Bombay High Court
Dhondi Jagannath vs The Collector Of Salt Revenue And The ... on 27 June, 1884
Equivalent citations: (1885)ILR 9BOM28
JUDGMENT Charles Sargent, C.J.
1. During the hearing of this appeal, the appellant, finding his own appeal to be hopeless, claimed the right to withdraw his appeal in order to prevent the respondent's objections being heard. In Venkataramanaya v. Kuppi Mad. H.C.R. 302, the Court refused to allow the appellant under similar circumstances to withdraw his appeal; and we think that case was rightly decided. Both under Section 3,48 of the Code of Civil Procedure of 1859 and Section 561 of the present Civil Procedure Code the respondent is entitled "upon the hearing of the appeal to take any objections which he would have taken by appeal; "and, therefore, as a necessary consequence, to have those objections heard and -determined. When once the hearing of the appeal has commenced, the respondent's right to take his objections, which, up to the time of the hearing was an inchoate right, becomes perfected. Such is the distinction drawn by the Court of Calcutta in Coomar Puresh Narain Roy v. R. Watson & Co. and Ors. 23 Cal. W.R. 229 where the Madras case is referred to and distinguished. ,
2. But it has been contended before us that an appellant is entitled as of right to withdraw his appeal at any time as a plaintiff is entitled to withdraw his suit under Section 973, the provisions of that section being, it was contended, made applicable to appeals by Section 582, and that if that were so, there being no longer an appeal, the respondents' objections could not be heard. We think, however, that even if the appellant could withdraw his appeal as of right, the respondents' right to take his objections would still remain intact, the hearing of the appeal having commenced. Section 561 does not say that the objections are to be taken after, the appeal has been heard and determined, but "upon the hearing" of the appeal: in other words, when the hearing has commenced, the Court is seized both of the appeal and the cross objections, of which due notice has been given, and must dispose of them.
3. [The Court then proceeded to consider the merits of the case and varied the decree of the District Judge by disallowing the plaintiff's claim in respect of the salt-pan Rameshwar.]