Karnataka High Court
Sri. Shivananjegowda vs R Muralidhar on 15 July, 2022
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.50709 OF 2019(GM-CPC)
BETWEEN:
SRI. SHIVANANJEGOWDA
S/O LATE BOREGOWDA,
AGED ABOUT 64 YEARS,
OCC-BUSINESS,
NO.17, 19TH CROSS, CUBBONPET,
BENGALURU-560002.
...PETITIONER
(BY SRI.K.R.SRINIVASA PATAVARDHAN, ADVOCATE FOR
SRI.DESHRAJ, ADVOCATE)
AND:
R MURALIDHAR
S/O. LATE C K RANGASWAMY,
AGED ABOUT 55 YEARS,
NO.1061, MUDDANANJAPPA, COMPOUND,
NEAR RAILWAY STATION,
DODDABALLAPURA-561023.
...RESPONDENT
(BY SRI.MOHD USMAN SHAIKH, ADVOCATE)
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THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER PASSED BY THE LEARNED IV ADDL. DISTRICT AND
SESSIONS JUDGE AT DODDABALLAPURA, IN R.A.NO.10035/2015
CROSS OBJECTION NUMBER NIL DATED 11.10.2019 ON IA NO.V AT
ANNX-P.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 30.06.2022, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed questioning the order dated 11.10.2019 passed on I.A.No.5 under Section 5 of the Limitation Act in R.A.No.10035/2015.
2. The facts leading to the case are as under:
The present petitioner is the appellant in R.A.No.10035/2015. The present petitioner instituted a suit for specific performance of contract by alleging that the respondent/defendant has executed an agreement to sell on 01.02.2004 in respect of Sy.No.57 measuring 4 acres and 3 Sy.No.157 measuring 4 acres. The present petitioner alleged that respondent/defendant while executing suit agreements have jointly received a sum of Rs.1,00,000/- i.e., Rs.50,000/- on each agreement with a condition that sale transaction would be completed within a period of six months. The suit is decreed in part. The Trial Court has declined to grant specific performance of contract and defendant is directed to repay the advance sale consideration amount of Rs.25,000/- along with 12% interest.
3. Against the dismissal of the suit insofar as main relief of specific performance of contract is concerned, the present petitioner has preferred an appeal in R.A.No.10035/2015. The respondent/defendant feeling aggrieved by the findings recorded by the Trial Court on issue No.1 and additional issue No.1 has preferred a cross appeal. The Appellate Court while entertaining the cross appeal has proceeded to condone the delay of 210 days in filing the cross appeal and the cross appeal is taken on record. 4
4. The present petitioner is questioning the order dated 11.10.2019 feeling aggrieved by the order passed on I.A.No.5 filed under Section 5 of the Limitation Act. The grievance of the petitioner before this Court is that there is a procedural error committed by the Appellate Court. The contention of the petitioner is that without registering the cross appeal and assigning a separate number, the appeal is entertained. The petitioner's contention before this Court is that a separate order sheet needs to be maintained insofar as cross appeal is concerned. Therefore, the petitioner contend that the Appellate Court had no jurisdiction to entertain the application under Section 5 of the Limitation Act without registering the cross appeal and therefore, it is contended that the order passed on I.A.No.5 filed under Section 5 of the Limitation Act is one without jurisdiction and therefore, the same is not maintainable.
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5. Per contra, learned counsel appearing for the respondent would, however, counter the contentions raised by the learned counsel for the petitioner. He would place reliance on the judgment rendered by the High Court of Rajasthan in the case of State of Rajasthan and Others vs. Raghuraj Singh1. Referring to the said judgment, he would point out that the Rajasthan High Court while dealing with an identical issue was of the view that the appeal and cross objection form part of one and the same record and therefore, there is no need for the Registry to assign separate numbers and therefore, the appeal and cross appeal cannot be treated as two separate appeals which would invite the Registry to assign two separate numbers. He would further place reliance on the judgment rendered by the Hon'ble Apex Court rendered in the case of Jayarama Reddy and Another vs. Revenue Divisional Officer and Land Acquisition Officer, Kurnoo2. The Hon'ble Apex Court has referred to the judgment rendered 1 AIR 1968 Raj 14 2 AIR 1979 SC 1393 6 by the High Court of Rajasthan and the principles laid down by the Rajasthan High Court has been upheld by the Hon'ble Apex Court. Referring to the judgment rendered by the Hon'ble Apex Court in the case of Jayarama Reddy (supra), he would conclude his arguments by contending that the issue raised in the present petition would not survive for consideration as the said issue is put to rest by the Hon'ble Apex Court.
6. By way of reply, learned counsel appearing for the petitioner would, however, counter the submissions and would contend that the judgment cited by the respondent counsel are not applicable to the present case on hand. Referring to Rule 155 of the Karnataka Civil Rules of Practice, 1967 (for short 'the Rules'), he would counter the submissions of respondent counsel that Rule 155 of the Rules clearly contemplates that order sheet has to be maintained in respect of each appeal in the manner provided under the said Rules. 7
7. Heard learned counsel appearing for the petitioner and learned counsel appearing for the respondent.
8. The petitioner has instituted a suit for specific performance of contract. The larger relief of specific performance of contract is declined by the Trial Court and the present petitioner has preferred appeal before the Appellate Court which is pending consideration in R.A.No.10035/2015. It is quite interesting to note that the petitioner has stated in unequivocal terms at para 17 of the writ petition wherein petitioner's claim that he has no objection to condone the delay in filing the cross appeal. However, interestingly petitioner is objecting the authority of the Appellate Court in entertaining cross appeal without registering the same and assigning a separate number. Reliance is placed on Rule 155 of the Rules. It would be useful for this Court to refer to Rule 155 of the Rules and the same is culled out as under:
"155. Order sheet in Form No.14 shall be maintained in respect of each suit, appeal or other 8 proceeding in all courts in the manner provided in this Chapter. The pages of the order sheet used in each proceeding, shall be serially numbered. Each page of the order sheet shall also bear the number of the suit, appeal or other proceedings as the case may be."
9. On perusal of the above said Rule, this Court would find that Rule 155 prescribes that the Courts entertaining appeals or suits are required to maintain order sheet in terms of Form No.14. The petitioners intend to place reliance on the above said Rule and contend that once cross appeal is filed, the concerned Registry of the Court has to register the said cross appeal separately and has to assign a separate number and consequently, maintain a separate order sheet pertaining to cross appeal.
10. The difference between an appeal and a cross appeal/cross objection depends upon who approaches first questioning the judgment and decree of the court of first instance. It is the first party who approaches the Court is 9 always referred as appellant and the respondent in the appeal who also intends to question the decision of the court below is always referred as respondent during the pendency of appeal and if the cross objection is filed, the same is referred as a cross appeal. The expression "cross objection" is not defined under the Code. Therefore, what can be inferred is that a cross objection can be filed only when there is an appeal. The stage of filing a cross objection arises only when appeal is admitted and court directs notice to be issued to the respondent. The appeal and cross objection should be heard together and they should be disposed of by a common judgment incorporating the decision on both appeal as well as cross objection. The Court is also required to decide and dispose of the appeal and cross objection together by one judgment and such a decision should be incorporated in one decree.
11. If the judgment on appeal and cross objection has to be incorporated in one decree, then it presupposes that 10 there is no need to maintain a separate order sheet. The word "cross objection" is neither defined in the Code nor in the Rules. This approach seeks to avoid a contradictory and inconsistent decisions on the same questions in one and the same suit.
12. In the instant cross objection, the respondent/defendant intends to question the findings recorded by the Court below on issue No.1 and additional issue No.1. Rule 22(1) of Order 41 of CPC does enable the defendant who intends to support the decree may question the findings against him in the Court below in respect of any issue which has gone against him and by way of cross-appeal may question those findings.
13. Rule 22 of Order 41 allows a respondent in an appeal to support the decree of the Court below by asserting that the points decided against him should have been decided in his favour and this recourse is available to the respondent 11 even without filing cross objection. In the present case on hand, by way of cross objection, the respondent intends to question the finding on issue No.1 and additional issue No.1. The respondent in the present case do not have a right to file an appeal against the finding that was recorded against him, though the ultimate decree is in his favour. Therefore, it is only on an appeal filed by the opposite party questioning the decree, the respondent who has the benefit of decree is entitled to challenge the finding given in the judgment. Therefore, there is a distinction between an appeal against a decree and cross objection in an appeal questioning the findings of the Court below. Thus, right to file a cross objection when an appeal is already pending is entirely different from a party having right by itself to file an appeal against the decree. When a cross objection is not maintainable independently, then there is no question of maintaining two separate order sheets. The cross objection questioning the finding, forms part and parcel of the 12 appeal and therefore, the Appellate Court in such circumstances renders only one judgment and consequently, only one decree is drawn. It is in this background, the argument canvassed by the learned counsel for the petitioner cannot be acceded to.
14. If these significant details are taken into consideration, then the contention of the petitioner that in terms of Rule 155 of the Rules, the Registry was required to maintain a separate order sheet is misconceived and cannot be acceded to. Rule 155 of the Rules contemplates that the order sheet in terms of Form No.14 has to be maintained in respect of each suit, appeal or other proceedings in all Courts. That does not include cross objection. The Appellate Court, on cross objection, has to render only one judgment and consequently has to draw one decree which necessarily presupposes that there is no need to maintain a separate order sheet and Rule 155 does not include cross appeals. 13
15. In the light of the above discussions, I pass the following:
ORDER The writ petition is dismissed.
Sd/-
JUDGE CA