0

Memorandum of objection need not be filed when the appellant only assailed a ‘finding’ of the lower court: Supreme Court of India

Only when a part of the decree has been assailed by the respondent, should a memorandum of cross-objection be filed. Otherwise, it is sufficient to raise a challenge to an adverse finding of the court of first instance before the appellate court without a cross objection. This was held by Hon’ble Justice Dr Dhananjaya Y Chandrachud in the case of Shri Saurav Jain and Anr. Vs. M/s A. B. P. Design and Anr. [Civil Appeal No. 4448 of 2021] on the 05th of August 2021, before the Hon’ble Supreme court of India.

The brief facts of the case are, The first respondent instituted a suit Moradabad claiming to be a “transferable owner and cultivator” of lands comprising of Gata No. 200/1 admeasuring 0.1300 hectares equivalent to 1295.04 sq. mts. situated in village Sonakpur, in the city and district of Moradabad. MDA was impleaded as the first defendant while the appellant was the second defendant to the suit. The averments in the plaint need to be adverted to at this stage. A person by the name of Zahid Hussain had title over vacant land admeasuring 6960.84 sq. mts in Moradabad. By an order dated 16 March 1988, the land comprised in Gata No. 200, among other pieces of land, was declared as “surplus” by the Competent Authority under the Urban Land (Ceiling and Regulation) Act 1976 (“ULCRA”). Pursuant to the order of the Competent Authority, possession of the land in Gata No. 200 was allegedly handed over by the State of Uttar Pradesh to the MDA. By its judgment dated 18 October 2011, the Trial Court held that it had the jurisdiction to grant declaratory and injunctive relief and that the suit was therefore maintainable. The Trial Court dismissed the suit holding that the MDA was the lawful owner of the land and the auction held on 12 September 2008 was valid. The High Court by its judgment dated 22 February 2018 reversed the judgment and decree of the Trial Court. his appeal arises from a judgment dated 22 February 2018 of the High Court of Judicature at Allahabad in a first appeal under Section 96 of the Code of Civil Procedure 1908 (“CPC”). On 18 October 2011, the Additional District and Sessions Judge, Moradabad dismissed a suit2 instituted by the first respondent. The High Court allowed the appeal by the first respondent and reversed the judgment of the Trial Court, holding that the auction conducted by Moradabad Development Authority (“MDA”) in respect of the land in dispute is null and void. The appellant is an auction purchaser who purchased the suit land from the MDA. MDA has been impleaded as the second respondent to these proceedings. Both the appellant and the second respondent have been restrained from interfering with the possession of the first respondent over the land.

The counsel for the appellant submits that, the judgement of the high court is wrong since The jurisdiction of the civil court to entertain the suit was barred since a fair reading of the plaint would make it evident that the object and purpose of the suit was to impugn the validity of the proceedings under the ULCRA without impleading either the State of Uttar Pradesh or the Competent Authority under the ULCRA. The sale deed in favour of the first respondent was void, and hence the basis and foundation on which the first respondent instituted the suit stands nullified. The original claim in the suit was subsequently expanded through an amendment to set up a plea over a larger area of land. The counsel for the respondent rebuts saying that Originally in 1986, an acquisition took place under the provisions of the Land Acquisition Act 1894 of an area admeasuring 200 sq. mt. in Gata No. 200. As a consequence, the remaining portion of the land was divided into Gata No.200/1 admeasuring 1295.04 and Gata No.200/2 admeasuring 200 sq. mt. Though an order was passed by the Competent Authority in 1988, by the order of the District Judge dated 6 January 1993, the case was remanded back to the Competent Authority for reconsideration of the matter on the basis of the amended Master Plan, and there is no evidence in regard to any further proceedings prior to the enactment of the Repeal Act. Furthermore, After the issuance of a notification under Section 10(1) on 27 September 1988, there is no evidence of any further steps having been taken to take possession before the Repeal Act came into force.

The court heard the contentions of both the parties and observed that, between the order dated 6 January 1993 remanding the matter to the Competent Authority and when the sale deed was executed on 22 June 1993, there was no notification under Section 10(1) of the ULCRA. Thus, the dual requirement for a valid transfer under Section 5(3) was not fulfilled. Any transfer in contravention of the provisions of Section 5(3) would be null and void. The suit instituted by the first respondent was founded on his alleged claim of title based on the transfer by Zahid Hussain and was liable to fail on this ground alone. To answer the question of jurisdiction raised by the defendant, the court relied on the judgement in S. Nazeer Ahmed v. State Bank of Mysore (2007) 11 SCC 75, wherein it was held that, “The respondent in an appeal is entitled to support the decree of the trial court even by challenging any of the findings that might have been rendered by the trial court against himself. For supporting the decree passed by the trial court, it is not necessary for a respondent in the appeal, to file a memorandum of cross-objections challenging a particular finding that is rendered by the trial court against him when the ultimate decree itself is in his favour. A memorandum of cross-objections is needed only if the respondent claims any relief which had been negatived to him by the trial court and in addition to what he has already been given by the decree under challenge. We have therefore no hesitation in accepting the submission of the learned counsel for the appellant that the High Court was in error in proceeding on the basis that the appellant not having filed a memorandum of cross-objections, was not entitled to canvas the correctness of the finding on the bar of Order 2 Rule 2 rendered by the trial court.

Applying this, the court held that, “It is apparent from the amended provisions of Order XLI Rule 22 CPC and the above authorities that there are two changes that were brought by the 1976 amendment. First, the scope of filing of a cross-objection was enhanced substantively to include objections against ‘findings’ of the lower court; second, different forms of raising cross-objections were recognised. The amendment sought to introduce different forms of cross-objection for assailing the findings and decrees since the amendment separates the phrase “but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour” from “may also take any cross-objection to the decree” with a semi colon. Therefore, the two parts of the sentence must be read disjunctively. Only when a part of the decree has been assailed by the respondent, should a memorandum of cross-objection be filed. Otherwise, it is sufficient to raise a challenge to an adverse finding of the court of first instance before the appellate court without a cross objection.” The appeal was allowed by setting aside the judgement of the high court.

click here to read the judgement

Leave a Reply

Your email address will not be published. Required fields are marked *

Open chat