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Bankey Lal and anr. Vs. Natha Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All195
AppellantBankey Lal and anr.
RespondentNatha Ram and ors.
Cases Referred and Abdul Ghani v. Muhammad Fasih
Excerpt:
.....suit need not necessarily be a respondent in an appeal brought by the unsuccessful..........that this appeal must fail with costs on the higher scale. the plaintiffs have filed certain cross-objections against janki das, defendant. a preliminary objection is taken that no such cross-objections lie. the plaintiffs had impleaded janki das alleging him to be a partner of the defendant's firm, and had claimed relief against him jointly with the others. the court below has held that janki das is not proved to have been a partner. the suit against him has been dismissed. the plaintiffs filed no appeal against janki das at all within the time allowed by law. the other defendants, viz., bankey lal and others filed an appeal against the plaintiffs, and in the memorandum of appeal impleaded janki das also. it is quite clear that no relief was claimed in the appeal against janki das.....
Judgment:

Sulaiman, J.

1. This appeal arises out of a suit for damages on the ground that certain copyrights have been infringed. The success of the appeal depended entirely on the success of suit No. 454 of 1922 brought to set aside the sale. That suit has now been dismissed to-day. It is, therefore, conceded that this appeal must fail with costs on the higher scale. The plaintiffs have filed certain cross-objections against Janki Das, defendant. A preliminary objection is taken that no such cross-objections lie. The plaintiffs had impleaded Janki Das alleging him to be a partner of the defendant's firm, and had claimed relief against him jointly with the others. The Court below has held that Janki Das is not proved to have been a partner. The suit against him has been dismissed. The plaintiffs filed no appeal against Janki Das at all within the time allowed by law. The other defendants, viz., Bankey Lal and others filed an appeal against the plaintiffs, and in the memorandum of appeal impleaded Janki Das also. It is quite clear that no relief was claimed in the appeal against Janki Das who was merely a pro forma respondent and need not have been impleaded at all. He was in no way interested in the appeal and there was no point common to him and the other parties which was going to be raised. The plaintiffs have tried to take advantage of Janki Das having been impleaded by the other defendants, and have filed cross-objections against him praying that the suit should be decreed against him also. In our opinion such cross-objections cannot be entertained.

2. Without saying that in cases of partnership or partition of property or other cases of like nature, where rights common to all the parties are in dispute there can be no cross-objections by one respondent against a co-respondent, I am of opinion that ordinarily in cases where the person against whom cross-objections are filed is not interested in the appeal and is a mere pro forma respondent, no cross-objections can be validly filed against him. This has undoubtedly been the practice of this Court for a considerably long time, and I may refer only to the case of Kallu v. Manni [1900] 23 All. 93 and Abdul Ghani v. Muhammad Fasih [1905] 28 All. 95. No doubt Sub-clause 3, Order 41, Rule 22 has been slightly amended and the words 'the party who may be affected' have been substituted for the word 'appellant.' But that sub clause deals with the service of notice. The object of the amendment might be to allow cross-objections against a co-respondent in cases of partnership, partition etc. I am not prepared to hold that on account of this amendment a respondent has an absolute right of filing cross-objections against a co-respondent, even where such co-respondent, is not an interested party at all and no relief has been claimed against him in the appeal. In my opinion this is not a fit case for the exercise of the discretionary power given to us under Order 41, Rule 33.

Ashworth, J.

3. I concur. In my view a party to a case cannot be regarded, as a respondent in an appeal, the success or failure of which wholly or in part, can in no way affect him. It is only a respondent who has a right of preferring a cross-objection under the said rule. A person who is a defendant in the original suit need not necessarily be a respondent in an appeal brought by the unsuccessful plaintiff.


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