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Understanding of Order XLI Rule 22 Of CPC

Updated: Sep 2, 2022


Sakshi Shairwal

Smarnika Srivastava

There have been frequent debates for a long time with regards to whether a question of fact can be raised before the Supreme Court, in case the High Court had not dealt with the same in its findings. Questions like these have been fiercely contested. Under Article 136 read with Article 146 of the Constitution of India, the Supreme Court in accordance with its plenary jurisdiction has the power to do complete justice to a case, if required. In this article, the author has discussed the scope of Order XLI Rule 22 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) in respect of the above-mentioned powers of the Supreme Court.

In the recent case of Shri Saurav Jain and Anr. v. M/S A.B.P. Design and Anr., the same question was grappled upon by a two-judge Supreme Court bench comprising of Justices DY Chandrachud and MR Shah, in respect of Order XLI Rule 22(1) of the CPC. In the present case, even though the trial court rejected the defendant’s contention with respect to the lack of jurisdiction of the trial court, it dismissed the suit. Following an appeal by the plaintiff, the High Court reversed the trial court’s judgment, thereby holding the auction directed by the Moradabad Development Authority with respect to the disputed land to be null and void. However, the question of jurisdiction was not considered by the High Court since the defendant did not file a cross-objection against the finding of the trial court in respect of the lack of jurisdiction. The defendant Saurav Jain, who was the purchaser of the disputed land from the MDA at the auction, approached the Apex Court. While referring to Order XLI Rule 22 of CPC, the defendant contended that such a party in whose favor the suit has been decreed by the civil court can raise arguments against findings against the findings without filing a cross objection in the appeal stage. This was a question of law that was contested in front of the Supreme Court bench for the first time by the defendant. On the matter of jurisdiction, the defendant contended that the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “ULCRA 1976”) impliedly exclude the jurisdiction of the civil court.

The Apex court then considered the amendments to Order XLI Rule 22 of CPC. According to this provision in the CPC before the 1976 amendment, cross-objections could only be filed by the respondent against the decree of the lower court when it was partly against him/her. But, after the amendment, the respondent could file cross-objections against the ‘findings’ recorded against him/her by the lower court, as was also held in the case of Banarsi and Ors. v. Ram Phal. The amendment also introduced different forms of filing cross-objections. This can be concluded through the language of the amended rule where 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 favor” is separated from “may also take any cross objection to the decree” by the usage of a semi-colon. Therefore, both these parts must be read disjunctively. Thus, it is sufficient to raise a challenge against the adverse findings of a lower court in an appeal without file a cross objection.

The court then discussed the applicability of Order XLI Rule 22 of CPC from the lens of Articles 136 and 142 of the Constitution of India as per which the Apex Court has wide powers under Article 136 to do complete justice in a case. The case of Bharat Kala Bhandar Ltd. v. Municipal Committee, Dhamangaon was referred to by the SC whereby it was held that even though the scope of an appeal is not allowed to be broadened at the instance of the parties if such a plea is made by them raises a question of law which is regarded of considerable importance, then the Court has the right to entertain such a plea. In the present case, the court held that Article 136 has been resorted to by the SC even in criminal cases involving the death penalty because the question of jurisdiction strikes at the heart of the matter and is a very crucial part of the final decision. The court held a question involving lack of jurisdiction or the plea of a bar is eligible to be heard at any stage, because a decree or an order which is passed without jurisdiction is “non-est in law”. It was thus held that if it believes it to be necessary, SC can entertain any new grounds even if they have been raised for the first time if such grounds involve a question of law where new evidence is not required to be adduced. This is especially if the case concerns the question of jurisdiction of the court which goes to the root of the matter. It is thus no longer “res Integra” that if a question of law has not been raised before in the lower courts, it cannot be raised for the first time under a Special Leave Petition under Article 136 of the Constitution. Therefore, it was held that even though the defendant Saurav Jain did not file a memorandum of cross objection before the High Court in order to assail the finding of the trial court on the issue of jurisdiction, he would not be precluded from raising an argument for the same before the Supreme Court. The case was considered on merits and it was held that the ULCRA 1976 by its very implication excludes the jurisdiction of the civil court “on matters arising out of the ceiling proceeding”.

Thus, the court exercised its plenary jurisdiction to do complete justice and redefined the scope of Order XLI Rule 22 by waiving the requirement of filing cross objection in order for a party to raise objections against the findings of the lower court in the court of appeal.

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