Order 41 Rule 22 C.P.C - Cross Appeal /Cross Objections - when to be filed - Second appeal - when a party failed to file cross objection/cross appeal against the adverse findings against him can not file second appeal - their Lordships of High court dismissed the second appeal on technical/legal point =
Against the said judgment and decree, the unsuccessful plaintiff filed the appeal insofar as declaration that defendant Nos.8 and 9 are the absolute owners of item No.4 by virtue of Ex.B-8 sale deed. The appellant herein, who is defendant No.6 in the suit, has not challenged that finding. Without filing an appeal against the judgment and decree of the trial Court, the appellant cannot file Second Appeal.
13. Learned counsel for appellant placed reliance on a decision reported in Hardevinder Singh v. Paramjit Singh and others[1]wherein it is held at para No.21 as under:
“After the 1976 Amendment of Order 41 Rule 22, the insertion made in sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference is basically that a respondent may defend himself without taking recourse to file a cross-objection to the extent the decree stands in his favour, but if he intends to assail any part of the decree, it is obligatory on his part to file the cross-objection. In Banarsi v. Ram Phal [(2003)9 SCC 606], it has been observed that the amendment inserted in 1976 is clarificatory and three situations have been adverted to therein. Category 1 deals with the impugned decree which is partly in favour of the appellant and partly in favour of the respondent. Dealing with such a situation, the Bench observed that in such a case, it is necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though he is entitled to support that part of the decree which is in his favour without taking any cross-objection. In respect of two other categories which deal with a decree entirely in favour of the respondent though an issue had been decided against him or a decree entirely in favour of the respondent where all the issues had been answered in his favour but there is a finding in the judgment which goes against him, in the pre-amendment stage, he could not take any cross-objection as he was not a person aggrieved by the decree. But post-amendment, read in the light of the Explanation to sub-rule (1), though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour, yet he may support the decree without cross-objection. It gives him the right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. It is apt to note that after the amendment in the Code, if the appeal stands withdrawn or dismissed for default, the cross-objection taken to a finding by the respondent would still be adjudicated upon on merits which remedy was not available to the respondent under the unamended Code.”
Even as per the ratio laid down in the above decision, the appellant herein has to file an appeal or cross objections against the part of decree, which is against him, before the first appellate Court. But he did not do so.
14. In view of the fact that the issue recorded by the trial Court against the appellant/defendant No.6 has not been challenged by him by filing an appeal or cross objections when the plaintiff filed the appeal before the first appellate Court, she is debarred from filing the Second Appeal, as she has not availed her right to file an appeal or cross objections in the first instance. Therefore, the appeal is not maintainable and hence, it is liable to be dismissed.
2014 (March. part )
http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=SA&mno=67&year=2014
http://164.100.12.10/hcorders/orders/2014/sa/sa_67_2014.html
SA 67 / 2014 | SASR 41049 / 2004 |
|
THE HON’BLE SRI JUSTICE K.C.BHANU
SECOND APPEAL No.67 OF 2014
JUDGMENT:
This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908, (for short, “C.P.C.”) is directed against the judgment and decree, dated 4.2.2004, in A.S.No.25 of 2000 on the file of VII Additional District Judge, Madanapalle, whereunder and whereby, the judgment and decree, dated 21.3.2000, in O.S.No.102 of 1996 on the file of the Senior Civil Judge, Piler were confirmed.
2. For better appreciation of facts, the parties hereinafter are referred to as they are arrayed in the trial Court.
3. The plaintiff filed the suit against defendant Nos.1 to 8 originally seeking division of the plaint schedule properties into 24 equal shares and allotment of 9 such shares in his favour by separate metes and bounds and for the other usual reliefs. Defendant No.9 was subsequently added as per the order, dated 20.1.1988, in I.A.No.682 of 1987. The brief facts in the plaint are as follows:
The suit schedule properties are the ancestral properties of the plaintiff, defendant No.3 and their father Srinivasulu Setty, each of them had 1/3rd share in the property. Srinivasulu Setty got five daughters, who are defendant Nos.2 and 4 to 7. All the daughters of Srinivasulu Setty were married. After the death of Srinivasulu Setty, who died intestate, his 1/3rd share devolved upon his five daughters and two sons and each of them became entitled to 1/24th share. Defendant No.1 is the wife of Srinivasulu Setty. Plaintiff, who was originally entitled to 1/3rd share in the suit property, on the death of his father, became entitled to 1/24th share and thus, entitled to 9/24th share in the suit property.
After the death of Srinivasulu Setty, defendant No.3 became greedy and intended to take away the income from the share of the plaintiff also for which he did not agree. The plaintiff got issued a notice on 14.9.1986 calling upon defendant No.3 to divide the property and to allot his share separately. Defendant No.3 got issued a reply notice with incorrect facts and figures. Defendant No.3 is trying to sell away the joint family property to defendant No.8 without any manner of right in spite of the protest by the plaintiff. Defendant No.9 is the brother of defendant No.8. Defendant Nos.8 and 9 had taken the sale deed from defendant No.3 in respect of some portion of the plaint schedule properties. Hence, the suit.
4. Defendant Nos.2, 4 and 5 remained ex parte.
5. Defendant No.6 filed a written statement, which was adopted by defendant Nos.1, 5 and 7, contending that except the relationship between the parties as mentioned in the plaint, the other averments are not true and correct. He contended that plaint schedule properties excluding few items are the self acquired and separate properties of late Srinivasulu Setty. Srinivasulu Setty executed two registered wills, dated 27.8.1987, in favour of defendant Nos.2 and 4 to 7 and another registered will, dated 5.9.1982, in favour of defendant No.1 to the knowledge of the plaintiff and all the defendants in a sound and disposing state of mind. The wills came into effect after the death of Srinivasulu Setty. Defendant No.6 contended that herself, defendant Nos.1, 5 and 7 were not aware of exchange of notices between the plaintiff and defendant No.3. He also contended that they also came to know of the alienations made by defendant No.3 in respect of some of the items of plaint schedule properties detrimental to their interest and contended that the alienations are illegal and not valid and binding on them. Srinivasulu Setty had a little ancestral property, which he got in a partition with his brothers, which took place around 1940. However, the registered partition deed was executed among the brothers of Srinivasulu Setty only in the year 1972. There was practically no income from the said property, as it was not cultivable due to drought conditions. In the partition, Srinivasulu Setty was allotted several debts to his share. He had a large family to maintain and so, in such strained economic circumstances, he discharged his liabilities, educated his children and performed their marriages with his hard earnings and also acquired properties. Defendant No.1’s parents’ native place is Medikurthi. She got some property. It was also utilised for the acquisitions made by Sreenivasulu Setty. The family suffered a great deal due to the fraud committed by the first wife of defendant No.3. The ancestral property owned by Srinivasulu Setty was covered by item Nos.1 to 3 of the plaint schedule. Item Nos.1 and 2 of the plaint schedule are in fact dry lands and the extents mentioned are incorrect. Item Nos.4 to 19 are all self acquired and separate properties of Srinivasulu Setty wherein neither the plaintiff nor defendant Nos.1 to 7 have any right in view of the Wills executed by Srinivasulu Setty. Neither the plaintiff nor defendant No.3 has any right in the suit property. On the death of Srinivasulu Setty, the plaintiff and defendant Nos.2 to 7 became entitled to 1/8th share each in item Nos.4, 5 and 14 to 19, which were the separate and self acquired properties of Srinivasulu Setty. In item Nos.1 to 3, which are ancestral properties, Sreenivasulu Setty, plaintiff and defendant No.3 became entitled to 1/3rd share each and after the death of Srinivasulu Setty, plaintiff and defendant No.3 became entitled to 9/24th share while defendant Nos.1, 2 and 4 to 7 are entitled to 9/24th share. The defendant appears to have executed a sale deed in respect of item No.4 in favour of defendant Nos.8 and 9 and item Nos.14 and 16, which are not binding on her and others. The plaintiff brought on record the persons, who purchased the property from defendant No.3, being aware of the same. He suspects collusion between the plaintiff and defendant No.3 and hence, prayed to dismiss the suit.
6. Defendant No.8 filed a written statement contending that defendant No.3 purchased some properties covered by survey number 250 with his self earnings on 6.2.1965 for Rs.1500/- under a registered sale deed, which is item No.4 of the plaint schedule property. He has been in possession and enjoyment of the same. The Revenue authorities have also issued the passbook in the name of defendant No.3. He purchased item No.4 of the suit property from defendant No.3 under a registered sale deed, dated 29.12.1986 for a consideration of Rs.12,000/- and came into possession of the same. Item No.4 of the plaint schedule property never belonged to the joint family of the plaintiff and hence, prayed to dismiss the suit.
7. Defendant No.3 did not choose to file a written statement.
8. Basing on the above pleadings, the following issues were framed for trial:
“1. Whether the plaint schedule properties are the ancestral properties of the plaintiff and defendants?
2. Whether the plaintiff is entitled for an share if so, to what share?
3. Whether the plaintiff is entitled for
partition and separate possession?
4. To what relief?”
9. Later, the following additional issues were framed:
1.Whether item No.4 of the plaint schedule
is the absolute property of D-8 and D-9
and whether they are in absolute
possession of the said item of property?
2. Whether in the plaint schedule, item
No.4 was the separate and self
acquired property of third defendant?”
10. During trial, P.Ws.1 to 3 were examined and Exs.A-1 to A-3 were got marked on behalf of the plaintiff. On behalf of the defendants, D.Ws.1 to 10 were examined and Exs.B-1 to B-12 were got marked. On behalf of defendant Nos.8 and 9, defendant No.3 was examined as C.W.1 and Exs.C-1 and C-2 were got marked.
11. The trial Court, after considering the evidence on record, passed a preliminary decree holding as under:-
“1) Plaintiff and the 3rd defendant are entitled to 9/24th share each and defendants 1, 2 and 4 to 7 are each entitled to 1/24th share in the plaint schedule items 1 to 3, 15 and 20 which are held to be the ancestral and the joint family properties of the plaintiff and defendants 1 to 7.
2) Defendants 1, 2 and 4 to 7 are exclusively entitled to the plaint schedule items 6 to 13 by virtue of the registered wills Exs.B3 and B4 executed by Nama Sreenivasulu Setty which are held to be his self acquired properties according to their respective allotments under the said two Wills.
3) The plaintiff and defendants 1 to 7 are equally entitled to 1/8th share each in the plaint schedule items 5, 14, 16 to 19, 21 and 22 as they are held to be the self acquired properties of Nama Sreenivasulu Setty.
4) D8 and D9 are declared to be the absolute owners of the plaint schedule item No.4 by virtue of Ex.B-8 sale deed.”
12. Against the said judgment and decree, the unsuccessful plaintiff filed the appeal insofar as declaration that defendant Nos.8 and 9 are the absolute owners of item No.4 by virtue of Ex.B-8 sale deed. The appellant herein, who is defendant No.6 in the suit, has not challenged that finding. Without filing an appeal against the judgment and decree of the trial Court, the appellant cannot file Second Appeal.
13. Learned counsel for appellant placed reliance on a decision reported in Hardevinder Singh v. Paramjit Singh and others[1]wherein it is held at para No.21 as under:
“After the 1976 Amendment of Order 41 Rule 22, the insertion made in sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference is basically that a respondent may defend himself without taking recourse to file a cross-objection to the extent the decree stands in his favour, but if he intends to assail any part of the decree, it is obligatory on his part to file the cross-objection. In Banarsi v. Ram Phal [(2003)9 SCC 606], it has been observed that the amendment inserted in 1976 is clarificatory and three situations have been adverted to therein. Category 1 deals with the impugned decree which is partly in favour of the appellant and partly in favour of the respondent. Dealing with such a situation, the Bench observed that in such a case, it is necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though he is entitled to support that part of the decree which is in his favour without taking any cross-objection. In respect of two other categories which deal with a decree entirely in favour of the respondent though an issue had been decided against him or a decree entirely in favour of the respondent where all the issues had been answered in his favour but there is a finding in the judgment which goes against him, in the pre-amendment stage, he could not take any cross-objection as he was not a person aggrieved by the decree. But post-amendment, read in the light of the Explanation to sub-rule (1), though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour, yet he may support the decree without cross-objection. It gives him the right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. It is apt to note that after the amendment in the Code, if the appeal stands withdrawn or dismissed for default, the cross-objection taken to a finding by the respondent would still be adjudicated upon on merits which remedy was not available to the respondent under the unamended Code.”
Even as per the ratio laid down in the above decision, the appellant herein has to file an appeal or cross objections against the part of decree, which is against him, before the first appellate Court. But he did not do so.
14. In view of the fact that the issue recorded by the trial Court against the appellant/defendant No.6 has not been challenged by him by filing an appeal or cross objections when the plaintiff filed the appeal before the first appellate Court, she is debarred from filing the Second Appeal, as she has not availed her right to file an appeal or cross objections in the first instance. Therefore, the appeal is not maintainable and hence, it is liable to be dismissed.
15. Accordingly, the Second Appeal is dismissed at the stage of admission. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this Second Appeal shall stand closed.
______________________
JUSTICE K.C.BHANU
Date: 21.3.2014
AMD
THE HON’BLE SRI JUSTICE K.C.BHANU
SECOND APPEAL No.67 OF 2014
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.