealed against it. The Privy Council rejected this plea and held that the court had the power to do so under Order 41, Rule 33, C. P. C. Their Lordships observed,

'It was open to the court to take the view that complete justice could not be done unless tho amount ordered to be paid to the wife for alimony was increased''.

Here again, the principle of compensatory reliet to the respondent was applied. The legal objection of the husband against tho provision in favour of the children was found to be unanswerable. His appeal on this point had to be allowed. But the court took the view that allowing of appeal would result in injustice to the wife unless she was given compensatory relief. It. is noteworthy that, in spite of the relief to the wife, the husband was a gainer as a result of his appeal, as the total amount of alimony was reduced from Rs, 310/- to Rs. 260/-.

30. Thus, in all these cases the question before the Court always has been whether full justice would be done by allowing the appeal of one party unless some compensatory relief was granted to the other party as a matter of equity and good conscience. No case was cited before me, nor have I come across any, in which the Court assumed the naked power to reverse a decision of the lower court which had not been appealed against and had become final even when there was no question of applying the principle of compensatory relief.

31. For these reasons I hold that the question of limitation having been decided by the trial court operated as res judicata and the learned District Judge could not dismiss tho entire suit on the ground that it was time-barred. The defendantshad filed no appeal and no question of compensa-tory relief arose.

32. Even on merits, it appears very doubtful whether the view taken by the learned District Judge on the question of limitation is correct. As I have not heard the parties on this point, it is not necessary for me to give any decisive opinion on it.

33. I shall now consider the question whether the trial court was justified in altering the rate of interest. The learned District Judge did not consider this question at all as he dismissed the entire suit as time-barred. But it is obvious that the decision of the trial court is erroneous. The intention of the learned Civil Judge wag to reduce the rate of interest for he observed,

'the contractual rate of interest being excessive I reduce it to 12 per cent per annum compoun-dable at six monthly rests under the Usurious Loans Act .....'.

But it escaped his notice that by converting simple interest into compound he actually increased the amount of interest to the fantastic sum of Rs. 75,116/7/3 on a loan of Rs. 99/-. This part of the decree of the trial court- cannot stand.

34. For reasons given above, I allow this appeal with costs and set aside the decree of the learned District Judge dismissing the plaintiff's suit I also set aside that part of the decree of the trial court which directs the plaintiffs to pay a sum of Rs, 75,017/7/3 into court. I remand the case to the lower appellate court with a direction that it shall hear the plaintiffs appeal on merits, but in accordance with the principles of law enunciated in this judgment. The cross-objection of the respondents stands rejected with costs and will not be considered by the appellate court. The plaintiff shall be entitled to agitate before the lower court that the contractual rate of interest being excessive should be reduced and the respondent shall be heard in opposition to this plea. The plaintiff appellant shall be entitled to his costs in the lower appellate court and in this court.

35. I do not think this is a fit case tor special appeal and leave to appeal is refused.


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