MANJIT KAUR Vs. BALBIR SINGH

JUDGEMENT

(1.) THE suit for specific performance was rested on a plea that the first defendant had committed a breach of obligation in the agreement and he had wrongfully sold the property to the second defendant. The trial Court decreed the suit as prayed for. The purchaser appears to have filed an appeal and the vendor has filed a cross -objection in such an appeal. Both the appeals were allowed holding that the plaintiff had not established his readiness and willingness and the decree granted was erroneous. The plaintiff preferred RSA No.148 of 2011 against the appellate Court decree setting aside the judgment of the trial Court and the appellate Court framed the following question of law as substantial for consideration: -

(2.) THE contention made is untenable in law and cannot survive a moment's judicial scrutiny. In the first place, the defendant had no right to file a cross objection before the lower appellate court. If the lower appellate court had allowed for such a consideration, it was itself an illegal exercise of jurisdiction. The cross objection can only be an objection to the appeal filed which is against the respondent. The cross objection cannot be filed in an appeal filed by a co -defendant by another defendant. The very manner of cross objection loses its meaning if both the appeals were canvassing for the same right and a cross objection was not really a cross objection against the appellant but a cross objection against a co -respondent in appeal. I am merely setting this out to fend off the belief that the appellate Court which set aside the judgment of the trial Court as regards the finding of readiness and willingness, it become final and if it was not challenged by an independent RSA by the plaintiff, the finding in the cross objection would obtain finality.

(3.) THERE is a further fallacy in the whole argument that there was a requirement to file an appeal against the cross objection. No such appeal is necessary. The finding in a cross objection cannot operate as res judicata if no cross appeal had been filed. There was only one appeal necessary if the judgment was in one single appeal and a decision in cross objection will also be added in the grounds of appeal in the appeal filed by the plaintiff against the decision in the appeal filed by the purchaser. Consequently, the argument that the decision of the lower appellate court in the cross objection filed had become final and operated a res judicata is untenable.