Karnataka High Court
Jambalamma W/O Late S. Ramalu vs T. Ramanna Reddy S/O Rosna Reddy on 27 November, 2015
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF NOVEMBER, 2015
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
RSA CROB NO.103/2011
BETWEEN:
1. SMT. JAMBALMMA
W/O LATE S. RAMULU
AGE: 75 YEARS
OCC: AGRICULTURE
R/O KAL-THIMANNADODDI VILLAGE
GATTU MANDAL
DIST. MAHEBOOB NAGAR
STATE ANDRA PRADESH
2. SANKATI RANGAPPA
S/O LATE S. RAMALU
AGE: 40 YEARS
OCC: AGRICULTURE
R/O KAL-THIMANNADODDI VILLAGE
GuTTU MANDAL
DIST. MAHEBOOB NAGAR
STATE ANDRA PRADESH
... CROSS OBJECTORS
(BY SRI J. AUGUSTIN AND SRI SANJAY A. PATIL, ADVS.)
AND:
1. T. RAMANA REDDY
S/O ROSHA REDDY
2
AGE: 57 YEARS
OCC: AGRICULTURE
PRESENTLY R/O MOGALIKATTA
OPP: SYNDICATE BANK
RAPUR VILLAGE AND MANDALAM
NELLORE DISTRICT
STATE ANDRA PRADESH
2. M. VENKAT SWAMI S/O TIMMANA
SINCE DEAD BY HIS L.Rs.
A) SMT. LAXMI DEVI
W/O LATE M. VENKATA SWAMI
AGE: 55 YEARS, OCC: H.H. WORK
B) SMT. JANARANI
W/O GOPAL KRISHNA
AGE: 37 YEARS, OCC: H.H. WORK
C) SMT. RADHA RANI
W/O R. NARAYAN
AGE: 38 YEARS
OCC: H.H. WORK
D) M. VIJENDRA
S/O LATE M. VENKATA SWAMY
AGE: 36 YEARS
OCC: AGRICULTURE
E) M. VASANT KUMAR
S/O LATE M. VENKATA SWAMY
AGE: 34 YEARS, OCC: AGRICULTURE
ALL R/O CHINA AGRAHARAM
GADWAL, DIST. MEHBOOBNAGAR
STATE ANDRA PRADESH
... RESPONDENTS
(SRI R.S. SIDHAPURKAR, ADV. FOR R2(A);
R2(B) TO R2(E) ARE SERVED)
3
THIS RSA CROB IN RSA NO.7530/10 IS FILED U/O 41
RULE 22 AND 107(B) OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 07.09.2010 PASSED IN R.A.NO.103/2009 ON
THE FILE OF THE FAST TRACK COURT-I AT RAICHUR. WHEREIN,
THE APPEAL WAS DISMISSED AND THE JUDGMENT AND
DECREE DATED 10.09.2009 PASSED IN O.S.NO.211/2002 ON
THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN.) AND J.M.F.C AT
RAICHUR WAS CONFIRMED.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The respondent No.1 instituted O.S.No.211/2002 in the Court of Addl. Civil Judge (Sr.Dn.) at Raichur, on 23.04.2002 to pass a decree of specific performance of an agreement of sale dated 20.08.2001 (Ex.P1) executed by the defendant/T. Ramana Reddy. During the pendency of the suit, a portion of the property was sold by defendant No.1, to S. Ramulu, husband of the defendant No.2. The pendentilite purchaser was impleaded as the additional defendant. The suit having been contested, issues and additional issues were raised. Both parties having adduced evidence, after appreciation of the rival contentions, suit was decreed. The plaintiff having passed away, defendant 4 No.1 was directed to execute the sale deed in favour of the L.Rs. of deceased plaintiff and put them in possession of the suit property. It was declared that the sale deed dated 17.02.2004 executed by defendant No.1, in favour of S. Ramulu and registered in the office of Sub-Registrar at Manvi, as null and void.
2. Defendant No.1 filed R.A.No.103/2009 in the Dist. Court at Raichur. Other defendants did not question the decree passed by the trial Court. There was neither any appeal nor cross objection by them, as against the decree of specific performance and the declaration with regard to sale deed dated 17.02.2004 passed by the trial Court. Considering the rival contentions and on independent assessment of the evidence, the appeal was found to be devoid of merit and was dismissed by a judgment and decree dated 07.09.2010.
3. The 1st defendant filed RSA No.7530/2010, assailing the aforesaid decrees, by impleading the L.Rs. of 5 the plaintiff and also the defendant Nos.2 and 3 in the suit, as the respondents. Respondent Nos.2 and 3 in RSA No.7530/2011 were represented by their advocate. After hearing the learned advocates, judgment and decree dated 22.01.2013, the second appeal has found to be involving no substantial question of law for consideration and being devoid of merit was dismissed.
4. The defendant Nos.2 and 3 filed this cross objection on 29.08.2011. The cross objection being defective, four weeks time was granted to comply with office objections on 22.02.2012. The period was extended on 28.05.2012 and again on 05.11.2012 subject to payment of cost. There was no appearance on 15.11.2012. The costs was deposited ands office objection was complied with. The fact of filing cross objection was not brought to the notice of this Court,s when RSA No.7530/2010 was decided on 22.01.2013. 6
5. Sri J. Augustin, learned advocate for the cross objectors contended that the impugned decrees are bad and illegal on account of ignoring the provision under Section 16(c) of the Specific Relief Act and the failure of the plaintiff to show the continued readiness and willingness to perform his part of the contract and hence, a substantial question of law raised in the cross-objection having arisen, the cross objection is maintainable.
6. Sri R.S. Sidhapurkar, learned advocate for the L.Rs. of deceased plaintiff/respondent Nos.2 (a-e) herein, contended that the appellants having not questioned the decree passed by the trial Judge on 10.09.2009 and having also not brought to the notice of this Court, the fact of filing the cross-objection, when RSA No.7530/2010 was decided, do not have the right to prosecute the cross objection. He submitted that in the facts and circumstances of the case, the cross objection being not maintainable, is liable to be rejected. 7
7. There is no dispute that the cross objectors did not question the decree passed against them in O.S.No.211/2002, on 10.09.2009, by the Addl. Civil Judge (Sr.Dn.) at Raichur. Sri J. Augustin, learned advocate, did not contend that the filing of this cross objection was brought to the notice of this Court when RSA No.7530/2015 was dismissed on 22.01.2013. This cross objection having been filed on 29.08.2011, it was the duty of the cross objectors to have brought to the notice of this Court, when RSA No.7530/2015 was taken up for consideration and decided on 22.01.2013. For reasons best known, there is suppression fact of filing of the cross objection, when RSA No.7530/2015 was heard and dismissed vide judgment and decree dated 22.01.2013.
8. In the case of BANARSI AND OTHERS V. RAM PHAL, reported in AIR 2003 SC 1989, the appeal having arisen out of a suit for specific performance, the Apex Court has held that, if the impugned decree is; partly in 8 favour of the appellant and partly in favour of the respondent, it was for the respondent to file an appeal or take cross-objection against that part of the decree which is against him, if he seeks to get rid of the same though that part of the decree which is in his favour; he is entitled to support without taking any cross-objection and that there is no change of law, post amendment to, after the amended Act 104/1976 with effect from 1-2-1977 was made to CPC. Considering a case relating to suit for specific performance, wherein either the main relief or alternative relief can be granted and the effect of not challenging one of the reliefs to which the suit is decreed, either by filing the appeal or cross-objection, it has been held as follows:
"12. The fact remains that to the extent to which the decree is against the respondent and he wishes to get rid of it he should have either filed an appeal of his own or taken cross-objection failing which the decree to that extent cannot be insisted on by the respondent for being interfered, set aside or modified to his advantage. The law continues to remain so post-1976 amendment. In a suit seeking specific performance of an agreement to sell 9 governed by the provisions of the Specific Relief Act, 1963 the Court has a discretion to decree specific performance of the agreement. The plaintiff may also claim compensation under Section 21 or any other relief to which he may be entitled including the refund of money or deposit paid or made by him in case his claim for specific performance is refused. No compensation or any other relief including the relief of refund shall be granted by the Court unless it has been specifically claimed in the plaint by the plaintiff. Certainly the relief of specific performance is a larger relief for the plaintiff and more onerous to the defendant compared with the relief for compensation or refund of money. The relief of compensation or refund of money is a relief smaller than the relief of specific performance. A plaintiff who files a suit for specific performance claiming compensation in lieu of or in addition to the relief of specific performance or any other relief including the refund of any money has a right to file an appeal against the original decree if the relief of specific performance is refused and other relief is granted. The plaintiff would be a person aggrieved by the decree in spite of one of the alternative reliefs having been allowed to him because what has been allowed to him is the smaller relief and the larger relief has been denied to him. A defendant against whom a suit for specific performance has been decreed may file an appeal seeking relief of specific performance being denied to the plaintiff and instead a decree of smaller relief such as that of compensation or refund of money or any other relief being granted to the plaintiff for the former is larger relief and the latter is smaller relief. The defendant would be the person aggrieved to that extent. It follows as a necessary corollary from the abovesaid statement of law that in an appeal filed by the defendant laying challenge to the relief of compensation or refund of money or any other 10 relief while decree for specific performance was denied to the plaintiff, the plaintiff as a respondent cannot seek the relief of specific performance of contract or modification of the impugned decree except by filing an appeal of his own or by taking cross objection.
13. We are, therefore, of the opinion that in the absence of cross appeal preferred or cross- objection taken by the plaintiff-respondent the first appellate court did not have jurisdiction to modify the decree in the manner in which it has done. Within the scope of appeals preferred by the appellants the first appellate court could have either allowed the appeals and dismissed the suit filed by the respondent in its entirety or could have deleted the latter part of the decree which granted the decree for specific performance conditional upon failure of the defendant to deposit the money in terms of the decree or could have maintained the decree as it was passed by dismissing the appeals. What the first appellate court has done is not only to set aside the decree to the extent to which it was in favour of the appellants but also granted an absolute and out-and-out decree for specific performance of agreement to sell which is to the prejudice of the appellants and to the advantage of the respondent who has neither filed an appeal nor taken any cross-objection.
Considering the contention with regard to the power conferred by Rule 33 of Order 41, cpc, it was held as follows:
15. . . . . . Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees 11 would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the Court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party.
A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 of Order 41.
XXXX XXX XXX XXX
21. In the case before us, the trial court found the plaintiff (in his suit) not entitled to decree for specific performance and found him entitled only for money decree. In addition, a conditional decree was also passed directing execution of sale deed if only the defendant defaulted any paying or depositing the money within two months. Thus to the extent of specific performance, it was not a decree outright; it was a conditional decree. Rather, the latter part of the decree was a direction in terrorem so as to secure compliance by the appellant of the money part of the decree in the scheduled time frame. In the event of the appellant having made the payment within a period of two months, the respondent would not be, and would never have been, entitled to the relief of specific performance. The latter decree is not inseparably connected with the former decree. The two reliefs are surely separable from each other and one can exist without the 12 other. Nothing prevented the respondent from filing his own appeal or taking cross-objection against that part of the decree which refused straightaway a decree for specific performance in his favour based on the finding of comparative hardship recorded earlier in the judgment. The dismissal of appeals filed by the appellant was not resulting in any inconsistent, iniquitous, contradictory or unworkable decree coming into existence so as to warrant exercise of power under Rule 33 of Order 41. It was not a case of interference with decree having been so interfered with as to call for adjustment of equities between respondents inter se. By his failure to prefer an appeal or to take cross-objection the respondent has allowed the part of the trial court's decree to achieve a finality which was adverse to him.
22. For the foregoing reasons we are of the opinion that the first appellate court ought not to have, while dismissing the appeals filed by the defendant-appellants before it, modified the decree in favour of the respondent before it in the absence of cross-appeal or cross-objection. The interference by the first appellate court has reduced the appellants to a situation worse than in what they would have been if they had not appealed. The High Court ought to have noticed this position of law and should have interfered to correct the error of law committed by the first appellate court."
9. The said decision was followed by this Court in RSA No.1088/2003 decided on 22.10.2008 and it was held as follows:
"18.4 In R.S.A. No.995/03 between RAMA BHAT AND OTHERS VS. VIJAYA KUMAR AND 13 OTHERS, decided on 25.09.08, one of the points which fell for consideration was, whether, the appellants (defendants) without challenging the decree passed in favour of plaintiff by the Trial Court, can also challenge the decree of the Trial Court in second appeal. The facts in that case were that, Trial Court had passed the decree for 1/15th share in favour of the plaintiffs though their claim in the suit was for a decree of 4/15th share. To the extent of granting decree of 1/15th share by the Trial Court, defendant did not challenge the decree in the Appellate Court. The plaintiffs filed the appeal to the extent of not granting 4/15th share. Neither a cross appeal nor cross-objection under Rule 22 of Order XLI CPC was filed by the defendants. The Appellate Court allowed the appeal in part and granted enhanced share. Challenging the decree passed by the Trial Court and modified by the Appellate Court, the second appeal was filed. In the appeal, it was contended that in view of the power conferred on the Appellate Court under Rule 33 of Order XLI CPC, Appellate Court can modify the decree even though it was not appealed by the unsuccessful party. The said contention was negatived by holding as follows:
21. Since the defendants against whom the Trial Court decreed the suit in part granting 1/15th share, was not challenged by them by filing an appeal or a memorandum of cross-objection in the first appellate Court and the appeal before the first appellate Court was only against not granting of the decree for 4/15th share claimed by the plaintiffs and that the finding of the Trial Court with regard to the lack of legal necessity and family benefit was not under challenge, the first appellate Court has not committed any error in not considering and 14 adjudicating the plea regarding legal necessity and family benefit, finding of the Trial Court with regard to which, had not been contested by the defendants and had allowed the finding to become final, based on which the Trial Court decreed the suit in part. If the first appellate Court had interfered with the partial decree granted by the Trial Court, without there being a challenge to it, it would have reduced the plaintiffs to a situation worse than what they would have been, if they had not appealed before the first appellate Court. It is not an exceptional case where the decree of the trail is, so patently erroneous and cannot be countenanced at all even in the absence of an appeal or cross-objection being filed against it. Hence, the contention of Sri. A. Keshava Bhat that, second appeal can lie even against that part of the Trail Court decree which was not challenged before the first appellate Court, in exercise of the powers under Rule 33 of Order 41 CPC is against the settled principles of law and is not tenable.
10. In RSA No.1088/2003 (Channamallikarjuna Swamy A M vs. Shantha Malliah and others), the substantial question of law raised and decided was:
"Whether the first appellate Court was justified in law in modifying the decree in the absence of cross appeal and cross objection by the defendants and in restricting the relief to the modified extent of the property?"15
The said substantial question of law was answered with reference to various decisions of the Apex Court and also the judgment in the case of RAMA BHAT (supra) as follows:
"From the above, it is clear that respondent defendant in an appeal, without filing cross- objection, can attack an adverse finding upon which a decree in part has been passed against the respondents for the purpose of sustaining the decree to the extent the lower Court has dismissed the suit against defendants / respondents. In the instant case, the defendants / respondents did not file any appeal or cross-objection the lower Appellant Court and are also not supporting in this Court, the decree of the lower Court. Hence, the said decision has no application."
11. In view of the above and the undisputed facts and circumstances of the case, noticed supra, this cross objection filed, without filing the appeal under Section 96 CPC or cross-objection in the lower appellate Court is not maintainable and is rejected.
Sd/-
JUDGE LG