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Choudhary Sahu (Dead) By Lrs. v. State Of Bihar .
Factual and Procedural Background
The appellants are landholders under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. Pursuant to a notice under Section 8(1) of the Act, each appellant filed a land-holding return. After verification, the Collector concluded that the appellants were entitled to five units and published a draft statement under Section 10. On objection, the Collector’s final order dated 23 February 1975 raised the entitlement to twelve units.
Only the appellants challenged the Collector’s order, filing appeals before the Divisional Commissioner. The State of Bihar neither appealed nor filed cross-objections. On 14 May 1976, the Commissioner allowed the appeals in part by setting aside the Collector’s order and remanding the matter, but he also reversed the favourable finding on the number of units, reducing the appellants’ entitlement.
The appellants sought judicial review under Article 226 of the Constitution. The High Court dismissed the writ petition, upholding the Commissioner’s action on the strength of Order 41 Rule 22, Code of Civil Procedure (CPC). The Supreme Court granted special leave, clubbing eight similar appeals for a common decision.
Legal Issues Presented
- Whether, in the absence of an appeal or cross-objection by the State of Bihar, the appellate authority (Commissioner) could reverse findings favourable to the appellants by invoking Order 41 Rule 22 CPC.
- Whether Order 41 Rule 33 CPC empowered the appellate authority to grant such relief to the non-appealing State so as to disturb rights that had become final in favour of the appellants.
Arguments of the Parties
Appellants’ Arguments
- The Commissioner lacked jurisdiction to disturb the Collector’s finding on units because the State filed neither an appeal nor a cross-objection; under Order 41 Rule 22, a respondent may only support, not attack, an unchallenged decree.
- The High Court erred in relying solely on Order 41 Rule 22; the conditions for invoking Order 41 Rule 33 were also absent.
State of Bihar’s Arguments
- Invoked Order 41 Rule 22 to justify the Commissioner’s power to alter the Collector’s findings despite the absence of a State appeal.
- In the alternative, relied on the wide discretionary power under Order 41 Rule 33 CPC to sustain the Commissioner’s order.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Nirmala Bala Ghose v. Balai Chand Ghose, AIR 1965 SC 1874; (1965) 3 SCR 550 | Order 41 Rule 33 must be applied with discretion; power is to avoid inconsistent or unworkable decrees and not to reopen decrees that have become final. | Cited to show that O 41 R 33 cannot be used to confer benefits on a non-appealing party merely because the appellate court disagrees with the lower court. |
| Giani Ram v. Ramji Lal, (1969) 1 SCC 813; (1969) 3 SCR 944 | Meaning of “which ought to have been passed” under O 41 R 33; appellate court may pass any decree required in law to resolve the matter. | Reaffirmed that although O 41 R 33 is widely worded, its use must serve justice and avoid contradictory decrees; it does not provide unrestricted power. |
Court's Reasoning and Analysis
1. The Court examined Order 41 Rule 22 and emphasised its bifurcation: the first part lets a respondent support a decree on any ground, while the second part (cross-objection) is the exclusive mode to challenge the decree. Because the State filed neither an appeal nor a cross-objection, it could only support the Collector’s decree and could not seek reversal of a finding favourable to the appellants.
2. Turning to Order 41 Rule 33, the Court recognised its broad wording but reiterated established jurisprudence that the provision should be applied “with great caution” and only to avoid inconsistent or unworkable results. Relying on Nirmala Bala Ghose, the Court stressed that a non-appealing party, whose rights are otherwise unaffected, cannot secure fresh relief under O 41 R 33 merely because the appellate court would prefer a different conclusion.
3. The present case lacked circumstances warranting discretionary intervention under O 41 R 33. The Collector’s finding on units had become final for want of a State appeal. Disturbing that finding would violate limitation principles and undermine finality.
4. Consequently, both the Commissioner and the High Court erred in invoking O 41 R 22 (and indirectly O 41 R 33) to unsettle the Collector’s undisputed finding.
Holding and Implications
Appeals ALLOWED; orders of the High Court and the Commissioner are set aside to the extent they reversed the Collector’s finding on allotment of units. The Commissioner’s remand on other issues remains undisturbed. Each party will bear its own costs.
Implications: The Supreme Court clarifies that a respondent’s power to “support” a decree under Order 41 Rule 22 does not include authority to seek adverse modifications absent an appeal or cross-objection. Further, Order 41 Rule 33, though expansive, cannot be employed to reopen matters that have attained finality without compelling necessity to avoid contradictory decrees. The ruling reinforces procedural discipline and the finality of unchallenged findings, without establishing new substantive law.
R.B Misra, J.— These eight appeals by special leave raise a common question of law regarding the scope of Order 41 Rule 22 and Order 41 Rule 33 of the Code of Civil Procedure. We, therefore, propose to dispose of these appeals by a common judgment. Since these appeals raise similar questions, we will refer to the facts of Civil Appeal No. 2084 of 1977 only.
2. The appellant in this appeal is a landholder in terms of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as ‘the Act’). A notice under Section 8(1) of the Act was issued to the petitioner calling upon him to submit return with all the particulars of the lands held by him. The petitioner in response to the said notice filed his return. On the basis of the verification report the Additional Collector came to the conclusion that the petitioner was entitled to five units and accordingly ordered for the publication of the draft statement under Section 10 of the Act. The petitioner was again served with a notice under Section 10(2) of the Act. In response thereto he filed an objection laying inter alia a claim for 15 units for reasons enumerated therein. The Collector considered the objections filed by the petitioner and by his order dated February 23, 1975 ordered allotment of 12 units to the petitioner. The petitioner feeling aggrieved went up in appeal before the Commissioner of the Division. The State of Bihar submitted to the order and did not go up in appeal. Notices were issued to the respondents who, however, failed to appear on the date fixed. The appeal was heard on April 27, 1976 and a final order was passed by the Commissioner on May 14, 1976. He allowed the appeal and set aside the order of the Collector and remanded the case to him for disposal according to law.
3. It may be pointed out that the appellant had challenged the order of the Collector on various grounds. He, however, did not challenge the finding recorded by the Collector regarding the units allotted to him. The Commissioner, however, set aside the finding of the Collector even regarding the units allotted to the appellant in spite of the fact that no appeal had been filed by the State of Bihar before the Commissioner. The appellant filed a petition under Article 226 of the Constitution to challenge the order of the Commissioner but the High Court dismissed the petition and confirmed the order of the Commissioner on the basis of the provisions of Order 41 Rule 22.
4. The sole contention raised on behalf of the appellants in the various appeals is that in the absence of any appeal or cross-objection filed by the State of Bihar the Commissioner was not justified in reversing the finding in favour of the appellants, namely, the finding on the question of allotment of units or regarding the classification of land. This contention, as observed earlier, was raised before the High Court in the writ petition as well. The High Court, however, repelled the contention by applying the provisions of Order 41 Rule 22. Reliance has also been placed by the State of Bihar on the provisions of Order 41 Rule 33, CPC in support of the order of the Commissioner. The High Court, however, did not rely upon Order 41 Rule 33 and rested content by relying on provisions of Order 41 Rule 22.
5. By Rule 49 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules, 1963, Order 41 of the Civil Procedure Code has been made applicable in disposing of the appeals under the Act.
6. We will first refer to the provisions of Order 41 Rule 22. Insofar as it is material for the purposes of this case, it reads:
22. (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
7. The first part of this Rule authorises the respondent to support the decree not only on the grounds decided in his favour but also on any of the grounds decided against him in the court below. The first part thus authorises the respondent only to support the decree. It does not authorise him to challenge the decree. If he wants to challenge the decree, he has to take recourse to the second part, that is, he has to file a cross-objection if he has not already filed an appeal against the decree. Admittedly, the State of Bihar had neither filed any appeal nor cross-objection. Obviously, therefore, on the strength of the first part of sub-rule (1) of Rule 22 of Order 41 the State of Bihar could only support the decree not only on the grounds decided in its favour but also on the grounds decided against it. The Commissioner however, has set aside the finding in favour of the appellants on the strength of Order 41 Rule 22(1). In our opinion this he could not do.
8. The only other Order on which the State of Bihar could rely upon is Order 41 Rule 33 CPC. The High Court did not consider the provisions of Order 41 Rule 33 as in its opinion the order of the Commissioner could be supported on the strength of Order 41 Rule 22. In the view that we have taken regarding the applicability of Order 41 Rule 22 it becomes pertinent to consider the applicability of Order 41 Rule 33 of the Code of Civil Procedure. Insofar as material, it reads:
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 . . .
Illustration.—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.
This Rule is widely expressed and it must be applied with great caution. The object of this Rule is to empower the appellate court to do complete justice between the parties. Under this Rule the court has power to make a proper decree notwithstanding that the appeal is as to part only of the decree and such power may be exercised in favour of all or any of the parties even though they may not have filed an appeal or objection.
9. Reliance has been placed on Nirmala Bala Ghose v. Balai Chand Ghose AIR 1965 SC 1874, (1965) 3 SCR 550. This Court dealing with the scope of Order 41 Rule 33, observed as follows:
“The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by Order 41 Rule 33 may properly be invoked. The rule, however, does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from”.
10. In the case cited above, there were two sets of defendants in the suit and in substance two decrees, though corelated, were passed. One of the decrees could stand apart from the other. One set of defendants were two deities. The suit was decreed against them. They did not go up in appeal nor did they take part in the proceedings either before the High Court or before the Supreme Court, although they were impleaded as respondents. The other set of defendants, Nirmala, sought to invoke the powers of the appellate court under Order 41 Rule 33 to pass a decree in favour of a party not appealing so as to give the latter a benefit which she had not claimed. In such a situation this Court observed:
“When a party allows a decree of the Court of first instance to become final, by not appealing against the decree, it would not be open to another party to the litigation, whose rights are otherwise not affected by the decree, to invoke the powers of the appellate Court under Order 41 Rule 33, to pass a decree in favour of the party not appealing so as to give the latter a benefit which he has not claimed. Order 41 Rule 33 is primarily intended to confer power upon the appellate Court to do justice by granting relief to a party who has not appealed, when refusing to do so, would result in making inconsistent, contradictory or unworkable orders”.
11. Counsel for the State of Bihar, on the other hand, referred to Giani Ram v. Ramji Lal (1969) 1 SCC 813, (1969) 3 SCR 944. While construing the provisions of Order 41 Rule 33, this Court observed:
“The expression “which ought to have been passed” means “what ought in law to have been passed”. If the Appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the subordinate court, it may pass or make such further or other decree or order as the justice of the case may require”.
12. The object of this Rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and caution. The Rule does not confer an unrestricted right to re-open decrees which have become final merely because the appellate court does not agree with the opinion of the court appealed from.
13. Ordinarily, the power conferred by this Rule will be confined to those cases where as a result of interference in favour of the appellant further interference with the decree of the lower court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience. While exercising the power under this Rule the court should not lose sight of the other provisions of the Code itself nor the provisions of other laws, viz. the law of limitation or the law of court fees etc.
14. In these appeals the Collector on the basis of the material placed before him allowed certain units to the various appellants. In the absence of any appeal by the State of Bihar, there was no justification for the Commissioner to have interfered with that finding in favour of the appellants. The facts and circumstances of these appeals are not such in which it would be appropriate to exercise the power under Order 41 Rule 33. The Commissioner as well as the High Court committed a manifest error in reversing the finding regarding allotment of units to the various appellants in the absence of any appeal by the State of Bihar when the same had become final and rights of the State of Bihar had come to an end to that extent by not filing any appeal or cross-objection within the period of limitation.
15. For the reasons given above, all the appeals are allowed and the order of the High Court and that of the Commissioner is set aside insofar as it relates to finding of the Collector in favour of the appellants. The remand order will, however, remain intact insofar as other points are concerned. In the circumstances of the case, the parties shall bear their own costs.
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