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High Court Of Delhi
KRISHAN GOPAL - Appellant
Versus
HAJI MOHAMMAD - Respondent
Regular Second Appeal 173D of 1966
Decided On : 01/17/1968
CIVIL PROCEDURE CODE - ORDER 41, RULE 22 - CROSS-OBJECTIONS - COMPETENCY - APPEAL DISMISSED AS BARRED BY LIMITATION - EFFECT ON CROSS-OBJECTIONS - CROSS-OBJECTIONS DIRECTED AGAINST CO-RESPONDENTS - LEGALITY.
Fact of the Case:
The appellant, Krishan Gopal, filed cross-objections in the lower Appellate Court against the plaintiffs and co-respondents, including H. Mohd. Muslim, who had filed an appeal against the judgment and decree of the trial court. The cross-objections were dismissed as incompetent by the lower Appellate Court on the ground that they were not directed against H. Mohd. Muslim, the appellant in that court. The appellant challenged the dismissal of the cross-objections, arguing that they were in fact directed against him and that the lower Appellate Court erred in dismissing them as incompetent.
Finding of the Court:
The court held that the cross-objections were not competent because they were not directed against the appellant in the lower Appellate Court, H. Mohd. Muslim. The court also held that even if the cross-objections were directed against the appellant, they could not be allowed to be heard after the appeal in which they were taken had been dismissed as barred by limitation.
Issues: 1. Whether the cross-objections were competent since they were not directed against the appellant in the lower Appellate Court? 2. Whether the cross-objections could be allowed to be heard after the appeal in which they were taken had been dismissed as barred by limitation?
Ratio Decidendi: 1. The court held that the cross-objections were not competent because they were not directed against the appellant in the lower Appellate Court, H. Mohd. Muslim. The court relied on the fact that the only challenge against the appellant in the cross-objections was contained in the last two hand-written lines in ground No. 14, which read as follows: "neither defendant No. 8, the present appellant, nor the plaintiff can have a decree of ejectment against the present objector-respondent No. 9 (defendant No. 6)". The court found that this ground was not argued before the lower Appellate Court and, therefore, it could not be relied upon in support of the present appeal. 2. The court held that the cross-objections could not be allowed to be heard after the appeal in which they were taken had been dismissed as barred by limitation. The court relied on the fact that the cross-objections are taken in an appeal and it is the particular appellant alone who may be taken to have facilitated his opponent on equitable grounds contained in Rule 22 to re open the finally concluded controversy against him, but to expose the decree in favour of the other co-respondents to a challenge in this manner after the expiry of limitation for appeal, would in my opinion, be most unjust to them because they would have no opportunity of taking cross-objections against the cross-objecting respondents.
Final Decision: The appeal was dismissed with costs.
( 1 ) HAFIZ Zahir-ud-din, Haji Mohamed Hasham and Mst. Khatun Mahshar instituted a suit against nine defendants, including Shri Krishan Gopal (defendant No. 6 and appellant in this Court) for the recovery of a sum of Rs 433 50 and ejectment of defendants Nos. 1 to 6 from a plot of land. The grounds on which the suit was baled were that Shri Nand Lal deceased, husband of defendant No. 1 and father of defendants Nos. 2 to 6 had taken the vacant plot of land en lease from the plaintiffs and defendants Nos 7 to 9 and had also executed a rent note in their favour. The lease was taken from Mohamed Hasham, plaintiff No. 2, for a cycle-stand and rent was being paid to Mohamed Hasham in his capacity as the Manager on behalf of all the landlords. Shri Nand Lal died in March, 1959, learing behind defendants Nos. 1 to 6 as his legal heirs and representatives After Nand Lal s death, Krishan Gopal was running the cycle-stand and paid rent to Mohamed Hasham under the terms of the rent-deed at the rate of Rs. 25. 50 per mensem, and indeed paid the rent till 31st December, 1960. As a result of private partition of the said land between the owners in February, 1958, a part of the suit land fell to the share of plaintiff No. 1. In 1961, pursuant to further private partition amongst the owners, the other portion of the plot fell to the share of Mohamed Hasham and Mst. Khatun Mashar. On these averments, damages were claimed. It is unnecessary to go into further details for the purposes of the present appeal. Suffice It to say that on the trial of various issues framed, the trial Court on 17th August, 1963 passed a decree for ejectment of defendants Nos. 1 to 6 from the property in suit and also made a decree for Rs. 433. 50 np. against them.
( 2 ) H. Mohd. Muslim, defendant No. 8 in the trial Court, took the matter on appeal in the Court of the Additional District Judge, in which it was prayed that the judgment and decree of the trial Court be set aside and, to quote the exact words, "either the decree for ejectment and recovery of rent may be passed in favour of the appellant and respondents Nos. 1 to 3 and No. 10 and 11 or the suit of the plaintiff respondents may be dismissed with costs " Respondents-Nos. 1 to 3 in the lower Appellate Court, it may be pointed out, were the three plaintiffs and respondents Nos. 10 and 11 were Hafiz Mohd. Mian and H. Mohd. Sami, defendants Nos. 7 to 9 respectively in the trial Court. It is obvious from this that the appeal was not directed against Krishan Gopal, defendant in the trial Court and respondent in the lower Appellate Court (appellant before me ). Krishan Gopal presented cross-objections in the lower Appellate Court on 21st December, 1963, which were directed against the plaintiffs who were also co-respondents along with Krishan Gopal in the lower Appellate Court, it being added that he had been served with a notice of the appeal on 2nd December, 1963.
( 3 ) AN objection was raised in the lower Appellate Court that these cross-objections were incompetent and in view of the decisions reported as Jan Mohammad v. P. N. Razdon, which followed an earlier decision of the Lahore High Court in Sant Ram v. Kidar Nath, and a decision of the Punjab High Court given in 1965, this objection was upheld as per order dated 11th October, 1965. The disposal of the appeal was, however adjourned on the ground that the minors were to be properly represented. The appeal of H Mohd. Muslim (Regular Civil Appeal 126 of 1965) was finally dismissed by the judgment and decree dated 6th December, 1985 that decree clearly shows that the appeal had been heard on 1st December, 1965, but the judgment was announced on 6th December, 1965, it having apparently been reserved on 1st December, 1965.
( 4 ) THE appellant in the present appeal is aggrieved only by the order dismisssing the cross-objection on 11th October, 1965. The present appeal was presented in the predecessor of this Court on 3rd March, 1966 and the office obj
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