Amsath Ansari Jawahar and Another vs S. Sikkandar Batcha and Others

Mishra, J.—The petition to condone delay of several years in filing a memo of cross-objection has been dismissed by a learned single Judge

of this Court. He has accordingly dismissed the memo of cross-objection. He has also dismissed a petition for adding proposed Parties as

respondents 6 to 10 in the appeal A.S. No. 148 of 1984 which is filed against the decree of the Court of the III Additional Subordinate Judge,

Madurai (in O.S. No. 316 of 1980). He has also rejected the application for interim injunction against the 1st respondent (1st defendant) in the suit

and the proposed respondents. These appeals have been filed against the order common to all these petitions. The plaintiff/ appellant filed the

original suit for partition of certain properties between the plaintiff and the defendants in the suit. While the suit was pending it appears that Land

Acquisition proceedings started with respect to item No. 7 of ''C Schedule properties in the suit. It was contended before the trial court on behalf

of the defendants that there can be no division of a property which has been subjected to the land acquisition proceedings. The trial court decreed

the suit for partition in respect of other properties, but excluded item No. 7 of C schedule properties on the ground that it had been subjected to

Sand acquisition proceedings. The first defendant, aggrieved by the decree for partition in respect of"" the joint estate has preferred appeal A.S.

No. 148 of 1984. It appears however that the Land Acquisition Proceedings in respect of item No. 7 of the ''C schedule property were later

withdrawn. The appellants herein also learnt however that the first defendant intended to dispose of the said item No. 7 of C"" schedule properties

taking advantage of the fact that it was excluded from partition decree by the trial Court. The plaintiff/ respondent moved this Court with an

application for injunction against the 1st defendant and the proposed transferees and also preferred cross-objection to the appeal of the 1st

defendant/ appellant in A.S. No. 148 of 1984, with a petition for condemnation of delay. The delay has been inordinate extending to a period of 6

years and 79 days. Learned single Judge has rejected the petition for condemnation of delay holding that the delay is entirely due to the negligence

on the part of the appellant/plaintiff herein. In his words:

When the decree of the court below has negatived the claim of the petitioners for partition of item No. 7 of ''C schedule as acquisition proceedings

were pending, it is the duty of the petitioners to verify whether the judgment was based on proper reasoning. The petitioners would have certainly

found out if the reasons given by the court below were erroneous and would have taken steps to prefer a regular appeal or cross-objections in

time. The delay is entirely due to the negligence on the part of the petitioners. I do not find any justification to condone the delay.

He has as a consequence rejected the cross-objection as well as the petitions for injunction.

A suit for partition until preliminary decree stage is a suit for determination of the extent of shares of the parties and extends to all such properties

which may be found in the common hotchpot of the joint family of the Parties. It is for that reason that it is said that in a suit for partition the plaintiff

is in the position of a defendant and the defendant is in the position of a plaintiff. Only because there has been a land acquisition proceeding, it is

difficult to conceive any impediment in making a declaration as to the extent of shares between the parties in the property that was subjected to

acquisition under the Land Acquisition Act. When a property is subjected to land acquisition and there is a dispute as to who is the owner of the

property or there is a dispute as to the extent of the rights and interests of various persons in such a property, for grant of compensation, Sections

18 and 30 of the Land Acquisition Act take care of such disputes. Item 7 of ''C schedule could have been continued as a joint estate for the

purposes of preliminary decree in the suit, as there was no abatement of the suit in respect of the said item of the property, merely because there

was a land acquisition proceeding. But if it was contended, (sik) prejudice was caused to either party by such exclusion for claims, for,

compensation or apportionment thereof could be made by each co-owner of the property u/s 18 of the Land Acquisition Act or in the event of a

dispute as to the interest or extent thereof u/s 30 of the said Act. If no cross-objection was filed thus for the reason that item No. 7 of ''C Schedule

properly had been excluded from the joint estate of the parties although the court decreed the suit of the plaintiff for partition of the joint estate, by

the plaintiff, no serious blame for that can be put upon the plaintiff/appellant.

Order 41 of the CPC which takes care of the proceedings in appeal has made a specific provision under Rule 22 thereof that:

Any respondent, though he may not have appealed from any part of the decree, may not only support any 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 ha 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 lime as the appellate court may sec fit to allow.

The rule has got an explanation which reads as follows:

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.

The rule also indicates the form of objection and. provisions applicable to the same and says:

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.

This rule has clearly envisaged a cross-objection not only when a respondent in the appeal can take by way of appeal a matter to the court

whether a part of the decree has gone against him, but also in a case where the decree is entirely in his favour, but a certain finding is, according to

him, erroneous or has gone against him. A cross-objection is treated at par with the appeal and heard along with the appeal if the appeal is not

dismissed for any reason of default or withdrawn by the appellant. When however the appeal is withdrawn or dismissed for default, the objection

so filed is treated -as an appeal by the respondent and heard independently. The provision in Rule 22 of Order 41 however has given a right to the

respondent to approach the court for adjudication of any issue that has been decided against him or any part of the decree; that has gone against

him within a period of 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. It has not affected the court''s power to enter into any issue that has been decided against

the respondent and in favour of the appellant or to interfere with that part of the decree which has been in favour of the appellant and has gone

against the respondent. The appellate court''s power is spelt out in Rule 33 in this behalf in these words:

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 u/s 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.

When we, however, advert to the facts of this case we find no reason to limit the filing of the cross-objection within the period of limitation for

appeal against the decree. The period of limitation for cross-objection is different as found in Rule 22, Order 41, C.P.C. from the period of

limitation for appeal against a decree. It starts running from the day of the service of notice of the day fixed for hearing the appeal. The period of 30

days under Rule 22 is not a fixed period in the sense that unless sufficient cause is shown in terms of Section 5 of the Limitation Act, the Court

cannot accept a cross-objection filed beyond 30 days of the service of notice of the day fixed for hearing the appeal. The words ''or within such

further time as the Appellate Court may see fit to allow'' in Sub-rule (1) of Rule 22,0.41 of the Code are indicative of the discretion of the Court in

appropriate cases to give further time to a respondent than the period of one month from the date of service of notice of appeal for filing the cross-

objection. As to when and how the appellate court can see it fit to allow further time, however, is a question that can be answered only by saying

that it shall be decision taken by the appellate court bearing and depending on facts of each case. We arc in the instant case constrained to observe

that there is absolutely nothing in the impugned order to show as to when the plaintiff was served with the notice, of appeal and when the period of

one month from the date of service of notice expired. We have not been able to understand how the cross-objection limitation could be based on

the understanding of the plaintiff/respondent of the decree of the appellate court negativing his claim for partition of item No. 7 of ''C schedule.

Cross-objection''s delay cannot be mixed up with any party respondent not filing a regular appeal. It has to be decided independently and viewed

independently.

It is a case in which we have to take notice of the conduct of the first defendant/respondent herein who took the stand before the trial court that

since land acquisition proceedings had started in respect of item 7 of ''C schedule properties, the same should be excluded from partition and on

this representation of the first defendant/respondent herein, the trial court excluded item 7 of ''C schedule property from partition decree. He has

known that the plaintiff/appellant had included the suit property in the hotchpot and sought partition. He could not, as the law permitted the

appellant to do so, deny to the appellant the right to approach proper authorities under the Land Acquisition Act for his share of compensation or

for determination of his interest in the land acquired in accordance with law. He could not similarly deny to the appellant the right to get a

declaration and accordingly a partition of item 7 of ''C schedule properties in the suit. He, it appears, however, took advantage of the withdrawal

of acquisition proceedings and release of item 7 of ''C schedule properties from the land acquisition and proposed to sell and it appears has sold it

to the proposed"" respondents for consideration. He has, to say the least, not acted bona fide and has given to the appellant a fail accompli of

transfer of item 7 of ""C schedule to the proposed respondents. We ask ourselves: ""Can this be not a ground to see it fit to allow further time to the

appellant to file cross-objection in the appeal A.S. No. 148 of 1984?

The learned single Judge has passed a composite order. He has dismissed the application of the appellant to add proposed respondents. This

Court has in Ramaswami Chertiar v. Kanniappa Mudaliar 60 M.L.J. 237, Selvam Mudaliar v. Raju Mudaliar (1962)2 M.L.J. 657 and A.B.

Manavala Cheniar v. T.V. Selavarajan and Ors. 1991 T.L.N.J. 166, has taken the view that no appeal under Clause 15 of the Letters Patent lies

against an order dismissing the application for addition of parties under Order 1, Rule 10 of the CPC or an order to add a party. We have in B.G.

Lingam v. Mrs. Statesenko Larissa, O.S.A. Nos. 8 and 25 of 1987, judgment dated 19.11.1992, gone into this aspect of the law, and observed

on the basis of some of the principles of law stated by the Supreme Court in its judgments, like Shah Babulal Khimji Vs. Jayaben D. Kania and

Another, and Jugal Kishore Paliwal Vs. S. Sat Jit Singh and Another, , that it may not in all situations be correct to hold that no appeal shall lie

against an order either refusing to add or to add a party/defendant in a suit. This we have observed in view of the law that concept of a judgment

as defined by the CPC is rather narrow. There can be three kinds of judgments, a final judgment, a preliminary judgment and intermediary or

interlocutory judgment, while there can be no manner of doubt that appeal shall lie against the first two kinds of Judgments, in case of an

intermediary or interlocutory judgment it will always be necessary to see whether it vitally affects a valuable right of the defendant, whether it is a

judgment of moment and whether otherwise it is an appealable judgment. We have also observed that when an order granting leave to amend the

plaint by introducing a new cause of action in certain circumstances is an appealable order/judgment, there is no reason to say that an order to add

a party is not an appealable order, because we have seen in that case in some detail that here is always a consequential amendment of the plaint to

an order to add a party-defendant. In that case we have also found that no exception can be taken to the Court suo motu ordering addition of a

party.

In the instant case, however we are not required to decide whether an appeal against the order dismissing the application to add the Parties is

(maintainable. There can be no dispute that the appeal is maintainable against the judgment of the learned single Judge dismissing the cross.-1

objection on the ground of limitation. Sitting in appeal, we have the same discretion to decide whether a certain person is a necessary party or not.

On the facts of this case, we would have decided to remit the case to the learned single Judge for a decision as to whether this is a fit case for

the exercise of discretion for extending time for filing the cross-object ions; but we do not intend to do so for the reason that even if there is no

cross-objection the appellate court has got the power to go into that part of the judgment of the trial court wherein it has decided to exclude item 7

of ''C schedule properly from partition, that being an issue decided by the trial court in the suit whether in the final judgment or at any inter-locutory

stage is a ground that may be available to a party in the appeal and exercising appellate power, we have every reason to believe it shall act in the

interest of justice and shall take notice of all relevant aspect of the case, so that nothing unjust occurs and no person is denied his due in

accordance with law. The appellant herein shall for the reason the dismissal of the cross-objection not sufferany injury except that in case the first

defendant would withdraw his appeal, the court shall have no appeal before it to decide, but had the cross-objection been (here, he would have

asked for its disposal in accordance with law, even alter the dismissal of the appeal for default or withdrawal. We propose accordingly to leave the

matter at the ultimate discretion of the appellate court at the hearing of the appeal to decide how it shall ''determine the controversy between the

parties and how shall it finally administer justice, exercising its power under Rule 33, Order 41, Code of Civil Procedure. We however think it

necessary to order that the development in the suit are such that the transferees from the 1st defendant are necessary for effective and final

adjudication of the controversy between the parties. They have to be added in the appeal, and accordingly they have been heard by us through

their counsel.

In the result, all the appeals are disposed of with the direction as above. The appeal A.S. No. 148 of 1984 shall betaken up in the presence of

proposed respondents, namely, D. Thanabackiam, K.M. Madasami, R. Rajeswari, S. Subramanian and B. Murugeswari, the transferees from the

1st defendant. No costs.