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Kallo Alias Bhagwan And Another v. Mishri Lal And Others - SECOND APPEAL No. 380 of 2004 [2005] RD-AH 3621 (27 September 2005)


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Court No. 4

Second Appeal No. 380 Of 2004.

Kallo alias Bhagwan and another


Mishri Lal and others


Hon'ble Anjani Kumar, J.

This Second Appeal is listed under Order 41 Rule 11 of Code of Civil Procedure along with an application No. 175821 of 2004 dated 28th September 2004 filed by the appellants with the prayer that the appellants do not want to press this appeal and it is, therefore, prayed that the application No.175821 of 2004, may be allowed and dismissed as not pressed.

I have heard Sri D.P. Singh, learned counsel for the appellant, and Sri K.L. Aherwar, respondent no.7, who appeared in person.

The brief facts leading to filing of the present second appeal are as under:-

The appellants, feeling aggrieved by the order passed by the VIIIth Additional District Judge, Kanpur Nagar, dated 24th August 1994, approached this Court by means of this appeal which was filed beyond time on 2nd January 1995. On the day when the appeal was presented before the Court i.e. on 5th January 1995 the appeal was presented along with an application for condonation of delay in filing the appeal under Section 5 of the Limitation Act. The appeal remained pending and on 22nd April 2004 this Court allowed the application filed by the appellants for condonation of delay and appeal was treated to be within time. On 17th May 2004 a cross-objection has been filed on behalf of contesting respondent. The contesting respondent also filed an application on 17th May 2004 to the effect that appeal be abated as no steps were taken by the appellants to bring on record the heirs of deceased respondents 1 to 33 and husband of respondent no.4. This application is numbered as Civil Misc. Application No.90074 of 2004. On 30th September 2004 an application was filed by the appellant that the appeal may be dismissed as not pressed.

Today when the matter was listed as stated above, learned counsel for the appellants submitted that his application for dismissal of the appeal be allowed and consequent to the dismissal of the appeal, cross-objection of the contesting respondent be also dismissed. The contesting respondent, contesting the aforesaid submission made by the learned counsel for the appellant, submitted that even the appeal is dismissed as not pressed, the cross-objection survives in view of the provisions of Order 41 Rule 22 and Order 41 Rule 33 of Code of Civil Procedure. Respondent no.7 relied upon a relevant decision reported in AIR 1988 SC 54, Mahant Dhangir and another Vs. Shri Madan Mohan and others. Paragraphs 14 and 15, which are relied upon by respondent no.7, are reproduced below:-

"14. Basically, the first question raised in the cross-objection relates to the right of Madan Mohan to retain the property under the sale deed. The appellants are the second purchasers. The Math, therefore, could urge the objection that the appellants and Madan Mohan have no right to retain the property after the sale deed was declared null and void. But then the considerations as to the lease deed is quite different. The validity of the lease deed and the possession of the land thereof has to be determined only against Madan Mohan. It is not intermixed with the right of the appellants. It has no relevance to the question raised in the appeal. The High Court was, therefore, right in holding that the cross-objection as to the lease was not maintainable against Madan Mohan.

15. But that does not mean, that the Math should be left without remedy against the judgment of learned single Judge. If the cross-objection filed under R.22 of O.41, C.P.C. was not maintainable against the co-respondent, the Court could consider it under R.33 of O.41, C.P.C. Rule 22 and R.33 are not mutually exclusive. They are closely related with each other. If objection cannot be urged under R.22 against co-respondent, R.33 could take over and come to the rescue of the objector. The appellate court could exercise the power under R.33 even if the appeal is only against a part of the decree of the lower court. The appellate court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any appeal or objection. The seep of the power under R.33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The appellate court could pass any decree or order which ought to have been passed in the circumstances of the case. 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 O.41 have been put in wide terms to enable the appellate court to pass any order or decree to meet the ends of justice. What then should be the constraint ? We do not find many. We are not giving any liberal interpretation. The rule itself is liberal enough. The only constraints that we could see may be these: That the parties before the lower court should be there before the appellate court. The question raised must properly arise out of judgment of the lower court. If these two requirements are there, the appellate court could consider any objection against any part of the judgment or decree 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 questions urged in order to render complete justice between the parties. The court should not refuse to exercise that discretion on mere technicalities."

On the strength of the aforesaid decision respondent no.7 has argued that even if the appeal is dismissed as not pressed as prayed for by learned counsel for the appellant, the cross-objection be decided by the Court. The provisions of Order 41 Rule 22 and Order 41 Rule 33, which have been relied upon by respondent no.7, are reproduced below:-

"22. Upon hearing, respondent may object to decree as if he had preferred separate appeal. _ (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour, and may also 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.

Explanation. - 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-objection in respect of the decree in so far as it is based on that finding, notwithstanding 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.

(2). Form of objection and provisions applicable thereto. _ Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.


(4)Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other 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.

33. Power of Court of Appeal. - The The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents  or parties, although such respondents or parties may not have filed any appeal or objection, and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.

Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order."

On the other hand learned counsel for the appellant, Sri D.P. Singh, has submitted that cross-objection arises only when an appeal is pending and once the appeal is dismissed as not pressed, the question of cross-objection does not arise. Sri Singh has relied upon a relevant decision of Rajasthan High Court reported in AIR 1970 Rajasthan 234Ram Kripal Vs. Radhey Shyam and others, wherein a Division Bench of the Rajasthan High Court has held that the stage for filing cross objections can only arise after preliminary hearing when the Court directs the issue of notice to the respondent. It is only after that stage that the respondent can file cross objections and insist on their hearing on merit. Another decision relied upon by Sri Singh is AIR 1960 Calcutta 512, Gobinda Prasad Dawn  and another Vs. Rajani Kanta Dawn and another, wherein it has been held that where the appeal is abated as the legal representatives of the deceased respondent were not brought on the record, the cross objector has no right to have his cross-objection heard.

In the alternative Sri Singh further submitted that as prayed for by the contesting respondent by its application No.90074 of 2004 that the appeal stands abated against respondents 1 to 4 the cross objection cannot be decided. He further submitted that the present appeal has yet not been admitted and is listed today under Order 41 Rule 11 of Code of Civil Procedure. For this reason also Sri Singh submitted that cross objection cannot be heard. Sri Singh further submitted as last submission that in any view of the matter under the amended provision of Section 100 C.P.C. A second appeal can be heard only on substantial questions of law, so is with regard to cross-objection and since no substantial question of law has been suggested, the cross objection cannot be heard.

I have given my considered thoughts on rival contentions raised on behalf of the parties. As would be clear from the chronology of the dates, the application filed by the contesting respondent to the effect that the appeal be declared as having been abated against respondents 1 to 4 is also up for hearing as no orders have been passed on the said application. So is the application filed by the appellant that the appeal may be dismissed as not pressed. In the light of the facts of this case it is, therefore, clear that the appeal stood abated against respondents 1 to 4. Therefore the application filed by the contesting respondent that the appeal be declared as abated deserves to be allowed and the appeal is declared abated.

Coming now to the application filed by the appellant for dismissal of appeal as not pressed coupled with the facts the appeal stood abated against respondents 1 to 4 and in absence of heirs of respondents 1 to 4 since no effective order can be passed in this appeal the appeal is dismissed. In these circumstance though there is a prayer for dismissal of the appeal as not pressed, on this application no order is passed as it is not required.

In view of what has been stated above this appeal is dismissed as having been abated and the application no.90074 of 2004 filed by the contesting respondent no.7 is allowed.

Since the appeal is dismissed having been abated, the cross-objection filed by the contesting respondent cannot be decided.

The matter is disposed of accordingly.

Dt: 27.9.2005.



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