ORDER
S.B. Deshmukh, J.
1. This appeal from order under Order 43, Rule 1(u) of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code” for the sake of brevity) is directed against the judgment and order dated 16-12-2004 in Regular Civil Appeal No. 129 of 2001 passed by the learned 1st Ad hoc Additional District Judge, Shrirampur, Dist. Ahmednagar.
2. The facts in brief may be summarised as follows:
(a) The appellant was the original plaintiff in Regular Civil Suit No. 297 of 1999 filed in the Court of Civil Judge, Junior Division, Newasa, District Ahmednagar, for perpetual and mandatory injunction. The subject matter of the suit is an agriculture land bearing Gut No. 231 situated at Sonai Taluka Newasa District Ahmednagar. The respondents, who are the defendants in the suit, have after entering the appearance filed the written statement in response to the pleadings made in the plaint. The copy of the written statement is annexed with the appeal memo. This written statement seems to have been filed on 31-1-2000 by the defendant Nos. 2 and 3. The defendant Nos. 1 to 5 have also filed counterclaim in the suit in relation to the very same agriculture land. This counter-claim seems to have been filed on March 27, 2001. The plaintiff has also filed written statement to the counter-claim of the defendants.
(b) On July 13, 2001, the plaintiff filed an application before the trial Court that he would move an application for transfer of the suit before the learned District Judge, Ahmednagar. Hearing of the suit was, therefore, sought to be adjourned. After obtaining the reply from the defendants the trial Court, by an order dated 13-7-2001, granted time upto 20-7-2001. The suit was thus posted for recording of the evidence of the plaintiff on 20-7-2001. On 20-7-2001, the plaintiff made an application seeking adjournment on the ground that her power of attorney holder since 4/5 days prior to 20-7-2001 was suffering from gastro and was bed-ridden. The plaintiff also stated in the application that her throat was soar and she was unable to make conversation. The plaintiff, therefore, sought adjournment of the suit. This application was considered and rejected by the trial Court by the order dated 20-7-2001. While rejecting the said application the trial Court observed that the High Court has directed to decide the suit on or before August 3, 2001. It seems that a detail order was passed in this respect below Exhibit 87. It also appears from the said order that previously also the suit was adjourned at the instance of the plaintiff. The trial Court also referred to the application seeking transfer of the suit and absence of any order received from the learned District Judge. With these observations the application of the plaintiff for adjournment was rejected.
(c) On the same day i.e. on 20-7-2001 the defendants were called upon to enter into witness box and lead the evidence. At this point of time, an application seeking adjournment came to be moved on behalf of the defendants. The suit was listed for the evidence of the plaintiff and cross-examination of the witness of the plaintiff. The application of the plaintiff for adjournment was rejected and the evidence of the plaintiff was also ordered to be closed. In this premise, it is contended in the application by the defendants that the order to strike out the defence was also passed against the plaintiff by the trial Court. Ultimately, it was mentioned that in this way the evidence of the plaintiff was closed on the same day of 20-7-2001. The defendants have, therefore, shown their inability to lead their evidence suddenly on the very same day i.e. 20-7-2001. The defendants in their application have sought only one day’s time. Further promise was made in the application of the defendants that they would lead the evidence on the adjourned date and in the interests of justice ultimately time was sought by the defendants.
(d) The trial Court rejected the application of the defendants for adjournment. The trial Court also decided the suit on merits and delivered the judgment on the same day i.e. 20-7-2001 dismissing the suit of the plaintiff and the counter-claim of the defendants. The parties were directed to bear their own costs. While deciding the suit and dismissing the suit and the counter-claim on merits, the trial Court recorded findings on all issues i.e. Nos. 1 to 6, 6A to 6F, 7, 8 and 9. Suffice it to say that the suit and the counter-claim were not dismissed or disposed of in default.
(e) The dismissal of the suit by the judgment and order dated 20-7-2001 by the trial Court was challenged in Regular Civil Appeal No. 129 of 2001 under Section 96 of the Code of Civil Procedure filed by the original plaintiff.
(f) The learned 1st Ad hoc Additional District Judge, Shrirampur, District Ahmednagar, after hearing the parties, decided the appeal by the judgment and order dated 16-12-2004 in the following terms:
1. Appeal is allowed.
2. Decree passed by Ld. Trial Judge is set aside.
3. No order as to costs to the peculiar circumstances of the case.
4. Ld. Trial Judge is directed to re-admit the plaint by it’s original number and restore back it to the stage at which it was on 20-7-2001 i.e. evidence of plaintiff. Counter-claim also stands restored.
5. Ld. Trial Judge shall resume proceedings from that stage, where it was on 20-7-2001.
6. Plaintiff is directed to produce his witnesses for cross-examination.
7. Plaintiff may also adduce any further evidence if desires. So also, defendants are at liberty to adduce evidence, as they require in respect of the suit, as well as counter-claim.
8. Ld. Trial Judge shall decide the matter afresh on the basis of evidence adduced by the parties.
9. Parties are directed to appear before the trial Judge on 12-1-2005.
10. R and P sent back to lower Court.
It is this judgment and order dated 16-12-2004 of the first Appellate Court, is the subject-matter of challenge in the appeal from Order under Order 43, Rule 1(u) of the Code of Civil Procedure.
3. Advocate Mrs. Phadnis, initially, has pointed out that the appeal from order though it is filed under Order 43, Rule 1(u) of the Code, it is in the nature of a second appeal under Section 100 of the Code. She has relied on the judgment of the Apex Court in the matter of Narayanan v. Kumaran and Ors. reported in 2004(4) SCC 26. In para 17 of the judgment, the Apex Court held that:
17. It is obvious from the above rule that an appeal will lie from an order of remand only in those cases in which an appeal would lie against the decree if the Appellate Court instead of making an order of remand had passed a decree on the strength of the adjudication on which the order of remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand were to be treated as a decree and not a mere order. In these circumstances, it is quite safe to adopt that appeal under Order 43, Rule 1 Clause (u) should be heard only on the ground enumerated in Section 100. We, therefore, accept the contention of Mr. T. L. V. Iyer and hold that the appellant under an appeal under Order 43, Rule 1 Clause (u) is not entitled to agitate questions of facts. We, therefore, hold that in an appeal against an order of remand under this clause, the High Court can and should confine itself to such facts, conclusions and decisions which have a bearing on the order of remand and cannot canvass all the findings of facts arrived at by the lower Appellate Court.
4. According to the learned Counsel for the respondent No. 1, unless a substantial question of law is formulated there is no question of admitting the appeal from order.
5. Shri C. K. Shinde, learned Advocate for the appellant, submits that the substantial questions of law have been formulated and are part of the appeal memo. According to him, Grounds Nos. 6, 7, 8, 9 and 10 can be considered as the grounds involving the substantial questions of law. These grounds are reproduced herein below:
VI. It ought to have been considered that the counter-claim is always in a nature of Cross Suit and therefore, the defendants have substantive right of appeal against the dismissal of Counter-Claim.
VII. It ought to have been considered that though the suit and counterclaim are decided in one and the same proceedings, the counter-claim is tried and entertained as cross suit and therefore, the substantive rights are created in favour of the defendants.
VIII. It ought to have been considered that the impugned order is contrary to the provisions of Order 41, Rule 31 of the Civil Procedure Code.
IX. It ought to have been considered that in an appeal filed by the appellant, the learned Appellate Court has to grant relief to the appellant only if the appellant is found entitled and therefore, in view of the mandate of Order 41, Rule 31 of the Civil Procedure Code no relief could have been granted in favour of the defendant in an appeal filed by the plaintiff.
X. The learned lower Appellate Court has misconstrued the facts of the case as well as the rights of the parties and thereby arrived at wrong conclusion to exercise the powers under Order 41, Rule 33 of the Civil Procedure Code.
6. Shri C. K. Shinde urged that it was not a simple suit filed on behalf of the plaintiff and defended by the defendants. The defendants have also filed counter-claim in the suit and the trial Court dismissed the suit as well as the counter-claim. He points out from the record that there was no cross objection filed on behalf of the defendants under Order 41, Rule 22 of the Code. There was no cross appeal under Section 96 of the Code filed by the defendants challenging that part of the judgment of the trial Court. Shri Shinde has relied on para 8 of the judgment of this Court (Coram : S. Radhakrishnan, J) in the matter of Noor Mohamed Yusuf Nakade v. Alisaheb Mohammed Mukadam reported in 1998(2) Mh.LJ. 210. This Court in para 8 of the judgment held on the facts of the said case as follows:
8. Under these circumstances, this appeal will have to be allowed and the trial Court finding that the respondent is the owner as well as the lower Court’s finding that the respondent is the owner is hereby set aside. As far as the possession of the land is concerned the lower Appellate Court has categorically held that the respondent was not in possession of the suit land and in view thereof the lower Appellate Court had refused to grant perpetual injunction in favour of the respondent. This part of the lower Appellate Court’s order has not been challenged by the respondent by any cross objection as such the same stands. Under these circumstances the findings of both the lower Appellate Courts that the respondent is the owner of the said suit land is set aside as a consequence the lower Appellate Court order directing that the plaintiff namely the respondent herein be put in possession is also set aside. Decrees of both the lower Courts are set aside and the suit of the plaintiff stands dismissed. As a consequence the present appeal is allowed, however with no order as to costs.
7. Undisputedly, the judgment of the trial Court was not challenged by filing a cross appeal by the defendants. The cross-objection which could have been filed under Order 41, Rule 22 of the Code in an appeal of the plaintiff filed before the first Appellate Court was also not filed. This point was argued before the first Appellate Court. The first Appellate Court considered the submissions advanced before it and allowed the appeal by its judgment under Order 41, Rule 33 of the Code. It appears from the judgment that it has exercised the inherent powers under Section 151 of the Code. The first Appellate Court considered the fact that the direction was given by this Court for disposal of the suit on or before 3-8-2001. The first Appellate Court also considered the reasonable request of the defendants for adjournment of the suit for one day. It also noted the stage of the suit that it was listed for recording of the evidence of the plaintiff s witnesses on 20-7-2001. The inability of the defendants to lead evidence is justified. With these observations the first Appellate Court passed the impugned judgment.
8. The scope of appeal from order filed in this Court under Rule 1(u) of Order 43 of the Code is now explained by the Supreme Court in Narayanan’s case (supra). Out of four grounds pointed out by the learned Counsel for the appellant, ground Nos. 6 and 7 can be considered together. In Ground No. 6, it is contended that the counter-claim is always in the nature of cross suit and therefore, the defendants have substantive right of appeal against dismissal of the counter-claim. In Ground No. 7 it is contended that the suit and the counter-claim are decided in one and the same proceedings, the counter-claim is a cross suit and therefore, substantive rights are created in favour of the defendants. The scheme of Order 8, Rules 6A to 6G of the Code is relevant while considering these two grounds.
9. Rules 6A to 6G of Order 8 of the Code take care of filing of the counterclaim by defendant in a suit. Except proviso to Rule 6A of Order 8, there does not appear any limit to the jurisdiction of the Court trying the suit. The proviso, provides that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Except this rider, there appears to be no other impediment for the Court trying a suit, to consider the counter-claim. However, in the present case the facts are material. Undisputedly, the counter-claim was filed by the defendant and the plaintiff filed written statement to the said counterclaim. On 20-7-2001, the suit was not listed for evidence of the defendants either in their capacity as defendants in the suit or as plaintiffs in the counter-claim filed by them in the said suit. The stage of the suit is important. The result of the impugned judgment passed by the trial Court is that the defendants could not get an opportunity either to defend the suit or to lead evidence in support of the counter-claim. In view of this facts-situation, there was no material before the trial Court and/or the first Appellate Court. These two grounds, in my opinion, therefore, cannot be said to be the grounds involving substantial questions of law.
10. Ground Nos. 8 and 9 are in respect of the provisions laid down in Rule 31 of Order 41 of the Code. Both these grounds raise a single grievance on behalf of the appellant that the impugned judgment of the first Appellate Court suffers from provisions of Rule 31 of Order 41 of the Code. Rule 31 provides as follows:
31. Contents, date and signature of judgment;
The judgment of the Appellate Court shall be in writing and shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;
and shall at the time it is pronounced be signed and dated by the Judge or by the Judges concurring therein.
11. According to Shri C. K. Shinde, learned Advocate for the appellant, the learned Judge of the Appellate Court has to frame or formulate the points for determination in the appeal. These points for determination must be similar to or identical to the issues framed by the trial Court in the suit and the Appellate Court must deliver the judgment on all points. In this respect, the decision of the Apex Court in the matter of Girijanandini Devi and Ors. v. Bijendra Narain Choudhary is relevant. While considering the scheme of Rule 31 of Order 41 of the Code, the Apex Court held:
12. The trial Court, as we have already observed, on a consideration of the entire evidence and the subsequent conduct of the parties came to the conclusion that there was no severance of Bijendra Narain from his uncle Bidya Narain and with that view the High Court agreed. It is true that the High Court did not enter upon a reappraisal of the evidence, but it generally approved of the reasons adduced by the trial Court in support of its conclusion. We are unable to hold that the learned Judges of the High Court did not, as is contended before us, consider the evidence. It is not the duty of the Appellate Court when it agrees with the view of the trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial Court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice.
True it is that in the case on hand the first Appellate Court did not frame points for determination although there were several issues framed and answered by the trial Court as noted in the foregoing paragraphs of the judgment. However, it is not possible for me to accede to the submissions of Shri C. K. Shinde for the reason that there was no evidence led by both the parties. In the absence of any evidence before the first Appellate Court, in my opinion it was not justifiably possible for it to decide the appeal on the basis of admissible evidence on record. In such a case, therefore, the first Appellate Court was constrained to decide the appeal on the basis of facts-situation obtained on the date of delivery of the impugned judgment and only on three points, which are manifest from paragraph 10 of the impugned judgment. Really, in my opinion, the only point for consideration before the first Appellate Court in this appeal was whether the decree passed by the trial Court was legal and proper. Therefore, it is not possible for me to accept the submission of Shri C. K. Shinde based on the provisions of Rule 31 of Order 41 of the Code. These two grounds i.e. 8 and 9, therefore, cannot be said to be the grounds involving the substantial questions of law.
12. Shri C. K. Shinde, learned Advocate referred to the provisions of Order 41, Rule 33 of the Code and contended that the first Appellate Court did not properly exercise the powers under Rule 33 of Order 41 as is the ground framed in Ground No. 10 of the appeal. It is useful to refer to, two judgments of the Apex Court. While considering the scope of powers of the Appellate Court under Rule 33 of Order 41 of the Code, in Panna Lal v. State of Bombay and Ors. , the Apex Court held:
18. In our opinion, the view that has now been accepted by all the High Courts that Order 41, Rule 22 permits as a general rule, a respondent to prefer an objection directed only against the appellant and it is only in exceptional cases, such as where the relief sought against the appellant in such an objection is intermixed, 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 other respondents, that an objection under Order 41, Rule 22 can be directed against the other respondents, is correct. Whatever may have been the position under the old Section 561, the use of the word “cross-objection” in Order 41, Rule 22 expresses unmistakably the intention of the Legislature that the objection has to be directed against the appellant. As Rajammannar, C. J. said in (KB.):
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-examination must be an objection by a respondent against the appellant.
We think, with respect, that these observations put the matter clearly and correctly. That the Legislature also wanted to give effect to the views held by the different High Courts that in exceptional cases as mentioned above an objection can be preferred by a respondent against a corespondent is indicated by the substitution of the word “appellant” in the third paragraph by the words “the party who may be affected by such objection”.
13. Another judgment of the Apex Court is in the matter of State of Punjab and Ors. v. Bakshish Singh . The Apex Court held that:
7. In this case, what we propose to do would be fully in consonance with the provisions of Order XLI, Rule 33 of the Code of Civil Procedure, 1908 which provides as under:
Order XLI – Appeals from Original Decrees
33. Power of Court of Appeal. – 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.
8. This provision gives very wide power to the Appellate Court to do complete justice between the parties and enables it to pass such decree or order as ought to have been passed or as the nature of the case may require notwithstanding that the party in whose favour the power is sought to be exercised has not filed any appeal or cross-objections.
9. The discretion, however, has to be exercised with care and caution and that too in rare cases where there have been inconsistent findings and an order or decree has been passed which is wholly uncalled for in the circumstances of the case. The Appellate Court cannot, in the garb of exercising power under Order XLI, Rule 33, enlarge the scope of the appeal. Whether this power would be exercised or not would depend upon the nature and facts of each case.
10. The powers of the Appellate Court are also indicated in Section 107 of the Code of Civil Procedure which provides that the Appellate Court shall have the same powers as are conferred on the Original Court. If the trial Court could dispose of a case finally, the Appellate Court could also, by virtue of Clause (a) of Sub-section (1) of Section 107, determine a case finally. In R.S. Lala Praduman Kumar v. Virendra Goyal it was held that the Appellate Court could even relieve against forfeiture in a case under the Transfer of Property Act, 1882. This too was based on the principle that the power which was available to the Original Court, could be exercised by the Appellate Court also.
14. I have considered the reasoning recorded by the Appellate Court. I am in agreement with the observations of the first Appellate Court in relation to the facts-situation in the present case. At the cost of repetition, it may be stated that on 20-7-2001 the suit was listed for the evidence of the plaintiff and in the facts and circumstances of the case the plaintiff was ordered to close the evidence by the trial Court. In a hasty manner the defendants were called upon to lead their evidence on the same day. Justifiably, the defendants asked for a short time to lead evidence. The request of the defendants was turned down on the ground that the suit was to be heard and disposed of as per the directions of this Court on or before 3-8-2001. Hearing of the suit and examination of witnesses is detailed from Rules 1 to 19 of Order XVIII of the Code. The Court has to regulate the hearing of the suit. The Court can refuse the motion of adjournments sought on frivolous grounds in a given case. However, primary function of the Court is to afford reasonable opportunity to parties concerned and to do justice by adjudicating their rights on merits. The lower Appellate Court, in my view, has rightly exercised the powers under Order 41, Rule 33 of the Code. In this view of the matter, in my opinion, no substantial question of law as contemplated by Section 100 of the Code requiring consideration for admitting the appeal under Rule 1(u) of Order 43 of the Code is involved in the present appeal. The appeal, therefore, needs to be dismissed at the threshold.
15. Regular Civil Suit No. 297 of 1991 is yet pending before the trial Court. Both the learned Counsel have informed the Court that the suit is being heard by the trial Court. In this view of the matter, the appeal is dismissed with no order as to costs.
16. Since the appeal is dismissed, no order is necessary on Civil Application No. 4538 of 2005. It is disposed of.