SMT LAKSHMI DEBI Vs. LALA HANSRAJ GUPTA

JUDGEMENT

(1.) This is an appeal by Srimati Lakshmi Debi, plaintiff, against 1. Lala Hansraj Gupta, 2. Gordhondas, 3. Mt. Bhagabati Debi and 4. Sm. Angira Debi, defendants in the suit and respondents in the appeal. The plaintiff joined Gordhondas as a defendant as being one interested in the property, the subject of the suit. The suit was to set aside a sale held under the directions of the Court on the ground that Hansraj, defendant 1, who was a trustee of certain property, had purchased the property in violation of Section 210, Succession Act. Gordhondas did not appear and took no part whatever in the proceedings before Panckridge J. Panckridge J. dismissed the suit in its entirety. Thereupon the plaintiff appealed. Gordhondas believing that Lakshmi Debi had come to some arrangement with the other respondents raised cross-objections which are set out. He also applied to be substituted as an appellant. That application was refused. Lakshmi Debi does not pursue the appeal, but Gordhondas claims to go on with his cross-objections. Apparently he is offended that Lakshmi Debi has come to an arrangement with the other defendants.

(2.) The substance of the cross-objections is that the decision appealed from is wrong in its entirety. In my view the case in Sahdeo Narain V/s. Kusum Kumari (1922) 9 A.I.R. Pat. 483 covers this point. It was there held that where a suit has been dismissed in its entirety and, on the plaintiff appealing, the defendant files objections to certain terms in the judgment, the petition of objections is not a petition of cross-objections within the meaning of Order 41, Rule 22, Civil P.C. In my view these are not cross-objections within the meaning of Order 41, Rule 22. Though Gordhondas was made a defendant in the suit, he took no part in the proceedings, and now after the matter has come to appeal, he has raised a case as against his co- defendants who are the co-respondents that he should be allowed to litigate that case here on appeal. It was something that he never attempted to do in the Court below. For those reasons, I am of the opinion that the cross-objections in this appeal should be dismissed with costs. The appeal is also dismissed for want of prosecution. Lort-Williams, J.

(3.) I agree. The cases in Ramdas V/s. Vazirsaheb (1901) 25 Bom. 589 and Brojo Behari Mitter V/s. Kedar Nath (1886) 12 Cal. 58 (F.B.) show that the issue between Gordhondas and Lala Hansraj is not res judicata by reason of the decree made in this suit between Sm. Lakshmi Debi and Hansraj and others. That I think is the real foundation for the contention that Gordhondas is not entitled to raise cross-objections in the present appeal, because the case as between Gordhondas and Hansraj has never yet been tried. It may be a very different case from that between Sm. Lakshmi Debi and Hansraj and, therefore, it follows as of course that it would be absurd to allow Gordhondas to raise his cross-objections in this appeal. In fact it has been admitted by the learned Advocate-General that even if we could have been persuaded to allow him to raise these cross-objections by way of appeal, it could only have been done if at the same time we had ordered the case to be remanded for evidence to be taken as between Gordhondas and Hansraj. Although the learned Judge really based his decision upon the conclusion that the sales were carried out under orders of the Court and, therefore, could not be interfered with in this suit, yet it is clear that his mind was influenced to a considerable extent by the fact that there had been delay and acquiescence on behalf of the plaintiff. The position as between Gordhondas and Hansraj might be very different : it might be better or it might be worse, but, as I have said, that case has never yet been tried, and for these reasons also I agree that the cross-objections should not be allowed, and the appeal should be dismissed.