Budhan v. Lala Harbans Lal

S. Trivedi, J.

1. Budhan and Ramji Lal executed an agreement to sell the property in dispute in favour of Ved Prakash son of Harbans Lal on 13-9-55. On 1-3-62 Suit No. 65 of 1962 was filed by Ved Prakash for specific performance of the contract of sale. It was stated by him that the aforesaid two persons had agreed to sell the plots in dispute for a sum of Rs. 200/- and that a sum of Rs. 50/- was advanced as earnest money. The sale deed was to be executed after they had won the case that was pending in the Hon'ble High Court. The case was won of 27-11-61. It was also alleged that the aforesaid defendants had subsequently entered into some agreement with Sri Ram Kar Prasad and Narendra Kumar who were arrayed as defendants 3 and 4. Ramji Lal who was defendant No. 1 admitted the plaint allegations. Budhan who was defendant No. 2 denied the execution of the agreement and stated that the sum of Rs. 50/- was borrowed from Harbans Lal and he never entered into any agreement to sell the property in dispute.

2. Another suit No. 89 of 1962 was filed by Harbans Lal on 27-3-62 for specific performance of the contract in his favour with the allegation that the contract was entered by him and the name of his son Ved Prakash was got entered under the advice of some legal experts.

3. The two suits were consolidated and suit No. 89 of 1962 was treated as the leading suit. The trial Court held that the agreement of sale was entered into between Budhan and Ramji Lal on the one hand and Harbans Lal on the other hand. Suit No. 65 of 1962 filed by Ved Prakash was consequently dismissed whereas suit No. 89 of 1962 filed by Harbans Lal was decreed. Aggrieved by the judgment and decree of the trial Court Ved Prakash filed Civil Appeal No. 41 of 1964. Budhan also filed an appeal against the decree and this appeal was numbered as Appeal No. 58 of 1964. Both the appeals were dismissed by the lower appellate Court on 14-4-64. Second Civil Appeal No. 4044 of 1965 was then filed in this Court by Budhan against the decree for specific performance passed in favour of Harbans Lal. No appeal was filed by Ved Prakash. A Cross Objection has been filed by Ved Prakash in the appeal of Budhan. Budhan compromised with plaintiff respondent Harbans Lal and his appeal was thereafter dismissed on the basis of the compromise. The cross objection filed by Ved Prakash has come up for hearing. A preliminary objection has been raised by the appellant and by the counsel for the respondent Harbans Lal about the maintainability of the cross objection. Their contention is that the suit for specific performance filed by Ved Prakash having been dismissed and an appeal too being dismissed it is not open to Ved Prakash to challenge by a Cross Objection the decree obtained by Harbans Lal in suit No. 89 of 1962. To be more specific the contention is that the remedy available to Ved Prakash was to file a Second Civil Appeal against the judgment and decree of the lower appellate Court dismissing his suit. It is further contended that Budhan had denied the agreement and his appeal was confined against the finding that there had been a genuine agreement executed by him. A Cross Objection by Ved Prakash that the decree for specific performance should be passed in his favour instead of Harbans Lal is not maintainable specially when the said relief could not be granted in the suit and the suit of Ved Prakash stands dismissed.

4. Learned counsel for the appellant on the other hand has contended that the Cross Objection can be filed against the interest of the appellant as well as against the interest of the co-respondent. According to him the language of Order 41, Rule 22, C.P.C. does not exclude the filing of the Cross Objection against a co-respondent. I have heard the learned counsel for the parties at some length. Order 41, Rule 22 authorises a respondent to file an objection from any part of the decree in respect of matters which he could have taken by way of appeal. The Cross Objections are in the nature of an appeal by the respondent. If it is by way of an appeal by the respondent the Cross Objection principally should be directed against the appellant. There has been divergence of opinion amongst the various High Courts on the right of filing a Cross Objection against a co-respondent The law now has been settled that as a general rule the right of respondent to urge Cross Objections should be limited against the appellant and that it is only in exceptional cases that a respondent can be permitted to urge a Cross Objection as against other respondents.

5. In Panna Lal v. State of Bombay, AIR 1963 SC 1516 it was laid down that:

"Order 41, Rule 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 inter-mixed 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 Order 41, Rule 22 can be directed against the other respondents. The use of the words "cross objection" in Order 41, Rule 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant. That the legislature also wanted to give effect to the view that in exceptional cases an objection can be preferred by a respondent against a co-respondent 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."

6. The Cross Objection against a co-respondent is thus permissible only where the relief sought against the appellant is inter-mixed with the relief granted to other respondents. The above case is also referred for the grant of a relief under Order 41, Rule 33. At present I am only considering whether the relief claimed by Ved Prakash in his Cross Objection can be said to be a relief sought against the appellant and is inter-mixed with the relief granted to other respondents. The facts of each case will be determined to determine whether the Cross Objection by a respondent against another co-respondent is maintainable.

7. The facts of Panna Lal's case, AIR 1963 SC 1516 (supra) were that Panna Lal on the basis of three contracts had filed a suit for recovery of the money. The suits were filed with the allegation that the Deputy Commissioner had sanctioned the rates. The suits were filed initially against the State of Madhya Pradesh and the Deputy Commissioner, Bhandara, The suits were contested by the State of Madhya Pradesh on the ground that the contracts were not made on behalf of the State Government. The trial Court decreed the suits in part against the State of Madhya Pradesh and dismissed the suit against other defendants. In appeal the State of Madhya Pradesh was substituted by the State of Bombay. The High Court dismissed the suits of the plaintiff holding that the contracts not having been entered in a form as required under Section 175(3) of the Government of India Act were not enforceable against the State Government. A relief to file Cross Objection for a decree against the Deputy Commissioner personally was also disallowed by the High Court. Panna Lal then went in appeal to the Hon'ble Supreme Court. The Supreme Court on the facts of the case held that the plaintiff was not competent to file Cross Objection directed against other defendants who were co-respondents. The Supreme Court, however, remanded the case to the High Court for deciding whether relief should be granted to the plaintiff under Order 41, Rule 33, C.P.C. That case instead of helping the appellant goes to support the respondent's contention. The respondent in his Cross Objection is not challenging that no decree can be granted against Budhan, the appellant, but his contention is that instead of granting the decree in favour of Harbans Lal the decree should be granted In his favour.

8. Learned counsel for the appellant has contended that under Sub-clause (3) of Order 41, Rule 22, C.P.C. a party affected has to be given a notice of the objection and from this his inference is that the scope of Cross Objection is unlimited and is enlarged. I am not prepared to accept this contention of the learned counsel for the appellant Issuing of a notice to a party affected is in conformity with the rules of natural justice and this provision was necessary in those cases where the relief sought against the appellant was inter-mixed with the relief granted to the other respondent e.g. in suits for dissolution of partnership and accounts it is open to any respondent to prefer Cross Objection against a co-respondent on any item in dispute between them. In the same way in a suit for partition, it is open to a co-respondent to challenge the mode of partition. A party may content himself with the decree but where he is dragged there by some party and his right is likely to be affected the failure to give the right of Cross Objection against a co-respondent is likely to cause great injustice and is likely to preclude the appellate Court from adjusting the equities between the parties.

9. Learned counsel for the respondent has relied on the following cases in support of his contention that where the Cross Objection is not directed against an appellant a Cross Objection against a corespondent simpliciter would not be maintainable :--

(1) Debi Chand v. Prabhu Lal, AIR 1926 All 582.

(2) Ganga Prasad v. Gajadhar Prasad, (1878-1880) ILR 2 All 651;

(3) Vadlamudi Venkateshwarlu v. Ravi-pati Pamamma, AIR 1950 Mad 379 (FB);

(4) Badri Narayan Singh v. Kamdeo Prasad Singh, AIR 1962 SC 338;

(5) Nathuni Mishra v. Mahesh Misra, AIR 1963 Pat 146;

(6) Shridhar Ghose v. Harimohan Sahu, AIR 1964 Orissa 141;

(7) Shri Krishna Gopal v. Haji Moham-mad Muslim, AIR 1969 Delhi 126.

10. By his Cross Objection Ved Prakash is not seeking any relief against the appellant but his contention is that the decree that has been passed against the appellant should be passed in his favour instead of Harbans Lal. The principle laid down in the cases do not bring this case within the exception and the Cross Objection of Ved Prakash, therefore, is not maintainable.

11. The next contention of the learned counsel for the appellant is that even if the Cross Objection is not maintainable, he is entitled to a decree under Order 41, Rule 33, C.P.C. Reliance has been placed by him on Panna Lal's case (supra) where their Lordships invoked the aid of Order 41, Rule 33, C.P.C. against the Deputy Commissioner, Bhandara. The facts of that case are quite distinguishable. There the suit was by the plaintiff against the State and the Deputy Commissioner, Bhandara. His suit against the State was decreed by the trial Court. In appeal his suit was dismissed. In second appeal before the Hon'ble Supreme Court the Deputy Commissioner, Bhandara was a party. The suit was on the basis of a contract executed by Deputy Commissioner, Bhandara. The decree against the State was refused on account of non-compromise of Section 175(3) of the Government of India Act It was, however, held that the goods were supplied by the plaintiff and the question before their Lordships of the Supreme Court was whether the trial Court ought to have passed a decree against the Deputy Commissioner personally. It was in those circumstances that the Supreme Court remanded the case to the High Court for deciding whether on merits and in exercising powers under Order 41, Rule 33, C.P.C. a decree should be granted against the Deputy Commissioner or not.

12. In the instant case the appellant i is not seeking any relief against Ved Prakash. His appeal is that the decree granted in favour of Harbans Lal is bad because there had been no agreement of sale. The applicability of Order 41, Rule 33, therefore, does not arise. The rule empowers the Court to pass appropriate orders in the ends of justice and it does occur at times where some persons appeal and others do not that the Court is put in a position of making impossible, contradictory or inequitable orders. It is in those conditions that the Court is given a power to pass a decree in favour of persons who have not even approached. The normal rule is that the party who is aggrieved by the decree has to file an appeal within the time allowed but there are some exceptions to this rule and under Order 41, Rule 33, C.P.C. the appellate Court is given power to interfere where as a result of interference in favour of the appellant it becomes necessary to readjust the rights of other parties or where the question is one of settling mutual rights and obligation or where the relief prayed is single and indivisible but is claimed against number of persons. The appellant in the instant case, is, therefore, not entitled to invoke the aid of Order 41, Rule 33, C.P.C.

13. The next point urged by the learned counsel for the appellant is that the principle of res judicata will not apply and the dismissal of his suit will not affect his right to challenge the decree of the appellate Court dismissing his suit.

14. Reliance has been placed by him on :--

(1) Jai Narain Har Narain v. L. Bulaqi Das L. Munna Lal, AIR 1969 All 504 (FB);

(2) Kathoom Bivi Ammal v. Arulappa Nadar, AIR 1970 Mad 76;

(3) Khetrarnohan Baral v. Basananda, AIR 1962 Orissa 141;

(4) Parduman Singh v. State of Punjab, AIR 1958 Punj 63;

(5) Qazi Nazeerul Hasan v. Mahabir Singh, 1949 All WR 368.

15. In AIR 1969 All 504 (FB) (supra) the majority observation of the Full Bench is :

"That the result of consolidating the two suits were to combine the controversies in the two suits into a single controversy and a single proceeding. Since the only common judgment in the proceeding had been put in jeopardy by being appealed against it was not a matter finally decided so as to attract the bar under Section 11."

16. Learned counsel for the respondent on the other hand has contended that the general observation of the Full Bench is against Sheodan Singh v. Daryao Kunwar (Smt) ., AIR 1966 SC 1332 wherein it was laid down that:

"Where the trial Court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation or default in printing, with the result that the trial Court's decision stands confirmed, the decision of the appeal Court will be res judicata and the appeal Court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal Court is to confirm the decision of the trial Court given on merits, and if that is so, the decision of the appeal Court will be res judicata."

17. The facts of the Full Bench case are distinguishable from the facts of this case and Sheodan Singh's case, AIR 1966 SC 1332 (supra). The facts before the Full Bench were that two suits were consolidated and decided by a common judgment. An appeal in one suit was filed in the Court of District Judge whereas in another in the High Court The appeal before the District Judge was disposed of earlier and when the appeal against the other case came up before the High Court for hearing, it was contended that the decision of the District Judge operated as res judicata and it was in that context that the Full Bench remarked that the appeal against the decree which was pending in the High Court was not barred by res judicata.

18. The facts of the present case are similar to Sheodan Singh's case (supra) and Ved Prakash's claim having been distinctly negatived in his appeal and the decision having become final it is not open to him to reagitate the matter by filing a Cross Objection. Even if for a moment it is accepted that the decision of his appeal will not operate res judicata against him, it having been held by me that he had no right to file Cross Objection, he is not entitled to any relief.

19. Lastly it is contended by the learned counsel for the appellant that a plea for benami could not be raised in a suit fop specific performance. He has drawn my attention to Section 27 of the Specific Relief Act which is in the following words :--

"Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against -

(a) either party thereto;

(b) ............

(c) ............

(d) ............

(e) .............

20. "By either party" his interpretation is "by the party mentioned in the deed itself". A benami transaction is one in which the real owner of the property allows it to appear in the name of an ostensible owner who has no interest at all in that property. A benamidar is only a name lender or an alias for the real owner and when the benamidar is in possession of the property standing in his name he is in a sense a trustee for the real owner. Hence benami is not strictly applicable to contracts because in the case of contracts the question for consideration is whether a person had entered into the contract in his behalf or on behalf of somebody else. The question, therefore, in the instant case is whether the contract entered into was on behalf of Harbans Lal or not.

21. Lastly it has been contended that under Section 92 of the Evidence Act Harbans Lal was not competent to contend that he was the contracting party when the contract stood embodied in a document. This plea also was not agitated at any point of time. Moreover, as remarked in Ram Nara-yan Pandey v. Kedar Nath Tewari, AIR 1965 Pat 463 that:

"The reference to the "terms" of a contract in Sections 91 and 92 does not extend to the parties to the contract. What is excluded by Section 92 is oral evidence designed to contradict, vary, add to or subtract from the terms agreed upon by the parties, and not as to who are the real contracting parties."

22. In view of my finding that the Cross Objection is not maintainable and the respondent is not entitled to a relief by invoking the aid of Order 41, Rule 33, C.P.C. the Cross Objection has to be dismissed and is accordingly dismissed with costs.