REOTI PRASAD Vs. UMRAO

JUDGEMENT

(1.) TO appreciate the contentions raised on behalf of the appellants it is necessary to lay down the facts in brief. Hazarilal, Moolchand and Reotilal minor with Hazarilal as bis next friend brought a suit against Umrao and four others for ejectment in respect of the land in dispute On 21. 10. 1955, a date fixed for hearing of the case, Hazarilal, plaintiff and Umrao defendant appeared before the court and presented a so called com-promise-deed. As this deed was not signed by all the plaintiffs and the defendants it was not accepted. The case was adjourned for further hearing when all the defendants failed to put in appearance. The trial court decreed the suit exparte in favour of Moolchand and Reotilal plaintiffs against all defendants excepting Umrao. In the body of the judgment the trial court observed that the rights and liabilities of Hazarilal plaintiff and Umrao shall be determined by the compromise deed Hazarilal plaintiff filed an appeal before the Additional Commissioner, Jaipur. All the defendants were impleaded as respondents in that appeal, but Reotilal and Moolchand plaintiffs were rot joined as parties in that appeal. The defendants filed cross-objections under Order 41 Rule 22 C. P. C. and impleaded Moolchand and Reotilal as well. The learned Additional Commissioner after hearing the parties came to the conclusion that the decree granted by the trial court was untenable and that the suit ought to be tried, and decided afresh. Moolchand and Reotilal have filed this second appeal before us. Their contention is that as they were not joined as parties in the appeal before the lower appellate court it was not open to the defendants to file any cross objections against them and hence the decision of the lower appellate court revising the decree passed in favour of the appellants is wrong. Some decision have also been cited in support of this contention. One is A I. R. 1943 Mad, 609. The other is A. I. R. 1933 Nagpur 186.

(2.) ORDER 41 Rule 22 C. P. C. provides for presentation of cross-objections. It is laid down therein that "any respondent, though he may not have appealed from any part of the decree may not only support the decree on any of the grounds decided against him in the lower court but 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 of notice of the day fixed for hearing the appeal". It has not been denied before us that the cross-objection were filed within this limitation. The contention is that as Moolchand and Reotilal were not parties in the appeal no cross-objections could have been preferred against them. This argument evidently ignores the express wording of ORDER 41 Rule 22. It is open to a respondent to file any cross-objection which he could have taken by way of appeal. There is nothing in this Rule to restrict these cross-objections to those persons only who appear as parties in the appeal. The learned authors in their commentary" C. P. C. by Chitaley and Rao" page 3077 have observed as below: - "the rule does not expressly say that cross-objections can be filed only against the appellant or a person who is already on the record. It only provides; that a person can take any cross-objection to the decree which he could have taken by way of appeal. This does not necessarily imply that the person against whom the cross objection is taken should be already on the record Hence the cross-objections can be taken against any person who was a party to the decree, although such person may not be already on the record as a party to the appeal and such a person may be impleaded as a respondent at the time of filing the cross-objection. '' Decisions wherein a contrary view was taken were also noted by the authors and they have observed that that view did not appear to be correct "seemed to read into the Rule words which were not there". The counsel for the respondent has cited AIR 1943 Madras 14, a Division Bench decision and it was observed therein that "under ORDER 41, Rule 22 C. P. C. a respondent has a right to file cross objections against another co-respondents. It is not necessary that the party against whom the cross-objections are filed should have been impleaded by the appellant or should have come on the record before the period of appeal against htm had expired. Since a respondent can get his grievance existing against a decree redressed by filing an appeal against a party to the suit, he can do the same by way of cross-objections as well although they do not happen to be directed against an appellant or happen to be directed against a party to the suit whether that party might or might not have been added as a party to the appeal. " For these reasons we are of the opinion that the lower appellate court was justified in entertaining the cross-objections against all the plaintiffs.