IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.943 OF 2004. APPEAL NO.943 OF 2004. APPEAL NO.943 OF 2004. M/s.Radha Tiles Nirvade & Ors. ...Appellants Versus. Mahesh Laxman Alve & Ors. ...Respondents. Shri G.H.Keluskar for the Appellants. Shri A.S.Khandeparkar for the Respondents. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 05th February, 2008. : 05th February, 2008. : 05th February, 2008. JUDGMENT: JUDGMENT: JUDGMENT: 1. Heard advocates appearing for the parties. After having heard the parties, I find that the following substantial question of law arises: (i) Whether the Appellate Court could have set aside the decree passed in favour of the appellants-plaintiffs by the trial Court in an appeal preferred by the appellants though there was no cross-objection or cross-appeal preferred by any of the respondents? 2. Considering the facts and circumstances of the case, the second appeal is immediately taken up for final disposal. 3. The appellants are the original plaintiffs. The first appellant is a partnership firm of which the : 2 : 2 : 2 : second to fourth appellants are the partners. The first respondent was employed in the factory of the first appellant and the first respondent resigned on 31st October, 1990. According to the case of the appellants, they had purchased 4,000 alphanso mango grafts from one Vikas Nursery at the price of Rs.8/- per graft the price of which at the time of filing the suit was Rs.25/- per grafts. The first respondent started a nursery at village Mazgaon. The first respondent came to know about the grafts bought by the appellants and he filed a suit against the third respondent in the Court of Civil Judge, Junior Division at Sawantwadi contending that the graft in the factory of the first appellant were owned by him and the third respondent was obstructing him from transporting the said grafts to some other place. The appellants were not impleaded as parties to the said suit. According to the case of the appellants on obtaining an order for grant of police protection in the said suit filed by the first respondent, he entered the factory premises of the first appellant and took away 400 mango grafts. Thereafter he again entered the factory premises of the first appellant and took away 3,000/- mango grafts. The claim in the suit filed by the appellants is for the compensation. The said claim was contested by the first and second respondents by filing written statement. The first and second respondents made a counter claim for the amount of : 3 : 3 : 3 : Rs.02,02,875/- against the appellants contending that the appellants misappropriated 13,525 mango grafts owned by them. The trial Court partly decreed the suit by directing the first and second respondents to pay a sum of Rs.500/- each to the first appellant for damages for trespass. The trial Court dismissed the counter claim. An appeal was preferred by the present appellants. The Appellate Court by the impugned judgment and decree has set aside the decree passed by the trial Court in favour of the appellants. 4. The submission of the learned advocate for the appellants is that there was no cross-appeal or cross-objection preferred by the respondent Nos.1 and 2 and therefore the decree passed in favour of the appellants could not have been set aside by the District Court in the appeal preferred by the appellants. The submission of the learned advocate for the respondent Nos.1 and 2 is that the Appellate Court was well within its power to exercise its jurisdiction under Rule 33 of Order XLI of the Code of Civil Procedure, 1908 and to set aside the said decree though the said respondents had not preferred any appeal or cross-objection. He, therefore, submitted that no interference was called for. 5. I have given a careful consideration to the : 4 : 4 : 4 : contentions raised by the parties. It is an admitted position that the respondents had not preferred any appeal or cross-objection for challenging the decree passed by the trial Court. It will be necessary to refer to the paragraph No.25 of the judgment of the appellate Court. The relevant part of the said paragraph reads thus: "So far as this part is concerned even without cross-objections, the respondent No.1 is entitled to modification in the decree. It is definitely true that this Court cannot enter into question whether counter claim made by the respondent Nos.1 and 2 was true or not. In absence of cross-objections or in absence of any counter appeal, this Court cannot enter into the question of allowing or not allowing counter claim. But this Court can very well consider whether partial decree in favour of the appellants was legal and proper and, in my opinion, when the respondent No.1 was armed with the order of the court authorising him to go to Radha Tiles and collect the mango grafts, he cannot be said to have committed a trespass so as to attract the damages." 6. The power of the Appellate Court under Rule 33 : 5 : 5 : 5 : of Order XLI is a discretionary power. The said power cannot be normally exercised in favour of a party who was in a position to challenge the adverse decree either by filing an appeal or cross-objection. Surely, this was not a case where the Appellate Court could have exercised the power under Rule 33 of Order XLI of the said Code. Infact, the Appellate Court has not at all purported to exercise the said power. The judgment of the Appellate Court has not even referred to the Rule 33 of Order XLI of the Code. Therefore, that part of the decree passed by the Appellate Court cannot be sustained. 7. Hence, I pass following order: (I) The impugned judgment and decree dated 17th January, 2004 is modified. Clause No.2 of the operative part of the said judgment and decree is set aside and now the decree passed by the Appellate Court will read thus: . "(i) The appeal is hereby dismissed. . (ii) Parties are directed to pay respective costs." : 6 : 6 : 6 : (II) There will be no orders as to costs in Second Appeal. Judge. Judge. Judge.