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Krishan Gopal Vs. Haji Mohammad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 173D of 1966
Judge
Reported inAIR1969Delhi126; 4(1968)DLT371
ActsLimitation Act, 1963 - Sections 5; Code of Civil Procedure (CPC), 1908 - Order 41, Rule 22
AppellantKrishan Gopal
RespondentHaji Mohammad and ors.
Advocates: P.N. Khanna and; H.R. Khanna, Advs
Cases ReferredSant Ram v. Kidar Nath
Excerpt:
a) the case debated on whether the appellate court could adjudicate on cross-objection after the final disposal - it was ruled that the appeal and the cross objections filed should be disposed off together by a single judgment and decision had to be incorporated in one decree - further, in view of the fact that the appeal was finally disposed, it was held that the appellate court cannto adjudicate on cross objection after the final disposalb) it was ruled that the under order 41 rule 22 of the civil procedure code, 1908, the respondent could take cross objection within the period of one month from the date of service of the hearing of the his opponent appeal - - muslim (regular civil appeal 126 of 1965) was finally dismissed by the judgment and decree dated 6th december, 1985 that..........court and respondent in the lower appellate court (appellant before me). krishan gopal presented cross-objections in the lower appellate court on 21st december, 1963, which were directed against the plaintiffs who were also co-respondents along with krishan gopal in the lower appellate court, it being added that he had been served with a ntoice of the appeal on 2nd december, 1963. (3) an objection was raised in the lower appellate court that these cross-objections were incompetent and in view of the decisions reported as jan mohammad v. p. n. razdon, which followed an earlier decision of the lahore high court in sant ram v. kidar nath, and a decision of the punjab high court given in 1965, this objection was upheld as per order dated 11th october, 1965. the disposal of the appeal was,.....
Judgment:

I.D. Dua, C.J.

(1) Hafiz Zahir-ud-din, Haji Mohamed Hasham and Mst. Khatun Mahshar instituted a suit against nine defendants, including Shri Krishan Gopal (defendant No. 6 and appellant in this Court) for the recovery of a sum of Rs 433 50 and ejectment of defendants Nos. 1 to 6 from a plto of land. The grounds on which the suit was baled were that Shri Nand Lal deceased, husband of defendant No. 1 and father of defendants Nos. 2 to 6 had taken the vacant plto of land en lease from the plaintiffs and defendants Nos 7 to 9 and had also executed a rent ntoe in their favor. The lease was taken from Mohamed Hasham, plaintiff No. 2, for a cycle-stand and rent was being paid to Mohamed Hasham in his capacity as the Manager on behalf of all the landlords. Shri Nand Lal died in March, 1959, learing behind defendants Nos. 1 to 6 as his legal heirs and representatives After Nand Lal's death, Krishan Gopal was running the cycle-stand and paid rent to Mohamed Hasham under the terms of the rent-deed at the rate of Rs. 25.50 per mensem, and indeed paid the rent till 31st December, 1960. As a result of private partition of the said land between the owners in February, 1958, a part of the suit land fell to the share of plaintiff No. 1. In 1961, pursuant to further private partition amongst the owners, the toher portion of the plto fell to the share of Mohamed Hasham and Mst. Khatun Mashar. On these averments, damages were claimed. It is unnecessary to go into further details for the purposes of the present appeal. Suffice It to say that on the trial of various issues framed, the trial Court on 17th August, 1963 passed a decree for ejectment of defendants Nos. 1 to 6 from the property in suit and also made a decree for Rs. 433.50 nP. against them.

(2) H. Mohd. Muslim, defendant No. 8 in the trial Court, took the matter on appeal in the Court of the Additional District Judge, in which it was prayed that the judgment and decree of the trial Court be set aside and, to qutoe the exact words, 'either the decree for ejectment and recovery of rent may be passed in favor of the appellant and respondents Nos. 1 to 3 and No. 10 and 11 or the suit of the plaintiff respondents may be dismissed with costs ' Respondents-Nos. 1 to 3 in the lower Appellate Court, it may be pointed out, were the three plaintiffs and respondents Nos. 10 and 11 were Hafiz Mohd. Mian and H. Mohd. Sami, defendants Nos. 7 to 9 respectively in the trial Court. It is obvious from this that the appeal was nto directed against Krishan Gopal, defendant in the trial Court and respondent in the lower Appellate Court (appellant before me). Krishan Gopal presented cross-objections in the lower Appellate Court on 21st December, 1963, which were directed against the plaintiffs who were also co-respondents along with Krishan Gopal in the lower Appellate Court, it being added that he had been served with a ntoice of the appeal on 2nd December, 1963.

(3) An objection was raised in the lower Appellate Court that these cross-objections were incompetent and in view of the decisions reported as Jan Mohammad v. P. N. Razdon, which followed an earlier decision of the Lahore High Court in Sant Ram v. Kidar Nath, and a decision of the Punjab High Court given in 1965, this objection was upheld as per order dated 11th October, 1965. The disposal of the appeal was, however adjourned on the ground that the minors were to be properly represented. The appeal of H Mohd. Muslim (Regular Civil Appeal 126 of 1965) was finally dismissed by the judgment and decree dated 6th December, 1985 that decree clearly shows that the appeal had been heard on 1st December, 1965, but the judgment was announced on 6th December, 1965, it having apparently been reserved on 1st December, 1965.

(4) The appellant in the present appeal is aggrieved only by the order dismisssing the cross-objection on 11th October, 1965. The present appeal was presented in the predecessor of this Court on 3rd March, 1966 and the office objected to the competency of the appeal on the ground that no certified copy of the decree appealed from had been attached with the memorandum of appeal. To this, the appellant's learned counsel replied that the decree in respect of the dismissal of the cross objections had nto been prepared by the lower Appellate Court and it was added that an application for preparing such a decree was pending in the lower Appellate Court and time was sought for producing the certified copy. From the original record, it appears that an application was prevented in the Court of Shri M L. Jain, Additional District Judge, by the appellant en 14th March, 1966, praying that a decree should be framed dismissing his cross-objections, it being added that the omission to so frame a decree had apparently been due to an accidental slip Afterhearing the arguments of the counsel, the lower Appellate Court on 26th March, 1966 directed the decree sheet to be prepared. It was pursuant to this order that a decree was prepared but bearing the date 26th March, 1966, in which it is mentioned that the appeal had come up for hearing on 28th September, 1965 in the presence of the counsel for the parties and the cross objections filed by Shri Krishan Gopal were thereby dismissed. It is also added in the decree that the cross objections had been dismissed by the order of the learned Additional District Judge dated 11th October, 1965. The number of the appeal, as mentioned in the heading, is Regular Civil Appeal No. 126 of 1965.

(5) One toher circumstance also deserves to be mentioned at the stage. Shri Krishan Gopal had also presented an appeal in the Court of the Senior Subordinate Judge against the judgment and decree of the trial Court. This appeal was presented in that Court on 20th September 1963 dated 17th August, 1963, and on 2nd April, 1964 the same was held to be beyond the pecuniary jurisdiction of that Court, with the result that the same was returned to Shri P. N. Khanna, Advocate, for being presented to the competent Court. Pursuant to this order, on the same day, the appeal was presented in the Court of the learned District Judge. It was ntoed by the counsel that respondent No. 10 (H.Mohd. Muslim) had also filed an appeal against the same judgment and decree to which Shri Krishan Gopal had already filed cross-objections which were pending in the Court of the Additional District Judge, in which the next date of hearing was 1st May, 1964. Because of this ntoe, this appeal was also transferred to the Court of Sbri Udham Singh. Additional District Judge, By means of the order dated 11th October, 1965, the learned Additional District Judge hearing the appeals held the appeal of Shri Krishan Gopal to be barred by time and dismissed the same as such. The main judgment containing reasons dismissing Krishan Gopal's appeal (Regular Civil Appeal No. 127 of 1965) was passed in H. Mohd. Muslim's appeal (Regular Civil Appeal No. 126 of 1965,) which appeal was adjourned for properly impleading some minors, only a short order having been made in Regular Civil Appeal No. 127 of 1935- It may be pointed out that in this Court, the judgment and decree .dismissing Krishan Gopal's appeal as barred by time is nto being contested and the only grievance urged is that the cross-objections should nto have been dismissed as incompetent.

(6) Now, the decree dismissing the cross-objections should, in accordance with law, have borne the same date on which the judgment dismissing them was given i.e. 11th October, 1935. It is nto the appellant's case that an application for a certified copy of the decree dismissing the cross-objections had been made within the prescribed period of limitation for the appeals and the same was nto granted all this while because of the failure on the part of the Court to prepare a decree-sheet. Merely because no decree-sheet was actually prepared, would nto by itself extend the period of limitation prescribed by the Limitation Act. Such failure can only be pressed into service for the purpose of claiming extension of time under section 5 of the Indian Limitation Act. this step has obviously nto been taken by the appellant for claiming the present appeal to be within limitation. But this apart, there are also toher obstacles in the way of the appellant which are nto easy to surmount.

(7) Rule 22 of Order 41, Civil Procedure Code, is apparently a special provision permitting a respondent who has nto appealed from a decree, to object to the said decree in the opposite party's appeal as if he had himself preferred a separate appeal. This rule may appropriately now be read:-

'R.22(1) Any respondent though he may nto have appealed from any part of the decree may nto only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of ntoice of the day fixed for hearing the appeal, or within such further time as the. Appellate Court may see fit to allow. (2) Such cross-objection shall be in the from of a memorandum, and the provisions of Rule 1, so far as they relate to the forms and contents of the memorandum of appeal, shall apply thereto. (3) Unless the respondent files with 'the objection a written acknowledgement from the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served as soon as may bs after the filing of the objection, on such party or his pleader at the expense of the respondent. (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is with drawn or is dismissed for default, the objection so filed may never the less be heard and determined after such ntoice to the toher parties as the Court thinks fit. (5) The provisions relating to pauper appeals shall, so far as they can be made applicable, apply to an objection under this rule.' Where a decree is partly against one suitor and partly against antoher, one of such parties being satisfied with his partial success, may nto prefer an appeal within limitation, but, on the toher party appealing may like to reopen the adverse part of the decree, In the larger interest of the cause of justice, it is in such circumstances that the party satisfied with partial success is granted antoher opportunity of challenging the part of the decree against him upon his opponent preferring an appeal, of which ntoice is served on him. In order to avail of this right he has to take cross-objections within one month from the date of service on him of ntoice of the hearing of his opponent's appeal. In this background, the question arises as to what is the effect of the present Appellant's appeal in the lower Appellate Court having bean dismissed as barred by limitation. From one point of view he may be held nto to have preferred any appeal, but from antoher point of view, it may be held that having himself chosen to prefer an appeal and having failed in his endevour to successfully assail the impugned decree, even though on account of bar of limitation in fairness, he should nto be allowed to have a second chance of re-opening the controversy in the garb of cross-objections. This aspect has nto been fully developed at the bar and I would, thereforee, be disinclined to express any considered opinion on the point. I should, however, like to point out that it would have been more in consonance with the practice if the learned Additional District Judge had nto disposed of the cross-objections before disposing of H. Mohd. Muslim's appeal. The cross-objections are to be heard when the appeal is heard when the appeal is heard and, as a general rule, the Court is expected to dispose of btoh the appeal and the cross-objections together by one judgment and the decision should be incorporated in one decree. The appellant's learned counsel has, however, nto made any grivance of this procedure and I need say ntohing more on it. One point does seem to require ntoice. H. Mohd. Muslim's appeal was finally disposed of on 6th December, 1965 when it was dismissed affirming the decree appealed from and that decree has obviously now become final. No challenge is directed against the judgment and decree disposing of that appeal. If the present appeal is allowed and the cross-objections are sent back for re consideration, it would lead to a somewhat extral ordinary situation, for the appeal in which the cross-objections were preferred, has been finally disposed of more than two years ago affirming the decree of the trial Court on the merits and the Court would now be called upon to very that decree. As a matter of fact, on the peculiar circumstances of this case, fresh disposal of the cross-objections would entail the possibility of two decrees, which have become final, being varied by the same Court, namely, the Court of the Additional District Judge. This situation seems to me to be somewhat extraordinary and also nto in accordance with the normal practice and the apparent scheme of the relevant law of procedure. It may be remembered that by means of a deming fiction, the cross objections are, for certain purposes, treated as a memorandum of appeal, but they are neither registered as an appeal nor are they cltohed with an independent status as such. They do nto constitute a separate indefendant cause or writ but largely draw their source of survival from the competence of the appeal in which they are taken and the exceptions to this dependence are provided in subrule (4) of Rule 22. Rule 22 is indeed a part of the procedural scheme consisting of this rule and Rule 33 of Order 41 and is obviously inspired by the larger cause of justice as observed earlier. The cross objections are, thereforee, expected to be disposed of along with the appeal in which they are taken and after the final disposal of that appeal, it may, as a general rule, be difficult to deal with the cross objections as if they constitute an independent appeal. In the absence of any binding precedent or of any clear provision of law, there. fore, I am disinclined, as at present advised, to countenance such a position as is suggested by the appellant and to remit the case to the lower Appellate Court for adjudicating on the across objections on the merits alter the final disposal of the appeal, even if toherwise such a course were legally permissible and called for.

(8) The legality of the view taken by the lower Appellate Court in regard to the competency of the cross-objections directed against the co-respondents has nto been challenged by the appellant's learned counsel. He has, however, argued that the cross of actions were in fact directed against the appellant in the lower Appellant Court. I have gone through the cross objections dated 20th December, 1963 and I find that out of 15 grounds of cross-objections, the only challenge against the appellant in that Court is contained in the last two hand-written lines in ground No. 14. Those two lines read as under :- 'Neither defendant No. 8, the present appellant, nor the plaintiff can have a decree of ejectment against the present objector-respondent No. 9 (defendant No. 6)' As the judgment of the lower Appellate Court shows, this point dues nto appear to have been argued before that Court, for, had it been argued, it may be presumed that the learned Additional District Judge would have considered it and expressed-his opinion as to why this ground could nto be considered to be directed against H. Mohd. Muslim, the appellant in the lower Appellate Court. I have compared the grounds contained in the memorandum of appeal presented by the present appellant in the Court of the Senior Subordinate Judge, which memorandum was returned to him for being presented to the Court of the District Judge and was actually so represented, with the grounds of his cross-objections and I find that the typed grounds in btoh the memorandum are practically similar word for word xcept for the additional band written line in the cross-objections as ntoiced earlier. To me, it seems that btoh the appeal and the cross objections were intended to be exclusively directed against the judgment and decree of the trial court only in so far as they were in favor of the plaintiff sand the newly added challenge in paragraph 14 of the cross-objections must be deemed nto to have been argued before the lower Appellante Court. Now, if this ground was nto pressed before the lower Appellate Court, which means that it was given up, then obviously it is difficult to find fault with the view taken by the Courts below. The argument, that in the cross-objections taken against the appellant, incidental relief may also be claimed against a co respondent even if permissible, is met by the contention that under the mere pretext of directing the cross-objections on an unsubstantial point the cross-objections against the appellant and a co respondent cannto be allowed in essence to contest only the decree made in favor of toher co-respondents. The cross-objections are taken in an appeal and it is the particular appellant alone who may be taken to have facilitated his opponent on equitable grounds contained in Rule 22 to re open the finally concluded controversy against him, but to expose the decree in favor of the toher co-respondents to a challenge in this manner after the expiry of limitation for appeal, would in my opinion, be most unjust to them because they would have no opportunity of taking cross-objections against the cross-objecting respondents. But as, in my view, this challenge contained in the last part of ground No 14 in the memorandum of cross-objections was nto urged in the Court below, it cannto be relied upon in support of the present appeal.

(9) This appeal accordingly tails and is dismissed with costs.


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