1981 Supreme(MP) 24

G. L. Oza, J.
Hiralal v. Om Prakash
S. A. No. 201 of 1980 (G); Decided on 19-1-1981.

Headnote:(1) Civil P. C., 1908 -- O. 41, R. 22 -- whether respondent can challenge the finding against him -- neither cross appeal nor cross objections filed against such findings -- effect.

        (2) Civil P. C., 1908 -- S. 100 -- second appeal under -- mixed question of law and fact which ought to have been heard by first appellate Court -- whether may be heard by the High Court.

        Learned counsel for the appellant contended that the plain reading of the provisions contained in Order 41, rule 22 of the Code clearly shows that even if a party has not preferred an appeal, but if the appeal is before the appellate Court, the party against whom the findings have been given by the trial Court can challenge those findings before the appellate Court. In fact of the specific provisions under Order 41, rule 22 of the Code, the learned lower appellate Court has committed an error in refusing to consider the contention advanced on behalf of the appellant in this Court and respondent in the Court below. He, therefore, contended that the appeal ought to be allowed.

        Learned counsel for the respondent, so far as the Order 41, rule 22 of the Code is concerned, could not contend that the view taken by the learned Court below was right but he contended that even if this contention was allowed to be raised, it was without any substance and in order to show this the learned counsel wanted to refer to the evidence in the case. He contended that this Court itself should examine the contention which the appellant wanted to raise before the lower appellate Court and if this Court is satisfied that there is substance in the contention, then alone the case should be sent back.

        Held : It is clear that even without filing of a cross objection, if there is a finding against the respondent, the respondent can urge the grounds to challenge that finding and in the present case, this is exactly what the learned counsel for the appellant wanted to do before the lower appellate Court. But it appears that the learned lower appellate Court did not notice this provision and refused to consider any saying that as no appeal or cross objection has been preferred, the appellant cannot be permitted to challenge the finding given against him by the trial Court although the learned Judge has referred to Order 41, rule 22 of the Code. Apparently, therefore the view taken by the learned Court below is contrary to the provisions contained in Order 41, rule 22 of the Code and it amounts to a substantial question of law.

        Realising the difficulty, the learned counsel for the respondent merely contended that this Court should hear what the lower appellate Court should have heard about that question and come to a conclusion as to whether the contention advanced by the learned counsel for the appellant is worth accepting. Such a procedure cannot be followed as it will mean that before sending the case to the lower appellate Court, this Court, which hears an appeal under section 100 of the Code, is not expected to go into the question of facts, should hear the question of facts and decide and if this Court, after hearing the case, come to the conclusion about the contention, which was not allowed to be raised before the Court below then there is hardly any question left for being sent to the Court below. Apparently, the question that was not allowed to be raised was a mixed question of law and fact and this Court hearing a second appeal under section 100 cannot go into that question. I, therefore, see no reason to accept the contention advanced by the learned counsel for the respondent.

        Consequently, the appeal is allowed with costs. The judgment and decree passed by the lower appellate Court are set aside and it is directed that the lower appellate Court will hear the appeal afresh allowing the present appellant to challenge the finding given against him by the trial Court and shall proceed to hear and dispose of the appeal expeditiously.