Case: Bihar Supply Syndicate Vs. Asiatic Navigation

by the sale, the interest conveyed .4 to the alienee was to enure during the life-time of the alienor.The conclusion was therefore inevitable that the property alienated reverted to the estate of the father at the point of the death and all persons who would, but for the alienation have taken the estate were entitled to inherit the same. If the father had died before the Hindu Succession Act, 1956 was enacted the three sons would have taken the estate to the exclusion of the widow and the two daughters. After the enactment of the Hindu Succession Act the estate devolved upon the three sons, the widow and the two daughters. It was further held that the High Court was therefore in error in holding that because in the year 1920 the wife and daughters of the alienor were incompetent to challenge the alienation of ancestral property by the father, they could not, after the enactment of the Hindu Succession Act inherit the estate when succession opened after that Act came to force. This Court further held that the High Court was equally in error in holding that because the widow and daughters had not filed an appeal or cross-objection against the decree of the lower courts, they were not entitled to any relief. The sons, the daughters and the widow of the alienor had filed the suit for a decree for possession of the entire property and their claim was that the alienee had no subsisting interest. The District Court accepted that claim and granted a decree in favour of the three sons for the entire property which was alienated. If the alienees were unable to convince the court that they had any subsisting interest in the property in dispute after the death of the alie nor the court was competent under Order 41 Rule 33 of the Code of Civil Procedure to adjust the rights between the sons, the daughters and the widows of the alienor in that property. In Order 41 Rule 33 the expression "which ought to have been passed" means "what ought in law to have been passed". If the appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the subordinate court, it may pass or make such further or other decree or order as the justice of the case may require. 22. It may be noticed that in that case no first appeal or even the second appeal was filed on behalf of the daughters and the widow yet this Court thought it fit to grant them relief under Order 41 Rule 33 of the Code of Civil Procedure. The decision in the case of Pannalal v. State of Bombay, (supra) was followed by this Court in Mahant Dhangir and another v. Madan Mohan and others. 23. If the relief can be granted by the appellate court even when no appeal or cross-objections were filed by the respondent, surely relief can be granted by the appellate court when cross-objections have been filed by the respondent against a co-respondent. Order 41 Rule 33 of the Code of Civil Procedure reads as under:- "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 make and to pass or made such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercise in favour of all or any of the respondents or parties, although such 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 decrees."(emphasis added) Really speaking the Rule is in three parts. The first part confers on the appellate court very wide powers to pass such orders in appeal as the case may require. The second part contemplates that this wide power will be exercised by the appellate 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, although such respondents or parties may not have filed any appeal or objection. The third part is where there have been decrees in cross-suits or where two or more decrees are passed in one suit, this power is directed to be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.The present case falls within the third part of Rule 33 of Order 41 of the Code of Civil Procedure. 24. We are of the view that on the facts and circumstances of this case it was a fit case for the High Court to have exercised power under Order 41 Rule 33 to set aside the decree passed by the trial court against defendant No.3 without having discussed any issue against defendant No.3 and to decide the case itself. We also thought of remanding back the matter to the High Court but we find that the facts are simple and lie in narrow compass and show total non- liability of defendant No.3 to the claim put forward by the plaintiff against it. As we have noticed earlier no cause of action is established against defendant No.3 who merely sold salt to the plaintiff and introduced defendant No.2, the Charter Party to the plaintiff. The plaintiff thereafter directly dealt with defendant No.2 by paying the freight to defendant No.2 and by obtaining the Bill of Lading in its own name. The property in goods had already passed on to the plaintiff before it obtained the Bill of Lading.

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

Explanation:
0[ds]The policy remained a typical Marine Voyage Policy with Institute Cargo Clauses (FPA) and in the absence of loss due to perils of the sea, the Insurance Company was not liable. We are also in agreement with the view of the High Court that it was not a case of abandonment of the goods because of the perils of the sea. We are also in agreement with theview of the High Court that it was not a case of abandonment of thegoods. In fact the plaintiff gave the consent for permitting the sale of cargo and to recover the value thereof It. is axiomatic that the burden was on the plaintiff to p rove the loss due to perils of the sea and on the facts of the case, at no stage, such a burden was shifted on Insurance Company to prove otherwise. Under Section 2(a) of the Marine Insurance-Act 1963 (Act No.11 of 1963) (shortly stated t he Act) a "contract of Marine Insurance" means a contract of Marine Insurance as defined by Section 3. Section 3 defines that a contract of Marine Insurance is an agreement whereby the insurer undertakes to indemnify the assured, in the manner and to the extent thereby agreed, against marine losses, that is to say the losses incidental to marine adventure. "Marine adventure" is also defined in the Act under Section 2 and includes any adventure where (i) any insurable property is ex posed to maritime perils; (ii) the earnings or acquisition of any freight, passage money, commission, profit or other pecuniary benefit, or the security for any advances, loans, or disbursements is endangered by the exposure of insurable property to maritime perils; (iii) any liability to a third party may be incurred by the owner of, or other person interested in or responsible for, insurable property by reason of maritime perils. "Maritime perils" is again defined in Section 2(e) and means the perils consequent on, or incidental to, the navigation of the sea, that is to say perils of the seas, fire, war perils, pirates, rovers, thieves, captures, seizures, restraints and detainments of princes and peoples, jettisons, barratry and any other perils which are either of the like kind of may be designated by the policy. It is thus clear, after knowing the fact, that we are dealing with a Marine Insurance Policy with Institute Cargo Clauses (FPA) attached against the Insurance Company , it is the duty of the plaintiff to prove as a fact that the cargo was lost due to perils of the sea. Since the finding of the High Court is that no sea water entered in the engine room and the fact that the cargo was intact even after the ship was towed to Vishakhapatnam showed that no sea water entered the ship and, therefore, the loss to the plaintiff was not on account of perils of the sea and the suit of the plaintiff against the Insurance Company i.e. defendant No. 4 was rightly dismissed by the Highare now left with the appeal filed by M/s. United Salt Works and Industries Ltd., who was defendant No.3 in the suit. It is most unfortunate that though the trial court framed issue s but without any discussions gave findings on those issues against defendant No.3. The High Court on the cross-objections filed by the appellant took the view that the cross-objections were not covered by the provisions of Order 41 Rule 22, of the Code of Civil Procedure and also took, the view that no case had been made out for granting relief to defendant No. 3 inspite of the provisions contained in Order 41 Rule 33 of the Code of Civilwill be noticed that a part from the fact that defendant No.3 was merely the seller of the salt to the plaintiff and had introduced defendant No.2 to the plaintiff, he had no other role in the actual carriage of the goods by the ship concerned. the plaintiff was dealing itself directly with defendant No.2. The plaintiff directly paid the freight of the voyage to defendant No.2. The plaintiff took the Bill of Lading in its own name itself. Thus there was no cause of action whatsoever against defendant No.3, yet the trial court without any discussions, decreed the suit against defendant No.3 along with the decree against defendants 1, 2are in agreement with the High Court that the cross- objections filed by defendant No.4 against the plaintiff were not maintainable. However, we are not in agreement with the High Court that the provisions of Order 41 Rule 33 of the Code of Civil Procedure were not applicable. The High Court noticed the decisions of this Court in Choudhary Sadu ( dead) by L.Rs. v. State of Bihar, and Mahant Dhangir and another v. Shri Madan Mohan and others, but felt that it could not grant relief to defendant No.3. In the Constitution Bench decision of this Court in Pannal al v. State of Bombay and others, the facts were that the appellant therein had brought three suits claiming full payment with interest in respect of three hospitals constructed by him in execution of three separate contract s. The trial court decreed the suits for part of his claim against the State of Madhya Pradesh and held that other defendants were not liable, and accordingly dismissed the suits against them. On appeals preferred by the State of Madhya Pradesh the High Court set aside the decree against the State Government and allowed the appeals with costs. The plaintiff at that stage prayed for leave of the High Court to file a cross objection and also for decrees to be passed against the Deputy Commissioner under Order 41 Rule 33 of the Code of Civil Procedure, which was rejected and all the suits were dismissed. It was inter alia urged that the High Court ought to have granted relief against such of the other defendants as it thought fit under Order 41 Rule 33 of the Code of Civil Procedure. This Court held that the wide wording of Order 41 Rule 33 empowers the appellate court to make whatever order it thinks fit, not only as between the appellants and the respondent but also as between a respondent and a respondent. In could not be said that if a party who could have filed a cross-objection under Order 41 Rule 22 did not do so, the appeal court could under no circumstances give him relief under the provisions of Order 41 Rule 33. Order 41 Rule 22 permits as a general rule, respondent to prefer an objection directed only against the appellant and it is only in exceptional cases that an objection under Order 41 Rule 22 can be directed against the other respondents . On the facts of these cases the High Court refused to exercise its powers under Order 41 Rule 33 on an incorrect rule of the law and so the appeal must be remanded to the High Court for decision what relief should be granted to the plaintiff under Order 41 Rule 33 of the Code of CivilProvisions of Order 41 Ruledealing with the power the appellate court of grant relief to parties to suit who have not appealed or filed cross-objections came up for consideration before this Court in Giani Ram and others v. Ramji Lal and others. The facts of that case may be noticed. Under the Punjab customary law the female heirs were not entitled to challenge a sale of ancestral property by a male owner. The father sold property in 1916 without legal necessity. Son filed suit in 1920 and obtained a declaratory decree that the sale would not enure beyond the life-time of his father. In the meantime in 1956 Hindu Succession Act, 1956 cam e into force giving equal rights to females and the daughters and widows were also recognised as the heirs. Father died in 1959 and the question arose of the right of the family to sue for possession of the alienated property from the purchaser on the basis of the decree obtained by son. After the death of the father, the three sons, - the widow and the daughters filed a suit for possession of the alienates land on the basis of the decree obtained by the son in 1920. Under Section 8 of the Punjab Custom (Power to Contest) Act 1 of 1920 only those competent to contest an alienation could take advantage of a decree obtained by a reversioner. The trial court passed a decree for a half share of the suit property in favour of the son only, holding that the female heirs of the alienor were not entitled to take advantage of the decree passed in the suit in 1920. The District Court modified the decree by decreeing the suit in respect of the whole property in favour of the son. In second appeal the High Court restored the decree of the trial court holding that the claim of the female heirs of the alienor could not be upheld, firstly because of the Punjab customary law and Section 8 of Punjab Custom (Power to Contest) Act 1 of 1920 and secondly because they had not filed any appeals against the order of the lower courts. In appeals by special leave before this Court it was held by Shah, J. (i) that the preliminary objections raised by the alienees that the suit in its entirety should have been dismissed because by the enactment of the Hindu Succession Act father was deemed to be a full owner and notwithstanding the decree of 1920 his son had after that Act no subsisting reversionary interest in the property, must stand rejected. There is nothing in the Hindu Succession Act which retrospectively enlarges the power of a holder of ancestral land or nullifies a decree passed before the Act; (ii) under the customary law of Punjab the wife and the daughter of a holder of ancestral property could not sue to obtain a declaration that the alienation of ancestral property will not bind the reversioners after the death of the alienor. But a declaratory decree obtained in a suit instituted by a reversioner competent to sue has the affect of restoring the property alienated to the estate of the alienors. This Court took the view that the effect of the declaratory decree in the suit filed by the son i n 1920 was merely to declare that by the sale, the interest conveyed .4 to the alienee was to enure during the life-time of the alienor.The conclusion was therefore inevitable that the property alienated reverted to the estate of the father at the point of the death and all persons who would, but for the alienation have taken the estate were entitled to inherit the same. If the father had died before the Hindu Succession Act, 1956 was enacted the three sons would have taken the estate to the exclusion of the widow and the two daughters. After the enactment of the Hindu Succession Act the estate devolved upon the three sons, the widow and the two daughters. It was further held that the High Court was therefore in error in holding that because in the year 1920 the wife and daughters of the alienor were incompetent to challenge the alienation of ancestral property by the father, they could not, after the enactment of the Hindu Succession Act inherit the estate when succession opened after that Act came to force. This Court further held that the High Court was equally in error in holding that because the widow and daughters had not filed an appeal or cross-objection against the decree of the lower courts, they were not entitled to any relief. The sons, the daughters and the widow of the alienor had filed the suit for a decree for possession of the entire property and their claim was that the alienee had no subsisting interest. The District Court accepted that claim and granted a decree in favour of the three sons for the entire property which was alienated. If the alienees were unable to convince the court that they had any subsisting interest in the property in dispute after the death of the alie nor the court was competent under Order 41 Rule 33 of the Code of Civil Procedure to adjust the rights between the sons, the daughters and the widows of the alienor in that property. In Order 41 Rule 33 the expression "which ought to have been passed" means "what ought in law to have been passed". If the appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the subordinate court, it may pass or make such further or other decree or order as the justice of the case maymay be noticed that in that case no first appeal or even the second appeal was filed on behalf of the daughters and the widow yet this Court thought it fit to grant them relief under Order 41 Rule 33 of the Code of Civil Procedure. The decision in the case of Pannalal v. State of Bombay, (supra) was followed by this Court in Mahant Dhangir and another v. Madan Mohan andthe relief can be granted by the appellate court even when no appeal or cross-objections were filed by the respondent, surely relief can be granted by the appellate court when cross-objections have been filed by the respondent against a co-respondent. Order 41 Rule 33 of the Code of Civil Procedure reads asPower 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 make and to pass or made such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercise in favour of all or any of the respondents or parties, although such 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 decrees."y speaking the Rule is in three parts. The first part confers on the appellate court very wide powers to pass such orders in appeal as the case may require. The second part contemplates that this wide power will be exercised by the appellate 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, although such respondents or parties may not have filed any appeal or objection. The third part is where there have been decrees in cross-suits or where two or more decrees are passed in one suit, this power is directed to be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.The present case falls within the third part of Rule 33 of Order 41 of the Code of Civilare of the view that on the facts and circumstances of this case it was a fit case for the High Court to have exercised power under Order 41 Rule 33 to set aside the decree passed by the trial court against defendant No.3 without having discussed any issue against defendant No.3 and to decide the case itself. We also thought of remanding back the matter to the High Court but we find that the facts are simple and lie in narrow compass and show total non- liability of defendant No.3 to the claim put forward by the plaintiff against it. As we have noticed earlier no cause of action is established against defendant No.3 who merely sold salt to the plaintiff and introduced defendant No.2, the Charter Party to the plaintiff. The plaintiff thereafter directly dealt with defendant No.2 by paying the freight to defendant No.2 and by obtaining the Bill of Lading in its own name. The property in goods had already passed on to the plaintiff before it obtained the Bill of Lading.