VEDAGIRI Vs. PATTAMAL

JUDGEMENT

(1.) The appeal before the District Judge of Chengalpattu, A. S. No. 159 of 1980, has been preferred by defendant 1 against the judgment and decree in O. S. 183 of 1976 on the file of the Subordinate Judge of Chengalpattu. The respondents in the said appeal are plaintiffs 1 to 6 and defendants 2 to 4 in the suit. The suit was one for partition and separate possession of the plaintiffs' one-fifth share and there was a controversy over the 'C' schedule properties, which defendant 5 claimed as his self acquisition. The first court countenanced the case of defendant 5 and the suit of the plaintiffs in respect of the 'C' schedule properties was dismissed. The first court passed a preliminary decree for partition of the plaintiffs' one fifth share in the 'A' schedule properties other than item No. 31; B schedule properties and C1 schedule properties. The first defendant has filed the appeal A. S. No. 159 of 1980. The plaintiffs' respondents 1 to 6 in the appeal, preferred cross-objections and they chose to implead only defendants 1 to 4 as respondents therein. We find that the appeal is of the year 1980. In December 1981, the plaintiffs, respondents 1 to 6 in the appeal conceived the idea of impleading defendant 5 as respondent 5 in the cross objections and took out two applications I. A. 19 of 1982 to condone the delay of 359 days in impleading defendant 5 as respondent 5 in the cross objection. These two applications have been allowed by the Court below. The present revisions have been preferred by defendant 5 against the orders of the court below.

(2.) Mr. R. Sundaravaradan, learned counsel for defendant 5, petitioner in the two revisions, submits that it is a well settled proposition that there could not be a cross objection by one respondent against other co-respondents save in exceptional cases and if this principle had been applied by the court below, it would not have been ventured to consider the question of condoning the delay in bringing on record defendant 5 as respondent 5 in the cross objections as well as impleading him as such. The proposition stated by the learned counsel is one countenanced by a Full Bench of five learned Judges of this court in Venkateswarulu v. Ramamma The facts dealt with by the Full Bench are more or less similar to the facts of the present case. There was a suit for partition of the joint family properties filed by the plaintiffs against their paternal uncle and his two sons (defendants 1 to 3) and in that suit, the plaintiffs had impleaded inter alia defendants 5 and 6 as persons in possession of preliminary decree was passed in favour of the plaintiffs. But, their claim with reference to the properties in the possession of defendants 5 and 6 as persons in possession of certain items of family properties. A preliminary decree was passed in favour of the plaintiffs. But, their claim with reference to the properties in the possession of defendants 5 and 6 was not countenanced. Defendants 1 to 3 preferred an appeal to the High Court, impleading only the plaintiffs and defendant 4 as the respondents. In that appeal, the plaintiffs who were respondents 1 and 2 therein, filed an application to implead defendant 5 as a respondent in a memorandum of cross objections sought to be filed by them against the decree of the first court. It was found that on the date of that application a separate appeal against defendant 5 was out of time. It was also admitted that the appellants (defendants 1 to 3) were not in any way interested in or concerned with the cross objections sought to be preferred against the defendant 5 by respondents 1 and 2 (the plaintiffs.) The Full Bench held that the application to implead defendant 5 as a party either to the appeal or to the memorandum of cross objection taken by a respondent in which the appellant has no interest cannot be treated as a 'cross objection' within the meaning of Order XLI, R. 22, Civil P.C. The Full Bench consisting of five learned judges of this court, overruled the decision of the earlier Full Bench in Munisami Mudali v. Abbu Reddi, 38 Mad 705 : (AIR 1915 Mad 648).

(3.) In Pannalal v. State of Bombay, five learned judges of the Supreme Court, approved the following observations of Rajamannar, C.J. in Venkateswarulu v. Ramamma, (FB) -