Whether findings of the court on issues which did not fall for consideration before it will operate as Res Judicata?

 In the first round, the only question that fell for consideration before the High Court was as to whether the Respondent-Plaintiff was entitled to construct the latrine in the passage. The finding of the Trial Court was that, though the Respondent-Plaintiff was entitled to possession thereof, he could not construct latrine in as much as it adversely affected the easement rights of the Appellants-Defendants. {Para 14}

15. The Appellate Court, therefore, in the first round, ought to have restricted its findings to the said issue. The question as to whether the Appellants-Defendants were also entitled to any right in the said passage did not fall for consideration in the said proceedings. In that view of the matter, there was no occasion for the Appellate Court in the first round to have made any observation with regard thereto.

17. Though, Mr. Ankit Goel, learned Counsel, strenuously argued, relying on certain judgments of this Court, that the findings in an earlier proceeding could operate as res judicata in subsequent proceedings, in our view, the said judgments would not be applicable in the facts of the present case.

18. The issue in the first suit was limited only as to whether the Respondent-Plaintiff has a right to construct the latrine in the passage. The issue as to whether the Respondent-Plaintiff was exclusively entitled to possession thereof did not fall for consideration in the earlier round, whereas in the third round, the said issue directly fell for consideration.

19. In that view of the matter, we do not find any reason to interfere with the concurrent orders of the First Appellate Court and the High Court.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 4736-4737 of 2011

Decided On: 14.09.2022

Anil Kumar Modi and Ors. Vs.  Tarsem Kumar Gupta

Hon'ble Judges/Coram:

B.R. Gavai and C.T. Ravikumar, JJ.

Author: B.R. Gavai, J.

Citation: MANU/SC/1220/2022,(2023) 2 SCC201

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Bombay HC: Civil Court Order To Prevail Over Findings Recorded By Authorities Under Maharashtra Money-Lending (Regulation) Act

  In the present case, cognizance is taken by theDistrict Registrar (Money Lending) of a complaint filed by Respondent No. 5. Whether Respondent No. 5 could have filed such a complaint is the moot question. He had already invoked jurisdiction of Civil Court seeking adjudication of the nature of transaction and his Suit was pending. Firstly, he therefore could not have simultaneously invoked jurisdiction of District Registrar (Money Lending) under the Act of 2014 for same cause of action. He did so by suppressing filing of Civil Suit, which fact was brought on record by Petitioner. In my opinion therefore the District Registrar (Money Lending) could not have entertained the complaint of Respondent No. 5 once his attention was invited to pendency of Civil Suit arising out of same cause of action. Secondly and more importantly, by the time the proceedings came up for final decision before the District Registrar (Money Lending), the Civil Suit was decided holding that the transaction was that of sale. Therefore the District Registrar (Money Lending)could not have assumed the transaction as that of mortgage. Unless District Registrar (Money Lending) comes to a conclusion that the property came in possession of a moneylender by way of security for loan, he cannot exercise power of restoration of property under Section 18(2). One the transaction was declared as a sale by the Civil Court, District Registrar (Money Lending)could not have exercised jurisdiction under Section 18 of the Act of 2014. This is because unless transaction is treated as a mortgage and unless a satisfaction is recorded that property was offered as a security towards loan, District Registrar (Money Lending)cannot undertake proceedings for restoration. In my view therefore, the order passed by the District Registrar (Money Lending) is wholly without jurisdiction. {Para 20}

34. Since the Civil Court has already determined the nature of the transaction, the order passed by the Civil Court would prevail over the findings recorded by the authorities exercising powers under the Act of 2014. The said authorities may come to an independent conclusion as to whether the petitioner is engaged in the business of money lending or not. However, once the nature of the document is determined by the Civil Court and the same is held to a transaction of absolute sale, it is no longer open for such authorities to record a contradictory opinion to the effect that the transaction was a

mortgage and the land was offered by way of security. The orders passed by the authorities exercising powers under the Act of 2014 must therefore yield to the judgment and order delivered by the Civil Court. Consequently, the orders passed by those authorities are rendered illegal and deserve to be set aside. Even though, the orders passed by the authorities exercising powers under the Act of 2014 are being set aside, respondent no.5 is not entirely remediless. As observed hereinabove, he has already filed an Appeal in the District Court challenging the judgment and order dated 30.10.2015 passed in Special Civil Suit No.20/2012. He will be entitled to pursue the said remedy. In the event, respondent no.5 succeeds in the appeal and the transaction is held to mortgage by way of conditional sale, he would obviously be entitled to the relief of reconveyance of the land in his favour. All questions in that regard are left open. It is specifically clarified that, I have not gone into the merits of issue as to the nature of transaction in question and the District Court would be free to arrive at its own conclusion without being influenced, in any manner, by any of the observations made in the present order.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

 J WRIT PETITION NO.6581 OF 2022;

Bhanudas @ Suryabhan Vs State of Maharashtra

Coram:  SANDEEP V. MARNE

Dated:15.11.2022 

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Can the court remit an award to the arbitrator in the absence of findings on contentious issues?

When it is the specific case of the Respondent that there is no finding at all, on point No. 1 viz. "whether the contract was illegally and abruptly terminated by the Respondent?", remission Under Section 34(4) of the Act, is not permissible. In our view, Section 34(4) of the Act, can be resorted to record reasons on the finding already given in the award or to fill up the gaps in the reasoning of the award. There is a difference between 'finding' and 'reasons' as pointed out by the learned Senior Counsel appearing for the Respondent in the judgment in the case of Income Tax Officer, A Ward, Sitapur v. Murlidhar Bhagwan Das MANU/SC/0097/1964 : AIR 1965 SC 342. It is clear from the aforesaid judgment that 'finding is a decision on an issue'. Further, in the judgment in the case of J. Ashoka v. University of Agricultural Sciences and Ors. MANU/SC/1613/2016 : (2017) 2 SCC 609, this Court has held that 'reasons are the links between the materials on which certain conclusions are based and the actual conclusions'. In absence of any finding on point No. 1, as pleaded by the Respondent and further, it is their case that relevant material produced before the Arbitrator to prove 'accord and satisfaction' between the parties, is not considered, and the same amounts to patent illegality, such aspects are to be considered by the Court itself. It cannot be said that it is a case where additional reasons are to be given or gaps in the reasoning, in absence of a finding on point No. 1 viz. "whether the contract was illegally and abruptly terminated by the Respondent?"

21. Further, Section 34(4) of the Act itself makes it clear that it is the discretion vested with the Court for remitting the matter to Arbitral Tribunal to give an opportunity to resume the proceedings or not. The words "where it is appropriate" itself indicate that it is the discretion to be exercised by the Court, to remit the matter when requested by a party. When application is filed Under Section 34(4) of the Act, the same is to be considered keeping in mind the grounds raised in the application Under Section 34(1) of the Act by the party, who has questioned the award of the Arbitral Tribunal and the grounds raised in the application filed Under Section 34(4) of the Act and the reply thereto. Merely because an application is filed Under Section 34(4) of the Act by a party, it is not always obligatory on the part of the Court to remit the matter to Arbitral Tribunal. The discretionary power conferred Under Section 34(4) of the Act, is to be exercised where there is inadequate reasoning or to fill up the gaps in the reasoning, in support of the findings which are already recorded in the award. Under guise of additional reasons and filling up the gaps in the reasoning, no award can be remitted to the Arbitrator, where there are no findings on the contentious issues in the award. If there are no findings on the contentious issues in the award or if any findings are recorded ignoring the material evidence on record, the same are acceptable grounds for setting aside the award itself. Under guise of either additional reasons or filling up the gaps in the reasoning, the power conferred on the Court cannot be relegated to the Arbitrator. In absence of any finding on contentious issue, no amount of reasons can cure the defect in the award. A harmonious reading of Section 31, 34(1), 34(2A) and 34(4) of the Arbitration and Conciliation Act, 1996, make it clear that in appropriate cases, on the request made by a party, Court can give an opportunity to the arbitrator to resume the arbitral proceedings for giving reasons or to fill up the gaps in the reasoning in support of a finding, which is already rendered in the award. But at the same time, when it prima facie appears that there is a patent illegality in the award itself, by not recording a finding on a contentious issue, in such cases, Court may not accede to the request of a party for giving an opportunity to the Arbitral Tribunal to resume the arbitral proceedings. Further, as rightly contended by the learned Counsel appearing for the Respondent, that on the plea of 'accord and satisfaction' on further consideration of evidence, which is ignored earlier, even if the arbitral tribunal wants to consciously hold that there was 'accord and satisfaction' between the parties, it cannot do so by altering the award itself, which he has already passed.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7 of 2022 

Decided On: 03.01.2022

I-Pay Clearing Services Private Limited Vs.  ICICI Bank Limited

Hon'ble Judges/Coram:

R. Subhash Reddy and Hrishikesh Roy, JJ.

Author: R. Subhash Reddy, J.

Citation: MANU/SC/0005/2022

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Supreme Court: Accused has the right to challenge a finding of guilt against him in an appeal against conviction even if he has not filed an appeal

As aforesaid, even though the State has filed the present

appeal against all the five accused persons, at the outset, it was

made clear by the counsel for the State that the appeal is being

pursued only against the respondent No. 1/accused No. 5

(Mehram S/o Chhagna Ram) in respect of nature of offence and

on the point of sentence. The counsel for accused No. 5,

however, urged that the said accused had a right to challenge the

finding of guilt and conviction under Section 326 and 148, IPC,

recorded against him, even though the said accused had not

preferred a formal appeal against the impugned judgment. To

make good this submission, reliance is placed on Chandrakant

Patil vs. State through CBI (1998) 3 SCC 38, Sumer Singh vs. Surajbhan

Singh & Ors (2014) 7 SCC 323, State of Rajasthan vs. Ramanand (2017) 5 SCC 695 and

Section 377(3) of the Code of Criminal Procedure, 1973 For short, “Cr.P.C.”

6. The accused No. 5 (Mehram S/o Chhagna Ram) is justified

in contending that it is open to the said accused to challenge the

finding and order of conviction under Section 326/148, IPC

recorded against him in the appeal filed by the State, assailing

the impugned judgment of the High Court. That being the settled

legal position, as expounded in Chandrakant Patil (supra),

Sumer Singh (supra) and Ramanand (supra) including Section

377(3) of the Cr.P.C., which predicates that in the appeal filed

against the sentence on the ground of its inadequacy, the

accused may plead for his acquittal or for reduction of the

sentence. Resultantly, we may have to consider the correctness

of the finding of fact recorded by the trial Court and the appeal

Court (High Court) against the accused No. 5 (Mehram S/o

Chhagna Ram).

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1894/2010

State of Rajasthan  Vs  Mehram 

A.M. Khanwilkar, J.

Dated:May 6, 2020.

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When a party should file appeal against any finding given against it even if suit was dismissed against him?

It is well settled that the party against whom a finding is recorded has got a right of appeal even if ultimate decision may be in his favour if that finding operates as resjudicata in a subsequent suit or proceedings; but if it does not operate as rejudicata, then such a party has no right of appeal.

From the narration of above facts, it is amply clear that the finding on Issue No.1. in the decision Ex. PW5/A was returned after taking into account the entire evidence in respect of gift deed which was a matter directly and substantially in issue decided in the earlier suit (Ex. PW5/A) between the parties under whom the present plaintiff and defendant are claiming their title , therefore, the said finding on issue No.1 Ex.PW5/A operates as resjudicata in terms of the provisions of Section 11 of the C.P.C. Thus, in my view the judgment relied upon by the learned counsel for the appellant in the case of Ved Parkash (Supra) is not applicable because even if the main suit was dismissed vide judgment Ex. PW5/A but the finding recorded on issue No.1 was deciding the right of the parties would certainly attract provision of Section 11 of the C.P.C.and defendant No.1/appellant had a right to challenge that finding by way of further appeal. Once it has not been done, so it cannot be urged by the learned counsel for the appellant that it would not operate as resjudicata as he had no opportunity to challenge that finding in appeal. Moreover, issue deciding title of the property is a substantial issue and any decision on that issue in an earlier litigation between the same parties or parties or their predecessor-in-interest would certainly attract the provisions of Section 11 of C.P.C.

Punjab-Haryana High Court

Arjun Singh vs Bachan Singh And Others on 22 December, 2008

RSA No.2970 of 2008                 

CORAM:        MR. RAKESH KUMAR JAIN


Citation:2009(3) Civil court cases 8

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Whether finding given by court against defendant in first suit will amount to res-judicata in second suit if first suit was dismissed?

The findings of the court are clear i.e., that there is sub-letting to the company. The question is whether the above findings which were rendered in a proceeding between the same parties constituted res judicata. The submission of ld. Senior counsel-Mr. Keshav Dayal on behalf of the Petitioners-tenants is that since the suit itself was dismissed, the finding could not have been challenged by the tenants. Thus, the findings by itself would not constitute res judicata unless and until a decree was drawn against the tenants. This submission has some merit as, the settled position in respect of res judicata as held recently by the Supreme Court in State of Andhra Pradesh v. B. Ranga Reddy, MANU/SC/1074/2019 : 2019 (10) SCALE 671 is that a mere finding cannot be challenged and unless and until the decree has been passed, an appeal is not maintainable. Thus, a mere finding, not capable of being challenged, cannot operate as res judicata. The observations of the Supreme Court are as under:

"36. We find that the High Court has failed to draw the distinction between the decree and a finding on an issue. It is the decree against which an appeal lies in terms of Section 96 of the Code. Decree in terms of Section 2(2) of the Code means formal expression of an adjudication conclusively determining the rights of the parties. The defendants-State could not file an appeal against a decree which was of a dismissal of a suit simpliciter. The findings on Issue No. 1 against the State could be challenged by way of cross-objections in terms of amended provisions of Order XLI Rule 22 of the Code but such filing of cross-objections is not necessary to dispute the findings recorded on Issue No. 1 as the defendants have a right to support the ultimate decree passed by the trial court of dismissal of suit on grounds other than which weighed with the learned trial court. Even in terms of Order XLI Rule 33 of the Code, the Appellate Court has the jurisdiction to pass any order which ought to have been passed or made in proceedings before it.

38. The decree is of dismissal of the suit, whereas, the reasons for passing such decree is judgment as defined in Section 2(9) of the Code. In terms of Section 11 read with Explanation I, the issue in a former suit will operate as res judicata only if such issue is raised in a subsequent suit. Since, the issue of title has not attained finality, therefore, it is not a former suit to which there can be any application of Section 11.

39. In view of the above, we allow the present appeals, set aside the order passed by the High Court in the first appeal filed by the State, as the findings on Issue Nos. 1 and 2 in the first and second suit do not operate as res judicata. The pending applications, if any, shall stand disposed of."

13. The Supreme Court quoted with approval in this case, the decision in Banarsi and Ors. v. Ram Phal, MANU/SC/0147/2003 : 2003 (9) SCC 606 where the Court held as under:

"8. Sections 96 and 100 Code of Civil Procedure make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. (See Phoolchand v. Gopal Lal [MANU/SC/0284/1967 : AIR 1967 SC 1470 : (1967) 3 SCR 153], Jatan Kumar Golcha v. Golcha Properties (P) Ltd. [MANU/SC/0041/1970 : (1970) 3 SCC 573] and Ganga Bai v. Vijay Kumar[MANU/SC/0020/1974 : (1974) 2 SCC 393].) No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 Code of Civil Procedure provide for an appeal against decree and not against judgment.

9. Any respondent though he may not have filed an appeal from any part of the decree may still support the decree to the extent to which it is already in his favour by laying challenge to a finding recorded in the impugned judgment against him. A party who has fully succeeded in the suit can and needs to neither prefer an appeal nor take any cross-objection though certain finding may be against him. Appeal and cross-objection--both are filed against decree and not against judgment and certainly not against any finding recorded in a judgment. This was the well-settled position of law under the unamended Code of Civil Procedure."

IN THE HIGH COURT OF DELHI

CM (M) 600/2019, CM Appls. 17972, 20292 and 20409/2019

Decided On: 19.02.2020

 Arun Kumar Jain  Vs.  Bhagwant Singh Pabla 

Hon'ble Judges/Coram:

Prathiba M. Singh, J.

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Whether appeal lies against a mere finding if such finding does not amount to decree?

There is a basic distinction between the right of
suit and the right of appeal. There is an inherent right in
every person to bring a suit of at civil nature, but the
right of appeal inheres in no one and therefore an appeal
for its maintainability must have the clear authority of
law. The various provisions in the C.P.C. show that under
the Code, an appeal lies only as against a decree or as
against an order passed under rates from which an appeal is
expressly allowed by Order 43, Rule 1. No appeal can lie
against a mere finding for the simple reason that the Codes
does not provide for any such appeal. Therefore, the first
appeal filed by. defendants 2 and 3 in the High Court was
not maintainable as it was directed against a mere finding
recorded by the trial court. 

SUPREME COURT OF INDIA

GANGA BAI  Vs.  VIJAY KUMAR & ORS.

DATE OF JUDGMENT 09/04/1974

BENCH:
CHANDRACHUD, Y.V.
BEG, M. HAMEEDULLAH
CITATION:
1974 AIR 1126 1974 SCR (3) 882,1974 SCC (2) 393

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Whether appeal lies against finding given in judgment of trial court?

 I have considered the submissions made on behalf of
the parties and have also perused the impugned order dated 21.07.2007.
On a reading of the order dated 21.07.2007, it is clear that the
first appellate Court committed gross illegality in rejecting the
application filed by the applicants for dismissal of the appeal. It is well
settled that an appeal could be filed only by a person who is
prejudicially or adversely affected by a decree and an appeal lies
only against a decree and not a finding. In this case, the decree is
passed by the trial Court only against the non-applicant no.2. The nonapplicant
no.2 has not, however, preferred any appeal against the
decree passed by the trial Court. Actually, no relief was sought by
the applicant against the non-applicant no.1 in the suit instituted by

them. In fact, though it was pleaded by the applicants in the suit that
the non-applicant nos.1 and 2 had broken a portion of the partition
wall in between the premises let out to the non-applicant nos.1 and 2,
the trial Court had decided that issue against the applicants with the
result that the trial Court had not rendered any adverse finding against
the non-applicant no.1. Thus, there was neither an adverse finding
against the non-applicant no.1 nor was the decree passed against the
non-applicant no.1. In these circumstances, the first appellate Court
ought to have held that the appeal filed by the non-applicant no.1
was not tenable. The first appellate Court, however, erroneously
rejected the application filed by the applicants on the ground that
the appeal is a continuation of the suit and to avoid further
complications, it was necessary to decide the appeal on merits. The
approach of the first appellate Court in deciding the application filed by
the applicants was not just and proper. The law laid down in judgment
reported in AIR 2003 SC 1989 and relied on by the learned counsel for
the applicants clearly applies to the case in hand and supports the case of
the applicants.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Civil Revision Application No. 109/2007

 Satyanarayan Bisanlal Agrawal, Vs  Dr. Veena w/o Rajendrakumar Dhore,

CORAM : SMT. VASANTI A. NAIK, J.
DATE : 16 t h JANUARY, 2009 .
Citation: 2009(5) ALLMR 431

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When it is mandatory for court to frame additional issue?

 Therefore, in the present case, when the defendant has taken an objection in the written statement that Surender Kumar had no authority to sign the plaint and verification and in the cross-examination the said Surender Kumar has admitted that on the date of signing the plaint and verifying the same, he had no special power of attorney, the trial Court should have framed an issue with regard to the maintainability of the suit, which has to be decided in the first instance. Even though the trial Court has failed to frame an issue in the first instance, on the basis of the evidence adduced by DW1 that he had no power of attorney at the time of signing the plaint and verification and subsequent to the filing of the suit, the power of attorney was executed in his favour, in accordance with Rule 5 of Order 14, before passing a final decree, the trial Court has got the power to frame issues. When the defendant took an objection that Surender Kumar has no power of attorney to sign the plaint and on the other hand, though he has got letter of authority and that he is entitled to sign the plaint and verification, the trial Court should have framed an issue where one proposition of fact is affirmed by one party and denied by the other. Therefore, keeping this in mind, the trial Court should have exercised the power contemplated under Rule 5 by framing an issue with regard to authority of Surender Kumar to sign the plaint, inasmuch as this issue goes to the root of the matter. Without framing issue with regard to the maintainability of the suit and the authority of the deponent to sign the plaint and verification, trial Court should have not given a finding that deponent has got letter of authority to sign the plaint.

20. Viewed from any angle, the trial Court has committed an error in not framing an issue with regard to the maintainability of the suit under Order 14, Rules 1 and 5 CPC and also giving a finding without there being any issue to that effect. Therefore, the trial Court has committed an error of law in delivering the judgment.

IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD

CCCA No. 153 of 1987

Decided On: 30.10.2000

Unitech Industrial Corporation  Vs.  Arvind Engineering Co., Hyd.

Hon'ble Judges/Coram:

E. Dharma Rao, J.

Citation:AIR 2001 AP 177

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How to write Judgment if an unlawful assembly commits the offence?

 From the judgment of the Sessions Court, we do not see any clear findings recorded (i) as to the existence of an unlawful assembly, (ii) if it existed, how many (number of the members) were present in the unlawful assembly. It must be remembered that the accusation is that all the 17 Accused were members of the unlawful assembly. There appears to be an accusation of the commission of the offence Under Section 143 Indian Penal Code. There is no finding whether the assembly consisted of 17 members or less (number) and which of the 17 Accused were present (the identity) in the assembly. Nor is there any clear finding regarding the common object of the assembly. Consequentially, there is no finding recorded by the Sessions Court whether an offence of unlawful assembly punishable Under Section 143 was committed by all or some of the Accused. The Trial Court recorded the conviction Under Section 148 Indian Penal Code against 4 Accused. Logically it should follow that the trial court was of the opinion that there was an unlawful assembly. That means more than 5 people participated in the attack. In such a case even assuming for the sake of argument the identity of the Accused (other than the 4 convicts) is not proved beyond reasonable doubt, A-1 and A-5 who were found to have been guilty of the offence Under Section 148 should normally have been found vicariously guilty of the offence of murder along with A-10 and A-12 (provided of course that they are not prejudiced by the improper framing of charges). The record is not very clear whether the Accused were told they were to face a charge of being members of the unlawful assembly, whose common object was to commit murder of the three deceased.

37. Coming to the conviction of A-10 and A-12, the mere statement in the Sessions Court's judgment that two of the Accused were found guilty of offence punishable Under Section 302 of the Indian Penal Code falls short of the requirement of law in a case where more than one person died in the transaction. Equally the other two Accused who are convicted of other offences mentioned earlier are entitled to know the details of the offence for which they are convicted.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1525 and 1526-1527 of 2009

Decided On: 16.05.2018

 Vinubhai Ranchhodbhai Patel Vs. Rajivbhai Dudabhai Patel and Ors.

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Whether finding given by court without jurisdiction on merits of case will amount to res judicata?

In our opinion the High Court misconstrued the earlier order as it failed to note that the observations made thereunder were not binding since they were made without jurisdiction. It is useful to quote Corpus Juris Secundum2, which recognizes the difficulty faced by the High Court in application of res judicata in following words-

it is sometimes difficult to determine when a particular issue determined is of sufficient dignity to be covered by the Rule of estoppel.

Mulla3 has aptly cautioned against such mis-application of res judicata in the following manner-

It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the court considers the adjudication of the issue material and essential for its decision.

19. It is apparent from the perusal of the impugned order that the High Court stretched the ambit of 'finality' for some observations to the saying (relating to collateral aspects) that every such observation was final unless reversed in appeal, which had an effect of throttling the substantive justice out of life. We cannot approve such reasoning of the High Court that the issue had attained finality, since the observations were made by a court which went against its own findings that the court did not have any authority/jurisdiction to do so. Once the court concludes that a case is not maintainable Under Section 378 of Code of Criminal Procedure, it did not have any jurisdiction to make further observations on merits as has been done in this case.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 164 of 2018 (Arising out of S.L.P. (Crl.) No. 2190 of 2017)

Decided On: 23.01.2018

 Municipal Corporation of Gr. Mumbai Vs. Pankaj Arora (Secretary) and Ors.

Hon'ble Judges/Coram:

N.V. Ramana and S. Abdul Nazeer, JJ.

Citation: (2018) 3 SCC 699

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Whether court can record finding on a issue which is framed beyond pleading?

 In our considered opinion, the aforesaid finding of the High Court is wholly illegal and unsustainable in law besides being against the pleading and evidence. This we say for following reasons:

26. First, the Respondent (Defendant) had not raised such plea in his written statement. In other words, the Respondent did not set up such defense in the written statement. Second, the Trial Court, therefore, had no occasion to frame any issue on such plea for want of any factual foundation in the written statement. Third, the Trial Court and First Appellate Court, in these circumstances, had no occasion to record any finding on this plea either way. Fourth, in the light of these three reasonings, the High Court ought to have seen that such plea really did not arise for consideration because in order that any question is involved in the case, the party concerned should lay its factual foundation in the pleading and invite finding on such plea. Fifth, the High Court failed to see the case set up by the Respondent in his written statement. As mentioned above, the defense of the Respondent was that he had denied the Appellant's title over the suit shop and then set up a plea of adverse possession contending that he has become the owner of the suit shop by virtue of adverse possession, which according to him, was from time immemorial.

27. It was clear that the Respondent never claimed that he was in possession of the suit shop as tenant of the Appellant's predecessor-in-title. On the other hand, the Respondent had asserted his ownership right over the suit shop on the strength of his long adverse possession.

28. It is these issues, which were gone into by the two Courts and were concurrently decided by them against the Respondent. These issues, in our opinion, should have been examined by the High Court with a view to find out as to whether these findings contain any legal error so as to call for any interference in second appeal. The High Court, however, did not undertake this exercise and rather affirmed these findings when it did not consider it proper to frame any substantial question of law. It is a settled principle of law that the parties to the suit cannot travel beyond the pleadings so also the Court cannot record any finding on the issues which are not part of pleadings. In other words, the Court has to record the findings only on the issues which are part of the pleadings on which parties are contesting the case. Any finding recorded on an issue de hors the pleadings is without jurisdiction. Such is the case here.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 19421 of 2017 (Arising out of SLP (C) No. 22894/2014)

Decided On: 20.11.2017

 Shivaji Balaram Haibatti Vs.  Avinash Maruthi Pawar

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation: (2018) 11 SCC 762

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Whether respondent can challenge findings given against him without filing cross objections?

Under Sub-rule (1) the respondent, though he might not have appealed from any part of the decree, the respondent is entitled not only to support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been given in his favour. For doing so, he is not required to file any cross objections. This is clear from the wording of Sub-rule (1) of Rule 22. A landlord in whose favour a decree has been passed on one or more of the several grounds, may not only support the decree for possession on the grounds on which it has been passed, but may also contend that the finding on the issues decided against him ought to have been given in his favour. In other words, he can support the decree not only on the ground in which the decree was passed but also on the other grounds which have been decided against him by the trial Court. Therefore, there is no merit in the contention that in the absence of cross objections the appellate Court could not have passed a decree on the ground of decree on the ground of default.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 929 of 1999

Decided On: 22.06.2004

 Shri Lalji Ramnath Pande Vs. Smt. Hawabi Abdulla Shaikh

Hon'ble Judges/Coram:

D.G. Karnik, J.

Citation: 2004(4) MHLJ 1020,2004 Bom RC 303

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Whether respondent in writ petition while supporting order passed in his favour can challenge findings recorded against him?

So far as the first point is concerned, Order 41, rule 22 of the Code of Civil Procedure confers two distinct rights on the respondent in an appeal. The first is the right of upholding the decree of the Court of the first instance on any grounds, including the grounds on which the Court held against him, without filing any cross-objection.

We are quite satisfied that on general principles a party who has an order in its favour is entitled to show that the order is justified on some ground which was decided against it in the Court below.

In fact the Supreme Court in the following cases reiterated the proposition that the respondent in appeal can support the judgment in his favour even on grounds which were negatived in the judgment. 

We see no force in this submission of Shri Deopujari inasmuch as there are no rules which prohibit the respondent in a writ jurisdiction to exercise powers analogous to those conferred by Order 41, Rule 22 of the Code of Civil Procedure. In Management of the Northern Railway Co-operative Credit Society Ltd., Jodhpur v. Industrial Tribunal Rajasthan, Jaipur MANU/SC/0221/1967 : A I R 1967 S C 1182 the respondents were entitled to support the decision of the Tribunal even on the grounds which were not accepted by the Tribunal or any other grounds which may not have been taken notice of by the Tribunal while they were patent on the face of the record.

21. With reference to the first point, therefore, we observe that the respondent in a writ petition would be entitled to support the order passed by the Rent Controller even on findings which are pronounced against him. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

In Spl. C.A. No. 577, 578 and 579 of 1972

Decided On: 14.11.1979

 Vithaldas and others Vs. Mansukhlal

Hon'ble Judges/Coram:

B.C. Gadgil and M.R. Waikar, JJ.

Citation:1980 MHLJ 612

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Whether landlord can agitate grounds of eviction negatived by trial court in appeal preferred by tenant?

'Any aggrieved party', the expression employed in Section 20(1), means a person feeling aggrieved by the ultimate decision, that is, the operative part of the order. A party to the proceedings, who has succeeded in securing the relief prayed for is not a party aggrieved though the order contains a finding or two adverse to him. The Respondent can support the order and pray for the ultimate decision being sustained, without filing a revision of his own, and for achieving such end he may seek reversal of any findings recorded against him. However, if the non-petitioning party feels entitled to a more beneficial or larger order in his favour but was allowed a lesser or smaller relief then to the extent of claiming the more beneficial or larger relief he should have filed a revision petition of his own as he was 'an aggrieved party' to that extent.

16. There is, therefore, no doubt in the present case that in a revision preferred under Section 20 of the Act by the tenant laying challenge to the propriety of the decision of the Appellate Authority under Section 11(8) of the Act, the landlord could have urged that the order of eviction could be sustained under Section 11(3) of the Act also. The High Court has not erred in permitting the landlord to urge such a plea in the revision filed by the tenant though the landlord did not file any revision of his own. A landlord who has succeeded in securing an order of eviction on one of the several grounds urged by him cannot be said to be a person aggrieved by such order. He can not file a revision rather he can feel satisfied with the order. The person aggrieved is the tenant and in a revision preferred by the tenant it is only just and equitable that the landlord should be permitted to support the order of eviction by disputing correctness of the finding recorded in the impugned order whereby the availability of additional ground for eviction was negatived. Such a right has to be necessarily spelled out in favour of the landlord who has succeeded from the Court below else there would be grave injustice.

IN THE SUPREME COURT OF INDIA

SLP No. 1599 and 8694 of 2001

Decided On: 08.07.2002

Nalakath Sainuddin Vs. Koorikadan Sulaiman

Hon'ble Judges/Coram: 

R.C. Lahoti and B.N. Agrawal, JJ.

Citation: AIR 2002 SC 2562

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Whether a party can challenge adverse finding given against him without filing cross objection?

In terms of Order 41, Rule 22 of the Civil Procedure Code, it is open to the respondents to challenge any finding which is adverse to him without filing a Cross Appeal provided he supports the decree passed in his favour.

14. The Apex Court in the Judgment reported in MANU/SC/0147/2003 : 2003(9) SCC 606 in the case of Banarsi and ors. v. Ram Phal, has observed at Para 10 thus :

"10. The Civil Procedure Code amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41, Rule 22 sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross-objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference which has resulted we will shortly state. A respondent may defend himself without filing any cross-objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross-objection. The amendment inserted by the 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations :

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

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

(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent."

Taking note of the said observation in the present case, the appellant has supported the Decree passed by the learned Trial Judge and, as such, was entitled to question the findings of the learned trial Court adverse to him even without filing cross objections.

IN THE HIGH COURT OF BOMBAY AT GOA

S.A. No. 23 of 2003

Decided On: 31.03.2017

 Sharad Prabhudas Vs. Sapana Real Estates and Ors.

Hon'ble Judges/Coram:

F.M. Reis, J.

Citation:2017(4) MHLJ 227

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Whether civil court can rely on finding given by criminal court?

The case law on the subject is umpteen. As noticed, the proceedings are often referred to as, in the nature of, a summary proceeding, a quasi-civil proceeding, analogous to a civil proceeding, etc. All that is determined in the said proceeding is as to the prima facie entitlement for possession. Adjudication of title does not form the subject matter of enquiry therein, though incidentally title may also often go into the zone of consideration. However, the jurisdiction to decide on title ultimately vests with the Civil Court. Suffice to say that adjudication on title if any in a proceeding under Section 452 of the Cr.P.C., is always subject to the decision on the same by the Civil Court. The finding on title in a proceeding under Section 452 of the Cr.P.C. could not be made the basis for determination of title in the civil Court. The civil Court has to independently adjudicate on title.

23. The Learned Senior Counsel appearing for the respondents-plaintiffs referred to the judgment of various High Courts and the Apex Court regarding the extent to which the judgment in a criminal case is relevant in a civil case. In Anil Behari v. Latika Dassi(AIR 1955 SC 566), though a person (named Charu) was convicted and sentenced for life in a Sessions trial, in a subsequent civil litigation the Apex Court held that the Civil Court has to independently decide on evidence if he was the murderer. The relevant portion of the judgment runs as under:

“The learned counsel for the contesting respondent suggested that it had not been found by the lower Appellate Court as a fact upon the evidence adduced in this case, that Girish was the nearest agnate of the testator or that Charu had murdered his adoptive father, though these matters had been assumed as facts. The Courts below have referred to good and reliable evidence in support of the finding that Girish was the nearest reversioner to the estate of the testator. If the will is a valid and genuine will, there is intestacy in respect of the interest created in favour of Charu, if he was the murderer of the testator. On this question the Courts below have assumed on the basis of the judgment of conviction and sentence passed by the High Court in the sessions trial that Charu was the murderer. Though that judgment is relevant only to show that there was such a trial resulting in the conviction and sentence of Charu to transportation for life, it is not evidence of the fact that Charu was the murderer. That question has to be decided on evidence.”

24. As noticed, the judgment of the Criminal Court was held to be relevant only to show that there was such a trial which ended up in conviction and sentence. If in a subsequent civil proceedings the very issue arises, the civil court has to independently consider the evidence and reach at its own conclusion. To sum up, independent on the finding under Section 482 of the Cr.P.C, the Court has to enter a finding on title, on its own.

In the High Court of Kerala at Ernakulam

(Before V. Chitambaresh and Sathish Ninan, JJ.)

Kerala State Cashew Development Corporation Limited, 

v.

M/s. Binod Cashew Corporation,

Decided on July 12, 2017.
Citation: 2017 SCC OnLine Ker 8389

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Whether critical direction which is unfavourable to respondent can be assailed without filing cross objection?

The settled position in law as is evident from a proper perusal of Nalakath is that even though several points pressed by the victor of a litigation may have been viewed with favour, and the Respondent may have succeeded only one or some, if the matter is taken by the vanquished party to the portals of a superior forum, the victor may still press all the points argued by it earlier. The Judgments of the High Courts which have been analysed by this Court in Nalakath do not go to the extent, as they clearly cannot, that a critical direction which is unfavourable to the Respondent can be assailed even in the absence of filing a cross or a separate appeal. A holistic reading of the impugned judgment discloses that this direction was not given en passant or casually in that in the penultimate paragraph of the impugned judgment the Division Bench emphasised that although they were allowing two writ appeals, they were at pains to reiterate that the success of the Respondents was subject to compliance with the aforementioned directions which we entirely affirm.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6905 of 2005

Decided On: 29.12.2015

S.K.L. Co.
Vs.
Chief Commercial Officer and Ors.

Coram:Vikramajit Sen and Shiva Kirti Singh, JJ.

Citation:(2015) 16 SCC509

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Whether a party can challenge a finding given against him without filing revision?

It was also held in Smt. Gangabai v. Vijay Kumar and Ors. MANU/SC/0020/1974 : (1974) 2 SCC 393, 'no appeal can lie against a mere finding', and, if filed, shall be liable to be dismissed as not maintainable. In Seetaram and Ors. v. Smt. Remabai and Anr. MANU/MP/0079/1958 : AIR 1958 MP 221, the Division Bench consisting of M. Hidayatullah, CJ and P.K. Tare, J., (as their Lordships were then), considered Clause 21 of the C.P. and Berar Letting of Houses and Rent Control Order. 1949 which provides for an appeal being preferred by 'any person aggrieved by an order' of the Controller to the Deputy Commissioner who shall decide the appeal. Eviction was sought for on three grounds but was allowed by the Controller only on one ground. In an appeal preferred by the tenant the landlord was not permitted by the Deputy Commissioner to establish that the other two grounds on which permission was asked for were wrongly decided. The Deputy Commissioner formed an opinion that the order of Controller could nor be allowed to be supported by the landlord-respondent before him on any ground which had been decided against him by the Controller unless an appeal was filed by the landlord-respondent. The Division Bench held that 'a person aggrieved' must be a man against whom a decision has been pronounced which has wrongfully refused him something which he had a right to demand. In spite of a ground for an order having been decided against the landlord, if the operative part of the order is in his favour, the landlord though a person aggrieved' is not a 'person aggrieved by an order of the Controller'. The landlord could have felt satisfied therewith and there is no reason why he should have appealed. Even if a person has a grievance against the finding he cannot come by way of appeal unless he challenges the order itself and wants to get it interfered with. Such ah interpretation of the provision is warranted otherwise even if the order is in favour of a party he would be required to file an appeal against a finding. The Division Bench held that, in an appeal, the party who has an order in its favour is entitled to show that the order is justified on some ground which was decided against it in the Court below and this position of law is supportable on general principles without having recourse to Order 41. Rule 22 of the Code of Civil Procedure.

13. Krishnaswami Ayyangar, J. in his opinion, in Gaddem Chinna Venkata Rao and Ors. v. Koralla Satyanarayanamurthy and Anr. MANU/TN/0137/1943 : AIR 1943 Mad 698, which is a Full Bench decision, held, interpreting Order 41, Rule 22 of the Code of Civil Procedure, that a party who has succeeded in the result of a decision in spite of one or more of several grounds urged by him having been negated, he cannot and need not appeal as regards the latter grounds however erroneous the decision because there is no right of appeal to a party who has succeeded. The distinction lies in supporting or sustaining the decree in one's favour and in obtaining an alteration which would give him a further advantage. The latter can be secured only by an appeal or cross objection.

14. A single Bench decision of Madras High Court in K. Venkataramani v. S. Aravamuthan and Ors. MANU/TN/0292/1982 : AIR 1982 Mad 36, is directly in point dealing with pari materia provision contained in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. It was held that where an order for eviction is based on one of the several grounds, in an appeal preferred by the tenant, the ultimate decision in favour of the landlord can be supported by the landlord without filing an appeal by disputing the correctness of findings on a ground decided against him and submitting that the order of eviction should have been rested on that ground as well. What is true of the appellate jurisdiction is also true of the revisional jurisdiction under Section 25. The Division Bench decision of Madhya Pradesh High Court in Seetaram and Ors. case (supra) was followed.

15. We agree with the view taken by the High Courts of Madhya Pradesh and Madras. We are of the opinion that-

(i) There is no reason to read and interpret Section 20 of the Kerala Buildings. (Lease and Rent Control) Act. 1965 narrowly and limit the scope of revisional jurisdiction conferred on the High Court thereby:

(ii) Once a revision petition is entertained by the High Court, whichever be the party invoking the revisional jurisdiction, the High Court acquires jurisdiction to call for and examine the records of the authority subordinate to it. The records relating to 'any order' and/or any proceedings, are available to be examined by the High Court for the purpose of satisfying itself as to the (a) legality, (b) regularity, or (c) propriety of the impugned order, including any part of the order, or proceedings. The only limitations on the scope of High Court's jurisdiction is that the order or proceedings sought to be scrutinized must be of the subordinate authority. Any illegality, irregularity or impropriety coming to its notice is capable of being corrected by the High Court by passing such appropriate order or direction as he law requires and justice demands.

(iii) 'Any aggrieved party', the expression employed in Section 20(1), means a person feeling aggrieved by the ultimate decision, that is, the operative part of the order. A party to the proceedings, who has succeeded in securing the relief prayed for is not a party aggrieved though the order contains a finding or two adverse to him. The Respondent can support the order and pray for the ultimate decision being sustained, without filing a revision of his own, and for achieving such end he may seek reversal of any findings recorded against him. However, if the non-petitioning party feels entitled to a more beneficial or larger order in his favour but was allowed a lesser or smaller relief then to the extent of claiming the more beneficial or larger relief he should have filed a revision petition of his own as he was 'an aggrieved party' to that extent.

IN THE SUPREME COURT OF INDIA

SLP No. 1599 and 8694 of 2001

Decided On: 08.07.2002

Nalakath Sainuddin Vs. Koorikadan Sulaiman

Coram: R.C. Lahoti and B.N. Agrawal, JJ.

Citation:(2002) 6 SCC 1

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Whether punishment can be imposed on employee if there is inherent contradiction between charges levelled and findings of enquiry officer?

 If the charges levelled against the Appellant are one of purchase from an unauthorised/non-existent dealer and the finding of the Enquiry Officer is that no such purchase was made, we do not see how the disciplinary authority could have held the charges to have been proved. In any event, if the disciplinary proceedings was vitiated, as held by the Division Bench, we do not see how charge No. 11 could have been held to be proved and that too on the basis of the stand taken by the Appellant in the disciplinary enquiry. Viewed from any perspective, the conclusion with regard to guilt on any of the charges levelled is not sustainable. Both the conclusions i.e. the disciplinary authority as well as the Division Bench of the High Court suffer from inherent contradictions though for different reasons, as indicated above. We, therefore, set aside the order of the Division Bench and the punishment imposed and direct that all reliefs as due in law be now afforded to the Appellant without any delay and in any case within three months from today.

IN THE SUPREME COURT OF INDIA

C.A. No. 13684 of 2015 (Arising out of SLP(C) No. 10607/2014)

Decided On: 24.11.2015

 K.P. Gupta  Vs. University of Delhi

Coram:Ranjan Gogoi and N.V. Ramana, JJ.

Citation:(2015) 16 SCC 525

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