Whether decree passed by trial court if it refuses part of relief to plaintiff can be altered in absence of cross objection by plaintiff?

 In Tummalla Atchaiah (supra), it was observed by the Supreme Court that in absence of any specific ground in the cross objections, the decree passed by the trial Court cannot be altered in exercise of powers conferred under provisions of Order 41, Rule 33 of the Code. Similarly, in Hardevinder Singh (supra), it was held by the Supreme Court that though the respondent may defend the decree in his favour without filing any cross objections, if he intends to assail any part of the decree, then it is obligatory for him to file cross objections. It is, therefore, clear that the decree as passed by the trial Court can be supported without filing any cross objection, but if any alteration or modification in said decree is sought, then the same has to be done by filing cross objections. Similar view has been taken by learned Single Judge in Surjansingh (supra) by observing that if the respondent wants any particular relief in his favour from the Appellate Court, then cross objections to the decree are required to be filed. In view of aforesaid position, it is clear that in absence of any cross objection by the plaintiff, the decree passed by the trial Court granting part relief could not be modified to convert said decree into one granting larger relief.

Thus, from aforesaid discussion, it is clear that the first Appellate Court exceeded its jurisdiction while exercising powers under Order 41, Rule 33 of the Code by modifying the decree passed by the trial Court. Such course is not permissible in law. The substantial question of law as framed is answered by holding that in absence of any cross objections, the decree passed by the trial Court cannot be modified or altered by the first Appellate Court.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

S.A. No. 44 of 2014

Decided On: 23.12.2014

 Indrakumar Vs. Atmaram and Ors.

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2015 (3) Mh.L.J. 613.

Print Page

Whether court can grant larger relief than one claimed by plaintiff?

Where the relief prayed for in the suit is a larger relief and if no case is made out for granting the same but the facts, as established, justify granting of a smaller relief. Order VII Rule 7 permits granting of such a relief to the parties. However, under the said provisions a relief larger than the one claimed by the plaintiff in the suit cannot be granted.

IN THE SUPREME COURT OF INDIA

Appeal (civil) 3406 of 1998

Decided On: 09.11.2001

 Rajendra Tiwary vs.  Basudeo Prasad and Ors.

Hon'ble Judges/Coram:

S.S.M. Quadri and S.N. Phukan, JJ.

Citation: AIR 2002 SC 136

Print Page

Whether court can grant smaller relief even though larger reliefs are claimed by parties?

Insofar as the submission of the learned counsel for the

defendant that the plaintiffs could not have applied for recovery of

possession of the entire property without impleading the other parties,

who were in possession of the suit property and thus the suit was

bad for non-joinder of necessary parties is concerned, in my view,

even if the plaintiffs had prayed for larger reliefs, the Court has ample

power to mould the reliefs and grant smaller relief.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

 CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO.197 OF 2013

WITH

CIVIL APPLICATION NO.526 OF 2013

Shri Shaikh Mustafa Yasin

V

Shri Sharad Ganesh Tisgaonkar

 CORAM : R.D. DHANUKA, J.

 Dated : 13TH OCTOBER, 2016

Citation: 2017(1) MHLJ 358

Print Page