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Ram Chand Vs. Smt. Ramku and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. Nos. 33 and 34 of 1976
Judge
Reported inAIR1977HP82
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 22
AppellantRam Chand
RespondentSmt. Ramku and ors.
Appellant Advocate Chhabil Dass, Adv.
Respondent Advocate Davinder Gupta, Adv.
DispositionPetitions allowed
Cases ReferredShankar Lal v. Saruplal
Excerpt:
- .....the petitioner appealed against the order in each case, and thereupon the respondent filed a cross-objection in each appeal. the appeals and the cross-objections came on before the learned district judge, and by his order dated may 12, 1976 he dismissed the appeals and allowed the cross-abjections, and in the result dismissed the applications for interim injunction.3. learned counsel for the petitioner in these two revision petitions contends that the appeals filed by the petitioner before the learned district judge were incompetent, inasmuch as the trial court granted an interim injunction in each case and there was no order with which the petitioner could be aggrieved. heurges that as the appeals were incompetent the cross-objections also were incompetent and could not be.....
Judgment:
ORDER

R.S. Pathak, C.J.

1. These are two revision petitions by the plaintiff arising out of proceedings for grant of interim injunction during the pendency of two suits.

2. The petitioner filed two suits against the respondents and during the pendency of the suits .applied for the grant of interim injunction. The trial Court granted the interim injunction in each suit in so far that it declared that the status quo between the parties would continue. Curiously, the petitioner appealed against the order in each case, and thereupon the respondent filed a cross-objection in each appeal. The appeals and the cross-objections came on before the learned District Judge, and by his order dated May 12, 1976 he dismissed the appeals and allowed the cross-abjections, and in the result dismissed the applications for interim injunction.

3. Learned counsel for the petitioner in these two revision petitions contends that the appeals filed by the petitioner before the learned District Judge were incompetent, inasmuch as the trial Court granted an interim injunction in each case and there was no order with which the petitioner could be aggrieved. Heurges that as the appeals were incompetent the cross-objections also were incompetent and could not be entertained. Having heard learned counsel for the parties, it seems to me that learned counsel for the petitioner is right.

4. Order 41, Rule 22 of the Civil P. C. provides:

'Rule 22. (1) 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 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 notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow .....

It seems to me that when Order 41, Rule 22 speaks of an appeal, it contemplates a valid appeal which ordinarily calls for consideration on its merits. It is such an appeal the pendency of which would entitle the responlent to file a cross-objection. An appeal which is barred by time is not such an appeal, and it has been so held in Alagappa Chettiar v. Chocka-lingam Chetty, AIR 1919 Mad 784 (FB), Lajpat Rai v. Lachhman Das. AIR 1920 Lah 24 (1), Jai Gopal Singh v. Muna Lal, AIR 1924 Lah 43, Karora Singh v. Kartar Singh, AIR 1951 Punj 170 and Charity Commr. v. Padmavati AIR 1956 Bom 36, In C.P. Mehra v. Sm. K.K. Mehra, AIR 1859 All 167 the appeal was not properly constituted, and the Allahabad High Court held that the cross-objection did not lie. An appeal which was not maintainable for failure of the appellant to pay the court-fee was held incompetent in Kashiram Senu v, Ranglal Motilal-shet, AIR 1941 Bom 242 and the respondent was held not entitled to maintain a cross-objection. An appeal which was inr competent ab initio was held by the Calcutta High Court in Malhati Tea Syndicate Ltd. v. Revenue Officer. Jalpaiguri, AIR 1973 Cal 78 to constitute a ground for rejecting the cross-objection,

5. Learned counsel for the respondents has relied on Kamat v. Kamat, (1884) ILR 8 Bom 368. The Division Bench of the Bombay High Court seems to have held there that the question whether the appeal filed was maintainable could not affect the validity of the cross-objection. It was said that the factthat an appeal had been filed was sufficient; its competence was of no moment. The decision was followed by a learned single Judge of the Punjab Chief Court in Nanak Baksh v. Wazir Singh, (1909) 4 Ind Cas 625 (Lah). A Division Bench of the Allahabad High Court in Shankar Lal v. Saruplal (1912) 13 Ind Cas 19 (All) also adopted that view. In my opinion, the proposition laid down by the Bombay High Court and the Allahabad High Court in Charity Commr. AIR 1956 Bom 86 (supra) and C.P. Mehra AIR 1959 All 167 (supra) respectively and the other cases cited earlier should be preferred.

6. Upon this, I hold that inasmuch as the appeals filed by the petitioner before the learned District Julge were incompetent the cross-objections had to be rejected as not maintainable.

7. The revision petitions are allowed, the order dated May 12, 1976 of the learned District Judge in each of the two appeals and the cross-objections is set aside, and the orders of the trial Court are restored. In the circumstances, there is no order as to costs.


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