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ACT: Question regarding maintainability of cross-objection in appeal-order 41, rules 22 and 33 of Civil Procedure Code- Applicability thereof.
There is a Math known as Juna Math in Bikaner.
FACTS- The first appellant is the present Mahant of the Math and the second appellant is the presiding deity of the Math, both referred to collectively as ‘the Math’, herein. Previously, one Lalgiri Maharaj was the Mahant of the Math. He mismanaged the Math and disposed of its properties. He gave on lease for 99 years land measuring 2211 sq. yards in favour of Madan Mohan, the respondent No. 1.he sold to Madan Mohan 446 sq. yards of land out of the land leased to him. Madan Mohan constructed shops on the land purchased and sold them to Jankidas and Mohan Lal, who are respondents Nos. 2 and 3. Then Madan Mohan sold another piece of land purchased from Lalgiri to the respondents Nos. 2 and 3. Later, the first appellant became the Mahant of the Math, and the Math filed a suit, challenging the alienations made by Lalgiri, and for a declaration that the said alienations were without authority and not binding on the Math and for possession of the property from the respondents 1 to 3. The trial Court decreed the suit in part only, as it gave a declaration that the lease deed dated August 19, 1963, was null and void, but the relief regarding possession of the land demised was rejected.
The suit for recovery of possession of the land sold by Lalgiri was also dismissed. Against the judgment of the Trial Court, two appeals one by the Math and the other, by Madan Mohan were filed before the High Court. By a common judgment in the two appeals, a single Judge of the High Court (i) allowed the appeal of the Math in part, giving a simple declaration that the sale of the land was void, but declining to pass a decree for possession of the land sold, and (ii) allowed the appeal of Madan Mohan, giving him complete relief, while holding that the suit as to the lease was barred by time. Against the judgment of the Single Judge, no appeal was filed either by the Math or by Madan Mohan. There was only an appeal filed by respondents 2 and 3, who impleaded the Math as the first respondent and Madan Mohan, as the third respondent. The Math Preferred cross-objection. Madan Mohan did not do anything. The Division Bench of High Court dismissed the appeal on the merits. It also dismissed the cross-objection on the ground of maintainability. Aggrieved by the dismissal of the cross-objection, the Math appealed to this Court for relief by special leave.
COURT HELD: The Single Judge invalidated the sale of the property to Madan Mohan, while denying a decree for possession. The appellants before the Division Bench wanted to get rid of the finding as to the invalidity of the sale. The Math wanted to recover possession of the property from the appellants before the Division Bench, and Madan Mohan. The Math instead of filing an appeal for that relief, could as well file the cross-objection. That is clear from the provisions of R. 22 of 0.41, C.P.C. The High Court was clearly in error in holding to the contrary. The next question for consideration was whether the cross-objection was maintainable against Madan Mohan, a co-respondent, and if not, whether the Court could call into aid R. 33, 0.41 C.P.C. Generally, the cross-objection could be urged against the appellant. It is only by way of exception to this general rule that one respondent may urge objection as against the other respondent. The type of such exceptional cases are very much limited-when an appeal cannot be effectively disposed of without opening the matter as between the respondents inter se, or when there is a case where the objections are common as against the appellants and the co-respondent. This view has been accepted as a guide for more than two decades. No attempt should be made to unsettle the law unless there is a compelling reason. The Court does not find any such compelling reason in the case. The Math could urge the objection that the appellants before the Division Bench and Madan Mohan had no right to retain the property after the sale deed had been declared null and void. The validity of the lease deed and the possession of the land in pursuance there of, have to be determined only against Madan Mohan. It is not intermixed with the right of the appellants above-said. It has no relevance to the question raised in the appeal.
The High Court was right in holding that the cross-objection as to the lease was not maintainable against Madan Mohan. But that does not mean that the Math should be left without a remedy against the judgment of the Single Judge. If the cross-objection filed under R. 22 of 0.41,C.P.C. was not maintainable against the co-respondent, the Court could consider it under R. 33, 0.41, C.P.C. R. 22 and R. 33 are not mutually exclusive. They are closely related with each other. If objection cannot be urged under R. 22 against correspondent, R. 33 could take over and help the objector. The appellate Court could exercise that power in favour of all or any of the respondents even though such a respondent may not have filed any appeal or objection. The sweep of the power under R. 33 is wide enough to determine any question not only between the appellant and the respondent but also between a respondent and co-respondents.
The appellate Court could also pass such other decree or order as the case may require. The words “as the case may require “used in R. 33 of 0.41, have been put in wide terms to enable the appellate Court to pass any order or decree to meet the ends of justice. This Court is not giving any liberal interpretation. The rule itself is liberal enough. The only constraint that could be seen, may be: that the parties before the lower Court should be there before the appellate Court, the question raised must properly arise out of the judgment of the lower Court; it may be urged by any party to the appeal. It is true that the power of the appellate Court under R. 33 is discretionary, but it is a proper exercise of judicial discretion to determine all the questions urged in order to render complete justice between the parties. The Court should not refuse to exercise that discretion on mere technicalities. Appeal allowed. The judgment and decree of the Division Bench of the High Court reversed. The Division Bench to restore the appeal and cross objection of the parties and dispose of the same in accordance with law and in the light of the observations made.
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