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Vedagiri Vs. Pattamal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 4339 and 4340 of 1982
Judge
Reported inAIR1983Mad307
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rule 22(1)
AppellantVedagiri
RespondentPattamal and ors.
Appellant AdvocateN. Sundaravaradan, Adv.
Respondent AdvocateL. Mohan, ;K.S. Ahmad and ;A.S. Udayasankar, Advs.
Cases ReferredDevendra Ayyar v. Murthu Chettiar
Excerpt:
.....(v of 1908) amended by act (cvi of 1976, order xli, rule 22(1)--respondent in an appeal may file cross objections in respect of a finding adverse to him, notwithstanding that the ultimate decision is wholly or partly in his favour but not against a co-respondent.; the plaintiff filed a suit for partition and separate possession of one fifth share and there was a controversy over the c schedule properties, which the fifth defendant claimed as his self acquisitions. the trial court countenanced the case of the fifth defendant and the suit of the plaintiffs in respect of the c schedule properties was dismissed, and passed a preliminary decree for partition of the plaintiffs' one fifth share in the a schedule properties other than item no. 31, b schedule properties and c-1 schedule..........the appeal a. s. no. 159 of 1980. the plaintiffs' respondents 1 to 6 in the appeal, preferred cross-objections and they chose to implead only defendants 1 to 4 as respondents therein. we find that the appeal is of the year 1980. in december 1981, the plaintiffs, respondents 1 to 6 in the appeal conceived the idea of impleading defendant 5 as respondent 5 in the cross objections and took out two applications i. a. 19 of 1982 to condone the delay of 359 days in impleading defendant 5 as respondent 5 in the cross objection. these two applications have been allowed by the court below. the present revisions have been preferred by defendant 5 against the orders of the court below.2. mr. r. sundaravaradan, learned counsel for defendant 5, petitioner in the two revisions, submits that it is.....
Judgment:
1. The appeal before the District Judge of Chengalpattu, A. S. No. 159 of 1980, has been preferred by defendant 1 against the judgment and decree in O. S. 183 of 1976 on the file of the Subordinate Judge of Chengalpattu. The respondents in the said appeal are plaintiffs 1 to 6 and defendants 2 to 4 in the suit. The suit was one for partition and separate possession of the plaintiffs' one-fifth share and there was a controversy over the 'C' schedule properties, which defendant 5 claimed as his self acquisition. The first court countenanced the case of defendant 5 and the suit of the plaintiffs in respect of the 'C' schedule properties was dismissed. The first court passed a preliminary decree for partition of the plaintiffs' one fifth share in the 'A' schedule properties other than item No. 31; B schedule properties and C1 schedule properties. The first defendant has filed the appeal A. S. No. 159 of 1980. The plaintiffs' respondents 1 to 6 in the appeal, preferred cross-objections and they chose to implead only defendants 1 to 4 as respondents therein. We find that the appeal is of the year 1980. In December 1981, the plaintiffs, respondents 1 to 6 in the appeal conceived the idea of impleading defendant 5 as respondent 5 in the cross objections and took out two applications I. A. 19 of 1982 to condone the delay of 359 days in impleading defendant 5 as respondent 5 in the cross objection. These two applications have been allowed by the Court below. The present revisions have been preferred by defendant 5 against the orders of the court below.

2. Mr. R. Sundaravaradan, learned counsel for defendant 5, petitioner in the two revisions, submits that it is a well settled proposition that there could not be a cross objection by one respondent against other co-respondents save in exceptional cases and if this principle had been applied by the court below, it would not have been ventured to consider the question of condoning the delay in bringing on record defendant 5 as respondent 5 in the cross objections as well as impleading him as such. The proposition stated by the learned counsel is one countenanced by a Full Bench of five learned Judges of this court in Venkateswarulu v. Ramamma . The facts dealt with by the Full Bench are more or less similar to the facts of the present case. There was a suit for partition of the joint family properties filed by the plaintiffs against their paternal uncle and his two sons (defendants 1 to 3) and in that suit, the plaintiffs had impleaded inter alia defendants 5 and 6 as persons in possession of preliminary decree was passed in favour of the plaintiffs. But, their claim with reference to the properties in the possession of defendants 5 and 6 as persons in possession of certain items of family properties. A preliminary decree was passed in favour of the plaintiffs. But, their claim with reference to the properties in the possession of defendants 5 and 6 was not countenanced. Defendants 1 to 3 preferred an appeal to the High Court, impleading only the plaintiffs and defendant 4 as the respondents. In that appeal, the plaintiffs who were respondents 1 and 2 therein, filed an application to implead defendant 5 as a respondent in a memorandum of cross objections sought to be filed by them against the decree of the first court. It was found that on the date of that application a separate appeal against defendant 5 was out of time. It was also admitted that the appellants (defendants 1 to 3) were not in any way interested in or concerned with the cross objections sought to be preferred against the defendant 5 by respondents 1 and 2 (the plaintiffs.) The Full Bench held that the application to implead defendant 5 as a party either to the appeal or to the memorandum of cross objection taken by a respondent in which the appellant has no interest cannot be treated as a 'cross objection' within the meaning of Order XLI, R. 22, Civil P.C. The Full Bench consisting of five learned judges of this court, overruled the decision of the earlier Full Bench in Munisami Mudali v. Abbu Reddi, 38 Mad 705 : (AIR 1915 Mad 648).

3. In Pannalal v. State of Bombay, , five learned

judges of the Supreme Court, approved the following observations of Rajamannar, C.J. in Venkateswarulu v. Ramamma, (FB) -

"The Legislature by describing, the objection which could be taken by the respondent as a cross objection must have deliberately adopted the view of the other High Courts. One cannot treat an objection by a respondent in which the appellant has no interest as a cross objection. The appeal is by the appellant against a respondent, the cross objection must be an objection by a respondent against the appellant."

The Supreme Court delineated some of the exceptional cases in which a respondent in an appeal could prefer a cross objection against other respondents, as including cases where the relief sought against the appellant in such an objection is inter-mixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the question being reopened between the objecting respondent and the other respondents.

4. The well accepted ratio has been followed by a bench of this court, to which I have been a party in H. N. Govinda v. M. N. Sundara Bai, A. S. NO. 657 of 1974, judgment dated 20-6-1978. The first defendant, who is the appellant in the present appeal, is admittedly not interested in the C schedule properties and defendant 5 alone is interested in them. The matter also cannot be brought within the concept of exceptional cases as delineated by the Supreme Court.

5. The Court below refers to the explanation added on to sub-rule (1) of Rule 22 of Order XLI, Civil P. C., added on by Central Act 104 of 1976, to state that this would enable a respondent to prefer cross objections as against a corespondent. The said explanation reads as follows-

"A respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may, under this rule, file cross objections in respect of the decree in so far as it is based on that by reason of the decision of the court on any other finding which is sufficient for the decision of the suit, the decree is wholly or in part, in favour of that respondent."

6. A reading of the explanation does not in any way convey the meaning that by virtue of this, a respondent is enabled to prefer a cross objection against another co-respondent. The very object and introduction of the explanation is only to empower the respondent in an appeal to file cross objections in respect of a finding adverse to him, notwithstanding that the ultimate decision is wholly or party in his favour. The Court below erred in placing reliance on this explanation while deciding the matter. The court below has also relied on a decision of Abdul Rahman, J. in Devendra Ayyar v. Muthu Chettiar, AIR 1938 Mad 329: 47 Mad LW 760, where the learned Judge, following the ratio of the earlier Full Bench in Munisami Mudali v. Abbu Reddi, ILR 38 Mad 705: (AIR 1915 Mad 648), held that a memorandum of cross objection could be filed by a respondent against a co-respondent in an appeal as the powers given to the court under Order XLI, Rule 22, Civil P. C., are wide enough for such purposes. This decision of the learned single Judge Abdul Rahman, J. has lost its force because the ratio of the earlier Full Bench adopter by the learned single Judge has been overruled by the subsequent Full Bench, consisting of five learned Judges of this court. Hence, the reliance placed by the court below on the judgment in Devendra Ayyar v. Murthu Chettiar, AIR1938 Mad 329: 47 Mad LW 760 cannot be upheld. In fact, the later Full Bench considered the question and decided overruling all previous decisions and expressed the view as stated above.

7. In view of the well settled proposition of law, it is not possible to countenance and sustain the orders passed by the court below and this obliges me to interfere in revision are allowed. There will be no order as to costs.

8. The appeal is of the year 1980 and the court below will do will to dispose of the same expeditiously.

9. Petitions allowed.


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