Holding

A cross‑objection by a respondent against a co‑respondent is maintainable under Order 41 Rule 22, and if not, the court may entertain it under Order 41 Rule 33.

Summary

The Math (Mahant Dhangir) challenged earlier alienations of its property made by a former Mahant, Lalgiri, which included a 99‑year lease and a sale to Madan Mohan. The trial court declared the lease void but denied possession; the High Court Single Judge declared the sale void but gave no possession decree, and upheld Madan Mohan’s claim on the lease as barred by limitation. Respondents 2 and 3 appealed, and the Math filed a cross‑objection against both the appellants and Madan Mohan. The Division Bench dismissed the cross‑objection as non‑maintainable. The Supreme Court examined whether a cross‑objection by a respondent against a co‑respondent is permissible under Order 41 Rule 22 CPC and, if not, whether Order 41 Rule 33 CPC can be invoked. It held that the cross‑objection is maintainable under Rule 22 and, alternatively, the Court may entertain it under Rule 33, rejecting the High Court’s dismissal. Consequently, the appeal was allowed, the Division Bench’s judgment reversed, and the cross‑objection restored for disposal.

Issues considered

Whether a cross‑objection filed by a respondent (the Math) against a co‑respondent (Madan Mohan) is maintainable under Order 41 Rule 22 of the CPC.
Whether, if not maintainable under Rule 22, the appellate court can entertain the objection under Order 41 Rule 33 of the CPC.

Legislation cited

Code of Civil Procedure, 1908s. Order 41 Rule 22, s. Order 41 Rule 33

Subjects

cross‑objectionmaintainabilityOrder 41 Rule 22Order 41 Rule 33civil appealproperty lawleasesaleappellate jurisdiction

Judgment

MAHANT DHANGIR AND ANOTHER
A
v.
MADAN MOHAN AND OTHERS

OCTOBER 28, 1987

[B.C. RAY AND K. JAGANNATHA SHETTY, JJ.) B
--k Question regarding maintainability of cross-objection in appeal--

-
Order 41, rules 22 and 33 of Civil Procedure Code-Applicability
thereof.

There is a Math known as Juna Math in Bikaner. The first appel-
- ,--l lant is the present Mahant of the Math and the second appellant is the C
-presiding deity of the Math, both referred to collectively as 'the Math',
herein.

Previously, one Lalgiri Maharaj was the Mahant of the Math. He
mismanaged the Math and disposed of its properties. On August 19, o
1963, he gave on lease for 99 years land measuring 2211 sq. yards in
favour of Madan Mohan, the respondent No. l. On March 22, 1968, he
sold to Madan Mohan 446 sq. yards of land out of the land leased to
him. Madan Mohan constructed shops on the land purchased and sold
them to Jankidas and Mohan Lal, who are respondents Nos. 2 and 3_.
Then Madan Mohan sold another piece of land purchased from Lalgirl E
to the respondents Nos. 2 and 3.

- Later, the first appellant became the Mahant of the Math, and the
Math filed a suit, challenging the alienations made by Lalgirl, and for a
declaration that the said alienations were without authority and not
binding on the Math and for possession of the property from the respon- F
_~ dents l to 3. The trial Court decreed the suit in part only, as it gavl' a
- declaration that the lease deed dated August 19, 1963, was uull and
void, but the relief regarding possession of the land demised was
rejected. The suit for recovery of possession of the land sold by Lalgirl
was also dismissed.
G
Against the judgment of the Trial Court, two appeals one by the
Math amj the other, by Madan Mohan-were filed before the High
'>""' Court. By a common judgment in the two appeals, a Single Judge of the
High Court (i) allowed the appeal of the Math in part, giving a simple
declaration that the sale of the land was void, bot declining to pass a
decree for possession of the land sold, and (ii) allowed the appeal fl H
679
680 SUPREME COURT REPORTS [1988] 1 S.C.R.

Madan Mohan, giving him complete relief, while holding that the suit
A
as to the lease was barred by time.

Against the judgment of the Single Judge, no appeal was filed
either by the Math or by Madan Mohan. There was-only an appeal filed
bY. respondents 2 and 3, who impleaded the Math as the first respondent
B and Madan Mohan, as the third respondent. The Math preferred cross-
objection. Madan Mohan did not do any thing. The Division Bench of
High Court dismissed the appeal on the merits. It also dismissed the
cross-objection on the ground of maintainability. Aggrieved by the dis-
missal of the cross-objection, the Math appealed to this Court for relief
by special leave.
c Allowing the appeal, the Court,

HELD: The Single Judge invalidated the sale of the property to
Madan Mohan, while denying a decree for possession. The appellants
before the Division Bench wanted to get rid of the finding as to the
D invalidity of the sale. The Math wanted to recover possession of the
property from the appellants before the Division Bench, and Madan
Mohan. The Math instead of filing an a11peal for that relief, could as
well tile the cross-objection. That is clear from the provisions of R. 22 of
0.41, C.P.C. The High Court was clearly in error in holding to the
contrary. [684G-H]
E
The next question for consideration was whether the cross-
objection was maintainable against Madan Mohan, a co-respondent,
and if not, whether the Court could call into aid R. 33, 0.41 C.P.C. -
Generally, the cross-objection could be urged against the appellant. It is
only by way of exception to this general rule that one respondent may
F urge objection as against the other respondent. The type of such excep- ,
tional cases are very much limited-when an appeal cannot be effec- )-
lively disposed of without opening the matter as between the respon-
dents inter se, or when there is a case where the objections are common
as against the appellants and the co-respondent. This law has been laid
down by this Court in Panna Lal v. State of Bombay, [1964) I SCR 980
G at 991. This view has been accepted as a guide for more than two
decades. No attempt should be made to unsettle the law unless there is a
compelling reason. The Court does not find any such compelbng reason
in the case. [685A, H; 686A-B; 687A-Bl ~

The Math could urge the objection that the appellants before the
H Division Bench and Madan Mohan had no right to retain the property
MAHANT DHANGIR v. MADAN MOHAN 681

. after the sale deed had been declared null and void. The validity of the
"1'" A
lease deed and the possession of the land in pursuance thereof, has to be
determined only against Madan Mohan. It is not intermixed with the
right of the appellants above-said. It has no relevance to the question
raised in the appeal. The High Court was right in holding that the
cross-objection as to the lease was not maintainable against Madan
Mohan. But that does not mean that the Math should be left without a B
remedy against the judgment of the Single Judge. If the cross-objection
filed under R. 22 of 0.41, C.P.C. was not maintainable against the
co-respondent, the Court could consider it under R. 33, 0.41, C.P.C. R.
22 and R. 33 are not mutually exclusive. They are closely related with
each other. If objection cannot be urged under R. 22 against co-
respondent, R. 33 could take over and help the objector. The appellate
Court could exercise that power in favour of all or any of the respon- c
J
J.... dents even though such a respondent may not have tiled any appeal or
objection. The sweep of the power under R. 33 is wide enough to de-
termine any question not only between the appellant and the respondent
but also between a respondent and co-respondents. The appellate Court
could pass any decree or order which ought to have been passed in the D
circumstances of the case. The appellate Court could also pass such
other decree or order as the case may require. The words "as the case
may require" used in R. 33 of 0.41, have been put in wide terms to
enable the appellate Court to pass any order or decree to meet the ends
....(
of justice. This Court is not giving any liberal interpretation. The rule
itself is liberal enough. The only constraint that could be seen, may he: E
that the parties before the lower Court should be there before the
appellate Court, the question raised most properly arise out of the
judgment of the lower Court; it may be urged by any party to the
appeal. It is true that the power of the appellate Court under R. 33 is
discretionary, hut it is a proper exercise of judicial discretion to
determine all the questions urged in order to render complete justice F

-'- between the parties. The Court should not refuse to exercise that discre-
lion on mere technicalities. [687B-H; 688A-B]

Appeal allowed. The judgment and decree of the Division Bench
of the High Court reversed. The Division Bench to restore the appeal
and cross-objection of the parties and dispose of the same in accordance
G
with law and in the light of the observations made. [688C]

, CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1018
of 1987.

From the Judgment and Order dated 3. I.1985 of the Rajasthan
H
682 SUPREME COURT REPORTS [1988J 1 S.C.R.

A High Court in D.B. Civil Special Appeal No. 20 of 1975.

Badri Das Sharma and B.N. Purohit for the Appellants.

Avadh Behari Rohtagi, S.N. Kumar and N.N. Sharma for the
Respondents.
B
The Judgment of the Court was delivered by

JAGANNATHA SHETTY, J. In the town of Bikaner there is a
Math known as 'Juna Math'. The first appellant is the present Mahant
of the Math. The second appellant is the presiding deity of the Math.
For convenience and brevity we will refer to them collectively as 'the \
C: Math'. ~

The primary question raised in this appeal, by special leave,
relates to maintainability of the cross objection filed by the Math
before the Division Bench of the High Court of Rajasthan (Jodhpur
D Bench) in Civil Appeal No. 20 of 1975. The Division Bench has dismis-
sed the cross-objection as not maintainable.

The background facts are these:

One Lalgiri Maharaj was a previous Mahan! of the Math. He had
E several vices. He mismanaged the Math and recklessly disposed
of its properties. On August 19, 1963 Lalgiri gave on lease_ the
land measuring 2211 Sq. yards in favour of Madan Mohan. The
lease was for 99 years with monthly rent of Rs. 30. Again on
March 22, 1968 Lalgiri sold 446 sq. yards of land to Madan
Mohan. It was out of the land which was already leased to Madan
F Mohan. The sale was for Rs.4,000 Madan Mohan constructed
'
some shops on a portion of the land purchased. He first, rented _)
the shops to Jankidas and Mohan Lal and later sold the same to
them for ~s.15,000. Madan Mohan is the first respondent,
Jankidas and Mohanlal are respondents 2 and 3 before us. There
was yet another transaction between the same parties. On April
8, 1969 Madan Mohan sold a piece of land measuring 124 sq.
0 yards to respondents 2 and 3 for Rs.1,500. This piece of land
forms part of the land which Madan Mohan purchased from
Lalgiri.

In the meantime, there was change of guard in the Math. Lalgiri
H was said to have abdicated Mahantship in favour of the first appellant.
MAHANT DHANGIR v. MADAN MOHAN (SHETTY, J.] 683

The Math thereafter filed Suit No. 28 of 1971 challenging the aliena- A
lions made by Lalgiri. The suit was for declaration that the alienations
were without authority and not binding on the Math. It was also for
possession of the property from respondents 1 to 3. The trial court
decreed the suit in part. The trial court gave only a declaration that the
lease deed dated August 19, 1963 was null and void. But the relief for
possession of the land demised was rejected. The suit for recovery of B
possession of the land sold by Lalgiri was also dismissed.

Against the judgment and decree of the trial court, there were
two appeals, before the High Court, one by the Math and another by
Madan Mohan. Both the appeals came for disposal before the learned
I single judge. By .a common judgment dated July 14, 1975 learned
judge allowed the .appeal of the Math in part. He gave a simple decla- C
--l ration that the sale was void. He, however, did not give a decree for
possession of the land sold. The learned judge also allowed the appeal
of Madan Mohan. There he gave him complete relief. He held that the
suit as t.o the lease was barred by time. The result was that the Math
could not get back even an inch of land. o
Against the judgment of learned single judge there was no ap-
peal from,the Math or Madan Mohan. There was only one appeal by
respondents 2 and 3 being the Appeal No. 20 of 1975. Madan Mohan
was impleaded as the third respondent in that appeal. The Math was
impleaded as the first respondent. The Math preferred cross-objec- E
tion. Madan Mohan did not do anything. He was perhaps completely

- satisfied with the judgment of learned single judge. The Division
Bench by judgment dated January 3, 1985 'dismissed the appeal on the
merits. The Division Bench also dismissed the cross-objection but on
the ground of maintainability. The correctness of the dismissal of the
cross-objection has been called into question in this appeal. F

The High Court gave two reasons for rejecting the cross-
objection. The first reason relates to the absence of appeal from
Madan Mohan or by the Math against the judgment of learned single
Judge. The High Court observed: "Thus the lease is good. If Madan
Mohan had filed an appeal, then the cross-objection wc;mld be compe- G
tent. The cross-objection filed by the plaintiffs are not competent,
wherein it has been prayed that the lease deed may be declared invalid
">x, and ineffective against the rights of the plaintiffs." The second reason
given by the High Court relates to 0.41 R. 33 CPC for giving relief to
tl'ie Math. The High Court said: "That having regard to the facts of the
the case 0.41 R. 33 CPC cannot be called into aid. That provi~on H
684 SUPREME COURT REPORTS [ 1988] I S.C.R.

A should be applied with care and caution. The Court should not lose
sight of the other provisions in the Code of Civil Procedure. It should
not also forget the law limitation and the Court Fees Act."

Before us, Mr. B .D. Sharma, learned counsel for the appellant
pursued both the reasons given by the High Court. Counsel asserted
B that the cross-objection was maintainable not only against the appel-
lants but also against Madan Mohan. The counsel also urged that in
any event, the cross-objection ought to have been considered if not
under 0.41 R. 22 but under 0.41 R. 33 of the CPC. Mr. Rohtagi,
learned counsel for the respondents, advanced an interesting submis-
sion. He urged that the land sold was a part of the land already leased
to Madan Mohan. Even if the sale goes as invalid, the lease of the
C entire land revives and remains. So long as the lease remains binding
between the parties, Madan Mohan would be entitled to retain posses-
sion of the entire land demised. The counsel urged that it would
be, therefore, futile for the Math to seek possession of the property
from the appellants in the cross-objection.
D
The assumption of Mr. Rohtagi though logical if not legal should
be subject to the decision in the cross-objection. We must, therefore,
examine the validity of the cross-objection and the contentions raised
therein. It will be seen that the cross-objection filed by the Math was
to the entire judgment of learned single judge. Therein, the Math
E raised two principal grounds. The first related to the denial of decree
for possession of property which was the subject matter of sale. It was
contended that the Math would be entitled to possession of that prop-
erty when the sale was declared as null and void. The second ground
was in regard to validity of the l~ase and the dismissal of the suit in
respect thereof. It was contended that the suit in regard to the lease
F was not barred by limitation.
)-
. Different considerations, however, apply to the different points
raised in the cross-objection. We will first consider the right of the
Math to file cross-objection against the appellants. The learned single
judge has invalidated the sale of property to Madan Mohan while
G denying a decree for possession. The appellants before the Division
Bench wanted to get rid of the finding as to invalidity of the sale. The
Math in turn, wanted to recover possession of that property from the
appellants and Madan Mohan. The Math instead of filing an appeal for
that relief could as well take the cross-objection. That would be clear
from the provisions of R. 22 of 0. 41 CPC. That is as plain as plain can
H be. The High Court was clearly in error in holding to the contrary.
MAHANT DHANGIR v. MADAN MOHAN [SHETIY, J.J 685

The next question for consideration is whether the cross-
objection was maintainable against Madan Mohan, the co--respon- A
dent, and if not, whether the Court could call into aid 0.41 R. 33 CPC.
For appreciating the contention it will be useful to set out hereunder
R. 22 and R. 33 of Order 41:

"R. 22 Upon hearing, respondent may object to decree as B
if he had preferred separate appeal.

- )
- -1__
( 1) Any respondent, though he may not have appealed
from any part of the decree, may not only support the
decree (but may also state that the finding against him in
the Court below in respect of any issue ought to have been
in his favour, and may also take any cross-objection) to C
the decree which he could have taken by way of appeal,
provided he has filed such objection in the Appellate Court
within one month from the date of service on him or his
pleader of notice of the day fixed for hearing the appeal, or
within such further time as the Appellate Court may see fit o
to allow.

xxx xxx xxx xxx xxx
R. 33 Power of Court of Appeal.
E
The Appellate Court shall have power to pass any decree

- ,
and make any order which ought to have been passed or
made and to pass or make such further other decree or
order as the case may require, and this order may be exer-
cised by the Court notwithstanding. that the appeal is as to
part only of the decree and may be exercised in favour of all F
.\ or any of the respondents or parties may not have filed any
appeal or objection and may, where there have been
decrees in cross suits or where two or more decrees are
passed in one suit, be exercised in respect of all or any of
the decrees, although an appeal may not have been filed
against such decree.
G
xxx xxx xxx xxx xxx"
G~nerally, the cross-objection could be urged against the appel-
lant. It 1s only by way of exception to this general rule that one respon-
dent may urge objection as against the other respondent. The type' of H
686 SUPREME COURT REPORTS [1988] l S.C.R.

A such exceptional cases are also very much limited. We may just think
of one or two such cases. For instance, when the appeal by some of the
parties cannot effectively be disposed of withoat opening of the matter
as between the respondents interse. Or in a case where the objections
are common as against the appellant and co-respondent. The Court in
such cases would entertain cross-objection against the co-respondent.
!l The law in this regard has been laid down by this Court as far back in
1964 in Panna Lal v. State of Bombay, [ 1964J 1 SCR 980 at 991. After
reviewing all the decisions of different High Courts, there this Court

c
observed:

"In our opinion, the view that has now been accepted by all
the High Courts that Order 41, r. 22 permits as a general
-
rule, a respondent to prefer an objection directed only
against the appellant and it is only in exceptional cases,
such as where the relief sought against the appellant in such
an objection is intermixed with the relief granted to the
D other respondents, so that the relief against the appellant
cannot be granted without the question being re-opened
between the objecting respondent and other respondents,
that an objection under 0.41 R. 22 can be directed against
the other respondents, is correct. Whatever may have been
the position under the old S. 561 the use of the word
E "cross-objection" in 0.41 R. 22 expresses unmistakably the
intention of the legislature that the objection has to be

F
directed against the appellant. As Rajamannar C.J. said in
Venkataswaralu v. Ramanna: "The legislature by descril:--
ing the objection which could be taken by the respondent
as a "cross-objection" must have deliberately adopted the
view of the other High Courts. One cannot treat an objec-
-
tion by a respondent in which the appellant has no interest )--
as a cross-objection. The appeal is by the appellant against
a respondent, the cross-objection must be an objection by a
respondent against the appellant." We think, with respect,
that these observations put the matter clearly and correc-
G tly. That the legislature also wanted to give effect to the
views held by the different High Courts that in exceptional
cases as mentioned above an objection can be preferred by
a respondent against a co-respondent is indicated by the
substitution of the word "appellant" in the third paragraph
by the words "the party who may be affected by such
H objection."
MAHANT DHANGIR v. MADAN MOHAN [SHETTY, J.] 687

This view has been there as a guide for a little over two decades. A
We should not add anything further at this stage. The law should be
clear and certain as a guide to human behaviour. No attempt should be
made to unsettle the law unless there is compelling reason. We do not
find any such compelling reason and we, therefore, reiterate the above
principles.
B
Basically, the first question raised in the eross-objection relates
to the right of Madan Mohan to retain the property under the sale
deed. The appellants are the second purchasers. The Math, therefore,
could urge the objection that the appellants and Madan Mohan have
no right to retain the property after the sale deed was declared null and
i void. But then the considerations as to the lease deed is quite diffe-
,l rent. The validity of the lease deed and the possession of the land C
thereof has to be determined only against Madan Mohan. It is not
intermixed with the right of the appellants. It has no relevance to the
question raised in the appeal. The High Court was, therefore, right in
holding that the cross-objection as to the lease was not maintainable
against Madan Mohan. D

But that does not mean, that the Math should be left without
remedy against the judgment of learned single judge. If the cross-
objection filed under R. 22 of 0.41 CPC was not maintainable against
the co-respondent, the Court could consider it under R. 33 of 0.41
CPC. R. 22 and R. 33 are not mutually exclusive. They are closely E
related with each other. If objection cannot be urged under R. 22
against co-respondent, R. 33 could take over and come to the rescue of
the objector. The appellate court could exercise the power under R. 33
even if the appeal is only against a part of the decree of the lower
court. The appellate court could exercise that power in favour of all or
any of the respondents although such respondent may not have filed F
any appeal or objection. The sweep of the power under R. 33 is wide
enough to determine any question not only between the appellant and
respondent, but also between respondent and co-respondents. The
appellate court could pass any decree or order which ought to have
been passed in the circumstances of the case. The appellate court
could also pass such other decree or order as the case may require. The G
words "as the case may require" used in R. 33 of 0. 41 have been put in
wide terms to enable the appellate court to pass any order or decree to
meet the ends of justice. What then should be the constraint? We do
not find many. We are not giving any liberal interpretation. The rule
itself is liberai enough. The only constraint that we could see, may be
these: That the parties before the lower court should be tberebefore H
688 SUPREME COURT REPORTS [ 1988] l S.C.R.

A the appellate court. The question raised must properly arise out of the
judgment of the lower court. If these two requirements are there, the
appellate Court could consider any objection against any part of the
judgment or decree of the lower court. It may be urged by any party to
the appeal. It is true that the power of the appellate court under R. 33
is discretionary. But it is a proper exercise of judicial discretion to
B
determine all questions urged in order to render complete justice
between the parties. The Court should not refuse to exercise that
discretion on mere technicalities.

In the result, we allow the appeal and reverse the judgment and
decree of Division Bench of the High Court. The Division Bench shall
c now restore the appeal and cross-objection of the parties and dispose
of the same in accordance with law and in the light of observations
made.

The appellants shall get the cost of this appeal.
D S.L. Appeal allowed.

...

·"I<.'.
, ~'.(