CHANCHALGAURI RAMANLAL Vs. NARENDRAKUMAR CHANDULAL

JUDGEMENT

(1.) A simple but interesting question arises for decision in this appeal. The controversy concerns the maintainability of a cross-objection in an appeal which is found to be not maintainable in law. Though cases have arisen where the controversy concerned the maintainability of a cross-objection an appeal dismissed for non-payment of sufficient course-fee or in an appeal filed out of time a case such as the one before us has no precedent in law. The case here is one where an appeal in which the cross-objection was filed was obviously nOt maintainable in law and the appellants accordingly did not press the appeal. The appeal arose out of a suit for permanent injunction restraining the defendants from selling transferring or dealing with suit plot which. according to them was co-ownership property. The suit was dismissed for non-joinder of necessary parties. The defendants had therefore necessarily no cause for grievance as there was no decree against them and they could not have filed an appeal. Nevertheless they filed an appeal and it is in that appeal that the plaintiffs chose to file a cross-objection. The cross-objection was not entertained by the appellate Court on the ground that since the appeal itself did not lie in law in the absence of a decree against the defendants in such an appeal no cross-objection would lie. It was not a case either of dismissal of appeal for default or withdrawal of the appeal. Could under such circumstances the cross-objections be dealt with on the merits by the Court is the question that we are called upon to decide in this appeal.

(2.) Order 41 Rule 22 of the Code of Civil Procedure deals with cross-objection that a respondent may file. That rule reads:

(3.) By the provision in sub-rule (4) of order 41 Rule 22 the party who files a cross-objection is sought to be saved in the event of a voluntary act on the part of the appellant which may normally have the consequence of rendering the cross-objections irrelevant if provision is not made therefore in the rule. But the position is different when to the knowledge of the respondent who seeks to file an objection there is no proceeding valid in law no appeal maintainable and in such a case it would be as if there is no appeal at all before the Court and the cross-objection is not filed in accordance with Order 41 Rule 22.