JANAK PANDEY Vs. SUDAMA SINGH

JUDGEMENT

(1.) Could the Court of appeal below hold that the defendants were thrown out of possession of the land in question without taking into consideration the oral evidence adduced on behalf of the parties and without also reconsidering the documentary evidence and could it not examine the findings recorded by the trial Court although no cross-objection was filed on behalf of the plaintiff respondents before it, in view of the provisions under O.41, R.33, Civil P.C. (in short the 'Code'), are precisely the questions involved in this appeal?

(2.) The plaintiff has moved this Court against the judgment of reversal of the Court of the 7th Additional District Judge, Arrah, in Title Appeal No.78 of 1974. The suit being Title Suit No.31 of 1969 was decreed by the trial Court, namely the 3rd Munsif, Arrah. Although the whole claim of the plaintiff was granted by the learned Munsif, he recorded nonetheless some finding against him. The defendants preferred an appeal which was eventually heard by the 7th Additional District Judge, Arrah, plaintiffs, however, preferred no cross-objection. The appeal was filed in the year 1974. At that time there was no provision for preferring any appeal or cross-objection against a finding. In the year 1976, however, by an amendment Act, R. 22 of O. 41 has been amended. The amendment states, inter alia, that "any respondent though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take .any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate Court may see fit to allow". The amendment Act also introduced an explanation to R.22(1) of the Code which says that a respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may file cross-objection in respect of the decree in so far as it is based on that finding notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree is wholly or in part, in favour of that respondent. The 1976 amendment thus introduced for the first time a provision for a cross-objection or appeal by a respondent in an appeal preferred by any other party against a finding which he seeks to question. A contemporaneous amendment has also been made in R.33, O.41 and, after the amendment the said rule, says that the appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make 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 to the part of the decree only 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 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 appeal may not have been filed against such decrees.

(3.) Before, however, I advert to consider the questions that have arisen in this appeal let me state a few relevant facts.