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PETITIONER: MAHANT DHANGIR AND ANOTHER

       Vs.

RESPONDENT: MADAN MOHAN AND OTHERS

DATE OF JUDGMENT28/10/1987

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) RAY, B.C. (J)

CITATION:  1988 AIR   54            1988 SCR  (1) 679  1987 SCC  Supl.  528     JT 1987 (4)   202  1987 SCALE  (2)874

ACT:      Question regarding  maintainability of  cross-objection in appeal-order 41, rules 22 and 33 of Civil Procedure Code- Applicability thereof.

HEADNOTE: %      There is  a Math  known as  Juna Math  in Bikaner.  The first appellant  is the  present Mahant  of the Math and the second appellant  is the  presiding deity  of the Math, both referred to collectively as ’the Math’, herein.      Previously, one  Lalgiri Maharaj  was the Mahant of the Math. He mismanaged the Math and disposed of its properties. On August  19, 1963,  he gave  on lease  for 99  years  land measuring 2211  sq. yards  in favour  of  Madan  Mohan,  the respondent No.  1. On March 22, 1968, he sold to Madan Mohan 446 sq.  yards of  land out of the land leased to him. Madan Mohan constructed  shops on the land purchased and sold them to Jankidas and Mohan Lal, who are respondents Nos. 2 and 3. Then Madan  Mohan sold  another piece of land purchased from Lalgiri to the respondents Nos. 2 and 3.      Later, the  first appellant  became the  Mahant of  the Math, and the Math filed a suit, challenging the alienations made by  Lalgiri,  and  for  a  declaration  that  the  said alienations were  without authority  and not  binding on the Math and for possession of the property from the respondents 1 to 3. The trial Court decreed the suit in part only, as it gave a  declaration that  the lease  deed dated  August  19, 1963, was null and void, but the relief regarding possession of the  land demised  was rejected. The suit for recovery of possession of the land sold by Lalgiri was also dismissed.      Against the  judgment of  the Trial  Court, two appeals one by  the Math  and the  other, by  Madan Mohan were filed before the  High Court.  By a  common judgment  in  the  two appeals, a  single Judge  of the  High Court (i) allowed the appeal of the Math in part, giving a simple declaration that the sale  of the  land was  void, but  declining to  pass  a decree for possession of the land sold, and (ii) allowed the appeal of 680 Madan Mohan,  giving him complete relief, while holding that

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the suit as to the lease was barred by time.      Against the judgment of the Single Judge, no appeal was filed either  by the  Math or by Madan Mohan. There was only an appeal  filed by  respondents 2  and 3, who impleaded the Math as  the first  respondent and Madan Mohan, as the third respondent. The  Math Preferred cross-objection. Madan Mohan did not  do any  thing. The  Division Bench  of  High  Court dismissed the  appeal on  the merits.  It also dismissed the cross-objection on  the ground of maintainability. Aggrieved by the  dismissal of  the cross-objection, the Math appealed to this Court for relief by special leave.      Allowing the appeal, the Court, ^      HELD: The  Single Judge  invalidated the  sale  of  the property  to   Madan  Mohan,  while  denying  a  decree  for possession. The  appellants before the Division Bench wanted to get  rid of the finding as to the invalidity of the sale. The Math  wanted to  recover possession of the property from the appellants  before the  Division Bench, and Madan Mohan. The Math  instead of filing an appeal for that relief, could as well  file the  cross-objection. That  is clear  from the provisions of  R. 22  of 0.41,  C.P.C. The  High  Court  was clearly in error in holding to the contrary. [684G-H]      The next  question for  consideration was  whether  the cross-objection was  maintainable against Madan Mohan, a co- respondent, and  if not,  whether the  Court could call into aid R.  33, 0.41 C.P.C. 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  very  much  limited-when  an  appeal cannot be effectively disposed of without opening the matter as between the respondents inter se, or when there is a case where the  objections are  common as  against the appellants and the  co-respondent. This  law has been laid down by this Court in  Panna Lal  v. State of Bombay, [1964] 1 SCR 980 at 991. This  view has  been accepted  as a guide for more than two decades.  No attempt  should be made to unsettle the law unless there is a compelling reason. The Court does not find any such  compellmg reason  in the  case. [685A,  H; 686A-B; 687A-B]      The Math  could urge  the objection that the appellants before the  Division Bench  and Madan  Mohan had no right to retain the property 681 after the  sale deed  had been  declared null  and void. The validity of the lease deed and the possession of the land in pursuance thereof,  has to  be determined only against Madan Mohan. It is not intermixed with the right of the appellants above-said. It  has no  relevance to  the question raised in the appeal.  The High  Court was  right in  holding that the cross-objection as to the lease was not maintainable against Madan Mohan.  But that does not mean that the Math should be left without  a remedy  against the  judgment of  the Single Judge. If  the cross-objection  filed under  R. 22  of 0.41, C.P.C. was  not maintainable  against the co-respondent, the Court could  consider it under R. 33, 0.41, C.P.C. R. 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  help the objector. The  appellate Court  could exercise that power in favour of  all or  any of the respondents even though such a respondent may  not have  filed 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  the

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respondent but also between a 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 Court to pass any order or decree to meet the  ends of  justice. This  Court is  not  giving  any liberal interpretation.  The rule  itself is liberal enough. The only  constraint that  could be  seen, may  be: that the parties before  the lower  Court should  be there before the appellate Court, the question raised must properly arise out of the  judgment of  the lower Court; it may be urged by any party 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 the questions urged  in order to render complete justice between the parties.  The Court  should not  refuse to exercise that discretion on mere technicalities. [687B-H; 688A-B]      Appeal allowed. The judgment and decree of the Division Bench of  the High  Court reversed.  The Division  Bench  to restore the  appeal and  cross-objection of  the parties and dispose of  the same in accordance with law and in the light of the observations made. [688C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1018 of 1987.      From the  Judgment and  order  dated  3.1.1985  of  the Rajasthan 682 High Court in D.B. Civil Special Appeal No. 20 of 1975.      Badri Das Sharma and B.N. Purohit for the Appellants.      Avadh Behari  Rohtagi, S.N.  Kumar and  N.N. Sharma for the Respondents.      The Judgment of the Court was delivered by      JAGANNATHA SHETTY,J.  In the town of Bikaner there is a Math known  as ’Juna  Math’.  The  first  appellant  is  the present Mahant  of the  Math. The  second appellant  is  the presiding deity  of the Math. For convenience and brevity we will refer to them collectively as ’the Math’      The primary  question raised in this appeal, by special leave, relates  to maintainability  of the  cross  objection filed by  the Math  before the  Division Bench  of the  High Court of  Rajasthan (Jodhpur V Bench) in Civil Appeal No. 20 of  1975.  The  Division  Bench  has  dismissed  the  cross- objection as not maintainable.      The background facts are these:      One Lalgiri  Maharaj was a previous Mahant of the Math.      He had  several  vices.  He  mismanaged  the  Math  and      recklessly disposed  of its  properties. On  August 19,      1963 Lalgiri  gave on lease the land measuring 2211 Sq.      yards in  favour of  Madan Mohan.  The lease was for 99      years with  monthly rent  of Rs. 30. Again on March 22,      1968 Lalgiri sold 446 sq. yards of land to Madan Mohan.      It was  out of  the land  which was  already leased  to      Madan Mohan.  The sale  was for  Rs.4,000  Madan  Mohan      constructed  some  shops  on  a  portion  of  the  land      purchased. He  first, rented  the shops to Jankidas and      Mohan Lal  and later  sold the  same to  them  for  Rs.      15,000. Madan  Mohan is  the first respondent, Jankidas      and Mohanlal  are respondents  2 and 3 before us. There      was yet  another transaction  between the same parties.

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    On April  8, 1969  Madan Mohan  sold a  piece  of  land      measuring 124  sq. yards to respondents 2 and 3 for Rs.      1,500. This  piece of land forms part of the land which      Madan Mohan purchased from Lalgiri.      In the meantime, there was change of guard in the Math. Lalgiri was  said to  have abdicated Mahantship in favour of the first appellant. 683 The Math  thereafter filed  Suit No.  28 of 1971 challenging the  alienations   made  by   Lalgiri.  The   suit  was  for declaration that  the alienations were without authority and not binding  on the  Math. It was also for possession of the property from  respondents 1  to 3.  The trial court decreed the suit  in part.  The trial  court gave only a declaration that the lease deed dated August 19, 1963 was null and void. But the  relief for  possession  of  the  land  demised  was rejected. The  suit for  recovery of  possession of the land sold by Lalgiri was also dismissed.      Against the  judgment and  decree of  the trial  court, there were  two appeals,  before the  High Court, one by the Math and  another by  Madan Mohan. Both the appeals came for disposal before  the  learned  single  judge.  By  a  common judgment dated  July 14,  1975  learned  judge  allowed  the appeal of  the Math  in part.  He gave  a simple declaration that the  sale was  void. He, however, did not give a decree for possession  of the  land sold.  The learned  judge  also allowed the  appeal  of  Madan  Mohan.  There  he  gave  him complete relief  He held  that the  suit as to the lease was barred by  time. The  result was that the Math could not get back even an inch of land. D      Against the  judgment of learned single judge there was no appeal  from the  Math or Madan Mohan. There was only one appeal by  respondents 2  and 3  being the  Appeal No  20 of 1975. Madan  Mohan was  impleaded as the third respondent in that appeal. The Math was impleaded as the first respondent. The Math  preferred cross-objection.  Madan Mohan did not do anything. He  was  perhaps  completely  satisfied  with  the judgment of  learned single  judge. The  Division  Bench  by judgment dated  January 3,  1985 dismissed the appeal on the merits.  The   Division  Bench  also  dismissed  the  cross- objection  but   on  the   ground  of  maintainability.  The correctness of the dismissal of the cross-objection has been called into question in this appeal. F      The High  Court gave  two  reasons  for  rejecting  the cross-objection. The  first reason relates to the absence of appeal from  Madan Mohan or by the Math against the judgment of learned  single Judge. The High Court observed: "Thus the lease is  good. If Madan Mohan had filed an appeal, then the cross-objection  would  be  competent.  The  cross-objection filed by  the plaintiffs  are not  competent, wherein it has been prayed  that the lease deed may be declared invalid and ineffective against  the  rights  of  the  plaintiffs."  The second reason  given by the High Court relates to 0.41 R. 33 CPC for  giving relief  to the  Math. The  High Court  said: "That having  regard to the facts of the case 0.41 R. 33 CPC cannot be called into aid. That provision H 684 should be  applied with  care and  caution. The Court should not lose  sight of the other provisions in the Code of Civil Procedure. It  should not also forget the law limitation and the Court Fees Act."      Before us,  Mr. B.D.  Sharma, learned  counsel for  the appellant pursued  both the reasons given by the High Court. Counsel asserted  that the  cross-objection was maintainable not only  against the  appellants  but  also  against  Madan

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Mohan. The  counsel also urged that in any event, the cross- objection ought to have been considered if not under 0.41 R. 22 but  under 0.41  R. 33  of the  CPC. Mr. Rohtagi, learned counsel  for   the  respondents,   advanced  an  interesting submission. He  urged that  the land  sold was a part of the land already leased to Madan Mohan. Even if the sale goes as invalid, the lease of the entire land revives and remains So long as the lease remains binding between the parties, Madan Mohan would  be entitled  to retain possession of the entire land demised. The counsel urged that it would be, therefore, futile for  the Math to seek possession of the property from the appellants in the cross-objection.      The assumption  of Mr.  Rohtagi though  logical if  not legal should  be subject  to  the  decision  in  the  cross- objection. We  must, therefore,  examine the validity of the cross-objection and  the contentions raised therein. It will be seen  that the  cross-objection filed  by the Math was to the entire  judgment of  learned single  judge. Therein, the Math raised  two principal grounds. The first related to the denial of  decree for  possession of  property which was the subject matter of sale. It was contended that the Math would be entitled to possession of that property when the sale was declared as  null and  void. The second ground was in regard to validity  of the  lease and  the dismissal of the suit in respect thereof. It was contended that the suit in regard to the lease was not barred by limitation.      Different  considerations,   however,  apply   to   the different points  raised in  the  cross-objection.  We  will first consider the right of the Math to file cross-objection against  the   appellants.  The  learned  single  judge  has invalidated the  sale  of  property  to  Madan  Mohan  while denying a  decree for  possession. The appellants before the Division Bench  wanted to  get rid  of  the  finding  as  to invalidity of  the sale. The Math in turn, wanted to recover possession of  that property  from the  appellants and Madan Mohan. The  Math instead of filing an appeal for that relief could as  well take the cross-objection. That would be clear from the  provisions of R. 22 of O. 41 CPC. That is as plain as plain  can be.  The High  Court was  clearly in  error in holding to the contrary. 685      The next  question for  consideration  is  whether  the cross-objection was  maintainable against  Madan Mohan,  the co-respondent, and if not, whether the Court could call into aid 0  41 R. 33 CPC. For appreciating the contention it will be useful to set out hereunder R. 22 and R. 33 of order 41:           "R. 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.           XXX XXX XXX XXX XXX           R. 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

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         passed or  made and  to pass  or make such further           other decree or order as the case may require, and           this  order   may  be   exercised  by   the  Court           notwithstanding 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 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 decree.           xxx       xxx       xxx       xxx       xxx   xxx      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 H 686 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  co- respondent. The  law in  this regard  has been  laid down by this Court  as far  back in  1964 in  Panna Lal  v. State of Bombay, [1964]  1 SCR  980 at  991. After  reviewing all the decisions  of   different  High  Courts,  there  this  Court observed .           "In our  opinion,  the  view  that  has  now  been           accepted by  all the High Courts that order 41, r.           22 permits  as a  general rule,  a  respondent  to           prefer an  objection  directed  only  against  the           appellant and  it is  only in  exceptional  cases,           such  as  where  the  relief  sought  against  the           appellant in  such an objection is intermixed with           the relief  granted to  the other  respondents, so           that the  relief against  the appellant  cannot be           granted  without   the  question  being  re-opened           between  the   objecting  respondent   and   other           respondents, that  an objection  under 0.41  R. 22           can be  directed against the other respondents, is           correct. Whatever may have been the position under           the  old  S  561  the  use  of  the  word  "cross-           objection" in  0.41 R.  22 expresses  unmistakably           the  intention   of  the   legislature  that   the           objection  has   to  be   directed   against   the           appellant.   As    Rajamannar    C.J    said    in           Venkataswaralu v.  Ramanna:  "The  legislature  by           describing the  objection which  could be taken by           the respondent  as a  "cross-objection" must  have           deliberately adopted  the view  of the  other High           Courts.  One   cannot  treat  an  objection  by  a           respondent in  which the appellant has no interest           as  a   cross-objection.  The  appeal  is  by  the           appellant  against   a  respondent,   the   cross-           objection must  be an  objection by  a  respondent           against the  appellant." We  think, with  respect,           that these observations put the matter clearly and           correctly. That  the legislature  also  wanted  to           give effect  to the  views held  by the  different           High Courts that in exceptional cases as mentioned           above  an   objection  can   be  preferred   by  a           respondent against a co-respondent is indicated by

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         the substitution  of the  word "appellant"  in the           third paragraph by the words "the party who may be           affected by such objection. " 687      This view  has been  there as a guide for a little over two decades.  We should  not add  anything further  at  this stage. The  law should  be A clear and certain as a guide to human behaviour.  No attempt  should be made to unsettle the law unless  there is  compelling reason.  We do not find any such compelling  reason and  we,  therefore,  reiterate  the above principles.      Basically, the  first question  raised  in  the  cross- objection relates  to the right of Madan Mohan to retain the property under  the sale deed. The appellants are the second purchasers. The  Math, therefore,  could urge  the objection that the  appellants and Madan Mohan have no right to retain the property after the sale deed was declared null and void. But then  the considerations  as to  the lease deed is quite different. The validity of the lease deed and the possession of the  land thereof has to be determined only against Madan Mohan.  It   is  not   intermixed  with  the  right  of  the appellants. It  has no  relevance to  the question raised in the appeal.  The High Court was, therefore, right in holding that  the   cross-objection  as   to  the   lease  was   not maintainable against Madan Mohan. D      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 0.41 CPC was not maintainable against  the  co-respondent,  the  Court  could consider it under R. 33 of 0.41 CPC. R. 22 and R. 33 are not mutually exclusive They are closely related with each other. If objection  cannot  be  urged  under  R.  22  against  co- respondent, 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 filed 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 O. 41 have been put in wide terms  to enable  the appellate court 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  constraint that  we could  see, may be these: That the parties before the lower court should be therebefore 688 the appellate court. The question raised must properly arise out of  the judgment  of  the  lower  court.  If  these  two requirements are  there, the  appellate Court could consider any objection  against any part of the judgment or decree of the lower court. It may be urged by any party 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.      In the  result, we  allow the  appeal and  reverse  the

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judgment and decree of Division Bench of the High Court. The Division Bench  shall now  restore  the  appeal  and  cross- objection  of  the  parties  and  dispose  of  the  same  in accordance with law and in the light of observations made      The appellants shall get the cost of this appeal. S.L.                                         Appeal allowed. 689