Pannalal Vs. State of Bombay & Ors
 INSC 26 (11 February 1963)
11/02/1963 GUPTA, K.C. DAS
GUPTA, K.C. DAS GAJENDRAGADKAR, P.B.
CITATION: 1963 AIR 1516 1964 SCR (1) 980
R 1988 SC 54 (12)
Civil Procedure-Respondent seeking relief
against a corespondent by way of cross-objection-Power of Court of Appeal-Code
of Civil Procedure, 1908 (Act 5 of 1908), O.
41, rr. 22, 33.
The appellant brought three suits claiming
full payment with interest in respect of three hospitals constructed by him in
execution of three separate contracts between him and the Deputy Commissioner.
The trial Judge decreed the suits for part of his claim against the State of
Madhya Pradesh and held that other defendants were not liable, and accordingly
dismissed the suits against them. On appeals preferred by the State of Madhya
Pradesh, the High Court set aside the decree against the State Government' and
allowed the, appeals with costs. The plaintiff at that stage prayed for leave
of the High Court to file a cross-objection and also for decrees to be passed
against the Deputy Commissioner under O. 41, r. 33 of the Code Of Civil
Procedure, which was rejected and all the suits were dismissed. It was urged that
(1) the State Government was liable in respect of all of these contracts and
(2) the High Court ought to have granted relief against such of the other
defendants as it thought fit under O. 41, r. 33 of the Code of Civil Procedure.
Held, that the State Government was not
liable in respect of any of these contracts.
Held, further, that the wide wording of O.
41, r. 33 empowers the appellate court to make whatever order it thinks fit,
not only as between the appellant and the respondent but also as between a
respondent and a respondent. It could not be said that if a party who could
have filed a cross-objection under O. 41, r. 22 did not do so, the appeal court
could under no circumstances give him relief under the provision of O. 41, r.
33. Order 41, r. 22 permits as a general rule, a respondent to prefer an
objection directed only against the appellant and 981 it is only in exceptional
cases that an objection under O.
41, r. 22 can be directed against the other
On the facts of these cases the High Court
refused to exercise its powers under O. 41, r. 33 on an incorrect view of the
law and so the appeal must be remanded to the High Court for decision what
relief should be granted to plaintiff under O. 41 r. 33.
Burroda Soundree Dasee v, Nobo Gopal Mullick,
(1864) W.R. 294, Maharaja Tarucknath Boy v. Tuboorunissa Chowdhrain, (1867) 7
W.R. 39, Ganesh Pandurang Agte v.
Gangadhar Ramakrishna, (1869) 6 Bom. H.C.Rep.
2244, AnwarJan Bibee v. Azmut Ali, (1870) 15 W.R. 26, Tirmnama v. Lakshmanan,
(1883) 7 Mad. 215. Venkateswarulu v. Rammama, I.L.R. (1950) Mad. 874, Jan
Mohamed v. P. N. Razden, A.I.R.
(1944) Lal. 433 and Ghandiprasad v. Jugul
(1948) Nag. 377, referred to.
Anath Nath v. Dwarka Nath, A.I.R. (1939) P.
C. 86, held inapplicable.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 207 to 209 of 1961.
Appeals from the judgment and decree dated
August 23, 1957, of the Bombay High Court at Nagpur in First Appeals Nos. 105
to 107 of 1952 from Original Decree.
S. T. Desai, J. B. Dadachanji, O. C. Mathur
and Ravinder Narain, for the appellants.
C. K. Daphtary, Solicitor General of India,
N. S. Bindra and R. H. Dhebar for P. D. Menon, for the respondent No. 1 Girish
Chandra for sardar Bahadur, for respondents Nos. 3 and 8.
1963. February 11. The judgment of the Court
was delivered by DAS GUPTA, J.-The appellant is a building contractor.
He constructed buildings for the Bai 982
Gangabai Memorial Hospital, Gondia, Kunwar Tilaksingh Civil Hospital, Gondia,
and also for the Twynam Hospital, Tumsar, all within the district of Bhandara
in Madhya Pradesh, in execution of three separate contracts in respect of the
three hospitals which were concluded between him and Deputy Commissioner of
Bhandara. Though he received part payment in respect of each of these contracts
he claims not to have received full payment of what was due to him. On April 1,
1948 he brought the three suits out of which these three appeals have arisen
for obtaining payments which he claims was due to him. His averments in all the
three plaints are similar, except that in respect of one of the suits, viz.,
the one in respect of the construction work done for the Bai Gangabai Memorial
Hospital, he has also claimed the price of some furniture said to have been
supplied by him at the request of the Deputy Commissioner. The common case of
the plaintiff in these three suits was that the Deputy Commissioner entered
into these contracts ""as representative of the Provincial
Government" after having obtained previous sanction of that Government. It
was further his case that the Deputy Commissioner, Bhandara, as the
administration head of the hospitals entered into these contracts and as such
was liable to pay the amounts due on the contracts. The plaint also averred
that the Gondia Municipal Committee, Gondia, in the suit in respect of Bai
Gangabai Memorial Hospital and the Dispensary Funds Committee in the other two
suits were liable to satisfy plaintiff's claim inasmuch as they had taken the
benefit of the work done under the contract which was not intended to be done
gratuitously. On these averments the plaintiff impleaded the Provincial
Government of the Province of Central Provinces and Berar as the first
defendant, and the Deputy Commissioner of the Bhandara District, as the second
defendant, in all the three suits. The Gondia Municipal Committee was impleaded
as the third defendant in 983 Suit No. 3-B of 1948, i. e., the suits in respect
of Bai Gangabai Memorial Hospital. The Dispensary Funds Committee was impleaded
as the third defendant in the other two suits.
In both, the members of the Dispensary Funds
Committee were also impleaded by name as defendants. Mr. G. K. Tiwari, who as
Deputy Commissioner, Bhandara, signed the argument was impleaded in his
personal capacity in all the three suits (Defendant No. 4 in Suit No. 3-B,
Defendant No. 9 in Suit No. 2-B and defendant No. 14 in Suit No. 1-B). The
State of Madhya Pradesh was later substituted for the Provincial Government of
the Province of Central Provinces and Berar as the first defendant in all the
It was admitted in the plaint that the
construction could not be completed within the time mentioned in the contracts
but it was pleased that the time was not the essence of the contract and
further, that the delay was due to the Deputy Commissioner's failure to supply
the necessary materials in time and inclemency of weather and also that time
was extended by the Deputy Commissioner. In all the three suits the plaintiff
made his claim at a higher rate than the contract rate on the plea that, the
Deputy Commissioner had sanctioned these higher rates. For the purpose of the
present appeals in which we are concerned solely with a question of law it is
unnecessary to mention the various other averments in the plaint.
It is necessary to mention however that in
Suit No.3-B the plantiff asked for a decree of Rs. 21,281/with costs and
interest from the date of suit against defendants 1 to 3 and in the
alternative, against defendant No. 4, i. e., Mr. G. K. Tiwari. In suit No. 1-B,
the plaintiff claimed a decree for Rs. 12,000/with full costs and future
interest from the date of suit against defendants 1 to 3 and/or defendant No.
14, i. e., Mr. G. K. Tiwari. In Suit 984 No. 2-B, the plaintiff asked for a
decree for Rs. 32,208/with costs and future interest against defendants 1 to 3
and/or defendant No. 9, i. e., Mr. G. K. Tiwari.
The main contention of the State of Madhya
Pradesh in resisting the suits was that the agreement for the construction of
the buildings was not made on behalf of the State Government and also that the
hospital was not government hospital and therefore it had no -liability. The
same contentions were raised by the Deputy Commissioner, Bhandara and Mr.
Tiwari, personally. All of them further contended that even on merits the
plaintiff was not entitled to any relief, for, though time was essence of the
contract the work was not finished within the time agreed upon. They also
resisted the plantiff's claim to increased rates on the ground that the previous
sanction of the Deputy Commissioner had not been obtained. Another contention
raised in all the suits was that the plaintiff's claim was barred by time.
The other defendants also contested the suits
on grounds which it is unnecessary for the purpose of the present appeals to
The Trial judge held that the agreements in
question were made for and on behalf of the State and further, that the
constructions had "beyond doubt benefited the State" and so the State
was liable. The learned judge also rejected the various objections raised by
the defendants to the plaintiff's claim on merits except that he disallowed
part of the plaintiff's claim and gave the plaintiff a decree for part of his
claim against the State of Madhya Pradesh in all the three suits. He also held
that none of the other defendants were liable and dismissed the suits as
Against the Trial Court's decision in these
suits the State of Madhya Pradesh preferred appeals to 985 the High Court of
judicature at Nagpur. During the pendency of these appeals the State of Madhya
Pradesh was substituted by the State of Bombay. In all these appeals the
plaintiff Pannalal was impleaded as the first respondent; and all the other
defendants were also impleaded as respondents.
Disagreeing with the Trial Court the High
Court held that the contract entered into by the Deputy Commissioner was not
binding on the State Government; that the Deputy Commissioner signed the
contract at his own discretion; and further, the contracts not having been
entered into in the form as required under s. 175(3) of the Government of India
Act, 1935, were not enforceable against the State Government. The High Court
also held that the Government could not be held to have ratified the action of
the contracts entered into by the Deputy Commissioner. The High Court also
rejected the argument that the Government having received the benefit of the
works must pay for them, on their finding that the hospitals were not
government hospitals and Government "can in no sense be regarded as having
benefited by anything done with respect to them". On these findings the
High Court set aside the decree passed by the Trial Court against the State
Government and allowed the appeals with costs.
It appears that a prayer was made on behalf
of the plaintiff-respondent that the High Court should pass decrees against the
Deputy Commissioner, Bhandara, under Or. 41, r.
33 of the Code of Civil Procedure. That
prayer was rejected by the High Court in these words : "Shri Phadke then
prayed that under Order 41 rule 33 of the Code of Civil Procedure we should
pass decrees against the Deputy Commissioner, Bhandara, who was indubitably, a
party to the contracts. Though the provisions of Order 41, 986 rule 33 are wide
enough to permit this we do not see any reason why we should exercise our power
when it was open to the respondent No. 1 to prefer a cross-objection against
the dismissal of his suits against those defendants, as well as against some
other defendants." The High Court also rejected the Counsel's prayer to
grant him leave to file a cross-objection at that stage. In the result, all the
three suits were dismissed by the High Court in their entirety. The High Court
however granted a certificate under Art. 133(1)(c) of the Constitution. On the
basis of that certificate these three appeals have been preferred by the
Two grounds were urged in support of the
appeals. The first was that the High Court was wrong in holding that the State
Government was not liable. The second ground urged was that, in any case, the
High Court ought to have granted relief to the plaintiff against such of the
other defendants as it thought fit under the provisions of Order 41, rule 33 of
the Code of Civil Procedure.
There is, in our opinion, no substance in the
appellant's contention that the State Government was liable.
On the materials on the record, it appears
clear to us that the Deputy Commissioner did not act on behalf of the State
Government in signing the contracts. Nor can it be said that the State
Government derived benefit from the work done by the plaintiff. In our opinion,
the High Court was right in its conclusion that the State Government was not
liable in respect of any of these contracts and rightly dismissed the suits as
against the defendant No. 1. This position was not seriously disputed before
There is however much force in. the
appellant's contention that the High Court ought to have exercised its
jurisdiction under Or. 41, r. 33 of the Code 987 of Civil Procedure in favour of
the plaintiff. The operative portion of that rule, which was for the first time
introduced in the Civil Procedure Code in 1908, is in these words :"33.
The appellate court shall have power to pass any decree and make any order
which ought to have been passed or made, and to pass or make such further or
other decree or order as the case may require, and this power may be exercised
by the Court notwithstanding that the appeal is as to part only of the decree
and may be exercised in favour of all or any of the respondents or parties,
although such respondents or parties may not have filed any appeal or
objection." A proviso was added to this by Act 9 of 1922 which, however,
does not concern us. It is necessary however to set out the illustration to the
rule which runs thus :
"A claims a sum of money as due to him
from X or Y, and in a suit against both obtains a decree against X. X appeals
and A and Y are respondents. The appellate court decides in favour of X. It has
power to pass a decree against Y." Even a bare reading of Order 41, rule
33 is sufficient to convince anyone that the wide wording was intended to
empower the appellate court to make whatever order it thinks fit, not only as
between the appellant and the respondent but also as between a respondent and a
respondent. It empowers the appellate court not only to give or refuse relief
to the appellant by allowing or dismissing the appeal but also to give such
other relief to any of the respondent as "the case may require." In
the present case, if there was DO impediment in law the High Court could 988
therefore, though allowing the appeal of the State by dismissing the
plaintiff's suits against it, give the plaintiff a decree against any or all
the other defendants who were parties to the appeal as respondents. While the
very words of the section make this position abundantly clear the illustration
puts the position beyond argument.
The High Court appears to have been in no
doubt about its power to give the plaintiff relief by decreeing the suits against
one or more of the other defendants. But say the learned judges, "we do
not think it proper to do so as the plaintiff could have asked for this relief
by filing a cross-objection under Or. 41, r. 22, C. P. C., but has not done
so." The logic behind this seems to be that the crossobjection under Or.
41, r. 22 could be filed only within the time as indicated therein and if a
respondent who could have filed a cross-objection did not do so, is given
relief under Or. 41, r. 33, Or. 41, r. 22 is likely to become a dead letter.
The whole argument is based on the assumption
that the plaintiff could, by filing a cross-objection under Or. 41, r. 22,
Civil Procedure Code,, have challenged the Trial Court's decree in so far as it
dismissed the suits against the defendants other than the State., We are not,
at present advised, prepared to agree that if a party who could have filed a
cross-objection under Or. 41, r. 22 of the Code of Civil procedure has not done
so, the appeal Court can under no circumstances give him relief under the
provisions of Or.
41, r. 33 of the Code. It is, however, not
necessary for us to discuss the question further as, in our opinion, the
assumption made by the High Court that the plaintiff could have filed a
cross-objection is not justified.
Whether or not a respondent can seek relief
against any other respondent by a cross-objection 989 under Or. 41, r. 22.
Civil Procedure Code, was a vexed question in Indian courts for a long time.
The present Order 41, r. 22 has taken the place of the former s. 561 of the
Code of 1882. Indeed, the provision as regards raising an objection by a
respondent without a separate appeal appears even in the Code of 1859 as s.
348. 'The same provision in a little more detailed form was enacted in the Code
of 1877 as s. 561. It was reproduced in the Code of 1882 also as s. 561 with
slight amendments in these words :"Any respondent though he may not have
appealed against any part of the decree, may upon the hearing not only support
the decree on any of the grounds decided-against him in the court below, but
take any objection to the decree which he could have taken by the way of
appeal, provided he has filed a notice of such objection Dot less than seven
days before the date fixed for the hearing of the appeal.
Such objection shall be in the form of a memorandum.,
and the provisions of s. 541, so far as they relate to the form and contents of
the memorandum of appeal shall apply thereto.
Unless the respondent files with objection a
written acknowledgement from the appellant or his pleader of having received a
copy thereof, the Appellate Court shall cause such a copy to be served, as soon
as may be after the filing of the objection, on the appellant or his pleader,
at the expense of the respondent." The question whether a respondent could
by way of crossobjection seek relief against another respondent under these
provisions was first raised before the courts almost a century ago. Both the
Calcutta and the Bombay High Courts held in a number of cases that ordinarily
it was not open to a respondent 990 to seek relief as against a co-respondent
byway of objection, though in exceptional cases this could be done.
(Vide Burroda Soundree Dossee v. Nobo Gopal
Mullick (1), Maharaja Tarucknath Roy v. Tuboornnissa Chowdhrain (2), Ganesh
Pandurang Agte v. Gangadhar Ramkrishna (3) , Anwar Jan Bibi v. Azmut Ali(4).
These decisions it is proper to mention were given under the Code of 1859 where
s. 348 provided that "Upon hearing of the appeal, the respondent may take any
objection to the decision of the lower court which he might have taken if he
had preferred a separate appeal from such decision." After this section
was replaced by s. 561 in the Code of 1877 and the Code of 1882 the question
whether a respondent can file an objection against another respondent came up
before the courts several times and the decision remained the same. The Patna
and the Allahabad High Courts also took the view that as a general rule the
right of a respondent to urge cross-objections should be limited to asking
relief against the appellant only and it is only where the appeal opens up
questions which cannot be disposed of properly except by opening up matters as
between correspondents that relief against respondents can also be sought by
way of objections. The Madras High Court took a different view in Timmayya v. Lakshmanan
(5), and held that the words of the section were wide enough to cover all
objections to any part of the decree and it was open to a respondent seek
relief under this section even against another respondent, and this view was
reiterated by that Court even after the Code of 1908 made an important change
in the provision by using the word "cross-objection" in place of
"objection". Ultimately however in 1950 a Full Bench of the Madras
High Court in Venkateshwarlu v. Rammama (1), considered the question again and
decided overruling all previous decisions that on a proper construction of the
language, Or. 41, r. 22 confers only a restricted (1) (1864) W.R. 294.
(2) (1867) 7 W.R. 39.
(3) (1869) 6 Bom. H.C. Rep. 244.
(4) (1870) 15 W.R. 26.
(5) (1883) 7 Mad. 215.
(6) L R. (1950) Mad. 874.
991 right on the respondent to prefer
objection to the decree without filing a separate appeal; that such objection
should, as a general rule, be primarily against the appellant, though in
exceptional cases it may incidentally be also directed against the other
respondents. The Lahore High Court which had earlier followed the former view
of the Madras High Court also decided in Jan Mohamed v. P. N. Razden (1), to
adopt the other view held by the High Courts of Allahabad, Bombay, Calcutta and
Patna. The Nagpur High Court has also adopted the same view. (Vide Chandiprasad
Jugul Kishore) (2).
In our opinion, the view that has now been
accepted by all the High Courts that Order 41, r. 22 permits as a general rule,
a respondent to prefer an objection directed only against the appellant and it
is only in exceptional cases, such as where the relief sought against the
appellant in such an objection is intermixed with the relief granted to the
other respondents, so that the relief against the appellant cannot be granted
without the question being reopened between the objecting respondent and other
respondents, that an objection under Or. 41, r. 22 can be directed against the
other respondents, is correct. Whatever may have been the position under the
old s. 561, the use of the word "'cross-objection" in Or. 41 r. 22
expresses unmistakably the intention of the legislature that the objection has
to be directed against the appellant. As Rajammannar C. J., said in
Venkataswrlu v. Ramamma (3).
"The legislature by describing the
objection which could be taken by the respondent as a
"cross-objection" must have deliberately adopted the view of the
other High Courts. One cannot treat an objection by a respondent in which the
appellant has no interest as a cross-objection. The appeal is by the appellant
against a respondent, the cross objection -must be an objection by a respondent
against the appellant". We think, with respect, that these observations
put (1) A.I.R. 1944 Lah. 433.
(2) A.I.R. 1948 Nag. 377.
(3) I.L.R. (1950) Mad. 8741 992 the matter
clearly and correctly. That the legislature also wanted to give effect to the
views held by the different High Courts that in exceptional cases as mentioned
above an objection can be preferred by a respondent against a correspondent is
indicated by the substitution of the word "appellant" in the third
paragraph by the words "the party who may be affected by such objection."
On the facts of the present case, we have come to the conclusion that it was
not open to the plaintiff appellant before the High Court to file any
cross-objection directed against the other defendants who were-correspondents.
The High Court was therefore wrong in refusing to consider what relief, if any,
could be granted to the plaintiff under the provisions of Or. 41, r. 33, Civil
Learned Counsel who appeared for the Gondia
Municipality in Civil Appeal No. 209 of 1961, relied on the decision of the
Privy Council in Anath Nath v. Dwarka Nath (1), for his contention that rule 33
could not be rightly used in the present case. In that case the plaintiff
challenged a revenue sale as wholly void for want of jurisdiction and bad for
irregularities and further contended that the respondent had been guilty of
fraud or improper conduct to the prejudice of his co-owners in the estate. The
Trial Court rejected the plaintiff's case that the sale was void for want of
jurisdiction and bad for irregularities but accepted the other contention and
gave the plaintiff a decree. On appeal, the High Court held that no fraud -or
improper conduct towards co-owners in respect of the revenue sale had been
proved against respondent No. 1. The High Court refused to grant any relief to
the plaintiff on the other ground which had been rejected by the Trial Court in
the view that it was no longer open to the plaintiff who had not filed any
cross-objections to the decree of the Trial Court to maintain that the revenue
(1) A.I.R. 1939 P.C. 86.
993 sale should be set aside for want of
jurisdiction or irregularity. In accepting this view of the High Court the
Privy Council observed:"In their Lordships view the case came clearly
within the condition imposed by the concluding words of sub-r. (1) of R. 22,
"'provided he has filed such objections in the Appellate Court, etc.,
etc". It was contended however that the language of R. 33 of the same
Order was wide enough to cover the case. Even if their Lordships assume that
the High Court was not wholly without power to entertain this ground of
appeal-an assumption to which they do not commit themselves-they are clearly of
opinion that Rule 33 could not rightly be used in the present case so as to
abrogate the important condition which prevents an independent appeal from
being in effect brought without any notice of the grounds of appeal being given
to the parties who succeeded in the courts below." This decision is of no
assistance to the respondents.
For the question which we have considered
here, viz., how fir it is open to a respondent to seek relief against a correspondent
by way of cross-objection did not fall for consideration by the Privy Council.
The Privy Council based its decision on the view that it was open to the
respondent before the High Court to file a cross-objection under or.
41, r. 22 against the appellant and had not
to consider the question now before us. We think it proper also to point out
that the decision of the Privy Council in Anath Nath's case (1), should not be
considered as an authority for the proposition that the failure to file a
cross-objection-where such objection could be filed under the law-invariably
and necessarily excludes the application of Or. 41, r. 33.
There their Lordships assumed, without
deciding, that the (1) A.I.R. 1939 P. C. 86, 994 High Court was not wholly
without power to entertain the other ground of appeal but in the special
circumstances of the case they thought that it would not have been right to
give relief under the provisions of Rule 33 to the appellant.
As the High Court has refused to exercise its
powers under Or. 41, r. 33 of the Code of Civil Procedure on an incorrect view
of the law the matter has to go back to the High Court.
We maintain the High Court's order in so far
as it dismisses the suits against the State of Bombay but set aside the order
in so far as it dismisses the suits against the other defendants and send the
case back to the High Court in order that it may decide, on an examination of
the merits of the case, whether relief should be granted to the plaintiff under
the provisions of Or. 41, r. 33, Civil Procedure Code.
Costs incurred in this Court will abide the
final result in the appeals before the High Court at Bombay.
Appeals allowed in part.