Case: Pannalal Vs. State Of Bombay And Ors

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 Or. 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 Or. 41 r. 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant. As Rajammannar C.J., said in Venkateswarlu v. Ramamma [I.L.R. (1950) Mad. 874.]. "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 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 correspondent is indicated by the substitution of the work "appellant" in the third paragraph by the words "the party who may be affected by such objection."13. On the facts of the present case, we have come to the conclusion that it was not open to the plaintiff-appellant before the High Court to file any cross-objection directed against the other defendants who were correspondents. The High Court was therefore wrong in refusing to consider what relief, if any, could be granted to the plaintiff under the provisions of Or. 41, r. 33, Civil Procedure Code.Learned who appeared for the Gondia Municipality in Civil Appeal No. 209 of 1961, relied on the decision of the privy Council in Anath Nath v. Dwarka Nath [A.I.R. 1939 P.C. 86.], for his contention that rule 33 could not be rightly used in the present case. In that case the plaintiff challenged a revenue sale as wholly void for want of jurisdiction and bad for irregularities and further contended that the respondent had been guilty of fraud or improper conduct to the prejudice of his co-owners in the estate. The Trial Court rejected the plaintiffs case that the sale was void for want of jurisdiction and bad for irregularities but accepted the other contention and gave the plaintiff a decree. On appeal, the High Court held that no fraud or improper conduct towards owners in respect of the revenue sale had been proved against respondent No. 1. The High Court refused to grant any relief to the plaintiff on the other ground which had been rejected by the Trial Court in the view that it was no longer open to the plaintiff who had not filed any cross-objections to the decree of the Trial Court to maintain that the revenue sale should be set aside for want of jurisdiction or irregularity. In accepting this view of the High Court the Privy Council observed :-"In their Lordships view the case came clearly within the condition imposed by the concluding words of sub-r. (1) of R. 22, "provided he has filed such objections in the Appellate Court, etc., etc.". It was contended however that the language of R. 33 of the same Order was wide enough to cover the case. Even if their Lordships assume that the High Court was not wholly without power to entertain this ground of appeal - an assumption to which they do not commit themselves - they are clearly of opinion that Rule 33 could not rightly be used in the present case so as to abrogate the important condition which prevents an independent appeal from being in effect brought without any notice of the grounds of appeal being given to the parties who succeeded in the courts below."This decision is of no assistance to the respondents. For the question which we have considered here, viz., how far it is open to a respondent to seek relief against a co-respondent by way of cross-objection did not fall for consideration by the Privy Council. The Privy Council based its decision on the view that it was open to the respondent before the High Court to file a cross-objection under Or. 41, r. 22 against the appellant and had not to consider the question now before us. We think it proper also to point out that the decision of the Privy Council in Anath Naths case [A.I.R. 1939 P.C. 86.], should not be considered as an authority for the proposition that the failure to file a cross-objection - where such objection could be filed under the law - invariably and necessarily excludes the application of Or. 41, r. 33. There their Lordships assumed, without deciding, that the High Court was not wholly without power to entertain the other ground of appeal but in the special circumstances of the case they thought that it would not have been right to give relief under the provisions of Rule 33 to the appellant.13. As the High Court has refused to exercise its powers under Or. 41, r. 33 of the Code of Civil Procedure on an incorrect view of the law the matter has to go back to the High Court. We maintain the High Courts order in so far as it dismisses the suits against the State of Bombay but set aside the order in so far as it dismisses the suits against the other defendants and send the case back to the High Court in order that it may decide, on an examination of the merits of the case, whether relief should be granted to the plaintiff under the provisions of Or. 41, r. 33, Civil Procedure Code. Costs incurred in this Court will abide the final result in the appeals before the High Court at Bombay.14.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]There is, in our opinion, no substance in the appellants contention that the State Government was liable. On the materials on the record, it appears clear to us that the Deputy Commissioner did not act on behalf of the State Government in signing the contracts. Nor can it be said that the State Government derived benefit from the work done by the plaintiff. In our opinion, the High Court was right in its conclusion that the State Government was not liable in respect of any of these contracts and rightly dismissed the suits as against the defendant No.the High Court has refused to exercise its powers under Or. 41, r. 33 of theCode of CivilProcedure on an incorrect view of the law the matter has to go back to the High Court. We maintain the High Courts order in so far as it dismisses the suits against the State of Bombay but set aside the order in so far as it dismisses the suits against the other defendants and send the case back to the High Court in order that it may decide, on an examination of the merits of the case, whether relief should be granted to the plaintiff under the provisions of Or. 41, r. 33, Civil Procedure Code. Costs incurred in this Court will abide the final result in the appeals before the High Court atthe 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 correspondent is indicated by the substitution of the work "appellant" in the third paragraph by the words "the party who may be affected by suchour 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 Or. 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 Or. 41 r. 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant