Radha Bai (Smt.) vs Goukaran Singh and Another

N.K. Agarwal, J.—This is defendant''s second appeal against the judgment and decree dated 31-12-2005 passed by the Additional District Judge, Bemetara in Civil Appeal No. 24-A/2004 whereby and whereunder the judgment and decree dated 27-8-2004 passed by the trial Court has been set aside and plaintiff''s suit has been decreed.

Brief facts of the case are as under:

Trial Court dismissed plaintiff''s suit finding inter alia Chandravati Bai executed a will dated 18-10-2002 in plaintiff''s favour will is not valid plaintiff failed to prove defendant Radha Bai is having any title or interest over the suit property described in schedule; also failed to prove order passed by the revenue court in the Revenue Case No. 1-A/6 year 2000-01 is illegal.

Plaintiff preferred an appeal. Defendant also preferred cross-objection under Order 41 Rule 22 challenging adverse finding against her with regard to execution and validity of will and finding on issue No. 3 and 5. Learned appellate Court without considering the cross-objection preferred by the appellant allowed plaintiff''s appeal and decreed the suit.

Instant second appeal was admitted for hearing on the following substantial question of law:

Whether in absence of decision on cross-objection filed by the appellant under Order XLI Rule 22 of the C.P.C. the impugned judgment and decree is vitiated ?

Indisputably the first appellate court decided appeal without considering cross-objection preferred by the appellant.

Order 41 Rule 22 of C.P.C. reads thus :-

1: Upon hearing respondent may object to decree as if he had preferred a separate appeal. (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

Explanation: A respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may, under this rule, file cross objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree is, wholly or in part, in favour of that respondent.

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

(3) Omitted.

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

(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule.

Hon''ble Supreme Court had an occasion to analyze the above provision in case of Shri Ravinder Kumar Sharma Vs. The State of Assam and Others, wherein Hon''ble Supreme Court has observed in para 16 to 21 of the judgment as under:

The next question is as to whether, the law as stated above has been modified by the 1976 Amendment of Order 41 Rule 22. It will be noticed that the Amendment has firstly deleted the words "on any of the grounds decided against him in the Court below, but take any cross-objections" in the main part of Order 41 Rule 22 CPC and added the words "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" in the main part.

The main part of Order 41 Rule 22 (1) CPC, (after the 1976 Amendment) reads as follows:

22(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.

The 1976 Amendment has also added an Explanation below Order 41 Rule 22, as follows:

Explanation: A respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may, under this rule, file cross objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree is, wholly or in part, in favour of that respondent".

In connection with Order 41 Rule 22, CPC after the 1976 Amendment, we may first refer to the judgment of the Calcutta High Court in Nishambhu Jana vs. Sova Guha [ (1982) 89 CWN 685]. In that case, Mookerjee, J. referred to the 54th report of the Law Commission (at p. 295) (para 41.70) to the effect that Order 41 Rule 22 gave two distinct rights to the respondent in the appeal. The first was the right to uphold the decree of the court of first instance on any of the grounds which that court decided against him. In that case the finding can be questioned by the respondent without filing cross-objections. The Law Commission had accepted the correctness or the Full Bench of Madras High Court in Venkata Rao''s case. The Commission had also accepted the view of Calcutta High Court in Nrisingha Prasad Rakshit vs. The Commissioners of Bhadreswar Municipality that a cross-objection was wholly unnecessary in case the adverse finding was to be attacked. The Commission observed that the words "support the decree..." appeared to be strange and "what is meant is that he may support it by asserting that the ground decided against him should have been decided in his favour. It is desirable to make this clear". That is why the main part of Order 41 Rule 22 was amended to reflect the principle in Venkata Rao''s case as accepted in Chandre Prabhuji''s case.

So far as the Explanation was concerned, the Law Commission stated (page 298) that it was necessary to "empower" the respondent to file cross-objection against the adverse finding. That would mean that a right to file cross-objections was given but it was not obligatory to file cross-objections. That was why the word ''may'' was used. That meant that the provision for filing cross-objections against a finding was only an enabling provision.

These recommendations of the Law Commission are reflected in the Statement of Objections and Reasons for the Amendment. They read as follows:

Rule 22 (i.e. as it stood before 1976) gives two distinct rights to the respondent in appeal. The first is the right of upholding the decree of the Court of first instance on any of the grounds on which that court decided against him; and the second right is that of taking any cross-objection to the decree which the respondent might have taken by way of appeal. In the first case, the respondent supports the decree and in the second case, he attacks the decree. The language of the rule, however, requires some modifications because a person cannot support a decree on a ground decided against him. What is meant is that he may support the decree by asserting that the matters decided against him should have been decided in his favour. The rule is being amended to make it clear.

An Explanation is also being added to Rule 22 empowering the respondent to file cross-objection in respect to a finding adverse to him notwithstanding that the ultimate decision is wholly or partly in his favour." Mookerjee, J. observed in Nishambhu Jana''s case (see p. 689) that "the amended Rule 22 of Order 41 of the Code has not brought any substantial change in the settled principles of law" (i.e. as accepted in Venkata Rao''s case) and clarified (p. 691) that

it would be incorrect to hold that the Explanation now inserted by Act 104 of 1976 has made it obligatory to file cross-objections even when the respondent supports the decree by stating that the findings against him in the court below in respect of any issue ought to have been in his favour

Hon''ble Supreme Court in case of Superintending Engineer and Others Vs. B. Subba Reddy, has held, appeal is a substantive right: It is a creation of statute. Right to appeal does not exist unless it is specifically conferred. Cross-objection is like an appeal. It has all the trappings of an appeal.

By applying the ratio of law laid down by the Supreme Court in the cases referred hereinabove, it would be clear, a party may support the decree by asserting that the matters decided against him should have been decided in his favour; explanation to Rule 22 empowers the respondents to file cross-objection in respect to a finding adverse to him notwithstanding that the ultimate decision is wholly or partly in his favour, and right to file cross-objection is a substantial right.

In the light of above discussion, in the considered opinion of this Court, the judgement and decree passed by learned first appellate court is vitiated due to non-consideration of cross-objection preferred by the appellant and the substantial question of law formulated is answered accordingly.

In view of foregoing, appeal deserves to be and is hereby allowed. The matter is remitted back to the first appellate court to decide the appeal after considering the cross-objection preferred by the appellant in accordance with law on its own merit.

Record of both the Courts below be sent back to the first appellate court.

Parties are directed to appear before the first appellate court on 9-5-2011. No order as to costs.