HC Can’t Go Beyond Judgment & Decree Of Trial Court While Dismissing Appeal Against It, In Absence Of Cross Appeal/Objection: SC [Read Judgment]

HC Can’t Go Beyond Judgment & Decree Of Trial Court While Dismissing Appeal Against It, In Absence Of Cross Appeal/Objection: SC [Read Judgment]

 “The Appellants-original Defendants cannot be put in a worse condition than beyond the judgment and decree passed by learned Trial Court which was appealed before the First Appellant Court and that too in the absence of any cross-appeal or cross objection by the original Plaintiffs.”

The Supreme Court has observed that, while dismissing an appeal filed by a defendant, the high court could not pass any further order beyond the judgment and decree passed by the trial court, in the absence of any cross-objection and/or cross appeal preferred by the plaintiff.

In an appeal preferred by the original defendants, at the most, the high court can dismiss the appeal and confirm the judgment and decree, said the bench comprising of Justice AK Sikri, Justice Ashok Bhushan and Justice MR Shah in Akhil Bhartvarshiya Marwari Agarwal Jatiya Kosh vs. Brijlal Tibrewal.

The trial court, while decreeing the suit filed by the plaintiff, had only directed the defendant to convey the title and execute document in favour of the society in respect of Suit Building and land to the extent of Suit Building, which was 1009.70 sq. meters. Dismissing the appeals, the high court had directed the defendant to execute the Deed of Conveyance to the extent of 2700 sq. meters of land.

The bench observed: “The Appellants-original Defendants cannot be put in a worse condition than beyond the judgment and decree passed by learned Trial Court which was appealed before the First Appellant Court and that too in the absence of any cross-appeal or cross objection by the original Plaintiffs. Therefore also, the impugned orders passed by the High Court which, as such, will go beyond the judgment and decree passed by the learned Trial Court are not sustainable, more particularly, in absence of any cross-appeal and/or order the cross objection by the original Plaintiffs. Once the High Court has dismissed the Appeal preferred by the Appellants-original Defendants, in that case, in an appeal preferred by the original Defendant, the High Court could not have passed any further order beyond the judgment and decree passed by the learned Trial Court appealed. Thus, by passing the impugned order, it can be said that the High Court has passed order beyond the scope and ambit of the Appeal before it and has exceeded in its jurisdiction not vested in it.”

“Note for speaking to the Minutes” can’t be considered at par with a review application

Another issue in this case was whether such an order/orders could have been passed by the high court below the “Note for speaking to the Minutes”. The bench said that a “Note for speaking to the Minutes” cannot be considered at par with a review application or in a given case, with an application for clarification/modification of an order.

It further observed: “A “Note for speaking to Minutes” is required to be entertained only for the limited purpose of correcting a typographical error or an error through oversight, which may have crept in while transcribing the original order. Once, the judgment/order is pronounced and if any party to the same wants any rectification of any typographical error and any clerical mistake regarding the date or number, such a party may apply to the concerned Court for correcting such an error in the  judgment/order. However, a “Note for speaking to the Minutes” cannot be considered at par with a review application or in a given case, with an application for clarification/modification of an order. A “Note for speaking to the Minutes” can never be considered to be an application of such a nature. While passing the impugned order below the “Note for speaking to the Minutes”, the High Court has virtually modified its original order passed in First Appeal. While passing the impugned order, the High Court has given further directions as if the High Court is passing the order on an application for clarification/modification. Therefore, such a course was not open to the High Court while deciding a “Note for speaking to the Minutes”. Since, the High Court has travelled beyond its jurisdiction in regard to the scope of deciding a “Note for speaking to the Minutes”, we have no option but to set aside the impugned order passed below the “Note for speaking to the Minutes”.”

Read the Judgment Here