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Cross-Objections To Adverse Findings Not Necessary When Decree Is Entirely In Favour Of Such Party: Madras High Court
Upasana Sajeev
29 April 2022 4:51 AM GMT
Such adverse findings can be challenged in the appeal filed by the other party, it said.
The Madras High Court bench of Justice Anand Venkatesh recently observed that when the court makes adverse findings against a party, it need not file a cross-appeal or a cross-objection to the same where the decree is entirely in favour of such party. Such adverse findings can be challenged in the appeal filed by the other party and the Court is entitled to decide the same, it added....
The Madras High Court bench of Justice Anand Venkatesh recently observed that when the court makes adverse findings against a party, it need not file a cross-appeal or a cross-objection to the same where the decree is entirely in favour of such party.
Such adverse findings can be challenged in the appeal filed by the other party and the Court is entitled to decide the same, it added.
The right for filing a cross objection against an adverse finding provided under the amended Order XLI Rule 22 CPC is mandatory only when the decree is partly in favour of or partly against the party, the Court further held.
The court was dealing with a second appeal filed by one Suresh Kumar Kankariya. The case of the petitioner was that he entered into an agreement for sale with the respondent/defendant on 14.12.1998. As per the sale agreement, the total sale consideration was fixed at Rs. 3,00,000/- and the plaintiff paid a sum of Rs.2,00,000/- as an advance on the date of the agreement. The agreement further provided that the balance sale consideration of Rs.1,00,000/- will be paid within 12 months i.e., on or before 14.12.1999 and on receipt of the same, the defendant agreed to register a sale deed in favour of the plaintiff.
Later, a sum of Rs. 85000/- was paid to the defendants through receipt dated 15.09.2001 and the defendant also agreed to receive the remaining amount of Rs.15000/-. According to the plaintiff, by virtue of this acceptance of money and the receipt evidencing the same, the time was extended.
He further claimed that when he was ready and willing to pay the remaining amount, the defendant was trying to evade the execution of the sale deed. Hence, a legal notice was sent to which the defendant replied denying the execution of any sale agreement in favour of the plaintiff.
When the defendants tried to sell the property to a third party, the plaintiff filed a suit for a permanent injunction. During the pendency of the suit, the plaintiff filed another suit for specific performance.
The defendants took a stand that the signed blank stamp papers were given as surety by the defendant when her brother in law purchased a lorry under hire purchase from the plaintiff's father. These documents are now being misused by the plaintiff even after repayment of the loan. The defendant also denied the execution of the receipt as claimed by the plaintiff.
When the second appeal came up for admission the following issues were identified:
- (a)Whether the suit for specific performance is maintainable without seeking for a leave under Order 2 Rule 2 of C.P.C
- (b)Whether both the Courts below were right in rejecting the suit for specific performance only on the ground that the same is time barred?
- (c)Whether the findings rendered by the Lower Appellate Court can be termed as perverse due to improper appreciation of the oral and documentary evidence?
The court additionally considered another issue which was not considered by the courts below
- (d)Whether a favourable finding in respect of the plaintiff can be interfered with in the Second Appeal even when the relief was not granted and what will be the scope of invoking Order XLI Rule 33 of the Code of Civil Procedure, while deciding the Second Appeal where the jurisdiction is circumscribed by the provisions of Section 100 of the Code of Civil Procedure?
While dealing with the additional issues, the court stated that by virtue of Order XLII Rule 1 CPC, the Rules under Order XLI will apply even to Second Appeals. The court then relied heavily on the judgement of the Supreme Court in State of A.P. v. B. Ranga Reddy (2020) where the court discussed the law before and after amendment and observed the following:-
"The amendment sought to introduce different forms of cross-objection for assailing the findings and decrees 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 semicolon. 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 the first instance before the appellate court without a cross objection."
Applying this finding in the present case, the court observed that the decree passed by the lower court was entirely in favour of the respondent and hence the respondent is entitled to question the adverse findings on the issue of Order II Rule 2 CPC rendered by the Lower Appellate Court, in the Second Appeal filed by the plaintiff.
The court, therefore, opined that in view of such a conclusion, there was no need to look into the scope of Order XLI Rule 33 of CPC to analyse if this provision can be invoked in the absence of a cross-objection filed by the respondent against adverse findings rendered by the Lower Appellate Court.
ORDER II RULE 2 OF CPC
The respondent had also claimed that the second suit was barred under Order II Rule 2 of the CPC. While considering the issue, the lower appellate court had observed that to attract such a bar, three conditions needed to be satisfied:
1. Previous and second suits must arise out of the same cause of action.
2. Both the suits must be between the same parties.
3. The earlier suit must have been decided on merits.
Observing that the third condition was not fulfilled, the court had ruled that matter in favour of the plaintiff.
The High Court relied on the decision in State Bank of India Vs. Gracure Pharmaceuticals Ltd. (2013) and Coffee Board Vs. Ramesh Exports Pvt. Ltd (2014) where it was held that a party could not split up a claim and sue for only one part when the cause of action is available for all claims. In order to determine if a suit is barred, the court must look into the cause of action. If the cause of action in both the suits is identical and the subsequent relief claimed could have been claimed in the first suit, the subsequent suit is barred by Order II Rule 2, unless leave is obtained in the earlier suit where a lesser relief was sought for. Such bar shall exist even if the first suit is pending.
Applying this finding to the present case, the court observed that while filing the first suit for permanent injunction, the cause of action for filing the second suit for specific performance also existed. The plaintiff failed to seek the larger relief and also omitted to take leave of the court. The court, therefore, ruled against the plaintiff.
Period of Limitation
The lower appellate court had rendered a finding that the receipt produced by the plaintiff claiming an extension of time was fabricated one created only to escape from limitation. The High Court deemed it fit not to interfere with the finding of the lower court as the finding is supported by cogent reasons and there was no perversity in the findings.
The court then observed that if such receipt was to be eschewed, the suit ought to have been filed within 3 years from the expiry of the time fixed under the agreement. But the suit was filed only in 2004, much beyond the period of limitation. The court relied on the decision in K. Murali Vs. M. Mohamed Shaffir (2019) and held that the limitation begins to run from the date the parties have stipulated for the performance of the contract.
Case Title: Suresh Kumar Kankariya v. K Jigibai @Pushpammal
Case No: SA No. 568 of 2012
Counsel for Petitioner: Mr V. Manohar
Counsel for Respondent: Mr P. Valliappan
Citation: 2022 LiveLaw (Mad) 185
