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1 - 6 of 6 (0.17 seconds)Padmadevi Shankarrao Jadhav And Ors. vs Kabalsing Garmilsing Sardarji And Ors. on 14 November, 1984
Considering that the judgment of this Court in Padmadevi's case is a judgment of the Division Bench, I am bound by it. I further find that this Court in Punamchand Nanawati's case has considered the judgment of the Division Bench in Padmadevi's case and has distinguished it on the ground that in Padmadevi's case, there was an award passed against the respondent which they could have challenged only by filing a cross-objection. Though I have some doubts about the ground on which the judgment in padmadevi's case has been distinguished, I need not, in the present case, go deeper into that aspect because, in my opinion, even if it is assumed that the Appellate Court could have reversed the finding of the trial "Court on the ground that the tenant had secured alternate accommodation, I find that there was no reason to revers that finding. It is to be seen that the petitioner is a barber by occupation. It is his case that he was using the demised premises for his residence and business though some members of his family had shifted to the village Akurdi which is far off from Pune city. The trial Court has held that from the business point of view, the premises at Akurdi were not suitable for the business. The finding of the trial Court, therefore, could have been disturbed by the Appellate Court only after reaching the conclusion that the premises at Akurdi were suitable for business also. I do not find any such finding being recorded by the Appellate Court. It is obvious that the premises which are situated in village Akurdi cannot be alternate to a shop in Pune city. Therefore, there was no material before the Appellate Court to reverse the finding of the trial Court in that regard.
Punamchand Dahyalal Nanwati vs Ramanlal Balubhai And Ors. on 8 October, 1987
Considering that the judgment of this Court in Padmadevi's case is a judgment of the Division Bench, I am bound by it. I further find that this Court in Punamchand Nanawati's case has considered the judgment of the Division Bench in Padmadevi's case and has distinguished it on the ground that in Padmadevi's case, there was an award passed against the respondent which they could have challenged only by filing a cross-objection. Though I have some doubts about the ground on which the judgment in padmadevi's case has been distinguished, I need not, in the present case, go deeper into that aspect because, in my opinion, even if it is assumed that the Appellate Court could have reversed the finding of the trial "Court on the ground that the tenant had secured alternate accommodation, I find that there was no reason to revers that finding. It is to be seen that the petitioner is a barber by occupation. It is his case that he was using the demised premises for his residence and business though some members of his family had shifted to the village Akurdi which is far off from Pune city. The trial Court has held that from the business point of view, the premises at Akurdi were not suitable for the business. The finding of the trial Court, therefore, could have been disturbed by the Appellate Court only after reaching the conclusion that the premises at Akurdi were suitable for business also. I do not find any such finding being recorded by the Appellate Court. It is obvious that the premises which are situated in village Akurdi cannot be alternate to a shop in Pune city. Therefore, there was no material before the Appellate Court to reverse the finding of the trial Court in that regard.
National Insurance Co. vs Diwaliben on 15 April, 1981
7. So tar as the question as to whether the opponents can challenge the finding qua negligence of the opponent No. 1 Kabalsing is concerned, in our view, it is not open to the opponents to challenge the said finding in the absence of filing of an independent appeal or a cross-objection. It is not disputed that in an appeal filed under the provisions of the Motor Vehicles Act, it is open to the opposite party to file cross-objections, since the provisions of Order 41, Rule 22 will aptly apply to such an appeal. This position is not disputed even by Shri Trivedi and in our opinion, rightly. As held by the various High Courts, including Karnataka, Allahabad, Gujarat and Andhra Pradesh, in , K. Chandrashekhara Naik v. Narayana U.P. State Road Transport Corporation v. Smt. Janki Devi; National Insurance Co. Baroda v. Diwaliben and AIR 1983 Andh Pra 297 Srisailam Devastanam v. Bhavani Prammilama, the provisions of the Civil Procedure Code will be applicable to an appeal filed under Section 110-D of the Motor Vehicles Act. As a necessary corollary of this, cross-objections could he filed in such an appeal, In our view, this position is placed beyond doubt by the amendment to the provisions of Order 41, Rule 22 of the Code of Civil Procedure. The Explanation to Order 41, Rule 22 clearly provides that a respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree is, wholly or in part, in favour of that respondent. In the present case, admittedly the ultimate award for compensation passed by the Tribunal is based on the finding on the issue of negligence. Unless it was held that the truck driver was negligent in driving the truck and the accident took place because of his negligence, the award for compensation against the opponents cannot follow. Even if it is held that it was the case of contributory negligence on the part of the truck driver as well as the deceased, then also unless a finding in that behalf is recorded, an award for compensation cannot be passed in favour of the claimants. Therefore, the finding on the question or issue of negligence is not only germane, but is the foundation for awarding compensation, Hence a cross-objection could have been filed by the opponents challenging the said award based on the said finding. This has not been admittedly done. Therefore, in our view, unless a cross-objection is filed, it will not be open to the opponents to challenge the finding in that behalf. We are fortified in this view by the latest decision of the Supreme Court in Choudhary Sahu (dead) by Lrs. v. State of Bihar .
The Code of Civil Procedure, 1908
The Delhi Rent Act, 1995
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