-: 1 :- rev.pet-12/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION REVIEW PETITION NO. 12 OF 2010 IN SECOND APPEAL NO. 117 OF 2004 Haribhau Tukaram Patil Deceased through Legal heirs and Others. ..Petitioners. Versus Atmaram Tukaram Patil & Others. ..Respondents. Mr. P. M. Pradhan i/b Mr. P. M. Mokashi for the petitioners. Mr. S. S. Deshmukh for R- 1, 2 & 4. Coram : RANJIT MORE, J. Date : October 11, 2010. P. C. : 1. Heard learned counsel for the respective parties. 2. The petitioners are seeking review of the order dated 29/9/2008. By the said order, the aforesaid Second Appeal came to be dismissed. 3. The petitioners are the original defendants and the respondents are the original plaintiffs in R.C.S. No. 35 of 1995. The suit is filed for permanent injunction, partition and separate possession. The trial Court has framed as many as 15 issues at Exhibit 26. Issue Nos.1, 5, 7, 8 & 9, which are relevant, read as under : (1)Do defendant nos. 1 to 4 prove that the suit is hit by the principles of non-joinder of the necessary properties ? srp -: 2 :- rev.pet-12/10 (5)Whether plaintiff no.3 is the legally wedded wife of the deceased Tukaram Kamal Patil ? (7)Do defendant nos. 1 to 4 prove that the suit properties are the self acquired properties of the deceased Tukaram Kamal Patil ? (8)Do defendant nos. 1 to 4 prove that the partition was effected between plaintiffs and the defendants, in the life time of deceased Tukaram Kamal Patil ? (9)Do defendant nos. 1 to 4 prove that the defendants are the only legal heirs of the deceased Tukaram Kamal Patil ? 4. Issue nos. 1 and 5 are answered in the affirmative. Issue Nos. 7, 8 & 9 are answered in the negative. The suit was ultimately dismissed, mainly on the ground that the suit is hit by the principles of non-joinder of necessary parties. The plaintiff preferred an appeal before the District Court, being Civil Appeal No. 243 of 1996. The lower appellate Court, after hearing the parties, came to the conclusion that the suit is not bad for non-joinder of necessary parties and consequently allowed the plaintiff's appeal. The defendants preferred second appeal in this Court, which came to be dismissed by the oder under review. The plaintiff thereafter preferred Special Leave to Petition, being SLP (Civil) No. 31608 of 2009. The said SLP was dismissed as withdrawn. 5. The petitioner thereafter has filed this Review Petition mainly on -: 3 :- rev.pet-12/10 the ground that the trial Court has dismissed the plaintiff’s suit on the ground that suit is bad for non joinder of necessary parties, though issue nos.5, 7, 8 & 9 were answered against the petitioners-defendants. It is the case of the petitioners that since trial Court’s decree was in their favour, they could not have filed appeal, however, they are entitled to challenge the finding of the trial Court on Issue Nos. 5, 7, 8 & 9 without filing cross objections. The lower appellate Court, however, did not allow the petitioner-defendants to make submissions on these issues on the ground that they have not filed any cross objection. The lower appellate Court, however, came to the conclusion that suit is not bad for non joinder of necessary parties and consequently allowed the appeal. Learned counsel for the review petitioner submitted that they have raised the ground of objection in this regard and also made submissions at the time of admission of the second appeal, however, same has not reflected in the order under review. In the circumstances, he claims that the said order deserves to be reviewed. Mr. Pradhan, learned counsel for the petitioners in support of his case relied upon Nazeer Ahmed v. State of Mysore [AIR-2007 SC 989]. 6. Mr. Deshmukh, learned counsel for the respondents, on the contrary, challenged the maintainability of the review petition itself. He submitted that once petitioners have approached the Supreme Court by -: 4 :- rev.pet-12/10 filing SLP and same was dismissed as withdrawn, now it is not permissible for the petitioners to file review application. On the merits of the review petition, he submitted that the order dated 29/9/2008 is not liable to be reviewed. 7. Having heard learned counsel for the respective parties, I find merit in the contention of the petitioners. So far as maintainability of the review petition is concerned, the Apex Court in Kunhaymmed & Ors v. State of Kerla & Another [(2006) SCC 359] has held that where the SLP against the High Court decision is dismissed there being no merger, the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it. In view of this ratio of the Apex Court, the objection of Mr. Deshmukh, learned counsel for the respondents regarding the maintainability of the review petition does not survive. 8. Reverting back to the merits of the case, the Trial Court dismissed the respondent’s suit on the sole ground that the same is bad for non joinder of necessary parties. In the said suit, the petitioners-defendants have also challenged the status of original plaintiff no.3. The petitioners also contended that the properties in dispute are self-acquired properties of the deceased Tukaram Kamal Patil. The petitioners further contended that the partition between petitioner nos. 1 to 4 and the respondents was -: 5 :- rev.pet-12/10 effected during the lifetime of the deceased Tukaram Patil. All these issues were answered against the petitioners. As stated above, since the suit was dismissed the petitioners-defendants could not have filed appeal against the finding on the issues mentioned above. The respondents had preferred an appeal, which was allowed by the lower appellate Court by holding that the suit is not bad for non joinder of necessary parties. In the said appeal before the lower appellate Court, the petitioners are in law entitled to assail the finding of the trial Court in respect of issue Nos. 5, 7, 8 & 9. The appellate Court, however, did not allow the petitioner to challenge the said findings on the ground that the petitioners have not filed cross objections. The lower appellate Court, in my view, could not have insisted for filing of the cross-objections. In this regard a reference can also be made to the decision of the Apex Court in Nazeer Ahmed v. State of Mysore [AIR-2007 SC 989]. In that case the Apex held that the respondent in an appeal is entitled to support the decree of the trial Court even by challenging any of the findings that might have been rendered by the trial Court against himself. For supporting the decree passed by the trial Court, it is not necessary for a respondent in the appeal, to file a memorandum of cross objections challenging a particular finding that is rendered by the trial Court against him when the ultimate decree itself is in his favour. A memorandum of cross-objections is -: 6 :- rev.pet-12/10 needed only if the respondent claims any relief which had been negatived to him by the trial court and in addition to what he has already been given by the decree under challenge. I find that the petitioners in their appeal memo as well as in submissions had made grievance that the opportunity was not given by the lower appellate Court to them to assail the finding of the trial Court qua Issue Nos. 5, 7, 8 & 9, however, this submission was not dealt with in the order under review. Taking over all circumstance into consideration, I am satisfied that the petitioners have made out a case for review. In the light of this, I pass following order. -: O R D E R :- (1) Review Petition is allowed. The order dated 29/9/2008 is revoked. (2) Office is directed to place the aforesaid Second Appeal before the regular Court. (3) Review petition stands disposed of. (RANJIT MORE, J.)