In Tummalla Atchaiah (supra), it was observed by the Supreme Court that in absence of any specific ground in the cross objections, the decree passed by the trial Court cannot be altered in exercise of powers conferred under provisions of Order 41, Rule 33 of the Code. Similarly, in Hardevinder Singh (supra), it was held by the Supreme Court that though the respondent may defend the decree in his favour without filing any cross objections, if he intends to assail any part of the decree, then it is obligatory for him to file cross objections. It is, therefore, clear that the decree as passed by the trial Court can be supported without filing any cross objection, but if any alteration or modification in said decree is sought, then the same has to be done by filing cross objections. Similar view has been taken by learned Single Judge in Surjansingh (supra) by observing that if the respondent wants any particular relief in his favour from the Appellate Court, then cross objections to the decree are required to be filed. In view of aforesaid position, it is clear that in absence of any cross objection by the plaintiff, the decree passed by the trial Court granting part relief could not be modified to convert said decree into one granting larger relief.
Thus, from aforesaid discussion, it is clear that the first Appellate Court exceeded its jurisdiction while exercising powers under Order 41, Rule 33 of the Code by modifying the decree passed by the trial Court. Such course is not permissible in law. The substantial question of law as framed is answered by holding that in absence of any cross objections, the decree passed by the trial Court cannot be modified or altered by the first Appellate Court.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
S.A. No. 44 of 2014
Decided On: 23.12.2014
Indrakumar Vs. Atmaram and Ors.
Hon'ble Judges/Coram:
A.S. Chandurkar, J.
Citation: 2015 (3) Mh.L.J. 613.
1. Heard. Admit on the following substantial question of law:
Whether the decree passed by the trial Court to the extent it refuses part of the relief to the plaintiff can be altered in exercise of powers under provisions of Order 41, Rule 33 of the Code of Civil Procedure in absence of any cross objections by the plaintiff.
1-A. In view of order dated 21-4-2014, the learned Counsel for the parties have been heard on aforesaid substantial question of law.
2. The appellant is the original defendant No. 1 against whom the respondent Nos. 1 and 2/plaintiffs had filed suit for declaration that the sale deed dated 8-1-1990 executed by their father-defendant No. 2 in favour of the defendant No. 1 was by practicing fraud and hence not binding on them. Further prayer of permanent injunction was also made by the plaintiffs. The trial Court granted relief of permanent injunction. However, the relief to the extent of declaration that the sale deed in question was obtained by practicing fraud was refused.
3. The defendant No. 1 being aggrieved by aforesaid decree challenged the same by filing appeal under section 96 of the Code of Civil Procedure (for short the Code). The original plaintiffs did not file any cross objections, but argued that in view of the finding given against Issue No. 6B of the judgment of the trial Court, the sale deed in question was required to be declared as null and void. The first Appellate Court accepting said submission modified the decree passed by the trial Court and granted declaration that the sale deed dated 8-1-1990 was null and void. The appeal came to be dismissed and rest of the decree passed by the trial Court came to be confirmed. Hence, the present second appeal by the defendant No. 1.
4. Shri R.I. Agrawal, the learned Counsel appearing for the appellant submitted that the first Appellate Court erred in modifying the decree passed by the trial Court. According to him, in absence of any cross objections filed by the original plaintiffs, the decree insofar as it refused reliefs to the plaintiffs could not have been modified by the first Appellate Court in exercise of powers under Order 41, Rule 33 of the Code. It was further submitted that law in this regard was well settled and the decree as passed by the trial Court could not be altered in absence of any cross objections. In support of the said submissions, the learned Counsel for the appellant relied on the following judgments:
(1) Hardevinder Singh vs. Paramjit Singh and others, MANU/SC/0008/2013 : 2014(2) Mh.L.J. (S.C.) 126, (2) Laxman Tatyaba Kankate and another vs. Taramati Harishchandra Dhatrak, MANU/SC/0477/2010 : 2010(6) Mh.L.J. 295, (3) Choudhary Sahu (Dead) by LRs. vs. State of Bihar, MANU/SC/0232/1982 : AIR 1982 SC 98, (4) Tummalla Atchaiah vs. Venka Narasingarao, MANU/SC/0028/1978 : AIR 1978 SC 725, (5) Hasanate Taheriyyah Fidayyiah vs. Mahesh s/o Kishor Saran, MANU/MH/0549/2014 : 2014(2) Mh.L.J. 884, (6) Surjansingh s/o Mohansingh vs. Jasbir Kaur wd/o Sardar Chanansingh and others, MANU/MH/1009/2007 : 2008(2) Mh.L.J. 763.
It was further submitted that the first Appellate Court erred in dismissing the appeal despite the fact that the findings in that regard recorded by the trial Court were not based on sufficient evidence.
5. Shri M.B. Naidu, the learned Counsel appearing for the respondent Nos. 1 and 2 supported the decree passed by the first Appellate Court. He submitted that the trial Court while answering Issue No. 6B had recorded a specific finding that the sale deed dated 8-1-1990 was null and void. However, in the operative part of the decree, the aforesaid relief was not granted by the trial Court. According to the learned Counsel failure to grant said relief was on account of an accidental slip or omission. Even otherwise, it was open for the Court to correct the same in exercise of power under section 152 of the Code. He further submitted that as the finding on Issue No. 6B was in his favour/there was no need to file any cross objection challenging said finding. He, therefore, submitted that the first Appellate Court rightly exercised powers under provisions of Order 41, Rule 33 of the Code and the decree that was required to be passed by the trial Court was passed by the first Appellate Court. He, therefore, submitted that aforesaid aspect did not give rise to any substantial question of law. He further submitted that the other findings recorded by the first Appellate Court were pure findings of fact which could not be interfered in absence of any substantial question of law.
6. I have carefully considered aforesaid submissions and I have also gone through the impugned judgment. It is not in dispute that the trial Court while answering Issue No. 6B held that the sale deed dated 8-1-1990 was null and void and it did not confer any right on the defendant No. 1. It further held that the plaintiffs had failed to prove that said sale deed was got executed by practicing fraud. The decree passed by the trial Court reads as under:
ORDER
I) Suit is partly decreed with proportionate costs.
II) The suit claim of plaintiffs to the extent of declaration stand dismissed.
III) The defendants are hereby restrained from causing obstruction to the peaceful possession of plaintiffs over the suit property till the demarcation of their shares by metes and bound.
IV) Decree be drawn up accordingly.
Aforesaid decree was assailed by the defendant No. 1. No cross objections were filed challenging the decree passed by the trial Court refusing part relief to the plaintiffs. The first Appellate Court considered the submission made on behalf of the original plaintiffs that they were entitled to the relief of declaration and proceeded to hold that in view of the finding recorded against Issue No. 6B by the trial Court, the sale deed in question was required to be declared as null and void. It, therefore, modified the decree passed by the trial Court and passed the following order.
ORDER
The appeal is hereby dismissed with no order as to costs. However, the impugned order dated 8-9-2009 passed by learned Civil judge, Jr. Dn., Ramtek in Reg. Civil Suit No. 109/2001 (old Special Civil Suit No. 152/1990) towards dismissal of suit in respect of relief declaration is hereby set aside and it is directed to be substituted by decree of following nature:
"It is hereby declared that sale deed dated 8-1-1990 (Exh.54) as executed by the respondent No. 3/defendant No. 2 in favour of appellant/defendant No. 1 is null and void."
The rest of the decree passed by learned trial Court in Reg. Civil Suit No. 109/2001 (old Special Civil Suit No. 152/1990) pertaining to relief of permanent injunction is hereby confirmed.
Parties to appeal shall bear their own costs.
Decree be drawn up accordingly.
7. In Tummalla Atchaiah (supra), it was observed by the Supreme Court that in absence of any specific ground in the cross objections, the decree passed by the trial Court cannot be altered in exercise of powers conferred under provisions of Order 41, Rule 33 of the Code. Similarly, in Hardevinder Singh (supra), it was held by the Supreme Court that though the respondent may defend the decree in his favour without filing any cross objections, if he intends to assail any part of the decree, then it is obligatory for him to file cross objections. It is, therefore, clear that the decree as passed by the trial Court can be supported without filing any cross objection, but if any alteration or modification in said decree is sought, then the same has to be done by filing cross objections. Similar view has been taken by learned Single Judge in Surjansingh (supra) by observing that if the respondent wants any particular relief in his favour from the Appellate Court, then cross objections to the decree are required to be filed. In view of aforesaid position, it is clear that in absence of any cross objection by the plaintiff, the decree passed by the trial Court granting part relief could not be modified to convert said decree into one granting larger relief.
8. According to the learned Counsel for the respondents, the failure on the part of the trial Court to grant said relief despite recording a finding in favour of the plaintiffs, could be termed as an accidental slip or omission and powers under section 152 of the Code permit correction of errors on account of any accidental slip or omission by the Court on its own motion. In U.P.S.R.T.C. vs. Imtiaz Hussain, MANU/SC/2406/2005 : AIR 2006 SC 649, the Supreme Court held that provisions of section 152 of the Code should not be invoked to modify, alter or add to the terms of original decree so as to, in effect, pass an effective judicial order after judgment in the case. In para 8 of aforesaid decision, it has been observed thus:
"8. The basis of the provision under section 152 of the Code is founded on the maxim 'actus curiae neminem gravabit' i.e. an act of Court shall prejudice no man. The maxim "is founded upon justice and good sense, and affords a safe and certain guide for the administration of the law", said Cresswell J. in Freeman vs. Tranah, 12 C.B. 406. An unintentional mistake of the Court which may prejudice the cause of any party must and alone could be rectified. In Master Construction Co. (P) Ltd. vs. State of Orissa, MANU/SC/0304/1965 : AIR 1966 SC 1047 it was observed that the arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the Court liable to be corrected. To illustrate this point it was said that in a case where the order contains something which is not mentioned in the decree. It would be a case of unintentional omission or mistake as the mistake or omission is attributable to the Court which may say something or omit to say something which it did not intend to say or omit. No new arguments or re-arguments on merits can be entertained to facilitate such rectification of mistakes. The provision cannot be invoked to modify, alter or add to the terms of the original order or decree so as to, in effect, pass an effective judicial order after the judgment in the case."
From aforesaid, it is, therefore, clear that even the plaintiffs could not have got the relief of declaring the sale deed dated 8-1-1990 to be null and void under provisions of section 152 of the Code as the same would have the effect of altering and modifying the decree. Hence, aforesaid submission cannot be accepted.
9. There is another aspect to the matter. The trial Court while answering Issue No. 4 had held that the plaintiffs had failed to prove that the sale deed dated 8-1-1990 had been obtained by practicing fraud. Therefore, said relief of declaration was refused and the same was specifically mentioned in the operative part of the decree.
Hence, said findings do not call for any interference whatsoever.
10. Thus, from aforesaid discussion, it is clear that the first Appellate Court exceeded its jurisdiction while exercising powers under Order 41, Rule 33 of the Code by modifying the decree passed by the trial Court. Such course is not permissible in law. The substantial question of law as framed is answered by holding that in absence of any cross objections, the decree passed by the trial Court cannot be modified or altered by the first Appellate Court.
As regards challenge to the other findings that have been recorded by the trial Court and confirmed by the first Appellate Court, the same are based on relevant evidence on record. By re-appreciating said evidence, no different conclusion can be drawn in a second appeal.
Hence, the following order is passed:
(a) The judgment dated 31-8-2013 passed by the learned District Judge-1, Nagpur in Regular Civil Appeal No. 510 of 2009 to the extent it dismisses the appeal filed by the original defendant No. 1 stands confirmed.
(b) The order passed by the first Appellate Court to the extent it declares the sale deed dated 8-1-1990 (Exhibit-54) to be null and void is set aside.
(c) It is clarified that it would be open for the plaintiffs to rely upon the findings recorded by the trial Court against Issue No. 6B in the judgment dated 8-9-2009 in accordance with law.
(d) The second appeal is partly allowed in aforesaid terms. There would be no order as to costs.
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