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2012 DIGILAW 127 (CHH)

RAM ACHARAJ TIWARI v. VIJAY KUMAR

2012-05-01

N.K.AGARWAL

body2012
JUDGMENT 1. This is defendant's Second Appeal filed under Section 100 of CPC against the judgment and decree dated 02.05.2007, passed by the District Judge, Rajnandgaon, in Civil Appeal No. 35-A/2006. 2. Facts in brief are that: plaintiffs/respondents filed a suit for declaration and injunction. The suit was contested by the appellants/defendants. 3. The trial court framed following issues: dz- okn iz’u fu”d”kZ 1- D;k oknhx.k rFkk izfroknhx.k dz- 3 fookfnr Hkwfe gk¡ [k-ua 752@1 ,oa 752@2 jdck 04 fMlfey ds lg&Lokeh gS A 2- D;k izfroknh dz- 1 o 2 rFkk izfroknh dz- 3 )kjk gk¡ vihy dz- 9&v@95 esa diViw.kZ jkthukek vkosnu i= is’k dj fnukad 15-03-99 dks vkKfIr izkIr fd;k gS] og oknhx.k ij ca/kudkjh ugha gS] ;fn gk¡ rks izHkko A 3- D;k izfr- dzekad 3 oknxzLr Hkwfe dk ,d ek= ugha Lokeh gS A 4- D;k izfr- dz- 1 o 2 oknxzLr Hkwfe [kljk ua- 752 gk¡ @1 jdck 0-2 fMlfey ds Lokeh gS A 5- D;k oknh dk okn fof/k vuq:i ugha gksus ls gk¡ iks”k.kh; ugha gS A 6- D;k oknhx.k dk okn E;kn ckg~; gS A gk¡ 4. The parties led evidence. 5. The findings of the trial court on issue No. 1 & 2 were affirmative in favour of plaintiffs and finding on issue No.3 was also against the defendants. However, the trial court dismissed the suit holding it as time barred and also not maintainable. 6. Plaintiffs preferred first appeal there-against. The first appellate court reversed the finding on issues which have been decided by the trial court against the plaintiffs and decreed the plaintiffs suit. 7. During the course of hearing the first appellate court did not permit the appellants/defendants to assail the adverse findings recorded by the trial court against them on issue No. 1 to 3 without filling any written cross objection. Hence this Second Appeal. 8. This Court, vide its order dated 23.04.2009 admitted the appeal on the following substantial questions of law: (I) "Whether the first appellate court was justified in denying the hearing to the appellants herein to assail the findings recorded by the trial court against the issue No.1 to 3 without preferring any written objection under Order 41 Rule 22 of CPC while supporting the judgment and decree. (II) Whether the court below have erred in deciding the applicability of Section 14 (1) of the Hindu Succession Act, 1956 in the facts and circumstances of the case." 9. Shri PKC. Tiwari, learned senior counsel appearing for the appellants would submit: in view of legal position settled by the Supreme Court in case of Ravinder Kumar Sharma Vs. State of Assam and others 1999(7) SCC 435, the appellants were well within their rights to assail the adverse findings without preferring any written cross objection and the first appellate court has grossly erred in holding otherwise and thereby in allowing plaintiff's first appeal. 10. Per contra, Shri RN Jha learned counsel appearing for respondent supported the judgment and decree and submits that the first appellate court was right in not allowing the appellants to assail the adverse findings without preferring written cross objection. 11. I have heard the counsel appearing for the parties, perused the records of both the courts below and the judgment and decree impugned. 12. Indisputably, the trial court recorded findings on issue No.1 to 3 in favour of plaintiffs. However, it dismissed the plaintiff's suit holding it as time barred and not maintainable. There was no occasion with the appellants to assail the above adverse findings as ultimate judgment and decree was in their favour, therefore, they could not assail the adverse findings by filing appeal against the judgment and decree. However, Order 41 Rule 22 permits the appellants to assail the adverse findings, recorded by the trial court against them while supporting the judgment and decree. 13. The question, therefore, arises for determination of this court is whether or not the appellants can assail the adverse findings recorded by the trial court on issue No. 1 to 3 without filing written cross objection under Order 41 Rule 22 of CPC while supporting the judgment and decree. 14. The law is already settled by the Supreme Court in case of Ravinder Kumar Sharma 1999(7) SCC 435 (Supra), wherein the Supreme Court has held in Para 23 & 24 of its judgment as under: "23. 14. The law is already settled by the Supreme Court in case of Ravinder Kumar Sharma 1999(7) SCC 435 (Supra), wherein the Supreme Court has held in Para 23 & 24 of its judgment as under: "23. In our view, the opinion expressed by Mookerjee, J. of the Calcutta High Court on behalf of the Division Bench in Nishanbhu Jena case 1984-85 (86) CWN 685 and the view expressed by U.N. Bachawat, J. in Tej Kumar case AIR 1981 MP 55 in the Madhya Pradesh High Court reflect the correct legal position after the 1976 Amendment. We hold that the respondent-defendant in an appeal can, without filing cross-objection attack an adverse finding upon which a decree in part has been passed against the respondent, for the purpose of sustaining the decree to the extent the lower court had dismissed the suit against the defendant-respondent. The filing of cross-objection, after the 1976 Amendment is purely optional and not mandatory. In other words, the law as stated in Venkata Rao case AIR 1943 Mad 698 by the Madras Full Bench and Chandre Prabhuji 1973(2) SCC 665 cases by this court is merely clarified by the 1976 Amendment and there is no change in the law after the amendment. 24. The respondents before us are, therefore, entitled to contend that the finding of the High Court in regard to the absence of .reasonable and probable cause or malice - (upon which the decree for pecuniary damages in B and C Schedules was based) can be attacked by the respondents for the purpose of sustaining the decree of the High Court refusing to pass a decree for non-pecuniary damages as per A Schedule. The filing of cross-objections against the adverse finding was not obligatory." 15. In view of settled legal position as mentioned hereinabove the first appellate court has certainly erred in not permitting the appellants/defendants to assail the adverse findings recorded by the trial court without preferring written cross objection, and the first substantial question of law formulated by this court is answered accordingly in appellant's favour. 16. In view of settled legal position as mentioned hereinabove the first appellate court has certainly erred in not permitting the appellants/defendants to assail the adverse findings recorded by the trial court without preferring written cross objection, and the first substantial question of law formulated by this court is answered accordingly in appellant's favour. 16. In view of findings on first substantial question of law, the matter has to be remitted back to the first appellate court for deciding the appeal afresh after affording proper opportunity to the appellants to assail the adverse findings recorded by the trial court against them even without preferring written cross objection under Order 41 Rule 22 of CPC, and therefore, at this stage there is no need to answer the second substantial question of law formulated by this court. 17. In view of above, the appeal is allowed in part. The judgment and decree impugned dated 02.05.2007 is set aside. The matter is remitted back to the first appellate court to decide the appeal afresh after affording proper opportunity to the appellants to assail the adverse findings recorded by the trial court against them in accordance with law on its own merits. 18. Records of both the courts below be sent back forthwith to the first appellate court. 19. The parties are directed to appear before the first appellate court on 18.06.2012. 20. No order as to costs. Case Remanded.