A suit for possession and injunction was filed by one Guzulu Devendra Iyer against Muthu Chettiar as defendant 1 and Venkateswara Iyer as defendant 2 in July 1931 in the Court of the District Munsif at Melur in which the tenant was also impleaded as defendant 3. Certain mesne profits were also claimed by the plaintiff in the suit. While filing his written statement defendant 1 raised a number of contentions in which he attacked the locus standi of the plaintiff to maintain the suit on the ground that he was not an occupancy tenant and asserted that the othi (Ex. A-1) was invalid. It was admitted by him that he was the landholder but alleged that defendant 2 was in possession of the lands in suit and that the land was rightfully sold to him in a revenue auction for arrears of rent. It was also pleaded on his behalf that he was an unnecessary party to the suit. A number of issues were then framed by the lower Court but the objection raised by defendant 1 that he was an unnecessary party did not form the subject-matter of an issue at all. It is true that, as contended on behalf of the respondent, the duty of framing issues has been cast by the Civil Procedure Code on Courts. But it must not be forgotten that, at least on a technical matter like this, it is essential for the parties also to draw the attention of the Court to such an omission. In view of various contentions raised on behalf of defendant 1 on the merits of the claim, it appears to me that the issue in regard to defendant 1 being an unnecessary party was not pressed on his behalf deliberately when the issues were being framed and must in the circumstances be held to have been waived by him. This inference is further strengthened by the fact that the trial proceeded for about an year and a half and yet nothing was said or done by or on behalf of defendant 1 who would have drawn the attention of the Court to such an omission, although another issue was subsequently added by the trial Court. In fact, the result of the case in which a decree for possession was passed against defendant 1 in addition to defendant 2 shows very clearly that there was no merit in that objection and must be necessarily, although impliedly, taken to have been decided against defendant 1.
An appeal was filed by defendant 2 against the judgment and decree of the trial Court passed on 30th January 1933 to the District Court at Madura to which defendant 1 was naturally impleaded as a respondent. Having been served with a notice of appeal on 14th July 1933, he filed cross-objections on 14th August 1933. The only ground which was raised in these objections was that he should not have been held liable for the costs of the suit. When the matter came up for hearing all the grounds urged by the appellant, i.e, defendant 2, failed but strangely enough the Subordinate Judge found that defendant 1 was an unnecessary party. He came to this finding on the grounds that defendant 1 had first of all disclaimed possession and the relief asked for by the plaintiff was one in which defendant 2 was alone interested. It was apparently overlooked that the plaintiff had in this case asked for possession against both defendant 1 and defendant 2. The allegations in the plaint alone should bave been looked into in order to come to a finding whether defendant 1 was or was not a necessary party. If the plaintiff had failed to establish his allegations, the suit should have been dismissed against him on the merits. This was, however, not done. The finding arrived at by the Subordinate Judge is all the more surprising when one finds that this ground was not even taken by defendant 1 in his cross-objections.
Aggrieved by the judgment and decree of the lower appellate Court defendant 2 filed a Second Appeal and since defendant 1 was held to be an unnecessary party by the Subordinate Judge, he was not impleaded. The plaintiff has now filed cross-objections in which he prays that a decree for possession and costs should have been passed by the lower appellate Court not only against defendant 2 but also against defendant 1. A separate petition has also been given on his behalf that in the circumstances of the case, defendant 1 should be impleaded as a party to the appeal. Not being content with his cross-objections and the petition filed to implead defendant 1 as a party to the appeal, he has put in another petition in which he has asked his cross-objections to be converted into a Second Appeal and prayed for the delay in filing the appeal to be excused. This has been done, as stated by his counsel while arguing the case, by way of caution.
The real point which I have now been called upon to decide is whether the cross-objections filed on behalf of the plaintiff are competent against defendant 1 who has not been made a party to the appeal and if not, whether he could be ordered to be impleaded as a party to the appeal under the provisions of O. 1, R. 10 read with S. 107, Civil Procedure Code. If I hold on either of the two points in favour of the plaintiff, it is obvious that no orders need be passed on the third application of his in which he has asked for his cross-objections to be converted into an appeal and for excusing the delay under S. 5 of the Limitation Act.
The provisions contained in O. 41, R. 22 are quite general in my opinion and entitle a respondent to take any cross-objection to the decree which he could have taken by way of appeal. It has been already held in a Full Bench ruling of this Court given in Munisamy Mudaly v. Abbu Reddy(1) and followed in Alagappa Chettiar v. Chockalingam Chettiar(2) and Chhajju v. Qutab Din(3) that a respondent could urge cross-objections against a co-respondent in any and every case. If this be so, why should a respondent's right to file cross-objections and ask for relief be restricted to the parties only who have been impleaded in the appeal at the instance of the appellant. If the respondent could file an appeal against a respondent, who, although not a party to the appeal, was yet a party to the suit, there is nothing in the words of O. 41, R. 22 which would prevent him from raising the contention in his cross-objections which could be raised by him in an appeal. I am supported in this view by a ruling of a Division Bench of this Court given in Ponnuswami Asari v. Palaniandi Mudali(4).
The respondent's counsel cited Ilahi Bakhsh v. Jawinda Mal(5) in support of his contention that inasmuch as the respondent was not a party to the appeal, no cross-objection could be entertained against him. In that case, no notice was issued to a defendant who was affected by the cross-objections and the lower appellate Court had, in spite of the absence of that defendant, chosen to pass a decree against him. This was obviously wrong. Moreover, unlike the present case, the defences of the two defendants one of whom was impleaded in appeal and the other who was not were not common. But if that ruling meant to lay down the general proposition that no cross-objections could be entertained against a person who, although a party to the suit, was not impleaded by the appellant as a party to the appeal, I would, with great respect, disagree. I see nothing in the words of O. 41, R. 22 and no principle of law under which such a contention should be allowed to prevail. The other ruling cited on behalf of respondent, Ayilu Reddi v. Venkata Reddi(6), has no application to the facts of this case.
At all events the Court has ample powers under the provisions of O. 1, R. 10(2) read with S. 107 Civil Procedure Code to implead any person in the appeal as a respondent who ought to have been joined or whose presence before the Court may be necessary in order to enable the Court to adjudicate upon all the questions involved in the appeal effectively.
In view of what has been said, I consider that by putting in cross-objections, defendant 1 has been legally impleaded in this appeal. In any case I would order him to be so impleaded under the provisions of O. 1, R. 10(2) read with S. 107 Civil Procedure Code.
It is unnecessary for me now to consider the third application for converting the cross-objections into a Second Appeal and for excusing the delay. I would prefer to pass no orders on this application. Defendant 1 shall bear the costs of the application.
Order accordingly.
N.R.R