(ORAL)
1. Heard Sri Mehndi Abbas Rizwi, Advocate holding brief of Sri I.D. Shukla, learned counsel for the appellant and Sri R.K. Srivastava, learned counsel for the respondents.
2. By this common judgment, I will decide Second Appeal No.339 of 2004 filed by the appellant/plaintiff and Cross Objection No.1 of 2005 filed by the respondents/defendants against the judgment and decree dated 03.08.2014 passed by learned 4th Additional District Judge, Faizabad, as both are against the judgment dated 03.08.2004, both are between the same parties and involve similar question of law.
3. The brief facts of the present case are that the appellant, Bansi Dhar Shukla (who was plaintiff in the original suit) filed a suit for permanent injunction against the respondents bearing Original Suit No.269 of 1982. The case of the appellant/plaintiff was that the land situated in plot No.42/2, Village Ranopali was taken on lease by him from Raja Jagdish Prtap Shahi, Sarbarahkar of the temple Sri Thakur Raj Rajeshwari Sri Sitaram Ji Virajman Mandir Diyara, Post Diyara, Pargana Aldemau, District Sultanpur vide lease deed dated 03.11.1981 and the same was got registered on 18.02.1982, the same is shown in the site plan filed along the plaint. The respondents/defendants tried to interfere in the peaceful possession of the appellant. Hence, the appellant filed a suit for permanent injunction against the defendants.
4. Respondents/defendants No.1 and 3 contested the suit by filing written statement. Defendants No.1 and 3 denied the allegations made in the plaint. It was stated that defendant No.3 is owner of land bearing No.42 area 13 dhur and land bearing No.41; land No.42 admeasuring 13 dhur is situated in the eastern part of the disputed land; Sri Anjani Kumar Sinha was the tenant farmer of land bearing No.41 and 42/1, after abolition of Zamindari in the year 1963, he became sirdar of the same and later on acquired bhoomidhari rights; later on the said land was purchased by Ann Purna Devi; Ann Purna Devi sold the said land to defendant No.3. It was also stated that the lands bearing No.41 and 42/1 were purchased by defendants No.1 and 2; the remaining land of 42 admeasuring 13 dhur is abadi land and houses have been constructed thereon. It was denied that the appellant/plaintiff is in possession of the disputed land and the suit is liable to be dismissed.
5. Respondent No.2 filed a separate written statement and denied the allegations made in the plaint. Defendant No.2 stated that Kalyani Devi was bhoomidhar of lands bearing No.41 and 42 area 13 dhur and she had sold apart from it to defendant No.2 on 06.06.1981. Defendant No.2 stated that she is in possession of the disputed land.
6. On pleadings of the parties, following issues were framed by learned trial court:-
"1- D;k oknh okni= ds dFkukuqlkj iz'uxr lEifRr dk lkf/kiR; Lokeh gS \ 2- D;k okn oknh ds dCts ds vHkko esa fujLr gksus ;ksX; gS\ tSlk fd izfrokn i= dh /kkjk 17 esa vafdr gS \ 3- D;k okn dk ewY;kadu de gS rFkk iznRr U;k;'kqYd vi;kZIr gS \ 4- D;k oknh fdlh mi'ke ds ikus dk vf/kdkjh gS\ 5- D;k okni= esa okndkj.k mRiUUk gksus dh fofufnZ"V frfFk vafdr u gksus ds dkj.k okn nks"kiw.kZ gS\ 6- D;k izfrokn i= ds vfHkdFku ds vuqlkj Bkdqj th dk efUnj lkoZtfud gS\ ;fn gka rks izHkko\ 7- D;k okni= esa dfFkr iV~Vk fof/k fo:} gS vkSj fcuk l{ke vf/kdkjh ds vuqefr ds tkjh gqvk gS\ ;fn gka rks izHkko\"
7. In support of his case, the appellant/plaintiff examined himself as PW-1 and Sri Uttam Kumar Pandey as PW-2. The respondents examined Sri Ravi Kumar Gaur as DW-1, Sri Prem Prakash as DW-2, Sri Ram Shukla as DW-3, Sri Kamla Kant as DW-4, Sri Jai Narayan Pal as DW-5 and Sri Brijesh Kumar Srivastava as DW-5.
8. Upon consideration of oral and documentary evidence adduced by the parties, the suit of the appellant was dismissed by learned 3rd Additional Civil Judge (Junior Division), Faizabad vide judgment and decree dated 26.05.2000. Against the said judgment and decree, the appellant/plaintiff filed a Civil Appeal bearing No.55 of 2000. The respondents herein filed cross objection under Order XLI Rule 22 of the Code of Civil Procedure (hereinafter referred to as "C.P.C.") in Civil Appeal No.55 of 2000 (21C in the record of lower court). Vide judgment and decree dated 03.08.2004, the appeal was dismissed by learned 4th Additional District Judge, Faizabad.
9. Being aggrieved by the said judgment and decree, the appellant/plaintiff has filed present second appeal. The respondents/defendants have also filed cross-objection No.01 of 2005.
10. Vide order dated 08.10.2004, my learned Predecessor admitted the appeal on substanial question of law No.4 framed in the plaint. The same reads as under:-
"Whether the findings recorded by the courts below are perverse being based on a misreading or ignoring relevant evidence on record of the case?"
11. Vide order dated 09.11.2017, my learned Predecessor formulated an additional substantial question of law, which reads as under:-
"Whether the impugned judgment and decree would be rendered illegal in case the cross-objections filed before the first appellate court were not decided along with the first appeal and they remained pending?"
12. Learned counsel for the appellant urges that the appeal filed by the appellant was dismissed by first appellate court without considering the cross objection filed by the respondents. He also submits that the cross objection was filed by the respondents but did not consider the cross objection filed under Rule 22 of Order XLI of the C.P.C. According to him, the impugned judgment and decree dated 03.08.2004 is liable to be set aside on this ground alone.
13. Sri R.K. Srivastava, learned counsel for the respondents concedes that the cross objection was filed by the respondents in the first appeal bearing No.55 of 2000 and the same is still pending.
14. I have given my thoughtful submissions made by learned counsel for both the parties. I have carefully gone through the material available on record.
15. The Legislature has introduced a special provision permitting a respondent, who has not appealed from judgment and decree, to object to the said decree in the appeal filed by the opposite party as if he had not himself preferred a separate appeal. The said provision is under Rule 22 of Order XLI of the C.P.C. The same reads as under:-
"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 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) [* * *] (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."
16. From a bare perusal of Rule 22 of Order XLI of the C.P.C., it is manifestly clear that where a decree is partly against one suitor and partly against another, one of such parties being satisfied with his partial success, may not prefer an appeal within limitation, but on the other party appealing, may like to re-open the adverse part of the decree. In the larger interest of the cause of justice, in such circumstances, the party satisfied with the partial success is granted another opportunity of challenging the part of the decree against him upon his opponent preferring an appeal, after notice is served on him. In order to avail of this right, he has to prefer cross objection within one month from the date of service of notice on him of hearing of the appeal filed by his opponent.
17. The Hon'ble Supreme court in the case of 'N. Jayaram Reddy and another vs. Revenue Divisional Officer and Land Acquisition Officer, Kurnool' (1979) 3 SCC 578, after considering the scope of cross-appeals and cross-objections observed as under:-
"40..........................................Cross-appeal and cross-objections provide two different remedies for the same purpose and that is why under Order 41 Rule 22, cross-objections can be preferred in respect of such points on which that party could have preferred an appeal. If such be the position of cross-objections and cross-appeal a differentiation in the matter of their treatment under Rules 3 and 4 cannot be justified merely on the ground that in case of cross-objections they form part of the same record while cross-appeals are two independent proceedings
41..........................................To say that cross-appeals are independent of each other is to overlook the obvious position which parties adopt in cross-appeals. Interdependence of cross-appeals is the same as interdependence of appeal and cross-objections because as in the case of appeal and cross-objections a decision with regard to appeal would directly impinge upon the decision in cross-objections and vice versa. Indubitably the decision in one of the cross-appeals would directly impinge upon the decision in the other because both ultimately arise from the same decree. This is really the interdependence of cross-appeals and it is impossible to distinguish cross-appeals from appeal and cross-objections. Unfortunately this interdependence was overlooked by the Madras High Court when the scope of cross-appeals arising from the same decree and appeal and cross-objections in respect of the same decree were not examined in depth in Sankaranaraina Saralaya case. This approach is merely an extension of the principle well recognised by Courts that if legal representatives are before the court in the given proceeding in one capacity it is immaterial and irrelevant if they are not formally impleaded as legal representatives of the deceased party in another capacity. Shorn of embellishment, when legal representatives of a deceased appellant are substituted and those very legal representatives as legal representatives of the same person occupying the position of respondent in cross-appeal are not substituted, the indisputable outcome would be that they were on record in the connected proceeding before the same Court hearing both the matters, in one capacity though they were not described as such in their other capacity, namely, as legal representatives of the deceased respondent. To ignore this obvious position would be giving undue importance to form rather than substance. The anxiety of the Court should be whether those likely to be affected by the decision in the proceeding were before the Court having full opportunity to canvass their case. Once that is satisfied it can be safely said that the provisions contained in Rules 3 and 4 of Order 22 are satisfied in a given case. To take another view would be to give an opportunity to the legal representatives of a deceased party in an appeal having had the fullest opportunity to canvass their case through the advocate of their choice appearing in cross-appeals for them and having canvassed their case and lost, to turn round and contend that they were not before the Court as legal representatives of the same person in his other capacity, namely, respondent in the cross-appeal. In other words, those legal representatives were before the Court all throughout the hearing of the appeal as parties to the appeal and canvassed their case and were heard by their advocate and they had the full opportunity to put forth whatever contentions were open to them in the appeals and to contest the contentions advanced against them by the opposite side and yet if the other view is taken that as they were not formally impleaded as legal representatives of the deceased respondent in the cross-appeal that appeal has abated, it would be wholly unjust. It is very difficult to distinguish on principle the approach of the Court in appeals and cross-objections and in cross-appeal in this behalf. No principle of law can distinguish this divagational approach. The cases which have taken the view that in cross-appeals the position is different than the one in appeal and cross-objections do not proceed on any discernible legal principle. Nor can they be explained by any demonstrable legal principle but in fact they run counter to the established legal principle."
18. A close scrutiny of the provisions of Rule 22 of Order XLI and the law laid down by the Hon'ble Supreme Court in the aforesaid N. Jayaram Reddy's case (supra), it is clear that the right of appeal is a creation of statute. There is no inherent right of appeal and no appeal can be filed, heard or determined unless the statute confers right on the appellant and power on the Court to do so. The cross objection is the exercise of substantive right of appeal conferred by the statute by virtue of Rule 22 of Order XLI of the C.P.C.. The available grounds of challenge against the judgment, decree or order impugned remain the same whether it is an appeal or a cross-objection. The difference lies in the form and manner of exercising the right; the terminus a quo (the starting point) of limitation also defers. Thus, taking any cross-objection to the decree impugned is the exercise of right of appeal though such right is exercised in the form of taking cross-objection.
19. Thus, in my view, the following principles emerge:-
(i) An appeal is a substantive right and it is a creation of the statute.
(ii) Cross objection is nothing but cross-appeal at that. It has all the trappings of an appeal. It is filed in the form of memorandum according to the provisions of Rule 1 of Order XLI of the C.P.C., so far as they relate to the form and contents of the memorandum of appeal apply to cross-objection also. The difference lies in the form and manner of exercising the right; the terminus a quo (the starting point) of limitation also differs.
(iii) Court fees is payable on cross-objection like that on the memorandum of appeal.
(iv) Even where the appeal is withdrawn or dismissed in default, cross objection may nevertheless be heard and determined.
(v) The respondent even though he has not appealed against the impugned judgment, may support the decree on any other ground but if he wants to get it modified, he has to file cross-objection to the decree which objections he could have taken earlier by filing an appeal.
(vi) Filing objections which is in the nature of appeal is extended by one month after service of notice on him of the date fixed for hearing of the appeal.
(vii) It may be that the respondent wanted to give a quietus to the whole litigation by his accepting the judgment and decree or order even if it was partly against his interest. However, when the other party challenge the same by filing an appeal the statement gives the respondent a second chance to file an appeal by way of cross-objection if he still feels aggrieved by the judgment and decree or order.
20. At this juncture, it may be mentioned that in case, the cross objections have been filed, the appeal is decided and the cross-objection remains pending. A fresh disposal of the cross-objections would entail the possibility of two decrees, which have become final, being varied by the same court, namely, the court of Additional District Judge. Thus, the cross-objections are, therefore, expected to be disposed of along with the appeal in which they are taken and after the final disposal of the appeal, it may, as a general rule, be difficult to deal with the cross-objections as if they constitute an independent appeal.
21. In the instant case, as discussed above, the appellant filed a Civil Appeal bearing No.55 of 2000 and the respondents have filed cross-objection under Order XLI Rule 22 of the C.P.C. (Page 21C in the record of first appellate court). However, learned first appellate court has decided the appeal vide impugned judgment and decree dated 03.08.2004 without deciding the cross-objections filed by the respondents. The cross-objection ought to have been decided along with the appeal. Hence, the impugned judgment dated 03.08.2004 passed by learned Additional District Judge, Faizabad is unsustainable in the eyes of law. The additional question of law famed on 09.11.2017 is decided accordingly.
22. In view of my aforesaid findings on additional question of law, it is not necessary to delve into the question of law formulated on 08.10.2004.
23. In view of the foregoing reasons, the impugned judgment and decree dated 03.08.2004 passed by learned 4th Additional District Judge, Faizabad in Civil Appeal No.55 of 2000 is set aside. The matter is remanded back to the learned District Judge, Faizabad with the directions to decide the appeal as well as cross-objection himself or to assign the same to some other competent court to decide the same expeditiously and preferably within a period of three months from the date of producing a copy of this judgment.
24. However, it is made clear that this Court has not examined the merits of the case and the first appellate court will decide the appeal as well as cross objection, in accordance with law, without being swayed by the observations made in the earlier judgment dated 03.08.2004.
25. Both the parties are directed to appear before learned District Judge Faizabad on 02.09.2019.
26. The present Second Appeal No.339 of 2004 and Cross Objection No.1 of 2005 stand disposed of.
27. Office is directed to send the lower court record along with copy of this judgment forthwith.
(Ved Prakash Vaish) Judge Order Date :- 31.07.2019 cks/-