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2010 DIGILAW 2721 (MAD)

Govindan @ Govindasamy Moopanar v. Anbazhagan

2010-07-06

M.VENUGOPAL

body2010
Judgment :- 1. The Appellant/Plaintiff has filed this present Second Appeal before this Court as against the Judgment and Decree dated 11.01.1996 made in A.S.No.25 of 1992 on the file of the Learned Sub Judge, Ariyalur. 2. The Learned Sub Judge, Ariyalur in the Judgment in A.S.No.25 of 1992 dated 11.01.1996 has among other things observed that the Appellant/Plaintiff is not entitled to obtain a relief of specific performance in respect of the sixth item of the property and upheld the decision of the trial Court in regard to the dismissal of the suit in respect of the sixth item, but in respect of the items 1 to 5 has observed that the trial Court ought to have dismissed the suit but the conclusion of the trial Court in decreeing the suit in respect of the items 1 to 5 of the suit property is the wrong one and dismissed the appeal. 3. Further, the Learned Sub Judge, Ariyalur while dismissing the Appeal A.S.25/1992 (filed by the Plaintiff in respect of the sixth item of the plaint schedule property) has gone to the extent of setting aside the Judgment and Decree of the trial Court in respect of the items 1 to 5 of the suit properties. 4. Before the trial Court, three issues have been framed for trial. On behalf of the Appellant/Plaintiff, two witnesses viz., P.Ws.1 and 2 were examined and Exs.A1 to A10 have been marked. On the side of the Defendants, D.Ws.1 and 2 have been examined and Exs.B1 has been marked. 5. On an appreciation of oral and documentary evidence available on record, the trial Court has come to the conclusion that the Appellant/Plaintiff is entitled to obtain a decree for specific performance as against the First Defendant in respect of the items 1 to 5 and accordingly, passed a decree thereto. As regards the sixth item, the trial Court has dismissed the suit, and considering the facts and circumstances of the case has directed the parties to bear their own costs. 6. Being dissatisfied with the Judgment and Decree passed by the trial Court in O.S.No.363 of 1990 dated 09.12.1991, the Appellant/Plaintiff has preferred an appeal A.S.No.25 of 1992 before the Learned Sub Judge, Ariyalur (in respect of the sixth item). 7. 6. Being dissatisfied with the Judgment and Decree passed by the trial Court in O.S.No.363 of 1990 dated 09.12.1991, the Appellant/Plaintiff has preferred an appeal A.S.No.25 of 1992 before the Learned Sub Judge, Ariyalur (in respect of the sixth item). 7. The Appellant has filed the present Second Appeal as against the Judgment and Decree passed by the trial Court in A.S.No.25 of 1992 dated 11.01.1996. 8. At the time of admission of the Second Appeal, the following substantial question of law is framed by this Court: "Whether in law the Learned Appellate Court is correct in reversing the Judgment and Decree of the trial Court in respect of items 1 to 5 as well when the appeal itself was filed by the Appellant only with reference to item 6 and there was no corresponding Cross Appeal or Cross Objections in respect of the items 1 to 5 within the time stipulated by the Respondents?" CONTENTIONS, DISCUSSIONS AND FINDINGS ON POINT: 9. According to the Learned counsel for the Appellant/Plaintiff, the Judgment and Decree of the First Appellate Court in A.S.No.25 of 1992 dated 11.01.1996 are unsustainable and erroneous in the eye of Law for the simple reason that the Learned Sub Judge, Ariyalur has not taken into account of an important fact that A.S.No.25 of 1992 has been filed only with reference to the item 6 of the plaint schedule property and there has been no corresponding appeal or Cross Objections at the instance of the Respondents in regard to the Decree granted by the trial Court in so far as pertains to the items 1 to 5. 10. Continuing further, it is the contention of the Learned counsel for the Appellant/Plaintiff that as per Order 41, Rule 22 of Civil Procedure Code, the Respondents/Defendants ought to have raised an objection in regard to the Decree pertaining to the items 1 to 5 by filing an appeal or by filing a Cross Appeal within one month from the date of service of notice on them or their pleader, etc., and in the absence of any independent appeal or Cross Appeal filed by the Respondents, it is not open to the trial Court to set aside the Judgment and Decree passed by the trial Court in so far as it relates to items 1 to 5 of the suit property. 11. 11. Expatiating her arguments, the Learned counsel for the Appellant/Plaintiff submits that the Judgment and Decree of the trial Court in O.S.No.363 of 1990 dated 09.12.1991 in so far as it relates to items 1 to 5 of the plaint schedule property has become conclusive and final and therefore, in the absence of an appeal by an aggrieved party, it is not open to the First Appellate Court suo moto to reopen the same and that too, when A.S.No.25 of 1992 which has been filed by the Appellant/Plaintiff only to a limited extent pertaining to item 6 of the plaint schedule property. 12. The Learned counsel for the Appellant/Plaintiff urges before this Court that the First Appellate Court has committed an error in holding that the Appellant/Plaintiff is not entitled to a Decree in respect of the item No.6 on the basis that the second Respondent has been a bonafide purchaser for value and in this regard, the First Appellate Court has not appreciated the fact that the Second Respondent is the owner of the property adjacent to item No.6 and therefore, he ought to have made an enquiry in regard to the possession being with the Appellant and in the absence of any enquiry, it cannot be held that the Second Respondent has been the bonafide purchaser for value. 13. In short, the core contention put forward on the side of the Appellant/Plaintiff is that the First Appellate Court has travelled beyond the ambit and purview of the Memorandum of Appeal and has erroneously dismissed the suit in toto which is per se not correct in the eye of law. 14. The Learned counsel for the Appellant/Plaintiff contends that the First Appellate Court has not adverted to the facts and circumstances of the case and the narrow scope of A.S.No.25 of 1992 in a proper and real perspective which has resulted in serious miscarriage of justice and therefore prays for allowing the Second Appeal to prevent an aberration of justice. 15. The Learned counsel for the Appellant/Plaintiff contends that the First Appellate Court has not adverted to the facts and circumstances of the case and the narrow scope of A.S.No.25 of 1992 in a proper and real perspective which has resulted in serious miscarriage of justice and therefore prays for allowing the Second Appeal to prevent an aberration of justice. 15. In response, the Learned counsel for the Respondents submits that even though the Appellant/Plaintiff has filed A.S.No.25 of 1992 before the First Appellate Court only in respect of the sixth item of the plaint schedule, yet the Respondents/Defendants without filing a Cross Appeal or Cross Objections is entitled to canvass about the favourable findings in favour of the Appellant/Plaintiff as per Order 41, Rule 22 of the Civil Procedure Code. 16. At this stage, it transpires from Ex.A1 Agreement dated 23.08.1986 that in the schedule, there is no reference as to the sixth item of the property viz., S.No.361/14, the vacant site measuring 416 sq.ft. As a matter of fact, the property schedule in Ex.A1 Unregistered Agreement dated 23.08.1986 between the Appellant and the Plaintiff and the First Respondent/First Defendant refers to R.S.No.467-1D, 407.5C, 404/35, 368.8, 360.1B2, 350.7A. But it does not refer to R.S.No.361/4 which is mentioned in page 2 of the Agreement. 17. The trial Court on an appreciation of oral and documentary evidence on record has come to a clear conclusion that the First Respondent/First Defendant has to receive a balance sum of Rs.700/- from the Appellant/Plaintiff and to execute a Sale Deed in respect of items 1 to 5 of the suit properties. In respect of the sixth item of the suit properties, the trial Court has opined that the Second Respondent/Second Defendant is a bonafide purchaser for value without notice (purchased from the First Respondent/First Defendant) and dismissed the suit in respect of the sixth item. 18. In respect of the sixth item of the suit properties, the trial Court has opined that the Second Respondent/Second Defendant is a bonafide purchaser for value without notice (purchased from the First Respondent/First Defendant) and dismissed the suit in respect of the sixth item. 18. The Learned counsel for the Appellant/Plaintiff in support of her contention in the absence of Cross Appeal or Cross Objections by the Respondents/Defendants, the First Appellate Court in the instant case on hand has no jurisdiction to interfere with the Decree passed by the trial Court in so far as it relates to the items 1 to 5 of the plaint schedule properties, she relies on the decision of the Honble Supreme Court BANARSI AND OTHERS V. RAM PHAL, (2003) 2 MLJ 160 (S.C.), wherein the Honble Supreme Court has laid down as follows: "That in the absence of cross appeal preferred or cross-objection taken by the plaintiff-respondent the First Appellate Court did not have jurisdiction to modify the decree in the manner in which it has done. Within the scope of appeals preferred by the appellants the First Appellate Court could have either allowed the appeals and dismissed the suit filed by the respondent in its entirety or could have deleted the latter part of the decree which granted the decree for specific performance conditional upon failure of the defendant to deposit the money in terms of the decree or could have maintained the decree as it was passed by dismissing the appeals. What the first Appellate Court has done is not only to set aside the decree to the extent to which it was in favour of the appellants but also granted an absolute and out and out decree for specific performance of agreement to sell which is to the prejudice of the appellants and to the advantage of the respondent who has neither filed an appeal nor taken any cross-objection." She also cites the decision of this Court NATESA PILLAI V. NAMASIVAYAM PILLAI AND OTHERS, 1997 (1) MLJ 111 , wherein it is observed that O.41, Rule 22 of C.P.C. governs the right of a respondent to support the decree of the trial court without filing any cross-objection or cross-appeal. But at the same time, if he wants a modification of the decree, the appellate court cannot do so without the respondent filing a cross-appeal." 19.This Court pertinently recalls the decision of the Honble Supreme Court AIR 1960 SUPREME COURT 1349 (V 47 C 246), THE MANAGEMENT OF ITAKHOOLIE TEA ESTATE V ITS WORKMEN, wherein it is observed as follows: "under Order XLI, Rule 22, any respondent may support the decree on any of the grounds decided against him in the Court below. But this does not, and cannot, confer on him a right higher than that he would have had if he had preferred an appeal against the ground decided against him. Thus, he cannot support the decree on a ground which would not have been available to him if he were an appellant." 20. Also, this Court aptly points out the decision AIR 2008 NOC 2722 AP, GOLAVALLI RAMAKRISHAN MOORTHY V. MURAMALLA AMMANNA RAJU AND OTHERS, wherein it is held that the Defendant can file Cross Objection to an Appeal only on the item raised by the Appellant." 21. It is to be noted that a Cross Appeal has all the trappings of an Appeal filed in the Form of Memorandum of the Civil Procedure Code and Order 41, R.1 of C.P.C. is squarely applicable, as opined by this Court. 22. It is well accepted principle that a Court of Law will not itself raise a point which the Respondent does not raise or has not raised. 23. It is to be borne in mind that in the instant case on hand, the findings of the trial Court in respect of the items 1 to 5 of the plaint schedule properties have not been challenged by the Respondents/Defendants by filing a Cross Objection or an independent Appeal before the First Appellate Court. In the absence of the said challenge, then the First Appellate Court is not correct in law to upset the Judgment and Decree of the trial Court passed in favour of the Appellant/Plaintiff in respect of the items 1 to 5 of the plaint schedule property. In short, the trial court has granted a Decree in favour of the Appellant/Plaintiff in respect of the items 1 to 5 of the plaint schedule properties. In short, the trial court has granted a Decree in favour of the Appellant/Plaintiff in respect of the items 1 to 5 of the plaint schedule properties. In the absence of an independent Appeal or Cross Appeal or Cross Objections being filed by the Respondents/Defendants, the First Appellate Court in the considered opinion of this Court has exceeded its jurisdiction and has acted beyond its powers while upsetting the apple cart viz., by setting aside the Judgment and Decree of the trial Court. 24. Admittedly, the right to take Cross Objection in appeal is nothing but the exercise of right of appeal which is given to an aggrieved party and it is not a new right showered on a particular litigant. As per O.41, R.22(1), Explanation a Cross Objection is visualised only when the Respondent could have also appealed incidentally against the Decree and the finding may be such on which the Decree is founded. To put it precisely, the Respondents have to file a Cross Objection in the manner provided under O.41, R.22 of C.P.C. 25. As far as the present case is concerned, the Respondents/Defendants have not preferred Cross Appeal or Cross Objection in respect of the items 1 to 5 of the plaint schedule property which has been decided in favour of the Appellant/Plaintiff. In the absence of the Cross Appeal or Cross Objection in the present case, the First Appellate Court viz., the Learned Sub Judge has set aside the trial Courts Decree to the extent of which it is in favour of the Appellant/Plaintiff which is not per se correct in the eye of law. Obviously, the tenor and spirit of O.41, R.22 have not been adhered to by the First Appellate Court in the manner known to Law and in accordance with Law. Obviously, the tenor and spirit of O.41, R.22 have not been adhered to by the First Appellate Court in the manner known to Law and in accordance with Law. Therefore, this Court is left with no other option but to set aside the Judgment and Decree of the First Appellate Court in so far as it relates to the items 1 to 5 of the plaint schedule property and observes that the First Appellate Court has committed an error of material irregularity and patent illegality in reversing the Judgment and Decree of the trial Court in respect of the items 1 to 5 when the appeal itself has been filed only with regard to the sixth item and that too, when there is no Cross Appeal or Cross Objection in respect of the items 1 to 5 within the time adumbrated filed by the Respondents/Defendants and answers the substantial question of law in favour of the Appellant/Plaintiff. But in regard to the sixth item of the plaint schedule property, the Judgment and Decree of the First Appellate Court in dismissing the suit is confirmed. Accordingly, the Second Appeal is allowed in part. 22. In the result, the Second Appeal is allowed in part. Having regard to the facts and circumstances of the case, the parties are directed to bear their own costs. The connected miscellaneous petition is closed.