M/S. Shiv Shankar Prasad v. Union Of India .

1. The plaintiff has preferred this Second Appeal against a judgment of reversal. The suit was for realisation of a sum of Rs. 6897.96 Paise, which the plaintiff is said to have sustained loss because of the negligence of the carrier, namely, the railways.

2. For the purpose of disposal of this appeal there is no need of setting out the facts of the case. Suffice it to say that the plaintiff's suit was decreed against which the defendant railway preferred the appeal, and the judgment of the lower court was set aside on merit. The appellate court, however, held under issue No. 4 that the written statement filed by the railways was not properly verified and, therefore, the defence taken in the written statement, could not be looked into.

3. The substantial question of law framed at the time of admission of the appeal is whether after having found that the written statement filed in the case was not proper and the defence taken in the written statement could not be taken notice of, the lower appellate court has committed an error of law in accepting the evidence of the defendant to rebut the averment made in the plaint regarding the validity of the notice under S. 78-B of the Railways Act or S. 80 of the Civil P.C and in so doing whether the lower appellate court was correct in disbelieving the case of the plaintiff, that notices were not served.

4. Mr. Rama Kant Verma, appearing for the plaintiff-appellant, submitted that on the finding of the lower appellate court the court of appeal below should not have looked into the evidence of the defendant at all to non-suit his client the learned counsel contended that it is a settled law, if a plea has not been taken in the written statement, then the evidence beyond the pleading, is inadmissible in evidence. In the present case the written statement having been found to be not in accordance with law and, therefore, it should have been ignored. The learned counsel contends that the court below ought to have granted a decree on the basis of the averment made in the plaint, of course supported by the evidence adduced by the plaintiff.

5. Mr. Ojha appearing for the railways, submitted that the lower appellate court was not at all justified to decide the question of maintainability and/or admissibility and/or legality of the written statement, inasmuch as, in the trial court no such objection was taken. The illegality complained of is with respect to verification of the written statement. Mr. Ojha contended that any defect in verification is merely an irregularity and the concerned party can always remove the irregularity, provided such an objection is taken at the appropriate time and stage. In any view of the matter, according to the learned counsel it is merely an irregularity and in view of S. 99 of the Civil P.C (hereinafter referred to as “the Code”) no judgment or decree can be varied because of the said irregularity. Learned counsel also contended that if such an objection is not taken at an appropriate stage, the said objection cannot be allowed at the appellate stage.

6. Mr. Rama Kant Verma, in reply to the said argument contended that the railways having not filed any cross-objection in the High Court to the said finding rendered by the appellate court against them, they cannot be allowed to challenge the said finding in view of Explanation of O. 41, R. 22(1) of the Code brought in by the Amendment Act (104 of 1976).

7. Mr. Ojha has very fairly conceded that if it is held that the written statement cannot be looked into because of the defect in the verification, then the contention of Mr. Verma learned counsel appearing for the plaintiff that he shall be entitled to a decree on the evidence adduced by his client, may be correct. He has drawn my attention to the decision of Rustun Gazi v. Tara Prosanna Chowdhuri (1907) 11 Cal WN 871 where it has been held that where a written statement filed on behalf of the defendant was actually received by the court and no application was made by the plaintiff to have it taken off the file on the ground of its not being signed and verified by the defendant as required under the Code, the question as to its validity cannot be allowed to be raised before the appellate court Learned counsel contends that the law laid down in this decision applies with all force to the case in hand.

8. It is well known that if a plaint or written statement is not properly verified, the pleading is not a nullity but an irregularity curable under S. 99 of the Code. Section 99 of the Code says that “no decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on account of………….. any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.” Cases are in plathora laying down the law that the defect in verification is mere irregularity.

9. The question, however, remains to be decided; can the defendant challege the said finding while supporting the judgment and decree in their favour without having preferred any cross-objection under O. 41, R. 22 of the Code against the finding that the written statement cannot be looked into. It is admitted on all counts that the judgment and decree passed is not based upon this finding. It is also admitted position that the suit has been dismissed in its entirety and a decree has followed in favour of the defendant railways. It is now contended by the plaintiff that the defendant should have preferred even in such a situation an appeal to this Court independently or filed a cross-objection.

10. There being no part of the decree against the defendant and the defendant not being desirous of any variation of the decree of the court below, I am unable to accept the contention of the learned counsel of the appellant. Order 41 R. 22 of the Code contemplates a cross-objection to be taken against a decree which he could have taken by way of appeal. The Explanation newly introduced, also envisage “aggrieved by a finding in a judgment on which the decree appealed against is based.” It is, therefore, clear that cross-objection and/or cross appeal is available to such respondent who could have preferred an independent appeal as well against the judgment and decree in question. It is well settled that this rule has no application, where the respondent does not want any variation of the decree or seek any disturbance of the decree. (See Shailesh Chandra Guha v. Bechai Gope reported in AIR 1925 Cal 94 and Secretary of State v. Chimanlal Jamnadas reported in AIR 1942 Bom. 161, and also Hardhan Mahto… v. Gokhul Mahto…. reported in AIR 1924 Patna 775).

11. I am, therefore, of the view that where a person could not have appealed against the judgment and decree, he is not required to file a cross-objection in order to assail a finding against him, on which finding the decree is not founded. (See Most. Kulsumunnisan v. Khushnudi Begam reported in AIR 1954 All 188, Babusingh v. Godawari reported in AIR 1929 Nag. 361, and R.S Ram Mohan Rai Jaswant Rai Desai v. Soma Bhai Patel reported in AIR 1950 Bom. 161). The respondent, therefore, can challenge a finding if the decree is not founded upon the said finding and in giving relief, the decree passed remains undisturbed without filing any cross-objection. The respondent will be very much within his right to contend that this issue should have been decided in his favour. (See Lala Gauri Shankar Lal v. Janki Pershad reported in (1889) ILR 17 Cal 809 Privy Council). In my opinion, therefore, cross-objection is contemplated only when the respondent could have also appealed independently against the decree and the finding must be such on which finding the decree is founded. It is only in such situation that a cross-objection to that part of the decree which is based on such finding, can be filed. If cross-objection is not filed, he cannot be allowed to challenge the decree. In the case of Shree Chandra Prabhuji Jain Temple v. Harikrishna AIR 1973 SC 2565 the Supreme Court had occasion to consider O. 41, R. 22 of the Code and their Lordships observed as follows:—

“………….. In other words, the bar against urging the plea of the invalidity of the orders of sanction would apply only if the respondents seek to impugn the decree already obtained by the appellants but not when the appellants seek to obtain further reliefs in the appeal on the basis of the orders. In such a case we are not aware of any rule of law which would preclude the respondents from urging the plea.”

12. It is true that the decided cases referred to above all relate to unamended provision of O. 41, R. 22 of the Code, but in my opinion the amendment of 1976 has not brought any material change in law. From the 54th Report of the Law Commission it appears that the Law Commission was not happy with the wordings of O. 41, R. 22 of the Code as it stood prior to the amendment. The provision laid down the right of upholding a decree of the court of first instance on any of the grounds on which that court decided against him. The Law Commission observed that it appears strange at first sight because a person cannot support a decree on the ground decided against him. The Law Commission in its 54th report observed that the amendment by way of incorporation of Explanation was necessitated because of the change effected under O. 14, R. 2, which now provides that even if a case can be disposed of on a preliminary issue other than question of jurisdiction of the Court or a bar to suit is involved, the Court must render its judgment on all issues. Therefore, where a decision of the trial court on a preliminary issue is favourable to the respondent and the other issues are decided against him the respondent was empowered to file cross-objection in respect of the decree so far it is based on that finding, notwithstanding that by reason of the decision of the court on any other finding which is sufficient for the decision of the suit, the decree is wholly or in part in favour of the respondent. The Explanation is only an enabling provision. Cross-objection is a must where the decree is sought to be disturbed and varied as envisaged under O. 41, R. 22(1) of the Code. It really meant that he may support the decree by asserting that the ground decided against him should have been decided in his favour. This led to the amendment of cl. (1) of O. 41 R. 22 of the Code.

13. In effect, the basic structure of law as it stood before amendment and after amendment remains one and the same, namely, a respondent who has not preferred an independent appeal earlier, can do so if his other side has preferred an appeal by filing cross-objection with respect to that part of the decree with which he is aggrieved. The amendment came to be considered in the case of Shyam Nath v. Durga Prasad AIR 1982 All 474. In this decision it was held that the proviso to sub-rule (1) to R. 22, of O. 41 applies to decree and not to mere finding. Filing of cross-objection against the finding is not obligatory. Similar view has been expressed in the case of Nana Tukaram Jaikar v. Sonabai, AIR 1982 Bom. 437, where their Lordships held that the respondent to an appeal may without filing cross-objection support the decree on grounds decided against him. The views expressed by the different High Courts also point out that if the decree is not sought to be varied or disturbed by the respondent there is no need of filing any cross-objection as against a finding which the respondent can challenge without filing a cross-objection in support of the decree.

14. I am, therefore, of the opinion that the submission of Mr. R.K Verma learned counsel for the appellant, that Mr. Ojha appearing for the defendant-respondent cannot question the finding of the court of appeal below that the written statement should be ignored without filing cross-objection, is not at all acceptable to me. I am also of the opinion that the plaintiff having not taken in the trial court objection as to the defect in verification of the plaint, he cannot be allowed to raise that question in this second appeal. I am of the further view that the defect in verification in the plaint is an irregularity and no judgment and/of decree can be revised because of the said irregularity, in view of the provisions of S. 99 of the Civil P.C

15. Mr. R.K Verma has not addressed me on any other question and rightly so, because other questions are all findings of facts which cannot be interfered with in second appeal. Those findings, however, were intrinsically involved with his first submission. Had the appellant been able to succeed on his first submission, other findings would have been automatically vitiated in law for being based on inadmissible evidence.

16. In the result the appeal fails and it is dismissed but without any cost.

Appeal dismissed.