MUNICIPAL COUNCIL PALI Vs. BAHADUR RAJ MEHTA

JUDGEMENT

(1.) THE instant second appeal has been filed against the judgment and decree dated 2. 2. 99 passed by the learned District Judge, Pali in Civil Appeal No. 42 of 1995 whereby it partly allowed the appeal and modified the judgment and decree passed by the learned trial court.

(2.) IT is urged by the learned counsel for the appellant Mr. Prakash Tatia that once the learned first appellate court arrived at a conclusion that the suit for declaration of title was not maintainable in absence of statutory notice as provided u/sec. 271 of the Rajasthan Municipalities Act, 1959 (for short "the Act of 1959") it has no jurisdiction to allow the appeal partly. The aforesaid argument of the learned counsel for the appellant is not acceptable for the reasons given hereinbelow.

(3.) IN my considered opinion, the learned first appellate court has jurisdiction to mould the relief according to the facts of the present case within the meaning of Order 41, Rule 33, CPC, which clearly provides 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 as to part only of the decree 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.