Civil Appeal No 1018 of 1987
From the Judgment and order dated 311985 of the Rajasthan 682 High Court in DB Civil Special Appeal No 20 of 1975
Badri Das Sharma and BN Purohit for the Appellants
Avadh Behari Rohtagi SN Kumar and NN Sharma for the Respondents
The Judgment of the Court was delivered by JAGANNATHA SHETTYJ
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 Rs4000 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 15000
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
On April 8 1969 Madan Mohan sold a piece of land measuring 124 sq
yards to respondents 2 and 3 for Rs 1500
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 041 R 33 CPC for giving relief to the Math
The High Court said That having regard to the facts of the case 041 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 BD 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 Mohan
The counsel also urged that in any event the cross objection ought to have been considered if not under 041 R 22 but under 041 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 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 vs State of Bombay  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 041 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 041 R 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant
As Rajamannar CJ said in Venkataswaralu vs 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 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 041 CPC was not maintainable against the co respondent the Court could consider it under R 33 of 041 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 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
SL Appeal allowed


Summary:
The appellant was convicted by the Municipal Magistrate under section 488 read with section 299 of the Calcutta Municipal Act 1923 and sentenced to pay a fine of Rs 75 for failure to carry out within the specified time the terms of a notice served on him under section 299 of the Act to remove the encroachment caused by a compound wall upon the road side land of the Municipality
Since the offending structure was a compound wall and not something which was part and parcel of the main building the offence comes under section 300 and not section 299 read with section 488 Of the Act
The High Court in revision found that the accused was fully aware of the nature of the accusation against him and that there was no prejudice caused to him by the wrong mention of section 299 in the notice in place Of section 300
It accordingly altered the conviction into one under section 488 read with section 300 and reduced the amount of fine to Rs 5o as required by the section
On appeal to the Supreme Court it was contended for the appellant that the conviction was bad because 1 the notice having been headed as under section 299 of the Act the conviction under section 300 was illegal 2 the requisition had not been lawfully made within the meaning Of section 4881c and 3 there was substantial prejudice to the appellant inasmuch as if the conviction were under section 299 and 775 not section 300 read with section 488 he might have been entitled to claim compensation  Held that the effective part of the notice made it clear that the requisition which was to remove the encroachment caused by the compound wall was lawfully made that the alteration of the conviction under section 299 to one under section 300 would not make it illegal and that on the facts there was no prejudice
Begu vs The King Emperor LR 52 IA 191 relied on