Dismissed

Sanju v. M/S Motor Aids Petrol Pump Jai

Rajasthan HC1 Mar 2024XOBJC/7/2008

Case brief

AI extract

What is this about?

Defendants' cross-objections sought to challenge dismissal of their amendment application under Order VI Rule 17 CPC after the related first appeals had been decided against them. Holding that a pending cross-objection survives disposal of the main appeal, the court nonetheless found no prejudice from refusal of the amendment and dismissed the cross-objections.

What the court decided

AI extract

Sanju Vs M/S Motor Aids Petrol Pump Jai — Contract and Commercial Disputes | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Cross Objection (Civil) No. 7/2008

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S.B. Civil First Appeal No. 324/1998

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Sanju son of Shri Ramchandra Sharma, minor, through its natural guardian Shri Laxmi Narain, grand father, son of Sh. Shiv Karan Das, resident of 56-E, Shastri Nagar, Jaipur

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----Appellant/Plaintiff

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Versus

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M/s Motor Aids Petrol Pump, Jhotwara Road, Jaipur

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Shri Surendra Kumar S/o Shri Shivram Prop M/s Motor Aids Petrol Pump, Jhotwara Road, Jaipur

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–--(Defendants/Cross-Objectors)

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Indian Oil Corporation, Near 20-Shops Bees Dukan, Gol Chakkar, Adarsh Nagar, Jaipur

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----Respondents

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Connected With

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S.B. Cross Objection (Civil) No. 5/2008

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S.B. Civil First Appeal No. 323/1998

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Kumari Pinky D/o Shri Ramchandra Sharma, Minor, Through Its Natural Guardian Shri Laxmi Narain, Grand Father, son of Shri Shiv Karan Das, r/o. 56-E, Shastri Nagar, Jaipur

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----Appellant/Plaintiff

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Versus

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M/s Motor Aids Petrol Pump, Jhotwara Road, Jaipur

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Shri Surendra Kumar S/o Shri Shivram Prop M/s Motor Aids Petrol Pump, Jhotwara Road, Jaipur

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----(Defendants/Cross-Objectors)

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Indian Oil Corporation, Near 20-Shops Bees Dukan, Gol Chakkar, Adarsh Nagar, Jaipur

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----Respondents

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For Petitioner(s) : Mr. M.M. Ranjan, senior advocate with Mr. Shubham Sharma for Cross-

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		Objectors/defendant Nos. 1 and 2.
For Respondent(s)	:	Ms. Suruchi Kasliwal with
		Mr. Vikram Singh Tanwar for
		respondent/defendant No.3 Nonepresent for appellant

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

Order

REPORTABLE

01/03/2024

Both the cross-objections were preferred by the defendant Nos. 1 and 2/Cross-Objectors, aggrieved from judgment and decree dated 01.05.1998 in civil suit Nos. 10/1994 and 11/1994 passed by learned Additional District judge No.6, Jaipur Metro.

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The facts of the matter inter alia are that minor plaintiff(s) filed separate suits as indigent persons through natural guardians for recovery of damages for the injuries caused in an accident happened at petrol pump on 01.10.1989 operated by defendants/cross-objectors. The trial court after considering the material on record and also the evidence of the parties has dismissed both the civil suits on 28.09.1995. Aggrieved from aforesaid, S.B. Civil First Appeal Nos. 08/1996 and 09/1996 were preferred by the plaintiff(s) which was partially allowed on 06.01.1998 and decree dated 28.09.1995 was set aside and both matters were remanded back to the trial court.

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After remand, both civil suits were decided afresh on 01.05.1998 and both the suits were again dismissed by learned Additional District Judge No.6, Jaipur Metro. Aggrieved from aforesaid S.B. Civil First Appeal Nos. 323/1998 and 324/1998 were preferred by the plaintiff(s) (Appellants) and same were

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allowed on 25.08.1999 and following decree was passed by a Coordinate Bench of this Court:

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Þ26- vr% ;g nksuksa vihysa vkaf”kd :i ls Lohdkj dh tkrh gSA oknh latw ds i{k esa #- 1]25]000@& o okfnuh dqekjh fiadh ds i{k esa :- 2]50]000@& dh fMØh fo:) izfroknh uEcj 1 o 2 ikfjr dh tkrh gSA oknhx.k okn o vihy dk [kpkZ Hkh izfroknh uEcj 1 o 2 ls izkIr dj ldsaxsAß

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Aggrieved from aforesaid, D.B. Special Appeal (Civil) Nos. 86/1999 and 87/1999 were preferred by present cross-objectors before Hon’ble Division Bench of this Court and on the direction dated 04.10.2023 these matters are listed for disposal.

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Learned senior advocate for cross-objectors while relying upon grounds of cross-objection would submitted that under the law, cross-objection are same as that of cross-appeal so crossobjection is maintainable independent of appeal. He specifically referred Order XLI Rule 22 CPC and submitted that only two contingencies were provided hence same instant cross-objection required to be adjudicated on merits. He also submitted that the Co-ordinate Bench while considering the appeal has not considered the grounds raised by present cross-objectors and without considering these cross-objection(s), had allowed the appeal(s) of appellant(s)/plaintiff(s). He specifically submitted that aggrieved from dismissal of suit in 1995 the appeal was preferred in 1996 then applications under Order XLI rule 27 and Order VI Rule 17 CPC were also filed by present defendants but same were not considered by learned Single Judge and defendants had to approach the Division Bench by filing D.B. Special Appeal (Civil) Nos. 35/1998 and 36/1998, wherein Hon’ble Division Bench has

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directed the trial court to consider applications under Order VI Rule 17 and Order XLI Rule 27 CPC on its own merits. He referred the order-sheet dated 01.04.1998 of the trial court and submitted that without any cogent reasons, application under Order VI Rule 17 CPC was dismissed and cross-objectors are entitled to raise grounds of dismissal of application in cross-objection under Section 105 CPC. He also submitted that application under Order XIII Rule 2 CPC was allowed on cost but while deciding the issue No.2 on 01.05.1998 the trial court has not considered the documents submitted by present cross-objectors defendants. He referred the findings of issue Nos. 2 to 5 and submitted that the conduct of the trial court clearly indicated that while deciding the civil suit the trial court has failed to consider the material on record which is apparent on face of record. He also submitted that cross-objection is in form of cross appeal and party to the proceedings has a right to maintain cross-objection on its own merits. He specifically referred the dealership agreement and submitted that the responsibility to maintain the petrol pump was upon defendant No.3 and defendant Nos. 1 and 2 were merely a commission agent, thus entire liability of payment of damages is upon respondent No.3. He would submitted that the terms of dealership agreement makes it clear that defendant Nos. 1 and 2 were bound to work under the active control and directions of defendant No.3 on fixed commission basis. He referred the provision of the contract Act, 1872 and submitted that crossobjectors had acted as agent on behalf of the principal i.e. “Indian Oil Corporation” (defendant No.3) so they are not liable for payment of any damages.

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Aforesaid contentions were opposed by learned counsel for defendant No.3 (IOC) on the ground that the appeal of plaintiff was already disposed of on 25.09.1999 and learned counsel for cross-objector has not pointed out about filing and pendency of these cross-objections, at the time of consideration of both first appeals. She specifically submitted that at the time of remitting the matter on 06.01.1998 both the applications under Order XLI Rule 27 CPC and Order VI Rule 17 CPC were dismissed by coordinate Bench of this court and further application under Order VI Rule 17 CPC was dismissed by the trial court on 01.04.1998. She specifically submitted that on dismissal of application under Order VI Rule 17 CPC either a revision or a writ can be preferred but a cross-objection cannot be filed to challenge interlocutory order passed by the trial court during pendency of civil suit. She also submitted that the documents which were taken on record in pursuant to application under Order XIII Rule 2 CPC cannot be read in support of claim of cross-objectors unless they are being proved by any evidence. She also submitted that the prayer clause in cross-objections clearly indicate that only prayer was to allow application under Order VI Rule 17 and Order XIII Rule 2 (Order XLI Rule 27) CPC. She also submitted that nowhere the findings on any issue was challenged by the cross-objectors. She also submitted that these cross-objections were filed after dismissal of appeal by a Co-ordinate Bench of this Court therefore they are not maintainable. She also submitted that there is no relationship as agent or master, rather a dealership agreement was executed with full liability of cross-objectors.

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Heard learned senior advocate for cross-objectors (defendant Nos. 1 and 2) and learned counsel for defendant No.3. None present for original plaintiff(s) appellant(s).

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A perusal of timeline indicate as under:-

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DATE	EVENTS
01.10.1989	Incident of fire on petrol pump of Indian Oil (defendant No.3) operated by defendant Nos. 1 and 2.
1991	Separate civil suits were filed by injured Pinky and Sanju for claiming damages on the basis of injuries sustained in aforesaid incident of fire.
28.09.1995	Civil Suit Nos. 10/1994 and 11/1994 were dismissed.
06.01.1998	S.B. CFA Nos. 8/1996 and 9/1996 were partially allowed and matters were remanded back to the trial court for decision afresh.
03.03.1998	Order in D.B. Special Appeal (Civil) Nos. 35/1998 and 36/1998
01.04.1998	Application of defendant Nos. 1 and 2 under Order 6 Rule 17 CPC dismissed but application under Order 13 Rule 2 CPC allowed and documents were taken on record,bytrial court.
01.05.1998	Civil Suit Nos. 10/1994 and 11/1994 were dismissed bythe trial court.
25.08.1999	S.B. CFA Nos. 323/1998 and 324/1998 were allowed byCo-ordinate Bench of this Court.
28.06.1999	Cross-objection Nos. 5/2008 and 7/2008 were filed bydefendant Nos. 1 and 2.

¶59

The timeline indicated hereinabove clearly indicated that instant cross-objections were filed by cross-objectors defendant Nos. 1 and 2 before the decision of S.B. Civil First Appeals by co-ordinate Bench, though same were registered only in 2008. Thus, these cross-objections were filed prior to decision dated 25.08.1999 in S.B. CFA No. 323/1998 and 324/1998, by co-ordinate Bench of this Court.

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The prayer in both the cross-objections are same, which is reproduced as under:

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“It is, therefore, prayed your Lordships, may very graciously be pleased to accept this cross-objections and an application filed by the defendant cross objector under Order 6 Rule 17 CPC and under Order 13 Rule 2 (order XLI Rule 27) CPC may be allowed and liability if any may be settled on defendant No.3.”

¶65

The entire body of cross-objection indicated that aggrieved from dismissal of both the applications these cross-objections were filed. Nowhere findings on any issue given by trial court in impugned judgment dated 01.05.1998 was challenged by crossobjectors. Para Nos. 1 to 6 including grounds (i) to (iv) indicated that only disposal of applications were challenged by crossobjectors (defendants Nos. 1 and 2).

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S.B. CFA Nos. 323/1998 and 324/1998 were decided by a Coordinate Bench of this Court on 25.08.1999 and probably at the time of consideration of the appeal by Coordinate Bench the filing and pendency of these cross-objections were not brought to the notice of the Coordinate Bench. This can further be fortified from the fact that after filing of cross-objection on 28.06.1999, the Stamp Reporter has entered detail of Court fee on 05.07.1999 but the petition(s) were passed only on 13.12.2007. No other notesheet or other material is available on record to indicate any proceedings between July, 1999 to December, 2007.

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Order XLI Rule 22 of CPC is a special provision permitting the respondent, who has not filed an appeal against the decree to object by filing cross-objections in the appeal filed by the opposite party thus, this is a permissive and enabling provision. The crossobjection can only be filed only when an appeal is filed. The limitation provided under Rule 22 also indicated that the cross-

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objection must be filed within one month from the date of service of notice of the date fixed for hearing the appeal or within such further time as the Appellate Court may see fit to allow. 13. For ready reference Order XLI Rule 22 CPC is reproduced as under:

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“22. Upon hearing respondent may object to decree as if he had preferred separate appeal.—

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(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

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(2) Form of objection and provisions applicable thereto.—Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.

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(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.

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(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule.”

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Sub-Rule 4 of Rule 22 further provides that in case, original appeal is withdrawn or dismissed for default the objection filed may nevertheless be heard and determined after such notice to other parties, as Court thinks fit. Herein, the appeal was disposed of and at the time of disposal of the appeal these cross-objections were pending before this Court though as a rule the crossobjection has to be decided along with the appeal. Now, Hon’ble Division Bench has directed for disposal therefore we are disposing of these cross-objections.

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Recently, Hon’ble Supreme Court in the case of Shri Saurav

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Jain Vs. M/s ABP Design and Anr. AIR 2021 SC 3673 has considered and discussed the scope of Order XLI Rule 22 of CPC, after amendment in 1976 and reproduced the observation from the case of Banarsi & Ors. Vs. Ram (2003) 9 SCC 606 as under:

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“10-. […] There may be three situations:

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(i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent. (ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent.

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(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.

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11. In the type of case (i) it was necessary for the respondent to file an appeal or take crossobjection 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. The law remains so postamendment too. In the type of cases (ii) and (iii) pre- amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take crossobjection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross-objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In the pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.”

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Further considering the scope of Order XLI Rule 22 CPC, in case of Shri Saurav Jain Vs. M/s ABP Design and Anr. (supra) Hon’ble Supreme Court has observed that:

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24. Order XLI Rule 22(2) of the CPC states that a “cross-objection shall be filed in the form of a memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.” This Court in S. Nazeer Ahmed v. State Bank of Mysore (2007) 11 SCC 75 elaborated on the form of objections made under Order XLI Rule 22 CPC. In Nazeer Ahmed (supra) , the respondent had filed a suit for enforcement of an equitable mortgage. In deciding the suit, the Trial Court rejected the argument of the appellant-defendant and held that the suit was not barred by Order II Rule 2 of the CPC. However, the court dismissed the suit on grounds of limitation. On an appeal filed by the respondent before the High Court, the High Court observed that although the suit was barred by Order II Rule 2 of the CPC, the appellant had not challenged this finding of the Trial Court by filing a memorandum of crossobjection. Thus, the High Court granted the respondent a decree against the appellant. When this finding of the High Court was assailed before this Court, Justice P.K Balasubramanyam held that a memorandum of cross-objection needs to be filed while taking recourse to Order XLI Rule 22 only when the respondent claims a relief that had been rejected by the trial court or seeks an additional relief apart from that provided by the trial court. The court held that a memorandum of

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objection need not be filed when the appellant only assailed a ‘finding’ of the lower court:

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“7. The High Court, in our view, was clearly in error in holding that the appellant not having filed a memorandum of crossobjections in terms of Order 41 Rule 22 of the Code, could not challenge the finding of the trial court that the suit was not barred by Order 2 Rule 2 of the Code. The respondent in an appeal is entitled to support the decree of the trial court even by challenging any of the findings that might have been rendered by the trial court against himself. For supporting the decree passed by the trial court, it is not necessary for a respondent in the appeal, to file a memorandum of cross-objections challenging a particular finding that is rendered by the trial court against him when the ultimate decree itself is in his favour. A memorandum of crossobjections is needed only if the respondent claims any relief which had been negatived to him by the trial court and in addition to what he has already been given by the decree under challenge. We have therefore no hesitation in accepting the submission of the learned counsel for the appellant that the High Court was in error in proceeding on the basis that the appellant not having filed a memorandum of cross-objections, was not entitled to canvas the correctness of the finding on the bar of Order 2 Rule 2 rendered by the trial court.”

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25. It is apparent from the amended provisions of Order XLI Rule 22 CPC and the above authorities that there are two changes that were brought by the 1976 amendment. First, the scope of filing of a cross-objection was enhanced substantively to include objections against ‘findings’ of the lower court; second, different forms of raising crossobjections were recognised. The amendment sought to introduce different forms of crossobjection for assailing the findings and decrees

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since the amendment separates the phrase “but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour” from “may also take any cross-objection to the decree” with a semi colon. Therefore, the two parts of the sentence must be read disjunctively. Only when a part of the decree has been assailed by the respondent, should a memorandum of cross-objection be filed. Otherwise, it is sufficient to raise a challenge to an adverse finding of the court of first instance before the appellate court without a cross objection.

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28. From the above it has been established that it not necessary that a challenge to the adverse findings of the lower court needs to be made in the form of a memorandum of cross-objection.”

¶106

In case of Municipal Corporation of Delhi & Ors. Vs. International Security & Intelligence Agency Limited (2004) 3 SCC 250 , a three Judge Bench of Hon’ble Supreme Court considered the maintainability of cross-objection, in case, appeal was dismissed as non-maintainable, the Supreme Court in said judgment observed as:-

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“14. Right of appeal is creature of statute. There is no inherent right of appeal. No appeal can be filed, heard or determined on merits unless the statute confers right on the appellant and power on the court to do so. Section 39 of the Act confers right to file appeal, insofar as the orders passed under this Act are concerned, only against such of the orders as fall within one or other of the descriptions given in clauses (i) to (vi) of subsection (1) of Section 39. Parliament has taken

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care to specifically exclude any other appeal being filed, against any order passed under the Act but not covered by clauses (i) to (vi) abovesaid, by inserting the expression “and from no others” in the text of sub-section (1). Clause (a) of Section 41 extends applicability of all the provisions contained in the Code of Civil Procedure, 1908 to (i) all proceedings before the court under the Act, and (ii) to all the appeals, under the Act. However, the applicability of such of the provisions of the Code of Civil Procedure shall be excluded as may be inconsistent with the provisions of the Act and/or of rules made thereunder. A bare reading of these provisions shows that in all the appeals filed under Section 39, the provisions of the Code of Civil Procedure, 1908 would be applicable. This would include the applicability of Order 41 including the right to take any cross- objection under Rule 22 thereof to appeals under Section 39 of the Act.

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15. Right to prefer cross-objection partakes of the right to prefer an appeal. When the impugned decree or order is partly in favour of one party and partly in favour of the other, one party may rest contented by his partial success with a view to giving a quietus to the litigation. However, he may like to exercise his right of appeal if he finds that the other party was not interested in burying the hatchet and proposed to keep the lis alive by pursuing the same before the appellate forum. He too may in such circumstances exercise his right to file appeal by taking cross-objection. Thus taking any cross-objection to the decree or order impugned is the exercise of right of appeal though such right is exercised in the form of taking crossobjection. The substantive right is the right of

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appeal; the form of cross-objection is a matter of procedure.

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16. Though the statement of law made hereinabove flows simply by the reading of the relevant statutory provisions yet some available decisions may also be noticed.

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In Bhadurmal v. Bizaatunnisa Begum [AIR

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1964 AP 365 : (1964) 1 An WR 290] a Division Bench presided over by Jaganmohan Reddy, J. (as His Lordship then was) held cross-objection to be maintainable in an appeal preferred under Sections 47 to 49 of the Hyderabad Jagirdars Debt Settlement Act, 1952 because the provisions of the Civil Procedure Code were generally applicable by virtue of Section 51 thereof. The applicability of Order 41 Rule 22 to the appeals under that Act was held not excluded merely because provisions governing grounds of appeal and court fees were specifically enacted in the Hyderabad Act. In Inayatullah Khan v. Diwanchand Mahajan [AIR 1959 MP 58 : 1958 MP LJ 786] Chief Justice M. Hidayatullah (as His Lordship then was) upheld maintainability of the cross-objection in an election appeal under Section 116-A of the Representation of the People Act, 1951 because the High Court as an appellate court hearing an appeal under Section 116-A was enjoined to exercise the same powers, jurisdiction and authority and to follow the same procedure as it would have exercised or followed in respect of a civil appeal under the Code of Civil Procedure. In Ramasray Singh v. Bibhisan Sinha [AIR 1950 Cal 372] the Division Bench consisting of Harries, C.J. and Bachawat, J. (as His Lordship then was)

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held that conferment of right of appeal by Section 38 of the Bengal Money-Lenders Act, 1940 which spoke of the order being appealable in the same manner as if it were a decree of the court implied a right in the respondent to file cross-objection inasmuch as the jurisdiction to hear appeal was conferred on a pre-established civil court, namely, the Court of the District Judge and nothing was expressly stated as to the procedure regulating such appeal. In A.L.A. Alagappa Chettiar v. Chockalingam Chetty [AIR 1919 Mad 784 : ILR 41 Mad 904 (FB)] a Full Bench of the High Court of Madras presided over by Wallis, C.J. held that right of the respondent to proceed by way of memorandum of cross-objections was strictly incidental to the filing of appeal by opposite party and therefore in an appeal under Sections 46 and 47 of the Provincial Insolvency Act, 1907, crossobjections were maintainable as the procedure prescribed in the Civil Procedure Code is the standard procedure and applicable to courts exercising powers in insolvency cases.

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17. With advantage, we may also refer to observations of this Court made in Baru Ram v. Prasanni [AIR 1959 SC 93 : 1959 SCR 1403] . Section 116-A of the Representation of the People Act, 1951 contemplates an appeal being laid before the Supreme Court from every order made by the High Court under Section 98 or Section 99 of that Act. Section 116-C provides for every such appeal being heard and determined by the Supreme Court as nearly as may be in accordance with the procedure applicable to the hearing and determination of any appeal from any final order passed by the High Court in exercise of its original

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civil jurisdiction subject to the provisions of that Act and the Rules, if any. All the provisions of the Code of Civil Procedure, 1908 and rules of the court shall, so far as may be, apply in relation to such appeal. P.B. Gajendragadkar, J. (as His Lordship then was) speaking for the Court observed: (AIR p. 99, para 11)

¶129

“There is no doubt that, in an ordinary civil appeal, the respondent would be entitled to support the decree under appeal on grounds other than those found by the trial court in his favour.

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Order XLI Rule 22 of the Code of Civil Procedure which permits the respondent to file crossobjections recognize the respondent's right to support the decree on any of the grounds decided against him by the court below. In the present case no appeal could have been preferred by Respondent 1 because she had succeeded in obtaining the declaration that the appellant's election was void and it should therefore be open to her to support the final conclusion of the High Court by contending that the other finding recorded by the High Court which would go to the root of the matter is erroneous. Prima facie there appears to be some force in this contention;”

¶131

However, the Court did not express any final opinion thereon as it was considered not necessary to decide the point in that appeal.

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18. We have, therefore, no doubt in our mind that right to take a cross-objection is the exercise of substantive right of appeal conferred by a statute. Available grounds of challenge against the judgment, decree or order impugned remain the same whether it is an appeal or a cross-objection.

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The difference lies in the form and manner of exercising the right; the terminus a quo (the starting point) of limitation also differs.”

¶137

Aforesaid judgment was relied upon by Hon’ble Supreme Court in case of Urmila Devi & Ors. Vs. Branch Manager, National Insurance Company Ltd. & Anr. (2020) 11 SCC 316

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and observed that in sub-Rule 4 of Rule 22 of Order XLI of CPC specifically provided that even if original appeal is withdrawn or dismissed for default, the cross-objection would nevertheless be heard and dismissed after notice to other parties and as the court thinks fit. Hon’ble Supreme Court further opined that even appeal was dismissed in default and the appellants were not interested to revive the appeal, still the High Court was required to decide the cross-objection of the appellants herein on merits and in accordance with law.

¶139

Having considered three Bench judgment in case of Municipal Corporation of Delhi & Ors. Vs. International Security & Intelligence Agency Limited (supra) and Urmila Devi & Ors. Vs. Branch Manager, National Insurance Company Ltd. & Anr. (supra) , we are of considered view that after disposal of first appeal on 25.08.1999, the cross-objection filed during pendency of the first appeal required to be adjudicated on merits and in accordance with law and the objection of learned counsel for respondent No.3 (IOC) is not sustainable, thus crossobjections are maintainable even if the first appeal was already disposed of by a Co-ordinate Bench of this Court.

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We are fully aware about the fact that after decision of first appeal by a Coordinate Bench of this Court these cross-objections

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came up for hearing and in any case we are not the Appellate Court to consider the findings already recorded by the Coordinate Bench. As a matter of discipline, we are duty bound by the observation and findings of the Coordinate Bench. We are also aware about the fact that aggrieved from judgment dated 25.08.1999 in first appeal present cross-objector(s) have already filed D.B. Special Appeal (Civil) before the Hon’ble Division Bench. Herein we are restricting ourselves to the scope of Order XLI Rule 27 CPC.

¶145

A perusal of content of cross-objection clearly indicated that aggrieved from dismissal of applications under Order VI Rule 17 and Order XIII Rule 2 (Order XLI Rule 27) CPC, these crossobjections were filed. Section 105 of CPC provides that in case, any decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the Memorandum of Appeal. Therefore, we agree up to the extent that if there is any error, defect or irregularity while passing any order during trial of civil suit against which an appeal is preferred from decree then same can be set up as a ground in an appeal. Similarly, if any ground can be raised in appeal then same can also be raised by way of cross-objection. 22. A perusal of proceeding of trial court indicated that on 01.04.1998, two applications of cross-objector/defendant Nos. 1 and 2 were considered, firstly under Order VI Rule 17 CPC and secondly under Order XIII Rule 2 CPC (Order XLI Rule 27 CPC), out of which application under Order XIII Rule 2 CPC was allowed and documents were taken on record. Once the application is allowed then cross-objector/defendant Nos. 1 and 2 has no right

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to contend that there was any irregularity or defect while deciding the application under Order XIII Rule 2 (Order XLI Rule 27) CPC thus the cross-objector has no ground to raise any objection regarding disposal of application under Order XIII Rule 2 (Order XLI Rule 27) CPC, allowed on 01.04.1998.

¶150

Now comes the question of another application under Order VI Rule 17 CPC. Defendant Nos. 1 and 2 filed an application under Order 6 Rule 17 CPC for amendment in written statement, wherein para 7A proposed to be inserted in written statement. We have considered the contents of application under Order VI Rule 17 CPC, which was dismissed by the trial court on 01.04.1998. The trial court was of the view that the application was filed at belated stage and the proposed fact was already available in the pleadings of the parties.

¶151

We have considered the written statement of defendant No.3, which was filed independent of defendant Nos. 1 and 2. In para Nos. 1, 2, 7 and 8 the objections raised by defendant No.3 indicated that defendant Nos. 1 and 2 were dealer of defendant No.3. Further in para No.10, a fact was mentioned that every precaution was taken at every retail outlet, so as to defend the role of defendant Nos .1 and 2. After pleadings of the parties, issues were framed by the trial court. Both the parties were provided opportunity to led their evidence. Issue No.3 pertains to liability of defendants in case of decree, either jointly or severally. Defendant No.3 had also raised ground of misjoinder as a party. 25. Initially this application was dismissed by a Coordinate Bench of this Court vide order dated 06.01.1998 though in D.B. Special Appeal (Civil) Nos.35/1998 and 36/1998, the Division Bench of

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this Court has directed the trial court to consider these applications on merits and decide the same in accordance with law. The trial court had dismissed the civil suit and there was no finding to fasten liability on any of the defendants. The trial court while considering issue Nos. 1 and 2 concluded that there was no negligence on part of defendant(s) and they are not responsible for the accident, which was also beyond their control.

¶156

Having considered the submissions of learned senior advocate for appellant and also on perusal of record, we found that respondent No.3 (IOC) has defended the entire act of defendant Nos. 1 and 2 before the trial court which means that act of respondent Nos. 1 and 2 or cross-objectors was also defended by respondent No.3. The trial court on two occasions had dismissed the claim of the claimants and there was no occasion for the trial court to opine about the negligence of any of the defendants or respondents. It was only, by judgment dated 25.08.1999 passed by a Co-ordinate Bench of this Court the defendant/respondent No.3 was exonerated from payment of compensation, as this court was of the opinion that defendant Nos. 1 and 2 (cross-objectors) had failed to take steps in preventing the incident and they are liable for compensation to the plaintiff(s).

¶157

By application under Order VI Rule 17 CPC, para No.7A was proposed to be inserted in the written statement by defendant Nos. 1 and 2 to include defence to avoid their liability or fasten same on defendant No.3. Since the issue of liability was not decided against respondent nos. 1 and 2, therefore the dismissal

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of application has not prejudiced the defence of defendant Nos. 1 and 2 before the trial court.

¶162

Herein during course of argument, the agreement of dealership (written contract) between cross-objectors and defendant No.3 was referred. The agreement pertains to exclusive dealership of sale of product of IOC (defendant No.3). This document was taken on record but no application was filed for additional evidence before the trial court thus this document was neither exhibited nor tendered in any evidence.

¶163

Since the matter pertains to civil first appeal or crossobjections under Order XLI Rule 22 CPC, therefore the court cannot look into any document which was neither exhibited nor tendered in evidence. Learned senior counsel for cross-objectors and learned counsel for defendant No.3 had relied upon agreement for dealership. The document has to be read as whole and not in isolation.

¶164

Chapter X of the Contract Act prescribed for contract between agent and master but herein the contract between respondents is a written contract and parties are bound by this. Since, the role of cross-objectors was bifurcated by this court, while deciding the civil first appeals therefore the liability, if any is based on the evidence on record and same can be assailed before the Division Bench.

¶165

The trial court was of the opinion that the contents of proposed para 7A were already available in other form in written statement filed by defendants, therefore it is not necessary to bring this specific para 7A on record by way of amendment in record. Having considered the fact that the trial court had

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dismissed the application but we have to see that whether this has caused prejudice in raising defence of respondent Nos. 1 and 2, at the time of decision of civil suit, is not established on record.

¶170

A specific issue on liability, in case of payment of compensation was framed by the trial court as issue No.3. The trial court has considered the defence of defendant on issue Nos. 1 and 2, and issue No.3 was left open and no specific finding was recorded by the trial court. As regard to finding of issue No.2 is concerned, the trial court was of the opinion that it was a sudden accident and beyond control of defendants, therefore no care was required to be taken to prevent the incident. Thus, the trial court was of the view that there was no negligence on part of crossobjectors (defendant Nos. 1 and 2).

¶171

In view of the findings of the trial court recorded on issue Nos.1, 2 and 3, I am of considered view that denial of amendment in written statement has not caused any prejudice to the crossobjectors. The grounds of defence raised by cross-objectors were already considered by the trial court in detail, while adjudication on issue Nos.1 and 2. The only duty while considering amendment in pleading under Order VI Rule 17 CPC was to see that whether such an amendment was necessary to decide real dispute between the parties. Herein, the contents of proposed para 7A does not conforms to the test of necessity to decide the real dispute. There is no sufficient ground to allow application under Order VI Rule 17 CPC and trial court has not committed any error while dismissing the application under Order VI Rule 17 CPC.

¶172

The provision of filing cross-objection under Order XLI Rule 22 cannot be utilised for the purpose of filling up of lacuna, left

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during course of trial by defendant which ultimately resulted into allow of appeal by a coordinate bench of this court.

¶177

Having considered the submissions and also the material on record along with law over the point, I am of considered view that cross-objections sans merits and liable to be dismissed.

¶178

Accordingly, cross-objections are dismissed.

¶179

Misc. application, if any, stands disposed of.

¶180

(ASHOK KUMAR JAIN),J

¶181

PREETI VALECHA 394-395

Sanju v. M/S Motor Aids Petrol Pump Jai

Case brief

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Sanju v. M/S Motor Aids Petrol Pump Jai

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