PETITIONER:
MAHANT DHANGIR AND ANOTHER
Vs.
RESPONDENT:
MADAN MOHAN AND OTHERS
DATE OF JUDGMENT28/10/1987
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
RAY, B.C. (J)
CITATION:
1988 AIR 54 1988 SCR (1) 679
1987 SCC Supl. 528 JT 1987 (4) 202
1987 SCALE (2)874
ACT:
Question regarding maintainability of cross-objection
in appeal-order 41, rules 22 and 33 of Civil Procedure Code-
Applicability thereof.
HEADNOTE:
%
There is a Math known as Juna Math in Bikaner. 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.
On August 19, 1963, he gave on lease for 99 years land
measuring 2211 sq. yards in favour of Madan Mohan, the
respondent No. 1. On March 22, 1968, 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
680
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 any thing. 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.
Allowing the appeal, the 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. [684G-H]
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 law has been laid down by this
Court in Panna Lal v. State of Bombay, [1964] 1 SCR 980 at
991. 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 compellmg reason in the case. [685A, H; 686A-B;
687A-B]
The Math could urge the objection that the appellants
before the Division Bench and Madan Mohan had no right to
retain the property
681
after the sale deed had been declared null and void. The
validity of the lease deed and the possession of the land in
pursuance thereof, has 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 corespondent, 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 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 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. [687B-H; 688A-B]
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. [688C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1018 of
1987.
From the Judgment and order dated 3.1.1985 of the
Rajasthan
682
High Court in D.B. Civil Special Appeal No. 20 of 1975.
Badri Das Sharma and B.N. Purohit for the Appellants.
Avadh Behari Rohtagi, S.N. Kumar and N.N. Sharma for
the Respondents.
The Judgment of the Court was delivered by
JAGANNATHA SHETTY,J. In the town of Bikaner there is a
Math known as ‘Juna Math’. The first appellant is the
present Mahant of the Math. The second appellant is the
presiding deity of the Math. For convenience and brevity we
will refer to them collectively as ‘the Math’
The primary question raised in this appeal, by special
leave, relates to maintainability of the cross objection
filed by the Math before the Division Bench of the High
Court of Rajasthan (Jodhpur V Bench) in Civil Appeal No. 20
of 1975. The Division Bench has dismissed the cross-
objection as not maintainable.
The background facts are these:
One Lalgiri Maharaj was a previous Mahant of the Math.
He had several vices. He mismanaged the Math and
recklessly disposed of its properties. On August 19,
1963 Lalgiri gave on lease the land measuring 2211 Sq.
yards in favour of Madan Mohan. The lease was for 99
years with monthly rent of Rs. 30. Again on March 22,
1968 Lalgiri sold 446 sq. yards of land to Madan Mohan.
It was out of the land which was already leased to
Madan Mohan. The sale was for Rs.4,000 Madan Mohan
constructed some shops on a portion of the land
purchased. He first, rented the shops to Jankidas and
Mohan Lal and later sold the same to them for Rs.
15,000. Madan Mohan is the first respondent, Jankidas
and Mohanlal are respondents 2 and 3 before us. There
was yet another transaction between the same parties.
On April 8, 1969 Madan Mohan sold a piece of land
measuring 124 sq. yards to respondents 2 and 3 for Rs.
1,500. This piece of land forms part of the land which
Madan Mohan purchased from Lalgiri.
In the meantime, there was change of guard in the Math.
Lalgiri was said to have abdicated Mahantship in favour of
the first appellant.
683
The Math thereafter filed Suit No. 28 of 1971 challenging
the alienations made by Lalgiri. The suit was for
declaration that the alienations were without authority and
not binding on the Math. It was also for possession of the
property from respondents 1 to 3. The trial court decreed
the suit in part. The trial court gave only a declaration
that the lease deed dated August 19, 1963 was null and void.
But the relief for 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 and decree of the trial court,
there were two appeals, before the High Court, one by the
Math and another by Madan Mohan. Both the appeals came for
disposal before the learned single judge. By a common
judgment dated July 14, 1975 learned judge allowed the
appeal of the Math in part. He gave a simple declaration
that the sale was void. He, however, did not give a decree
for possession of the land sold. The learned judge also
allowed the appeal of Madan Mohan. There he gave him
complete relief He held that the suit as to the lease was
barred by time. The result was that the Math could not get
back even an inch of land. D
Against the judgment of learned single judge there was
no appeal from the Math or Madan Mohan. There was only one
appeal by respondents 2 and 3 being the Appeal No 20 of
1975. Madan Mohan was impleaded as the third respondent in
that appeal. The Math was impleaded as the first respondent.
The Math preferred cross-objection. Madan Mohan did not do
anything. He was perhaps completely satisfied with the
judgment of learned single judge. The Division Bench by
judgment dated January 3, 1985 dismissed the appeal on the
merits. The Division Bench also dismissed the cross-
objection but on the ground of maintainability. The
correctness of the dismissal of the cross-objection has been
called into question in this appeal. F
The High Court gave two reasons for rejecting the
cross-objection. The first reason relates to the absence of
appeal from Madan Mohan or by the Math against the judgment
of learned single Judge. The High Court observed: “Thus the
lease is good. If Madan Mohan had filed an appeal, then the
cross-objection would be competent. The cross-objection
filed by the plaintiffs are not competent, wherein it has
been prayed that the lease deed may be declared invalid and
ineffective against the rights of the plaintiffs.” The
second reason given by the High Court relates to 0.41 R. 33
CPC for giving relief to the Math. The High Court said:
“That having regard to the facts of the case 0.41 R. 33 CPC
cannot be called into aid. That provision H
684
should be applied with care and caution. The Court should
not lose sight of the other provisions in the Code of Civil
Procedure. It should not also forget the law limitation and
the Court Fees Act.”
Before us, Mr. B.D. Sharma, learned counsel for the
appellant pursued both the reasons given by the High Court.
Counsel asserted that the cross-objection was maintainable
not only against the appellants but also against Madan
Mohan. The counsel also urged that in any event, the cross-
objection ought to have been considered if not under 0.41 R.
22 but under 0.41 R. 33 of the CPC. Mr. Rohtagi, learned
counsel for the respondents, advanced an interesting
submission. He urged that the land sold was a part of the
land already leased to Madan Mohan. Even if the sale goes as
invalid, the lease of the entire land revives and remains So
long as the lease remains binding between the parties, Madan
Mohan would be entitled to retain possession of the entire
land demised. The counsel urged that it would be, therefore,
futile for the Math to seek possession of the property from
the appellants in the cross-objection.
The assumption of Mr. Rohtagi though logical if not
legal should be subject to the decision in the cross-
objection. We must, therefore, examine the validity of the
cross-objection and the contentions raised therein. It will
be seen that the cross-objection filed by the Math was to
the entire judgment of learned single judge. Therein, the
Math raised two principal grounds. The first related to the
denial of decree for possession of property which was the
subject matter of sale. It was contended that the Math would
be entitled to possession of that property when the sale was
declared as null and void. The second ground was in regard
to validity of the lease and the dismissal of the suit in
respect thereof. It was contended that the suit in regard to
the lease was not barred by limitation.
Different considerations, however, apply to the
different points raised in the cross-objection. We will
first consider the right of the Math to file cross-objection
against the appellants. The learned single judge has
invalidated the sale of 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
invalidity of the sale. The Math in turn, wanted to recover
possession of that property from the appellants and Madan
Mohan. The Math instead of filing an appeal for that relief
could as well take the cross-objection. That would be clear
from the provisions of R. 22 of O. 41 CPC. That is as plain
as plain can be. The High Court was clearly in error in
holding to the contrary.
685
The next question for consideration is whether the
cross-objection was maintainable against Madan Mohan, the
co-respondent, and if not, whether the Court could call into
aid 0 41 R. 33 CPC. For appreciating the contention it will
be useful to set out hereunder R. 22 and R. 33 of order 41:
“R. 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.
XXX XXX XXX XXX XXX
R. 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
other decree or order as the case may require, and
this order 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 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 decree.
xxx xxx xxx xxx xxx xxx
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 H
686
such exceptional cases are also very much limited. We may
just think of one or two such cases. For instance, when the
appeal by some of the parties cannot effectively be disposed
of without opening of the matter as between the respondents
interse. Or in a case where the objections are common as
against the appellant and co-respondent. The Court in such
cases would entertain cross-objection against the co-
respondent. The law in this regard has been laid down by
this Court as far back in 1964 in Panna Lal v. State of
Bombay, [1964] 1 SCR 980 at 991. After reviewing all the
decisions of different High Courts, there this Court
observed .
“In our opinion, the view that has now been
accepted by all the High Courts that order 41, r.
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 re-opened
between the objecting respondent and other
respondents, that an objection under 0.41 R. 22
can be directed against the other respondents, is
correct. Whatever may have been the position under
the old S 561 the use of the word “cross-
objection” in 0.41 R. 22 expresses unmistakably
the intention of the legislature that the
objection has to be directed against the
appellant. As Rajamannar C.J said in
Venkataswaralu v. Ramanna: “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.” 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 co-respondent 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. “
687
This view has been there as a guide for a little over
two decades. We should not add anything further at this
stage. The law should be A clear and certain as a guide to
human behaviour. No attempt should be made to unsettle the
law unless there is compelling reason. We do not find any
such compelling reason and we, therefore, reiterate the
above principles.
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. D
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 0.41 CPC was not
maintainable against the co-respondent, the Court could
consider it under R. 33 of 0.41 CPC. 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 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 sweep 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 constraint that we could see, may be these: That
the parties before the lower court should be therebefore
688
the appellate court. The question raised must properly arise
out of the 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.
In the result, we allow the appeal and reverse the
judgment and decree of Division Bench of the High Court. The
Division Bench shall now restore the appeal and cross-
objection of the parties and dispose of the same in
accordance with law and in the light of observations made
The appellants shall get the cost of this appeal.
S.L. Appeal allowed.
689