Research › Search › Judgment

Andhra High Court · body

2006 DIGILAW 175 (AP)

Varanasi Vital Rao v. Jallepalli Janardhanarao

2006-02-13

C.V.RAMULU

body2006
( 1 ) THIS Civil Revision Petition is filed under article 227 of the Constitution of India being aggrieved by an Orderdated 23-12-2004 made in IAG R No. 3530 of 2004 in cross-objections in A. S. No. 81 of 2004 on the file of the learned i Additional District Judge, Srikakulam. ( 2 ) THE petitioner is the 1st respondent in the above appeal and plaintiff in O. S. No. 126 of 2004 on the file of the learned Junior Civil judge, Amudalavalasa. Respondent No. 1 herein is the appellant in the above appeal and 2nd defendant in the suit. Respondent No. 2 is the 2nd respondent in the appeal and 1st defendant in the suit. The parties are here in after referred to as they were arrayed in the suit. ( 3 ) THE plaintiff (petitioner herein) laid a suit for recovery of certain amount on the foot of a promissory note. The suit was decreed as against the 2nd defendant and was dismissed as against the 1st defendant, father of the 2nd defendant, on the ground that his signature was forged. Defendant No. 2 carried the matter in appeal being A. S. No. 81 of 2004 on the file of the learned I Additional District Judge, srikakulam being aggrieved by the Judgment and Decree made in O. S. No. 126 of 2004 on the file of the learned Junior Civil Judge, amudalavalasa. Defendant No. 1 against whom the suit was dismissed was also made a proforma party i. e. respondent No. 2, in the appeal. After receipt of notice in the appeal, the plaintiff filled cross-objections to the extent of denial of his claim forcosts while decreeing the suit. However, there after he filed the present IAGR No. 3530 of 2004 purported to be underordervi Rule 17of the Civil Procedure code seeking amendment of cross-objections already filed. In this petition, altogether a different ground has been raised, i. e. to allow the cross-objections by setting aside the dismissal of the suit as against the 1st defendant, who is the 2nd respondent in the appeal. Here, it may be necessary to notice thatthe plaintiff has notfiled any independent appeal insofar as dismissing the suit against the 1 st defendant is concerned. Here, it may be necessary to notice thatthe plaintiff has notfiled any independent appeal insofar as dismissing the suit against the 1 st defendant is concerned. ( 4 ) THE said application was resisted by the defendants and after hearing both the parties, the lower appellate Court rejected the same on 19-4-2005 by the following Order:"head the petitioner s counsel. Perused the citations relied on by the learned counsel for the petitioner, (1) al R1925 Calcutta 975 (Bhuban Mohan v. Co-operative Bank) and (2) AIR 1934 calcutta 346 (Sudhansudhar v. Sasadhar ). The facts of the present case are not similarto the facts in the above reported cases. As such, I am of the view that both the above citations are not applicable to the facts of the present case. Originally, in the cross-objections, the petitioner/plaintiff sought for costs of the suit only. But now by way of amendment, he is seeking the relief of decree against the 1st defendant, against whom the lower Court dismissed the suit. So, the petitioner, by way of this amendment, wants to change the nature of his cross objections, which goes to the very root of the cross-objections, which is not at all the real controversy between the parties. Hence, I hold that it is not just and proper to allow the petitioner to change the very nature of his cross objections by way of amendment now sought for. " ( 5 ) AGGRIEVED by the said order, the present civil Revision Petition is filed. ( 6 ) LEARNED counsel for the petitioner strenuously contended that the proposed amendment to incorporate the prayertogrant the decree against the 1st defendant (2nd respondent in appeal) will not change the nature of cross-objections. The proposed amendment is only an additional plea raised by the petitioner in his cross-objections by paying the necessary Court fee and it cannot be equated with the amendment of the plaint or written statement and thereby holding that it would change the nature of the cross objections, especially when it will not, in any circumstances, be contrary to the original plea taken in the cross-objections. Further, when the amendment of the grounds raised in the appeal are permissible, the same analogy is also applicable in case of cross-objections. Further, when the amendment of the grounds raised in the appeal are permissible, the same analogy is also applicable in case of cross-objections. The cross-objections can also be filed against the 1st defendant insofar as dismissing the suit against him, by way of amendment of the cross-objections already filed against the 2nd defendant. ( 7 ) ON the other hand, learned counsel for the respondents contended that firstly, such a petition under Order VI Rule 17 of CPC is not maintainable at appellate stage, particularly in the cross-objections. Secondly, the cross objections originally filed by the petitioner are only insofar as denying the costs while decreeing the suit against the 2nd defendant is concerned. Therefore, assuming that the amendment is permissible under law, such an amendment seeking a decree against the 1 st defendant is not maintainable, having filed cross-objections already seeking award of costs against the 2nd defendant. Further, inthe appeal, the appellant-2nd defendant has not sought for any relief against the 1 st defendant (2nd respondent in the appeal ). Having filed one cross-objection for one relief within time, the plaintiff, in the guise of amendment, wants to avoid the limitation in fling the cross-objections against the 1st defendant. ( 8 ) I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the Order impugned and other material made available on record. ( 9 ) AT the outset, it may be noticed that no provision in the Code of Civil Procedure or any other statute, is brought to the notice of this court, which deals with a contingency of this nature. However, learned counsel for the petitioner placed heavy reliance on the provisions of Order XLI Rule 22 read with rule 33 of CPC and submitted that a petition of this nature under Order VI Rule 17 of CPC is maintainable. ( 10 ) BEFORE going into the merits of the case, it may be necessary to notice a few relevant provisions of law, viz. , Order XLI rules 22 and 33 and Order VI Rule 17 of CPC. "22. ( 10 ) BEFORE going into the merits of the case, it may be necessary to notice a few relevant provisions of law, viz. , Order XLI rules 22 and 33 and Order VI Rule 17 of CPC. "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 with he could have taken by way of appeal, provided he has fited 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: -. . . . . . . . . . . . . . . . . . . . . . . . (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 withdrawan 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 pauper appeals shall, so far as they can be made applicable, apply to an objection under this rule. 33. (5) The provisions relating to pauper appeals shall, so far as they can be made applicable, apply to an objection under this rule. 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 or other decree or order as the case may require, and this power may be exercised by the Court not withstanding 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 under Section 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. Order VI Rule 17 amendment of Pleadings the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. " ( 11 ) LEARNED Counsel for the petitioner relied upon a reported Judgment in Dhangir v. Madan Moharf and drawn attention of the court to paragraphs 12 and 15, which read as under: ( 12 ) 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 also very much limited. We may just think of one or two such cases. 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 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 corespondent. The law in this regard has been laid down by this Court as far back in 1964 in Panna Lalv. State of Bombay, 1964 (1) SCR 980 at p. 991: ( AIR 1963 sc 1516 at p. 1520 ). . . . . . . . . . . . . "15. 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 O. 41, C. P. C. was not maintainable against the correspondent, the Court could consider it under R. 33 of 0. 41, C. P. C. Rule 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 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 Tiled 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 0. 41 have been put in wide terms to enable the appellate cou rt to pass any order or decree to meet the ends of justice. 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 cou rt 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 constraints that we could see may be these: That the parties before the lower court should be there before the appellate court. The question raised must properly arise out of judgment of the lower court. If these two requirements are there, the appellate court could consider any objection against any party of the judgment or decree of the lower court. It may be urged by any part 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. "and submitted that the appellate Court has to consider whether the question raised in the cross-objections properly arises out of the judgment of the trial Court and the parties before the appellate Court are also the parties before the trial Court or not. This is the only test that is required and no other. "12. He also relied upon another judgment reported in Municipal Corporation of Delhi v. Intnl. Security and Intelligence Agency Ltd. wherein it was observed as under: "15. Right to prefer cross objection partakes of the right to prefer an appeal. When the impugned decree or order is partly in favour of one party and partly in favour of the other, one party may rest contented by his partial success with a view to giving a quietus to the litigation. However, he may like to exercise his right of appeal if he finds that the other party was not interested in burying the hatchet and proposed to keep the lis alive by pursuling the same before the appellate forum. He too may in such circumstances exercise his right to file appeal by taking cross-objection. However, he may like to exercise his right of appeal if he finds that the other party was not interested in burying the hatchet and proposed to keep the lis alive by pursuling the same before the appellate forum. He too may in such circumstances exercise his right to file appeal by taking cross-objection. Thus taking any cross objection to the decree or order impugned is the exercise of right of appeal though such right is exercised in the form of taking cross objection. The substantive right is the right of appeal; the form of cross objection is a matter of procedure. "and submitted that the filing of cross-objections is nothing but a substantive right like that of a right of appeal. ( 13 ) HE further relied upon the Judgment of the Apex Court in Pankaja v. Yellappap and drawn attention of the Court to paragraphs 12 to 14, which read as under:"12. So far as the Court s jurisdiction to allow an amendment of pleadings is concerned there can be no two opinions that the same is wide enough to permit amendments even in case where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held the dominant purpose of allowing the amendment is to minimize the litigation, therefore, if the facts of the case so permit, it is always open to the Court to allow applications in spite of the delay and laches in moving such amendment application. 13. But the question for ourconsideration is whether in cases where the delay has extinguished the right of the party by virtue of expiry of the period of limitation prescribed in law, can the Court in the exercise of its discretion take away the right accrued to another party by allowing such balanced amendments? 14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the. same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the. same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case. "and submitted that insofar as the jurisdiction to allow an amendment of pleadings is concerned, the same is wide enough to permit amendment even in case where there has been substantial delay in filing such amendment application. Such amendments are allowed only to minimize the litigation and what is applicable to an amendment of the grounds of appeal is also equally applicable to the grounds of cross-objections. The cross- objections also can be amended at any point of time under Order VI Rule 17 of CPC. ( 14 ) THERE cannot be any dispute as to the proposition laid down in the Judgments relied upon by the learned counsel forthe petitioner. In Dhangir s case (1 supra), the Apex Court held that Rules 22 and 33 of Order XLI of CPC are not mutually exclusive. They are closely related with each other. If objections cannot be urged under Rule 22 against the corespondent, Rule 33 could take over and come to the rescue of the objector. It was further held that while exercising the power the Court has to see that the parties before the lower Court should be there before the appellate Court and the questions raised (cross objections) must properly arise out of the judgment of the lower Court and if these requirements are there, the appellate Court should consider any objection against any part of the Judgment or Decree of the trial court and it may be urged by any party to the appeal. In that case, the validity of the lease deed and the possession of the land thereof were to be determined only against m and it is not intermixed with the right of the appellant therein. It has no relevance to the question raised in the appeal. Therefore, the cress objection as to the lease was not maintainable against m . In that case, the validity of the lease deed and the possession of the land thereof were to be determined only against m and it is not intermixed with the right of the appellant therein. It has no relevance to the question raised in the appeal. Therefore, the cress objection as to the lease was not maintainable against m . Itwould, however, be maintainable under Rule 33. May be, in a given case, even against a co-respondent, a relief can be sought, provided the cross-objections are filed seeking such a relief against a co-respondent at the first instance and when the appeal by some of the parties cannot effectively be disposed without opening the matter as between the respondents inter se. Except in such exceptional circumstances, the cross objections against a co-respondent is impermissible. This is also clearly laid down in dhangir scase (1 supra ). The case on hand is not one such case, that without opening the matter against the co-respondent (1st defendant), the appeal could not be disposed of effectively and the objections are common against the appellant and the co-respondent. If such cross-objections are permitted to be amended and or allowed, it amounts to seeking altogether different reliefs against the appellant and the co-respondent (1st defendant) viz. , decree for costs against the 2nd defendant and for setting aside the judgment insofar as dismissing the suit against the co-respondent (1st defendant) is concerned. Such a course is not available under the law as noticed in dhangir scase (1 supra ). It is well settled that order XLI Rue 22 of the Civil Procedure Code permits a respondent to prefer an objection directed against the appellant. It is only in exceptional cases like where the relief sought against the appellant in such an objection is intermixed with the relief granted tq the other respondents. The use of the word cross objection in Rule 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant alone. ( 15 ) IN Municipal Corporation of Delhi s case (2 supra), the Apex Court held that taking any cross-objections to the decree or Order impugned is the exercise of right of appeal, though such a right is exercised in the form of taking cross-objections. There cannot be any dispute as to this proposition. ( 15 ) IN Municipal Corporation of Delhi s case (2 supra), the Apex Court held that taking any cross-objections to the decree or Order impugned is the exercise of right of appeal, though such a right is exercised in the form of taking cross-objections. There cannot be any dispute as to this proposition. However, this decision has no relevance to the facts of the present case. ( 16 ) IN Pankaja s case (3 supra), amendment of pleadings is for the dominant purpose to minimize the litigation. In that case, the amendment of the cross-objections has not come up for consideration. Therefore, the said judgment also has no relevance to the facts of the case. ( 17 ) ADMITTEDLY, in this case, the appeal was presented against the Judgment and decree made in O. S. No. 126 of 2004 on the file of the learned Junior Civil Judge, amudalavalasa. The suit was decreed against the 2nd defendant and was dismissed as against the 1st defendant. Defendant No. 2 being aggrieved by the Judgment and Decree in the suit, filed an appeal in A. S. No. 81 of 2004 on the file of the learned I Additional District judge, Srikakulam. Defendant No. 1 against whom the suit was dismissed was also made a proforma party. After receiving the notice, the petitioner-plaintiff filed cross-objections insofar as denying the costs while decreeing the suit, against the 2nddefendant is concerned. The cross-objections were taken on file and after more than two months there of, the present petition purported to beunder Order VI Rule 17 of CPC is filed seeking to amend the cross objections already filed insofar as denying the costs while decreeing the suit against the 2nd defendant is concerned, claming the relief against the 1st defendant also. Since notices are served in A. S. No. 81 of 2004 and thereafter, the cross-objections were filed, everything was within the personal knowledge of the 1st respondent-plaintiff. Somehow, the petitioner elected to file cross-objections only insofar as denying awarding of costs while decreeing the suit against the 2nd defendant. It is unfortunate that thereafter, the petitioner realized that he could have filed cross-objections insofar as dismissing the suit against the 1st defendant also. ( 18 ) GENERALLY speaking, such a course is available to the petitioner only by way of a regular appeal. It is unfortunate that thereafter, the petitioner realized that he could have filed cross-objections insofar as dismissing the suit against the 1st defendant also. ( 18 ) GENERALLY speaking, such a course is available to the petitioner only by way of a regular appeal. That apart, as held in Dhangir"s case (1 supra) the cross-objections could be urged against the appellant alone and in exceptional cases only one respondent may file cross-objections against the other respondent. In the said case, some instances are given viz. , when the appeal by some of the parties cannot effectively be disposed of without opening of the matter as between the respondents inter se or in a case where the objections are common as against the appellant and co-respondent. In the instant case, since time has already elapsed either for filing a regular appeal or filing cross objections against the 1st defendant (2nd respondent), the petitioner has invented the method purported to be amending the cross objections already filed, under Order VI rule 17 of CPC to make a claim against the 1" defendant, which is time barred. Even while filing a petition under Order VI Rule 17 of CPC, assuming that it is maintainable, no petition for condonation of delay in preferring the petition for amendment of such cross objections was filed. It is to be noted that even under Order VI Rule 17 of CPC, the party who seeks amendment must show that in spite of due diligence, he could not raise such a plea earlier. In the affidavit filed in support of the said IAGR, except stating that it is just and necessary in the interests of justice such an amendment is necessary, no other reason is stated. ( 19 ) THERE is no dispute that in the appeal filed against the plaintiff, the 1st defendant (2nd respondent) was only a proforma party. There is also no dispute that the cross- objections filed in the present appeal are only to the extent of denying the costs while decreeing the suit against the 2nd defendant. ( 19 ) THERE is no dispute that in the appeal filed against the plaintiff, the 1st defendant (2nd respondent) was only a proforma party. There is also no dispute that the cross- objections filed in the present appeal are only to the extent of denying the costs while decreeing the suit against the 2nd defendant. Assuming that, as held in Dhangir s case (1 supra), if objection cannot be urged under order XLI Rule 22 of CPC against a corespondent, Rule 33 thereof could take over and come to the rescue of the objector- such objections could have been taken in the original cross-objections filed initially and not by way of amendment, which is altogether a different relief soughtforinthecross-objectionsagainst the 1st defendant against whom the suit was dismissed. ( 20 ) TO put it in nutshell, the cross-objection against a co-respondent is not maintainable except in exceptional circumstances, where common grounds are raised against the appellant and the co-respondent and the parties in the suit as well as in the appeal are one and the same. May be, amendment of cross objections in an appeal is permissible, since it is nothing but amendment of pleadings. But, such amendment of cross-objections firstly should be directed against the appellant alone and they are relatable to the matter under issue. However, amendment to the cross objections of this nature is not permissible under the law. The intention of the petitioner herein seeking amendment is only to avoid a regular appeal and the bar of limitation. No grounds are made out to interfere with the order passed by the appellate Court, under article 227 of the Constitution of India. ( 21 ) FOR all the above reasons, the Civil revision Petition is devoid of merit and liable to be dismissed; accordingly, dismissed. No costs.