{"id":188958,"date":"1987-10-28T00:00:00","date_gmt":"1987-10-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mahant-dhangir-and-another-vs-madan-mohan-and-others-on-28-october-1987"},"modified":"2019-03-02T01:27:51","modified_gmt":"2019-03-01T19:57:51","slug":"mahant-dhangir-and-another-vs-madan-mohan-and-others-on-28-october-1987","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mahant-dhangir-and-another-vs-madan-mohan-and-others-on-28-october-1987","title":{"rendered":"Mahant Dhangir And Another vs Madan Mohan And Others on 28 October, 1987"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mahant Dhangir And Another vs Madan Mohan And Others on 28 October, 1987<\/div>\n
Equivalent citations: 1988 AIR 54, \t\t 1988 SCR (1) 679<\/div>\n
Author: K Shetty<\/div>\n
Bench: Shetty, K.J. (J)<\/div>\n
           PETITIONER:\nMAHANT DHANGIR AND ANOTHER\n\n\tVs.\n\nRESPONDENT:\nMADAN MOHAN AND OTHERS\n\nDATE OF JUDGMENT28\/10\/1987\n\nBENCH:\nSHETTY, K.J. (J)\nBENCH:\nSHETTY, K.J. (J)\nRAY, B.C. (J)\n\nCITATION:\n 1988 AIR   54\t\t  1988 SCR  (1) 679\n 1987 SCC  Supl.  528\t  JT 1987 (4)\t202\n 1987 SCALE  (2)874\n\n\nACT:\n     Question regarding\t maintainability of  cross-objection\nin appeal-order 41, rules 22 and 33 of Civil Procedure Code-\nApplicability thereof.\n\n\n\nHEADNOTE:\n%\n     There is  a Math  known as\t Juna Math  in Bikaner.\t The\nfirst appellant\t is the\t present Mahant\t of the Math and the\nsecond appellant  is the  presiding deity  of the Math, both\nreferred to collectively as 'the Math', herein.\n     Previously, one  Lalgiri Maharaj  was the Mahant of the\nMath. He mismanaged the Math and disposed of its properties.\nOn August  19, 1963,  he gave  on lease\t for 99\t years\tland\nmeasuring 2211\tsq. yards  in favour  of  Madan\t Mohan,\t the\nrespondent No.\t1. On March 22, 1968, he sold to Madan Mohan\n446 sq.\t yards of  land out of the land leased to him. Madan\nMohan constructed  shops on the land purchased and sold them\nto Jankidas and Mohan Lal, who are respondents Nos. 2 and 3.\nThen Madan  Mohan sold\tanother piece of land purchased from\nLalgiri to the respondents Nos. 2 and 3.\n     Later, the\t first appellant  became the  Mahant of\t the\nMath, and the Math filed a suit, challenging the alienations\nmade by\t Lalgiri,  and\tfor  a\tdeclaration  that  the\tsaid\nalienations were  without authority  and not  binding on the\nMath and for possession of the property from the respondents\n1 to 3. The trial Court decreed the suit in part only, as it\ngave a\tdeclaration that  the lease  deed dated\t August\t 19,\n1963, was null and void, but the relief regarding possession\nof the\tland demised  was rejected. The suit for recovery of\npossession of the land sold by Lalgiri was also dismissed.\n     Against the  judgment of  the Trial  Court, two appeals\none by\tthe Math  and the  other, by  Madan Mohan were filed\nbefore the  High Court.\t By a  common judgment\tin  the\t two\nappeals, a  single Judge  of the  High Court (i) allowed the\nappeal of the Math in part, giving a simple declaration that\nthe sale  of the  land was  void, but  declining to  pass  a\ndecree for possession of the land sold, and (ii) allowed the\nappeal of\n680\nMadan Mohan,  giving him complete relief, while holding that\nthe suit as to the lease was barred by time.\n     Against the judgment of the Single Judge, no appeal was\nfiled either  by the  Math or by Madan Mohan. There was only\nan appeal  filed by  respondents 2  and 3, who impleaded the\nMath as\t the first  respondent and Madan Mohan, as the third\nrespondent. The\t Math Preferred cross-objection. Madan Mohan\ndid not\t do any\t thing. The  Division Bench  of\t High  Court\ndismissed the  appeal on  the merits.  It also dismissed the\ncross-objection on  the ground of maintainability. Aggrieved\nby the\tdismissal of  the cross-objection, the Math appealed\nto this Court for relief by special leave.\n     Allowing the appeal, the Court,\n^\n     HELD: The\tSingle Judge  invalidated the  sale  of\t the\nproperty  to   Madan  Mohan,  while  denying  a\t decree\t for\npossession. The\t appellants before the Division Bench wanted\nto get\trid of the finding as to the invalidity of the sale.\nThe Math  wanted to  recover possession of the property from\nthe appellants\tbefore the  Division Bench, and Madan Mohan.\nThe Math  instead of filing an appeal for that relief, could\nas well\t file the  cross-objection. That  is clear  from the\nprovisions of  R. 22  of 0.41,\tC.P.C. The  High  Court\t was\nclearly in error in holding to the contrary. [684G-H]\n     The next  question for  consideration was\twhether\t the\ncross-objection was  maintainable against Madan Mohan, a co-\nrespondent, and\t if not,  whether the  Court could call into\naid R.\t33, 0.41 C.P.C. Generally, the cross-objection could\nbe urged  against the  appellant.  It  is  only\t by  way  of\nexception to  this general rule that one respondent may urge\nobjection as  against the other respondent. The type of such\nexceptional cases  are\tvery  much  limited-when  an  appeal\ncannot be effectively disposed of without opening the matter\nas between the respondents inter se, or when there is a case\nwhere the  objections are  common as  against the appellants\nand the\t co-respondent. This  law has been laid down by this\nCourt in  Panna Lal  v. State of Bombay, [1964] 1 SCR 980 at\n991. This  view has  been accepted  as a guide for more than\ntwo decades.  No attempt  should be made to unsettle the law\nunless there is a compelling reason. The Court does not find\nany such  compellmg reason  in the  case. [685A,  H; 686A-B;\n687A-B]\n     The Math  could urge  the objection that the appellants\nbefore the  Division Bench  and Madan  Mohan had no right to\nretain the property\n681\nafter the  sale deed  had been\tdeclared null  and void. The\nvalidity of the lease deed and the possession of the land in\npursuance thereof,  has to  be determined only against Madan\nMohan. It is not intermixed with the right of the appellants\nabove-said. It\thas no\trelevance to  the question raised in\nthe appeal.  The High  Court was  right in  holding that the\ncross-objection as to the lease was not maintainable against\nMadan Mohan.  But that does not mean that the Math should be\nleft without  a remedy\tagainst the  judgment of  the Single\nJudge. If  the cross-objection\tfiled under  R. 22  of 0.41,\nC.P.C. was  not maintainable  against the co-respondent, the\nCourt could  consider it under R. 33, 0.41, C.P.C. R. 22 and\nR. 33  are not\tmutually exclusive. They are closely related\nwith each  other. If  objection cannot\tbe urged under R. 22\nagainst corespondent,  R. 33  could take  over and  help the\nobjector. The  appellate Court\tcould exercise that power in\nfavour of  all or  any of the respondents even though such a\nrespondent may\tnot have  filed any appeal or objection. The\nsweep of  the power  under R. 33 is wide enough to determine\nany  question\tnot  only  between  the\t appellant  and\t the\nrespondent but also between a respondent and co-respondents.\nThe appellate  Court could  pass any  decree or\t order which\nought to  have been passed in the circumstances of the case.\nThe appellate  Court could  also pass  such other  decree or\norder as  the case  may require.  The words \"as the case may\nrequire\" used  in R. 33 of 0.41, have been put in wide terms\nto enable the appellate Court to pass any order or decree to\nmeet the  ends of  justice. This  Court is  not\t giving\t any\nliberal interpretation.\t The rule  itself is liberal enough.\nThe only  constraint that  could be  seen, may\tbe: that the\nparties before\tthe lower  Court should\t be there before the\nappellate Court, the question raised must properly arise out\nof the\tjudgment of  the lower Court; it may be urged by any\nparty to  the appeal.  It is  true that\t the  power  of\t the\nappellate Court\t under R.  33 is  discretionary, but it is a\nproper exercise\t of judicial discretion to determine all the\nquestions urged\t in order to render complete justice between\nthe parties.  The Court\t should not  refuse to exercise that\ndiscretion on mere technicalities. [687B-H; 688A-B]\n     Appeal allowed. The judgment and decree of the Division\nBench of  the High  Court reversed.  The Division  Bench  to\nrestore the  appeal and\t cross-objection of  the parties and\ndispose of  the same in accordance with law and in the light\nof the observations made. [688C]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1018 of
\n1987.\n<\/p>\n
     From the  Judgment and  order  dated  3.1.1985  of\t the
\nRajasthan
\n682<\/span>
\nHigh Court in D.B. Civil Special Appeal No. 20 of 1975.\n<\/p>\n
     Badri Das Sharma and B.N. Purohit for the Appellants.
\n     Avadh Behari  Rohtagi, S.N.  Kumar and  N.N. Sharma for
\nthe Respondents.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     JAGANNATHA SHETTY,J.  In the town of Bikaner there is a
\nMath known  as ‘Juna  Math’.  The  first  appellant  is\t the
\npresent Mahant\tof the\tMath. The  second appellant  is\t the
\npresiding deity\t of the Math. For convenience and brevity we
\nwill refer to them collectively as ‘the Math’
\n     The primary  question raised in this appeal, by special
\nleave, relates\tto maintainability  of the  cross  objection
\nfiled by  the Math  before the\tDivision Bench\tof the\tHigh
\nCourt of  Rajasthan (Jodhpur V Bench) in Civil Appeal No. 20
\nof  1975.  The\tDivision  Bench\t has  dismissed\t the  cross-
\nobjection as not maintainable.\n<\/p>\n
     The background facts are these:\n<\/p>\n
     One Lalgiri  Maharaj was a previous Mahant of the Math.
\n     He had  several  vices.  He  mismanaged  the  Math\t and
\n     recklessly disposed  of its  properties. On  August 19,
\n     1963 Lalgiri  gave on lease the land measuring 2211 Sq.
\n     yards in  favour of  Madan Mohan.\tThe lease was for 99
\n     years with\t monthly rent  of Rs. 30. Again on March 22,
\n     1968 Lalgiri sold 446 sq. yards of land to Madan Mohan.
\n     It was  out of  the land  which was  already leased  to
\n     Madan Mohan.  The sale  was for  Rs.4,000\tMadan  Mohan
\n     constructed  some\tshops  on  a  portion  of  the\tland
\n     purchased. He  first, rented  the shops to Jankidas and
\n     Mohan Lal\tand later  sold the  same to  them  for\t Rs.
\n     15,000. Madan  Mohan is  the first respondent, Jankidas
\n     and Mohanlal  are respondents  2 and 3 before us. There
\n     was yet  another transaction  between the same parties.
\n     On April  8, 1969\tMadan Mohan  sold a  piece  of\tland
\n     measuring 124  sq. yards to respondents 2 and 3 for Rs.
\n     1,500. This  piece of land forms part of the land which
\n     Madan Mohan purchased from Lalgiri.\n<\/p>\n
     In the meantime, there was change of guard in the Math.
\nLalgiri was  said to  have abdicated Mahantship in favour of
\nthe first appellant.\n<\/p>\n
683<\/span><\/p>\n
The Math  thereafter filed  Suit No.  28 of 1971 challenging
\nthe  alienations   made\t by   Lalgiri.\tThe   suit  was\t for
\ndeclaration that  the alienations were without authority and
\nnot binding  on the  Math. It was also for possession of the
\nproperty from  respondents 1  to 3.  The trial court decreed
\nthe suit  in part.  The trial  court gave only a declaration
\nthat the lease deed dated August 19, 1963 was null and void.
\nBut the\t relief for  possession\t of  the  land\tdemised\t was
\nrejected. The  suit for\t recovery of  possession of the land
\nsold by Lalgiri was also dismissed.\n<\/p>\n
     Against the  judgment and\tdecree of  the trial  court,
\nthere were  two appeals,  before the  High Court, one by the
\nMath and  another by  Madan Mohan. Both the appeals came for
\ndisposal before\t the  learned  single  judge.  By  a  common
\njudgment dated\tJuly 14,  1975\tlearned\t judge\tallowed\t the
\nappeal of  the Math  in part.  He gave\ta simple declaration
\nthat the  sale was  void. He, however, did not give a decree
\nfor possession\tof the\tland sold.  The learned\t judge\talso
\nallowed the  appeal  of\t Madan\tMohan.\tThere  he  gave\t him
\ncomplete relief\t He held  that the  suit as to the lease was
\nbarred by  time. The  result was that the Math could not get
\nback even an inch of land. D
\n     Against the  judgment of learned single judge there was
\nno appeal  from the  Math or Madan Mohan. There was only one
\nappeal by  respondents 2  and 3\t being the  Appeal No  20 of
\n1975. Madan  Mohan was\timpleaded as the third respondent in
\nthat appeal. The Math was impleaded as the first respondent.
\nThe Math  preferred cross-objection.  Madan Mohan did not do
\nanything. He  was  perhaps  completely\tsatisfied  with\t the
\njudgment of  learned single  judge. The\t Division  Bench  by
\njudgment dated\tJanuary 3,  1985 dismissed the appeal on the
\nmerits.\t The   Division\t Bench\talso  dismissed\t the  cross-
\nobjection  but\t on  the   ground  of  maintainability.\t The
\ncorrectness of the dismissal of the cross-objection has been
\ncalled into question in this appeal. F
\n     The High  Court gave  two\treasons\t for  rejecting\t the
\ncross-objection. The  first reason relates to the absence of
\nappeal from  Madan Mohan or by the Math against the judgment
\nof learned  single Judge. The High Court observed: “Thus the
\nlease is  good. If Madan Mohan had filed an appeal, then the
\ncross-objection\t would\tbe  competent.\tThe  cross-objection
\nfiled by  the plaintiffs  are not  competent, wherein it has
\nbeen prayed  that the lease deed may be declared invalid and
\nineffective against  the  rights  of  the  plaintiffs.”\t The
\nsecond reason  given by the High Court relates to 0.41 R. 33
\nCPC for\t giving relief\tto the\tMath. The  High Court  said:
\n“That having  regard to the facts of the case 0.41 R. 33 CPC
\ncannot be called into aid. That provision H
\n684<\/span>
\nshould be  applied with\t care and  caution. The Court should
\nnot lose  sight of the other provisions in the Code of Civil
\nProcedure. It  should not also forget the law limitation and
\nthe Court Fees Act.”\n<\/p>\n
     Before us,\t Mr. B.D.  Sharma, learned  counsel for\t the
\nappellant pursued  both the reasons given by the High Court.
\nCounsel asserted  that the  cross-objection was maintainable
\nnot only  against the  appellants  but\talso  against  Madan
\nMohan. The  counsel also urged that in any event, the cross-
\nobjection ought to have been considered if not under 0.41 R.
\n22 but\tunder 0.41  R. 33  of the  CPC. Mr. Rohtagi, learned
\ncounsel\t for   the  respondents,   advanced  an\t interesting
\nsubmission. He\turged that  the land  sold was a part of the
\nland already leased to Madan Mohan. Even if the sale goes as
\ninvalid, the lease of the entire land revives and remains So
\nlong as the lease remains binding between the parties, Madan
\nMohan would  be entitled  to retain possession of the entire
\nland demised. The counsel urged that it would be, therefore,
\nfutile for  the Math to seek possession of the property from
\nthe appellants in the cross-objection.\n<\/p>\n
     The assumption  of Mr.  Rohtagi though  logical if\t not
\nlegal should  be subject  to  the  decision  in\t the  cross-
\nobjection. We  must, therefore,\t examine the validity of the
\ncross-objection and  the contentions raised therein. It will
\nbe seen\t that the  cross-objection filed  by the Math was to
\nthe entire  judgment of\t learned single\t judge. Therein, the
\nMath raised  two principal grounds. The first related to the
\ndenial of  decree for  possession of  property which was the
\nsubject matter of sale. It was contended that the Math would
\nbe entitled to possession of that property when the sale was
\ndeclared as  null and  void. The second ground was in regard
\nto validity  of the  lease and\tthe dismissal of the suit in
\nrespect thereof. It was contended that the suit in regard to
\nthe lease was not barred by limitation.\n<\/p>\n
     Different\tconsiderations,\t  however,  apply   to\t the
\ndifferent points  raised in  the  cross-objection.  We\twill
\nfirst consider the right of the Math to file cross-objection
\nagainst\t the   appellants.  The\t learned  single  judge\t has
\ninvalidated the\t sale  of  property  to\t Madan\tMohan  while
\ndenying a  decree for  possession. The appellants before the
\nDivision Bench\twanted to  get rid  of\tthe  finding  as  to
\ninvalidity of  the sale. The Math in turn, wanted to recover
\npossession of  that property  from the\tappellants and Madan
\nMohan. The  Math instead of filing an appeal for that relief
\ncould as  well take the cross-objection. That would be clear
\nfrom the  provisions of R. 22 of O. 41 CPC. That is as plain
\nas plain  can be.  The High  Court was\tclearly in  error in
\nholding to the contrary.\n<\/p>\n
685<\/span><\/p>\n
     The next  question for  consideration  is\twhether\t the
\ncross-objection was  maintainable against  Madan Mohan,\t the
\nco-respondent, and if not, whether the Court could call into
\naid 0  41 R. 33 CPC. For appreciating the contention it will
\nbe useful to set out hereunder R. 22 and R. 33 of order 41:\n<\/p>\n
\t  “R. 22  Upon hearing,\t respondent  may  object  to
\n\t  decree as if he had preferred separate appeal.
\n\t  (1)  Any   respondent,  though  he  may  not\thave
\n\t  appealed from any part of the decree, may not only
\n\t  support the  decree (but  may also  state that the
\n\t  finding against  him in the Court below in respect
\n\t  of any issue ought to have been in his favour, and
\n\t  may also  take any  cross-objection) to the decree
\n\t  which he  could  have\t taken\tby  way\t of  appeal,
\n\t  provided  he\thas  filed  such  objection  in\t the
\n\t  Appellate Court  within one month from the date of
\n\t  service on him or his pleader of notice of the day
\n\t  fixed for  hearing  the  appeal,  or\twithin\tsuch
\n\t  further time as the Appellate Court may see fit to
\n\t  allow.\n<\/p><\/blockquote>\n
\t  XXX XXX XXX XXX XXX
\n\t  R. 33 Power of Court of Appeal.\n<\/p><\/blockquote>\n
\t  The Appellate\t Court shall  have power to pass any
\n\t  decree and make any order which ought to have been
\n\t  passed or  made and  to pass\tor make such further
\n\t  other decree or order as the case may require, and
\n\t  this\torder\tmay  be\t  exercised  by\t  the  Court
\n\t  notwithstanding that the appeal is as to part only
\n\t  of the  decree and  may be  exercised in favour of
\n\t  all or  any of  the respondents or parties may not
\n\t  have filed  any appeal or objection and may, where
\n\t  there have  been decrees  in cross  suits or where
\n\t  two or  more decrees\tare passed  in one  suit, be
\n\t  exercised in respect of all or any of the decrees,
\n\t  although an appeal may not have been filed against
\n\t  such decree.\n<\/p><\/blockquote>\n
\t  xxx\t    xxx\t      xxx\txxx\t  xxx\txxx
\n     Generally, the  cross-objection could  be urged against
\nthe appellant.\tIt is  only by\tway  of\t exception  to\tthis
\ngeneral rule  that one\trespondent  may\t urge  objection  as
\nagainst the other respondent. The type of H
\n686<\/span>
\nsuch exceptional  cases are  also very\tmuch limited. We may
\njust think  of one or two such cases. For instance, when the
\nappeal by some of the parties cannot effectively be disposed
\nof without  opening of the matter as between the respondents
\ninterse. Or  in a  case where  the objections  are common as
\nagainst the  appellant and  co-respondent. The Court in such
\ncases  would   entertain  cross-objection  against  the\t co-\n<\/p><\/blockquote>\n
respondent. The\t law in\t this regard  has been\tlaid down by
\nthis Court  as far  back in  1964 in  Panna Lal\t v. State of
\nBombay, [1964]\t1 SCR  980 at  991. After  reviewing all the
\ndecisions  of\tdifferent  High\t Courts,  there\t this  Court
\nobserved .\n<\/p>\n
\t  “In our  opinion,  the  view\tthat  has  now\tbeen
\n\t  accepted by  all the High Courts that order 41, r.
\n\t  22 permits  as a  general rule,  a  respondent  to
\n\t  prefer an  objection\tdirected  only\tagainst\t the
\n\t  appellant and\t it is\tonly in\t exceptional  cases,
\n\t  such\tas  where  the\trelief\tsought\tagainst\t the
\n\t  appellant in\tsuch an objection is intermixed with
\n\t  the relief  granted to  the other  respondents, so
\n\t  that the  relief against  the appellant  cannot be
\n\t  granted  without   the  question  being  re-opened
\n\t  between  the\t objecting  respondent\t and   other
\n\t  respondents, that  an objection  under 0.41  R. 22
\n\t  can be  directed against the other respondents, is
\n\t  correct. Whatever may have been the position under
\n\t  the  old  S  561  the\t use  of  the  word  “cross-
\n\t  objection” in\t 0.41 R.  22 expresses\tunmistakably
\n\t  the  intention   of  the   legislature  that\t the
\n\t  objection  has   to  be   directed   against\t the
\n\t  appellant.   As    Rajamannar\t   C.J\t  said\t  in
\n\t  Venkataswaralu v.  Ramanna:  “The  legislature  by
\n\t  describing the  objection which  could be taken by
\n\t  the respondent  as a\t“cross-objection” must\thave
\n\t  deliberately adopted\tthe view  of the  other High
\n\t  Courts.  One\t cannot\t treat\tan  objection  by  a
\n\t  respondent in\t which the appellant has no interest
\n\t  as  a\t  cross-objection.  The\t appeal\t is  by\t the
\n\t  appellant  against   a  respondent,\tthe   cross-
\n\t  objection must  be an\t objection by  a  respondent
\n\t  against the  appellant.” We  think, with  respect,
\n\t  that these observations put the matter clearly and
\n\t  correctly. That  the legislature  also  wanted  to
\n\t  give effect  to the  views held  by the  different
\n\t  High Courts that in exceptional cases as mentioned
\n\t  above\t an   objection\t can   be  preferred   by  a
\n\t  respondent against a co-respondent is indicated by
\n\t  the substitution  of the  word “appellant”  in the
\n\t  third paragraph by the words “the party who may be
\n\t  affected by such objection. “<\/p><\/blockquote>\n
687<\/span><\/p>\n
     This view\thas been  there as a guide for a little over
\ntwo decades.  We should\t not add  anything further  at\tthis
\nstage. The  law should\tbe A clear and certain as a guide to
\nhuman behaviour.  No attempt  should be made to unsettle the
\nlaw unless  there is  compelling reason.  We do not find any
\nsuch compelling\t reason and  we,  therefore,  reiterate\t the
\nabove principles.\n<\/p>\n
     Basically, the  first question  raised  in\t the  cross-
\nobjection relates  to the right of Madan Mohan to retain the
\nproperty under\tthe sale deed. The appellants are the second
\npurchasers. The\t Math, therefore,  could urge  the objection
\nthat the  appellants and Madan Mohan have no right to retain
\nthe property after the sale deed was declared null and void.
\nBut then  the considerations  as to  the lease deed is quite
\ndifferent. The validity of the lease deed and the possession
\nof the\tland thereof has to be determined only against Madan
\nMohan.\tIt   is\t not   intermixed  with\t the  right  of\t the
\nappellants. It\thas no\trelevance to  the question raised in
\nthe appeal.  The High Court was, therefore, right in holding
\nthat  the   cross-objection  as\t  to  the   lease  was\t not
\nmaintainable against Madan Mohan. D
\n     But that  does not\t mean, that  the Math should be left
\nwithout remedy against the judgment of learned single judge.
\nIf the cross-objection filed under R. 22 of 0.41 CPC was not
\nmaintainable against  the  co-respondent,  the\tCourt  could
\nconsider it under R. 33 of 0.41 CPC. R. 22 and R. 33 are not
\nmutually exclusive They are closely related with each other.
\nIf objection  cannot  be  urged\t under\tR.  22\tagainst\t co-
\nrespondent, R.\t33 could take over and come to the rescue of
\nthe objector.  The appellate  court could exercise the power
\nunder R. 33 even if the appeal is only against a part of the
\ndecree\tof  the\t lower\tcourt.\tThe  appellate\tcourt  could
\nexercise  that\tpower  in  favour  of  all  or\tany  of\t the
\nrespondents although  such respondent may not have filed any
\nappeal or  objection. The  sweep of the power under R. 33 is
\nwide enough  to determine  any question not only between the
\nappellant and  respondent, but\talso between  respondent and
\nco-respondents. The appellate court could pass any decree or
\norder which  ought to  have been passed in the circumstances
\nof the\tcase. The appellate court could also pass such other
\ndecree or  order as  the case may require. The words “as the
\ncase may  require” used\t in R.\t33 of O. 41 have been put in
\nwide terms  to enable  the appellate court to pass any order
\nor decree  to meet  the ends of justice. What then should be
\nthe constraint?\t We do\tnot find many. We are not giving any
\nliberal interpretation.\t The rule  itself is liberal enough.
\nThe only  constraint that  we could  see, may be these: That
\nthe parties before the lower court should be therebefore
\n688<\/span>
\nthe appellate court. The question raised must properly arise
\nout of\tthe judgment  of  the  lower  court.  If  these\t two
\nrequirements are  there, the  appellate Court could consider
\nany objection  against any part of the judgment or decree of
\nthe lower court. It may be urged by any party to the appeal.
\nIt is true that the power of the appellate court under R. 33
\nis discretionary.  But it  is a\t proper exercise of judicial
\ndiscretion to  determine all  questions urged  in  order  to
\nrender complete\t justice  between  the\tparties.  The  Court
\nshould not  refuse  to\texercise  that\tdiscretion  on\tmere
\ntechnicalities.\n<\/p>\n
     In the  result, we\t allow the  appeal and\treverse\t the
\njudgment and decree of Division Bench of the High Court. The
\nDivision Bench\tshall now  restore  the\t appeal\t and  cross-
\nobjection  of  the  parties  and  dispose  of  the  same  in
\naccordance with law and in the light of observations made
\n     The appellants shall get the cost of this appeal.\n<\/p>\n
S.L.\t\t\t\t\t     Appeal allowed.\n689<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mahant Dhangir And Another vs Madan Mohan And Others on 28 October, 1987 Equivalent citations: 1988 AIR 54, 1988 SCR (1) 679 Author: K Shetty Bench: Shetty, K.J. (J) 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) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-188958","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMahant Dhangir And Another vs Madan Mohan And Others on 28 October, 1987 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mahant-dhangir-and-another-vs-madan-mohan-and-others-on-28-october-1987\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mahant Dhangir And Another vs Madan Mohan And Others on 28 October, 1987 - 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