IN THE HIGH COURTa OF JUDICATURE AT BILASPUR (CHHATTISGARH) $ingie Eenw‘ SECOND APPEAL N034 /2006 a? SmtRadha Bal W/o Ram Smgh alas Sagar Smgh Rajput Aged about 55 years Village — Darfi, Tahasil Saja, District — Durg (C.G.) Appellant ............... Defendant No.1 Versus Goukaran Singh, S/o Ram Singh Rajpur, Aged about 35 years, Occupation — Farmer, Village Darri, Tahsil Saja, Distt. Durg (C.G.) ................ Plaintiff State of Chhattisgarh — Through the Collector, Durg (C.G.) .............. Defendant No.2 SECOND APPEAL U/S 100 OF THE CODE OF CIVIL PROCEDURE l G r x y vy g%/,P @ HIGH COURT OF CHHATTISGARH AT BILASPUR SECOND APPEAL No. 36 OF 2006 SB:- HON’BLE SHRI N.K. AGARWAL, J PRESENT :- Shri Ashish Surana, Advocate, for the appellant. Shri Ajit Singh, Advocate for the respondent No. 1. Shri Vinod Tekam, Panel Lawyer for the State. ORDER (19—4—2011) 1. This is defendant’s second appeal against the jtldgment and decree dated 31 12 2005 passed by the Add1t1onal D1str1ct Judge Bemetara 1n C1v11 Appeal No 24 A/2004 whereby and Whereunder the Judgment and decree dated 27—8-2004 passed by the trial Court has been set aside and plaintiff’s suit has been decreed. Brief fas of the case’are as under:— ct Trial Court dismissed plaintiff’s suit finding inter alia :\ Chandravati Bai executed a will dated 18—10—2002 in plaintiff’s favour; will is not valid; plaintiff failed to prove. defendant Radha Bai is having any title or interest over the suit property described in schedule; also failed to prove order passed by the revenue court in the Revenue Case No. 1-A/6 year 2000-01 is illegal. Plaintiff preferred an appeal Defendant also preferred cross objectlon under Order 41 Rule 22 challenglng adverse finding against her With regard to execution and validity of will and finding on issue No. 3 and 5. Learned appellate Court without considering the cross—objection preferred by the appellant allowed plaintiff’s appeal and decreed the suit. APPELLANT Smt. Radha Bai Versus RESPONDENTS Goukaran Singh and another Instant second appeal was admitted for hearing on the following substantial question of law:— “Whether in absence of decision on cross- objection filed by the appellant under Order XLI Rule 22 of the C.P.C. the impugned judgment and decree is vitiated?” Indisputably the first appellate court decided appeal without considering cross—objection preferred by the appellant. 6. Order 41 Rule 22 of .P. reads thus :—‘ C.C “(1): Upon hearing respondent may object to decree as if he had preferred a 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 hearinglthe appeal, 'or within suchfurther time as the Appellate Court may seejit 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) Omitted. (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 otherparties 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.” Hon’ble Supreme Court had an occasion to analyze the above provision in case of Ravinder Kumar Sharma —v- State of Assam reported in 1999(7) SCC 435 wherein Hon’ble Supreme Court has observed in para 16 to 21 of the judgment as under:- “1 6. The next question is as to whether, the law as y stated above has been modified by the 1976 Amendment of Order 41 Rule 22. It will be noticed that the Amendment has firstly deleted the words "on any of the grounds decided against him in the Court below, but take any cross-objections" in the main part of Order 41 ‘Ru‘le' 22 CPC iand’ added the words ”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" in the main part. 1 7. The main part of Order 41 Rule 22(1) CPC, (after the 1 976 Amendment) reads as follows: <_r‘w‘ is " f’hl Iv “ " "22(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'jiled 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 suchfurther time as the Appellate Court may see‘jit to allow. " AK/ 18. The 1976 Amendment has also added an Explanation below Order 41 Rule 22, asfol’lotvs’: ‘_ y ”Explanation: A respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may, under this rul‘ey 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'g‘finding which is sufficientfor the? decision ’of ; the suit, the decree is, wholly or in part, in favour of that respondent”. 19. In connection with Order 41 Rule 22, CPC after the 1976 Amendment, we may first refer to the judgment of the Calcutta High Court in Nishambhu Jana vs. Sova Guha [(1982) 89 CWN 685]. In that case, Mookerjee,J. referred to the 54th report of the Law Commission (at p.295) (para 41.70) to the ejfect that Order 41 Rule 22 gave two distinct rights to the respondent in the appeal. The first was the right to uphold the decree of the court offirst instance on any of the grounds which that court decided against him. In that case the finding can be questioned by the respondent without filing cross objections The Law Commzsswn had accepted the correctness of the Full Bench ofMadras High Court zn Venkata Rao s case The Commission had also accepted the view of the Calcutta High Court in Nrisingha Prosad Rakshit vs. The Commissioners ofBhadreswar Muncipality that a cross— objection was wholly unnecessary in case the adverse finding was to be attacked. The Commission observed that the words ”supportthe decree;..t’( appeared tobe strange and "what is meant is that he may support it by asserting that the ground decided against him should have been decided in his favour. It is desirable to make this clear“. That is why the main part of Order 41 Rule 22 was amended to reflect the principle in Venkata Rao’s case as accepted in Chandre Prabhuji’s case. 20. So far jas, the Explanation‘was’concferned; the Law Commission stated (page 298) that it was necessary to ”empower” the respondent to file Cross—objection against the adverse finding. That would mean that a right to file cross-objections was given but it was not obligatory to file cross—objections That was why the word ‘may was used That meant that the proviSion for fling cross- objections against a finding was only an enabling provision 21. These recommendations of the Law Commission are reflected in the Statement of Objections and Reasons for the Amendment. They read as follows: ”Rule 22 (i.e.as it stood before 1976) gives two distinct rightsto :the respondent 'in‘ appeal. :The first is the right of upholding the decree of the Court offirst instance on any of the grounds on N which that court decided against him; and the second right is that of‘taking any cross-objection to the decree which the respondent might have taken by way of appeal. In the first case, the respondent supports the decreelantd inithe second case, he attacks the decree. The language of the N- rule, however, requires some ‘modijications because a person cannot support a decree on a ground decided against him. What is meant is that he may support the decree by asserting that the matters decided against him should have been decided in his favour. The rule is being amended to make it clear. An Explanation is also being added to Rule 22 empowering the respondent to file cross- objection in respect to a finding adverse to him notwithstanding that the ultimate decision is wholly or partly in his favour." Mookeriee, J. observed in Nishambhu Jana’s case (see p.689) that ”the amended Rule 22 of Order 41 of the Code has not brought any substantial change in the settled principles of law" (i.e. as accepted in Venkata Rao's Case) and clarified (p.691) that "it would be incorrect to hold that the Explanation now inserted by Act 104 of 1976 has made it obligatory to file‘crosswbjections even when the respondent supports the decree by stating that the findings against him in the court below in respect of any issue ought to have been in his favour”. Hon’ble Supreme Court in case of Superintending Engineer and othersL—v- B. Subba Reddyur‘epo’rte‘gi in (199914 SCC 423 has held; appeal is a substantive ri’g’ht.”It’is a creation of statute. Right to appeal does not exist unless it is specifically conferred. Cross—objection is like an appeal. It has all the trappings of an appeal. ‘9. By applyirié‘the ratio of'laW’flaitf‘l‘ti‘foWf/irby t'l'i’e’Supreme Court in the cases referred hereinabove, it would be clear, a party may support the decree by asserting that the matters decided against him should have been decided in his favour; explanation to Rule 22 empowers the respondents 1 to tile dross—objection in irespeCt Ito‘ a ‘finding adverse to him notwithstanding that the ultimate decision is wholly or partly in his favour, and right to file cross— objection is a substantial right. 10. In the'lighteof aboveidiscuSSiorr;!!in 'tihev‘bohside’rediopinion of this'Court, the judgment and decree passed by learned first appellate court is vitiated due to non—consideration of ‘x -p W—a— MW 6 © cross-objection preferred by the appellant and the substantial question of law formulated is answered accordingly. 11. In View of foregoing, appeal deserves to be and is hereby allowed. The matter is remitted back to the first appellate court to decide the appeal after considering the crossv objection preferred by the appellant in accordance with law n its own merit. 12. Record of both the Courts below be sent back to the first appellate court. Parties are directed to appear before the first appellate court on 9—5—201 l. l3. l No order as to costs. J Sd/— N.K.Agarwa1 l4. Judge o