FIRST APPEAL 7 of 2008 on 1 May 1998

Order

1. Both the cross-objections were preferred by the defendantNos. 1 and 2/Cross-Objectors, aggrieved from judgment anddecree dated 01.05.1998 in civil suit Nos. 10/1994 and 11/1994passed by learned Additional District judge No.6, Jaipur Metro.

2. The facts of the matter inter alia are that minor plaintiff(s)filed separate suits as indigent persons through natural guardiansfor recovery of damages for the injuries caused in an accidenthappened at petrol pump on 01.10.1989 operated bydefendants/cross-objectors. The trial court after considering thematerial on record and also the evidence of the parties hasdismissed both the civil suits on 28.09.1995. Aggrieved fromaforesaid, S.B. Civil First Appeal Nos. 08/1996 and 09/1996 werepreferred by the plaintiff(s) which was partially allowed on06.01.1998 and decree dated 28.09.1995 was set aside and bothmatters were remanded back to the trial court.

3. After remand, both civil suits were decided afresh on01.05.1998 and both the suits were again dismissed by learnedAdditional District Judge No.6, Jaipur Metro. Aggrieved fromaforesaid S.B. Civil First Appeal Nos. 323/1998 and 324/1998were preferred by the plaintiff(s) (Appellants) and same were allowed on 25.08.1999 and following decree was passed by a Co-ordinate Bench of this Court:

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4. Aggrieved from aforesaid, D.B. Special Appeal (Civil) Nos.86/1999 and 87/1999 were preferred by present cross-objectorsbefore Hon’ble Division Bench of this Court and on the directiondated 04.10.2023 these matters are listed for disposal.

5. Learned senior advocate for cross-objectors while relyingupon grounds of cross-objection would submitted that under thelaw, cross-objection are same as that of cross-appeal so cross-objection is maintainable independent of appeal. He specificallyreferred Order XLI Rule 22 CPC and submitted that only twocontingencies were provided hence same instant cross-objectionrequired to be adjudicated on merits. He also submitted that theCo-ordinate Bench while considering the appeal has notconsidered the grounds raised by present cross-objectors andwithout considering these cross-objection(s), had allowed theappeal(s) of appellant(s)/plaintiff(s). He specifically submitted thataggrieved from dismissal of suit in 1995 the appeal was preferredin 1996 then applications under Order XLI rule 27 and Order VIRule 17 CPC were also filed by present defendants but same werenot considered by learned Single Judge and defendants had toapproach the Division Bench by filing D.B. Special Appeal (Civil)Nos. 35/1998 and 36/1998, wherein Hon’ble Division Bench has directed the trial court to consider applications under Order VIRule 17 and Order XLI Rule 27 CPC on its own merits. He referredthe order-sheet dated 01.04.1998 of the trial court and submittedthat without any cogent reasons, application under Order VI Rule17 CPC was dismissed and cross-objectors are entitled to raisegrounds of dismissal of application in cross-objection underSection 105 CPC. He also submitted that application under OrderXIII Rule 2 CPC was allowed on cost but while deciding the issueNo.2 on 01.05.1998 the trial court has not considered thedocuments submitted by present cross-objectors defendants. Hereferred the findings of issue Nos. 2 to 5 and submitted that theconduct of the trial court clearly indicated that while deciding thecivil suit the trial court has failed to consider the material onrecord which is apparent on face of record. He also submitted thatcross-objection is in form of cross appeal and party to theproceedings has a right to maintain cross-objection on its ownmerits. He specifically referred the dealership agreement andsubmitted that the responsibility to maintain the petrol pump wasupon defendant No.3 and defendant Nos. 1 and 2 were merely acommission agent, thus entire liability of payment of damages isupon respondent No.3. He would submitted that the terms ofdealership agreement makes it clear that defendant Nos. 1 and 2were bound to work under the active control and directions ofdefendant No.3 on fixed commission basis. He referred theprovision of the contract Act, 1872 and submitted that cross-objectors had acted as agent on behalf of the principal i.e. “IndianOil Corporation” (defendant No.3) so they are not liable forpayment of any damages.

6. Aforesaid contentions were opposed by learned counsel fordefendant No.3 (IOC) on the ground that the appeal of plaintiffwas already disposed of on 25.09.1999 and learned counsel forcross-objector has not pointed out about filing and pendency ofthese cross-objections, at the time of consideration of both firstappeals. She specifically submitted that at the time of remittingthe matter on 06.01.1998 both the applications under Order XLIRule 27 CPC and Order VI Rule 17 CPC were dismissed by co-ordinate Bench of this court and further application under Order VIRule 17 CPC was dismissed by the trial court on 01.04.1998. Shespecifically submitted that on dismissal of application under OrderVI Rule 17 CPC either a revision or a writ can be preferred but across-objection cannot be filed to challenge interlocutory orderpassed by the trial court during pendency of civil suit. She alsosubmitted that the documents which were taken on record inpursuant to application under Order XIII Rule 2 CPC cannot beread in support of claim of cross-objectors unless they are beingproved by any evidence. She also submitted that the prayer clausein cross-objections clearly indicate that only prayer was to allowapplication under Order VI Rule 17 and Order XIII Rule 2 (OrderXLI Rule 27) CPC. She also submitted that nowhere the findingson any issue was challenged by the cross-objectors. She alsosubmitted that these cross-objections were filed after dismissal ofappeal by a Co-ordinate Bench of this Court therefore they are notmaintainable. She also submitted that there is no relationship asagent or master, rather a dealership agreement was executed withfull liability of cross-objectors.

7. Heard learned senior advocate for cross-objectors (defendantNos. 1 and 2) and learned counsel for defendant No.3. Nonepresent for original plaintiff(s) appellant(s).

8. A perusal of timeline indicate as under:- The timeline indicated hereinabove clearly indicated that instant cross-objections were filed by cross-objectors defendant Nos. 1and 2 before the decision of S.B. Civil First Appeals by co-ordinateBench, though same were registered only in 2008. Thus, thesecross-objections were filed prior to decision dated 25.08.1999 inS.B. CFA No. 323/1998 and 324/1998, by co-ordinate Bench ofthis Court.

9. The prayer in both the cross-objections are same, which isreproduced as under:

“It is, therefore, prayed your Lordships,may very graciously be pleased to acceptthis cross-objections and an application filedby the defendant cross objector underOrder 6 Rule 17 CPC and under Order 13Rule 2 (order XLI Rule 27) CPC may beallowed and liability if any may be settledon defendant No.3.”

10. The entire body of cross-objection indicated that aggrievedfrom dismissal of both the applications these cross-objectionswere filed. Nowhere findings on any issue given by trial court inimpugned judgment dated 01.05.1998 was challenged by cross-objectors. Para Nos. 1 to 6 including grounds (i) to (iv) indicatedthat only disposal of applications were challenged by cross-objectors (defendants Nos. 1 and 2).

11. S.B. CFA Nos. 323/1998 and 324/1998 were decided by aCoordinate Bench of this Court on 25.08.1999 and probably at thetime of consideration of the appeal by Coordinate Bench the filingand pendency of these cross-objections were not brought to thenotice of the Coordinate Bench. This can further be fortified fromthe fact that after filing of cross-objection on 28.06.1999, theStamp Reporter has entered detail of Court fee on 05.07.1999 butthe petition(s) were passed only on 13.12.2007. No other note-sheet or other material is available on record to indicate anyproceedings between July, 1999 to December, 2007.

12. Order XLI Rule 22 of CPC is a special provision permitting therespondent, who has not filed an appeal against the decree toobject by filing cross-objections in the appeal filed by the oppositeparty thus, this is a permissive and enabling provision. The cross-objection can only be filed only when an appeal is filed. Thelimitation provided under Rule 22 also indicated that the cross- objection must be filed within one month from the date of serviceof notice of the date fixed for hearing the appeal or within suchfurther time as the Appellate Court may see fit to allow.13.For ready reference Order XLI Rule 22 CPC is reproduced asunder:

“22. Upon hearing respondent may object todecree as if he had preferred separateappeal.—

(1) Any respondent, though he may not haveappealed from any part of the decree, may notonly support the decree but may also state thatthe finding against him in the Court below inrespect of any issue ought to have been in hisfavour; and may also take any cross-objection tothe decree which he could have taken by way ofappeal provided he has filed such objection in theAppellate Court within one month from the date ofservice on him or his pleader of notice of the dayfixed for hearing the appeal, or within suchfurther time as the Appellate Court may see fit toallow.

(2) Form of objection and provisions applicablethereto.—Such cross-objection shall be in theform of a memorandum, and the provisions ofrule 1, so far as they relate to the form andcontents of the memorandum of appeal, shallapply thereto.

(4) Where, in any case in which any respondenthas under this rule filed a memorandum ofobjection, the original appeal is withdrawn or isdismissed for default, the objection so filed maynevertheless be heard and determined after suchnotice to the other parties as the Court thinks fit.

(5) The provisions relating to appeals by indigentpersons shall, so far as they can be madeapplicable, apply to an objection under this rule.”

14. Sub-Rule 4 of Rule 22 further provides that in case, originalappeal is withdrawn or dismissed for default the objection filedmay nevertheless be heard and determined after such notice toother parties, as Court thinks fit. Herein, the appeal was disposedof and at the time of disposal of the appeal these cross-objectionswere pending before this Court though as a rule the cross-objection has to be decided along with the appeal. Now, Hon’bleDivision Bench has directed for disposal therefore we are disposingof these cross-objections.

15. Recently, Hon’ble Supreme Court in the case of Shri Saurav Jain Vs. M/s ABP Design and Anr. AIR 2021 SC 3673 hasconsidered and discussed the scope of Order XLI Rule 22 of CPC,after amendment in 1976 and reproduced the observation fromthe case of Banarsi & Ors. Vs. Ram (2003) 9 SCC 606 asunder:

“10-. […] There may be three situations:

(i) The impugned decree is partly in favour of theappellant and partly in favour of the respondent.

(ii) The decree is entirely in favour of therespondent though an issue has been decidedagainst the respondent.

(iii) The decree is entirely in favour of therespondent and all the issues have also beenanswered in favour of the respondent but there isa finding in the judgment which goes against therespondent.

11. In the type of case (i) it was necessary forthe respondent to file an appeal or take cross-objection against that part of the decree which isagainst him if he seeks to get rid of the samethough that part of the decree which is in hisfavour he is entitled to support without takingany cross-objection. The law remains so post-amendment too. In the type of cases (ii) and (iii)pre- amendment CPC did not entitle nor permitthe respondent to take any cross-objection as hewas not the person aggrieved by the decree.Under the amended CPC, read in the light ofthe explanation, though it is still notnecessary for the respondent to take anycross-objection laying challenge to anyfinding adverse to him as the decree isentirely in his favour and he may supportthe decree without cross-objection; theamendment made in the text of sub-rule(1), read with the explanation newlyinserted, gives him a right to take cross-objection to a finding recorded against himeither while answering an issue or whiledealing with an issue. The advantage ofpreferring such cross-objection is spelled out bysub-rule (4). In spite of the original appealhaving been withdrawn or dismissed for defaultthe cross-objection taken to any finding by therespondent shall still be available to beadjudicated upon on merits which remedy wasnot available to the respondent under theunamended CPC. In the pre-amendment era, thewithdrawal or dismissal for default of the originalappeal disabled the respondent to question thecorrectness or otherwise of any finding recordedagainst the respondent.”

16. Further considering the scope of Order XLI Rule 22 CPC, incase of Shri Saurav Jain Vs. M/s ABP Design and Anr.(supra) Hon’ble Supreme Court has observed that:

24. Order XLI Rule 22(2) of the CPC states that a“cross-objection shall be filed in the form of amemorandum, and the provisions of Rule 1, sofar as they relate to the form and contents of thememorandum of appeal, shall apply thereto.” ThisCourt in S. Nazeer Ahmed v. State Bank ofMysore (2007) 11 SCC 75 elaborated on theform of objections made under Order XLI Rule 22CPC. In Nazeer Ahmed (supra), the respondenthad filed a suit for enforcement of an equitablemortgage. In deciding the suit, the Trial Courtrejected the argument of the appellant-defendantand held that the suit was not barred by Order IIRule 2 of the CPC. However, the court dismissedthe suit on grounds of limitation. On an appealfiled by the respondent before the High Court, theHigh Court observed that although the suit wasbarred by Order II Rule 2 of the CPC, theappellant had not challenged this finding of theTrial Court by filing a memorandum of cross-objection. Thus, the High Court granted therespondent a decree against the appellant. Whenthis finding of the High Court was assailed beforethis Court, Justice P.K Balasubramanyam heldthat a memorandum of cross-objection needs tobe filed while taking recourse to Order XLI Rule22 only when the respondent claims a relief thathad been rejected by the trial court or seeks anadditional relief apart from that provided by thetrial court. The court held that a memorandum of

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

“7. The High Court, in our view, was clearlyin error in holding that the appellant nothaving filed a memorandum of cross-objections in terms of Order 41 Rule 22 ofthe Code, could not challenge the finding ofthe trial court that the suit was not barredby Order 2 Rule 2 of the Code. Therespondent in an appeal is entitled tosupport the decree of the trial courteven by challenging any of the findingsthat might have been rendered by thetrial court against himself. Forsupporting the decree passed by thetrial court, it is not necessary for arespondent in the appeal, to file amemorandumofcross-objectionschallenging a particular finding that isrendered by the trial court against himwhen the ultimate decree itself is in hisfavour. A memorandum of cross-objections is needed only if therespondent claims any relief which hadbeen negatived to him by the trialcourt and in addition to what he hasalready been given by the decree underchallenge. We have therefore nohesitation in accepting the submissionof the learned counsel for the appellantthat the High Court was in error inproceeding on the basis that theappellantnothavingfiledamemorandum of cross-objections, wasnot entitled to canvas the correctnessof the finding on the bar of Order 2Rule 2 rendered by the trial court.”

25. It is apparent from the amended provisions ofOrder XLI Rule 22 CPC and the above authoritiesthat there are two changes that were brought bythe 1976 amendment. First, the scope of filing ofa cross-objection was enhanced substantively toinclude objections against ‘findings’ of the lowercourt; second, different forms of raising cross-objections were recognised. The amendmentsought to introduce different forms of cross-objection for assailing the findings and decrees since the amendment separates the phrase “butmay also state that the finding against him in theCourt below in respect of any issue ought to havebeen in his favour” from “may also take anycross-objection to the decree” with a semi colon.Therefore, the two parts of the sentence must beread disjunctively. Only when a part of the decreehas been assailed by the respondent, should amemorandum of cross-objection be filed.Otherwise, it is sufficient to raise a challenge to anadverse finding of the court of first instancebefore the appellate court without a crossobjection.

28. From the above it has been established that itnot necessary that a challenge to the adversefindings of the lower court needs to be made inthe form of a memorandum of cross-objection.”

17. In case of Municipal Corporation of Delhi & Ors. Vs.

International Security & Intelligence Agency Limited(2004) 3 SCC 250, a three Judge Bench of Hon’ble SupremeCourt considered the maintainability of cross-objection, in case,appeal was dismissed as non-maintainable, the Supreme Court insaid judgment observed as:- “14. Right of appeal is creature of statute. Thereis no inherent right of appeal. No appeal can befiled, heard or determined on merits unless thestatute confers right on the appellant and poweron the court to do so. Section 39 of the Actconfers right to file appeal, insofar as the orderspassed under this Act are concerned, only againstsuch of the orders as fall within one or other of thedescriptions given in clauses (i) to (vi) of sub-section (1) of Section 39. Parliament has taken

care to specifically exclude any other appeal beingfiled, against any order passed under the Act butnot covered by clauses (i) to (vi) abovesaid, byinserting the expression “and from no others” inthe text of sub-section (1). Clause (a) of Section41 extends applicability of all the provisionscontained in the Code of Civil Procedure, 1908 to(i) all proceedings before the court under the Act,and (ii) to all the appeals, under the Act. However,the applicability of such of the provisions of theCode of Civil Procedure shall be excluded as maybe inconsistent with the provisions of the Actand/or of rules made thereunder. A bare readingof these provisions shows that in all the appealsfiled under Section 39, the provisions of the Codeof Civil Procedure, 1908 would be applicable. Thiswould include the applicability of Order 41including the right to take any cross- objectionunder Rule 22 thereof to appeals under Section 39of the Act.

15. Right to prefer cross-objection partakes ofthe right to prefer an appeal. When the impugneddecree or order is partly in favour of one party andpartly in favour of the other, one party may restcontented by his partial success with a view togiving a quietus to the litigation. However, he maylike to exercise his right of appeal if he finds thatthe other party was not interested in burying thehatchet and proposed to keep the lis alive bypursuing the same before the appellate forum. Hetoo may in such circumstances exercise his right tofile appeal by taking cross-objection. Thus takingany cross-objection to the decree or orderimpugned is the exercise of right of appeal thoughsuch right is exercised in the form of taking cross-objection. The substantive right is the right of appeal; the form of cross-objection is a matter ofprocedure.

16. Though the statement of law madehereinabove flows simply by the reading of therelevant statutory provisions yet some availabledecisions may also be noticed.

Conclusion

In Bhadurmal v. Bizaatunnisa Begum [AIR1964 AP 365 : (1964) 1 An WR 290] a DivisionBench presided over by Jaganmohan Reddy, J. (asHis Lordship then was) held cross-objection to bemaintainable in an appeal preferred under Sections47 to 49 of the Hyderabad Jagirdars DebtSettlement Act, 1952 because the provisions of theCivil Procedure Code were generally applicable byvirtue of Section 51 thereof. The applicability ofOrder 41 Rule 22 to the appeals under that Act washeld not excluded merely because provisionsgoverning grounds of appeal and court fees werespecifically enacted in the Hyderabad Act. InInayatullah Khan v. Diwanchand Mahajan[AIR 1959 MP 58 : 1958 MP LJ 786] ChiefJustice M. Hidayatullah (as His Lordship then was)upheld maintainability of the cross-objection in anelection appeal under Section 116-A of theRepresentation of the People Act, 1951 becausethe High Court as an appellate court hearing anappeal under Section 116-A was enjoined toexercise the same powers, jurisdiction andauthority and to follow the same procedure as itwould have exercised or followed in respect of acivil appeal under the Code of Civil Procedure. InRamasray Singh v. Bibhisan Sinha [AIR 1950Cal 372] the Division Bench consisting of Harries,C.J. and Bachawat, J. (as His Lordship then was)

held that conferment of right of appeal by Section38 of the Bengal Money-Lenders Act, 1940 whichspoke of the order being appealable in the samemanner as if it were a decree of the court implied aright in the respondent to file cross-objectioninasmuch as the jurisdiction to hear appeal wasconferred on a pre-established civil court, namely,the Court of the District Judge and nothing wasexpressly stated as to the procedure regulatingsuch appeal. In A.L.A. Alagappa Chettiar v.Chockalingam Chetty [AIR 1919 Mad 784 :ILR 41 Mad 904 (FB)] a Full Bench of the HighCourt of Madras presided over by Wallis, C.J. heldthat right of the respondent to proceed by way ofmemorandum of cross-objections was strictlyincidental to the filing of appeal by opposite partyand therefore in an appeal under Sections 46 and47 of the Provincial Insolvency Act, 1907, cross-objections were maintainable as the procedureprescribed in the Civil Procedure Code is thestandard procedure and applicable to courtsexercising powers in insolvency cases.

17. With advantage, we may also refer toobservations of this Court made in Baru Ram v.Prasanni [AIR 1959 SC 93 : 1959 SCR 1403].Section 116-A of the Representation of the PeopleAct, 1951 contemplates an appeal being laid beforethe Supreme Court from every order made by theHigh Court under Section 98 or Section 99 of thatAct. Section 116-C provides for every such appealbeing heard and determined by the Supreme Courtas nearly as may be in accordance with theprocedure applicable to the hearing anddetermination of any appeal from any final orderpassed by the High Court in exercise of its original civil jurisdiction subject to the provisions of thatAct and the Rules, if any. All the provisions of theCode of Civil Procedure, 1908 and rules of thecourt shall, so far as may be, apply in relation tosuch appeal. P.B. Gajendragadkar, J. (as HisLordship then was) speaking for the Courtobserved: (AIR p. 99, para 11)

“There is no doubt that, in an ordinary civil appeal,the respondent would be entitled to support thedecree under appeal on grounds other than thosefound by the trial court in his favour.

Order XLI Rule 22 of the Code of Civil Procedurewhich permits the respondent to file cross-objections recognize the respondent's right tosupport the decree on any of the grounds decidedagainst him by the court below. In the presentcase no appeal could have been preferred byRespondent 1 because she had succeeded inobtaining the declaration that the appellant'selection was void and it should therefore be opento her to support the final conclusion of the HighCourt by contending that the other findingrecorded by the High Court which would go to theroot of the matter is erroneous. Prima facie thereappears to be some force in this contention;”

However, the Court did not express any finalopinion thereon as it was considered not necessaryto decide the point in that appeal.

18. We have, therefore, no doubt in our mind thatright to take a cross-objection is the exercise ofsubstantive right of appeal conferred by a statute.Available grounds of challenge against thejudgment, decree or order impugned remain thesame whether it is an appeal or a cross-objection.

The difference lies in the form and manner ofexercising the right; the terminus a quo (thestarting point) of limitation also differs.”

18. Aforesaid judgment was relied upon by Hon’ble SupremeCourt in case of Urmila Devi & Ors. Vs. Branch Manager,National Insurance Company Ltd. & Anr. (2020) 11 SCC 316and observed that in sub-Rule 4 of Rule 22 of Order XLI of CPCspecifically provided that even if original appeal is withdrawn ordismissed for default, the cross-objection would nevertheless beheard and dismissed after notice to other parties and as the courtthinks fit. Hon’ble Supreme Court further opined that even appealwas dismissed in default and the appellants were not interested torevive the appeal, still the High Court was required to decide thecross-objection of the appellants herein on merits and inaccordance with law.

19. Having considered three Bench judgment in case ofMunicipal Corporation of Delhi & Ors. Vs. InternationalSecurity & Intelligence Agency Limited (supra) and Urmila Devi & Ors. Vs. Branch Manager, National InsuranceCompany Ltd. & Anr. (supra), we are of considered view thatafter disposal of first appeal on 25.08.1999, the cross-objectionfiled during pendency of the first appeal required to be adjudicatedon merits and in accordance with law and the objection of learnedcounsel for respondent No.3 (IOC) is not sustainable, thus cross-objections are maintainable even if the first appeal was alreadydisposed of by a Co-ordinate Bench of this Court.

20. We are fully aware about the fact that after decision of firstappeal by a Coordinate Bench of this Court these cross-objections came up for hearing and in any case we are not the AppellateCourt to consider the findings already recorded by the CoordinateBench. As a matter of discipline, we are duty bound by theobservation and findings of the Coordinate Bench. We are alsoaware about the fact that aggrieved from judgment dated25.08.1999 in first appeal present cross-objector(s) have alreadyfiled D.B. Special Appeal (Civil) before the Hon’ble Division Bench.Herein we are restricting ourselves to the scope of Order XLI Rule27 CPC.

21. A perusal of content of cross-objection clearly indicated thataggrieved from dismissal of applications under Order VI Rule 17and Order XIII Rule 2 (Order XLI Rule 27) CPC, these cross-objections were filed. Section 105 of CPC provides that in case,any decree is appealed from, any error, defect or irregularity inany order, affecting the decision of the case, may be set forth as aground of objection in the Memorandum of Appeal. Therefore, weagree up to the extent that if there is any error, defect orirregularity while passing any order during trial of civil suit againstwhich an appeal is preferred from decree then same can be set upas a ground in an appeal. Similarly, if any ground can be raised inappeal then same can also be raised by way of cross-objection.

22. A perusal of proceeding of trial court indicated that on01.04.1998, two applications of cross-objector/defendant Nos. 1and 2 were considered, firstly under Order VI Rule 17 CPC andsecondly under Order XIII Rule 2 CPC (Order XLI Rule 27 CPC),out of which application under Order XIII Rule 2 CPC was allowedand documents were taken on record. Once the application isallowed then cross-objector/defendant Nos. 1 and 2 has no right to contend that there was any irregularity or defect while decidingthe application under Order XIII Rule 2 (Order XLI Rule 27) CPCthus the cross-objector has no ground to raise any objectionregarding disposal of application under Order XIII Rule 2 (OrderXLI Rule 27) CPC, allowed on 01.04.1998.

23. Now comes the question of another application under OrderVI Rule 17 CPC. Defendant Nos. 1 and 2 filed an application underOrder 6 Rule 17 CPC for amendment in written statement, whereinpara 7A proposed to be inserted in written statement. We haveconsidered the contents of application under Order VI Rule 17CPC, which was dismissed by the trial court on 01.04.1998. Thetrial court was of the view that the application was filed at belatedstage and the proposed fact was already available in the pleadingsof the parties.

24. We have considered the written statement of defendantNo.3, which was filed independent of defendant Nos. 1 and 2. Inpara Nos. 1, 2, 7 and 8 the objections raised by defendant No.3indicated that defendant Nos. 1 and 2 were dealer of defendantNo.3. Further in para No.10, a fact was mentioned that everyprecaution was taken at every retail outlet, so as to defend therole of defendant Nos .1 and 2. After pleadings of the parties,issues were framed by the trial court. Both the parties wereprovided opportunity to led their evidence. Issue No.3 pertains toliability of defendants in case of decree, either jointly or severally.Defendant No.3 had also raised ground of misjoinder as a party.

25. Initially this application was dismissed by a Coordinate Benchof this Court vide order dated 06.01.1998 though in D.B. SpecialAppeal (Civil) Nos.35/1998 and 36/1998, the Division Bench of this Court has directed the trial court to consider theseapplications on merits and decide the same in accordance withlaw. The trial court had dismissed the civil suit and there was nofinding to fasten liability on any of the defendants. The trial courtwhile considering issue Nos. 1 and 2 concluded that there was nonegligence on part of defendant(s) and they are not responsiblefor the accident, which was also beyond their control.

26. Having considered the submissions of learned senioradvocate for appellant and also on perusal of record, we foundthat respondent No.3 (IOC) has defended the entire act ofdefendant Nos. 1 and 2 before the trial court which means that actof respondent Nos. 1 and 2 or cross-objectors was also defendedby respondent No.3. The trial court on two occasions haddismissed the claim of the claimants and there was no occasion forthe trial court to opine about the negligence of any of thedefendants or respondents. It was only, by judgment dated25.08.1999 passed by a Co-ordinate Bench of this Court thedefendant/respondent No.3 was exonerated from payment ofcompensation, as this court was of the opinion that defendantNos. 1 and 2 (cross-objectors) had failed to take steps inpreventing the incident and they are liable for compensation tothe plaintiff(s).

27. By application under Order VI Rule 17 CPC, para No.7A wasproposed to be inserted in the written statement by defendantNos. 1 and 2 to include defence to avoid their liability or fastensame on defendant No.3. Since the issue of liability was notdecided against respondent nos. 1 and 2, therefore the dismissal of application has not prejudiced the defence of defendant Nos. 1and 2 before the trial court.

28. Herein during course of argument, the agreement ofdealership (written contract) between cross-objectors anddefendant No.3 was referred. The agreement pertains to exclusivedealership of sale of product of IOC (defendant No.3). Thisdocument was taken on record but no application was filed foradditional evidence before the trial court thus this document wasneither exhibited nor tendered in any evidence.

29. Since the matter pertains to civil first appeal or cross-objections under Order XLI Rule 22 CPC, therefore the courtcannot look into any document which was neither exhibited nortendered in evidence. Learned senior counsel for cross-objectorsand learned counsel for defendant No.3 had relied uponagreement for dealership. The document has to be read as wholeand not in isolation.

31. Chapter X of the Contract Act prescribed for contractbetween agent and master but herein the contract betweenrespondents is a written contract and parties are bound by this.Since, the role of cross-objectors was bifurcated by this court,while deciding the civil first appeals therefore the liability, if any isbased on the evidence on record and same can be assailed beforethe Division Bench.

32. The trial court was of the opinion that the contents ofproposed para 7A were already available in other form in writtenstatement filed by defendants, therefore it is not necessary tobring this specific para 7A on record by way of amendment inrecord. Having considered the fact that the trial court had

dismissed the application but we have to see that whether this hascaused prejudice in raising defence of respondent Nos. 1 and 2,at the time of decision of civil suit, is not established on record.33.A specific issue on liability, in case of payment ofcompensation was framed by the trial court as issue No.3. Thetrial court has considered the defence of defendant on issue Nos.1 and 2, and issue No.3 was left open and no specific finding wasrecorded by the trial court. As regard to finding of issue No.2 isconcerned, the trial court was of the opinion that it was a suddenaccident and beyond control of defendants, therefore no care wasrequired to be taken to prevent the incident. Thus, the trial courtwas of the view that there was no negligence on part of cross-objectors (defendant Nos. 1 and 2).

34. In view of the findings of the trial court recorded on issueNos.1, 2 and 3, I am of considered view that denial of amendmentin written statement has not caused any prejudice to the cross-objectors. The grounds of defence raised by cross-objectors werealready considered by the trial court in detail, while adjudicationon issue Nos.1 and 2. The only duty while considering amendmentin pleading under Order VI Rule 17 CPC was to see that whethersuch an amendment was necessary to decide real dispute betweenthe parties. Herein, the contents of proposed para 7A does notconforms to the test of necessity to decide the real dispute. Thereis no sufficient ground to allow application under Order VI Rule 17CPC and trial court has not committed any error while dismissingthe application under Order VI Rule 17 CPC.

35. The provision of filing cross-objection under Order XLI Rule22 cannot be utilised for the purpose of filling up of lacuna, left during course of trial by defendant which ultimately resulted intoallow of appeal by a coordinate bench of this court.

36. Having considered the submissions and also the material onrecord along with law over the point, I am of considered view thatcross-objections sans merits and liable to be dismissed.

37. Accordingly, cross-objections are dismissed.

38. Misc. application, if any, stands disposed of.

(ASHOK KUMAR JAIN),J

PREETI VALECHA 394-395