SUDHANSUDHAR ROY Vs. SASADHAR ROY

JUDGEMENT

(1.) This appeal has arisen out of a suit for the opening up of a pathway on the establishment of the right of the plaintiff and his men as well as the public; to pass along the disputed way. There was a compromise decree in Title Suit No. 617 of 1914 between the same parties and in execution of that decree a civil Court commissioner was appointed who gave delivery of possession of the pathway according to that decree. The present dispute is with regard to the same pathway. The plaintiff's case is that since then he used the pathway but towards the end of Agrahayan 1934, the defendants obstructed and stopped the pathway to the public as well as to the plaintiff by putting several bamboos across this pathway at the north-wes-tern corner of the defendants tank as well as by extracting the bamboo pegs inserted by the side of the pathway by the civil Court commissioner. Hence this suit. The suit was decreed by the trial Court against defendants 1 to 4 but dismissed against defendant 5 on the ground that there was no cause of action against him. On appeal by defendants 1 to 4, the plaintiff filed a cross- objection as against defendant 5 who was made a co-defendant and who was also a respondent in the appeal. The appeal was dismissed in the lower appellate Court but the cross-objection was allowed and the suit was decreed on contest against defendant 5 also. The present appeal is by the defendants.

(2.) In this appeal the points raised are in the first place that the cross-objection was incompetent as the circumstances did not justify the plaintiff in filing a cross-objection against a co-respondent against whom his suit was originally dismissed; it is also urged that the cross- objection was incompetent because no notice of the cross-objection was served on defendant 5 as required Under Order 41, Rule 22, Clause. 3 and that the cross-objection was incompetent because the decree was passed in the absence of defendant 5. As regards the last point it is not correct, because we find that the suit was dismissed on contest against defendant 5 and also the appeal was decreed on contest against him.

(3.) As regards the question whether the Court was justified in admitting the cross-objection against defendant 5, on behalf of the appellants we have been referred to the cases of Bishun Churn Roy V/s. Jogendra Nath Roy (1899) 26 Cal 114; Jadu-nandan Prosad V/s. Kallyan Singh (1912) 13 I C 653 and Shib Chandra Kar Vs. A. C. Dulc. ken AIR 1918 Cal 13. The first case was decided before the alteration of Order 41, Rule 22 by which the word "appellant;" in the old section was changed to "party who may be affected by such objection" in para. 3, Rule 22. In the third case, viz., the case of Shib Chandra Kar V/s. A. G. Dulcken AIR 1918 Cal 13, it has been laid down that a cross-objection by a respondent as against fats co-respondent should not be entertained Under Order 41, Rule 22, Civil P.C., where the question raised thereby is entirely distinct from and in way related to the question in controversy in the appeal, and that case was decided against the cross-objector on the ground, as the learned Sanderson, C. J., stated, that in his judgment the matters which were sought to be raised by the cross-objection had no relation to or connexion with the question which was raised by the appeal, and could not be said to be within the test which was laid down in the case of Jadunandan Prosad V/s. Kallyan Singh (1912) 13 IC 653 viz., so connected that one of the parties ought not to be allowed to re-open matters so far as he is concerned without opportunity allowed, in the interest of justice to another to protect himself by urging his objections, even though they be directed, not against the appellant, but against a co-respondent.