Read Order: Suresh Kumar Kankariya v. K.Jigibai @ Pushpammal 

Tulip Kanth

New Delhi, April 29, 2022: The Madras High Court has recently opined that after the amendment to Order XLI Rule 22 of CPC, the right created for filing a cross-objection against an adverse finding is mandatory only where the decree is partly in favour and partly against the respondent.

The Bench of Justice N. Anand Venkatesh observed that when the decree is entirely in favour of the respondent, though there is a finding against the respondent, he need not file a cross-appeal or a cross-objection and the adverse findings can be challenged in the appeal filed by the other party and the Court is entitled to decide the same. 

Herein, the plaintiff is the appellant in both the Second Appeals. The appellant filed a suit seeking relief of permanent injunction (Suit 1) and another suit was filed seeking for the relief of specific performance(Suit 2).The case of the plaintiff was that he entered into an agreement of sale with the defendant. As per the sale agreement, the total sale consideration was fixed at Rs. 3,00,000  and the plaintiff paid a sum of Rs 2,00,000 as advance on the date of the agreement. Later, the defendant agreed to register a sale deed in favour of the plaintiff. 

According to the plaintiff, through a receipt dated September 15, 2001, the defendant received a further sum of Rs.85,000  and agreed to receive the balance amount of Rs.15,000 from the plaintiff while executing the sale deed in favour of the plaintiff. The plaintiff claimed that by virtue of this receipt, the time was extended without fixing any time period.

The grievance of the plaintiff was that he was ready and willing to pay the balance sale consideration and the defendant was evading the execution of the sale deed.When a notice was issued, the defendant denied executing any sale agreement in favour of the plaintiff. Suit 1 was filed because an attempt was made by the defendant to sell the property to third parties and Suit 2 was filed seeking for the relief of specific performance.

The Trial Court decreed both the suits which was also confirmed in the appeal through Judgment and Decree dated April 30,2008. Aggrieved by the same, the defendant filed two Second Appeals before this Court but the same was remitted to the file of the Lower Appellate Court. The Lower Appellate Court allowed both the appeals through a Common Judgment. Aggrieved by the same, the plaintiff had filed these Second Appeals.

At the outset, the Court considered the scope of Order XLI Rule 22 CPC which deals with cross- objection and opined that by virtue of Order XLII Rule 1 CPC, the Rules under Order XLI will apply even to Second Appeals. In view of the same, this Court had to render a finding as to whether the respondent was entitled to question an adverse finding against him in the Second Appeal filed by the plaintiff, without filing a cross-objection. 

The issue which arose before this Court was whethe whether the respondent/defendant could question the adverse findings in the Second Appeal filed by the plaintiff.

Referring to a plethora of judgments and holding that this issue is no longer res integra, the Bench said, “It is clear from the above judgments that the necessity to file a cross-appeal or a cross-objection will arise only when the impugned decree is partly in favour and partly against the respondent. Where the decree is entirely in favour of the respondent, though there is a finding against the respondent, he need not file a cross-appeal or a cross-objection and the adverse findings can be challenged in the appeal filed by the other party and the Court is entitled to decide the same. Even after the amendment that was brought in the year 1976 and an explanation was added to Order XLI Rule 22 of CPC and a right was created for filing a cross-objection against an adverse finding, the same is mandatory only where the decree is partly in favour and partly against the respondent.”

Hence, the Court concluded that the decree passed by the Lower Appellate Court was entirely in favour of the respondent and hence the respondent was entitled to question the adverse findings on the issue of Order II Rule 2 CPC rendered by the Lower Appellate Court, in the Second Appeal filed by the plaintiff. So, there was no requirement for this Court to go into the scope of Order XLI Rule 33 of CPC to analyze if this provision could be invoked in the absence of a cross-objection filed by the respondent against adverse findings rendered by the Lower Appellate Court. 

Affirming that the plaintiff cannot split up the claim so as to omit one part of the claim and sue for the other if the cause of action is available for all the claims, the Bench also held that the subsequent suit 2 filed was barred by Order II Rule 2 of CPC. This was  in view of the fact that the plaintiff could have claimed the relief of specific performance even when the earlier suit was filed since the cause of action was available. The plaintiff failed to seek for the larger relief and also omitted to take leave of the Court when the earlier suit was filed seeking for the lesser relief of permanent injunction. It was noted by Justice Venkatesh that the findings rendered otherwise by the Lower Appellate Court were unsustainable and was liable to be interfered with by this Court.

The Bench held that the findings rendered by the Lower Appellate Court on the merits of the case against the plaintiff did not warrant any interference as the Lower Appellate Court while dealing with the merits of the case, appreciated the oral and documentary evidence available on record and came to a clear conclusion that the receipt was a fabricated document which was created by the plaintiff only to escape from limitation. Hence, this Court could not once again re-appreciate the evidence while exercising its jurisdiction under Section 100 of CPC.

On the issue of limitation, the Bench opined if the receipt is eschewed, then the suit ought to be filed within 3 years from the expiry of the time fixed under the agreement. The suit for specific performance was filed much beyond the period of limitation. Referring to the judgment of the Division Bench of this Court in K. Murali Vs. M. Mohamed Shaffir,2020 (1) CTC 38, the Bench opined that the first part of Article 54 of the Limitation Act will apply to the facts of the present case. Opining that the limitation begins to run from the date the parties have stipulated for performance of the contract, the Bench held that the finding rendered by the Lower Appellate Court on this issue was perfectly in accordance with law and did not warrant any interference. 

Finding no merits in these Second Appeals, the Bench dismissed both the Second Appeals.

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