When there is no cross appeal, HC cannot go beyond Decree of Trial Court.

When there is no cross-appeal/objection, HC cannot go beyond the Judgment & Decree of Trial Court while dismissing an appeal against It.

 

Author: Sudhanshu Paliwal, Btech LLB 5th yr, UPES Dehradun.

In the case of AkhilBharatvarshiya Marwari Agarwal JatiyaKosh& Others v. BrijlalTibrewal& Others (civil appeal nos. 12088­12089 of 2018), the apex court has put a limit on the appellate powers of High Courts by propounding that “The Appellant, the Original Defendants cannot be put in a worse condition than beyond the judgment and decree passed by the Trial Court which was challenged before the first appellate Court in appeal and that too in the absence of any cross-appeal or cross-objection from the original plaintiffs’ side.”

The three-judge bench comprising of Justice AK Sikri, Justice Ashok Bhushan and Justice MR Shah in the case ruled that in an appeal preferred by the original defendants, at the most, the high court can dismiss the appeal and confirm the judgment and decree passed by the trial court.

The Bombay HC, while dismissing the appeals, directed the defendant to execute the deed of conveyance to the extent of 2700 sq. meters of land, however, the trial court while decreeing the suit filed by the plaintiff had only directed the defendant to convey the title and execute the document in favour of the Society in respect of the suit building and land to the extent of the suit building, which was1009 sq. meters.

According to the Supreme Court, the HC’s judgment, which goes beyond the judgment and decree passed by the trial court is not sustainable, more particularly, in absence of cross-appeal and /or cross-objections filed by the plaintiffs.

Supreme Court ruled that, once the HC dismissed the appeal, thereafter, the HC could not have passed any further order beyond the scope and ambit of the appeal before it and by doing so in this case, it has exceeded its jurisdiction and exercised power not vested in it, thus the HC’s judgment, which goes beyond the judgment and decree passed by the trial court is not maintainable, especially, in absence of cross-appeal/cross-objections filed by the plaintiffs.

In the subsequent issue, whether such an order/orders could have been passed by the high court below the “Note for speaking to the Minutes”, the apex court observed that, “A “Note for speaking to Minutes” is required to be entertained only for the limited purpose of correcting a typographical error or an error through oversight, which may have crept in while transcribing the original order. Once, the judgment/order is pronounced and if any party to the same wants any rectification of any typographical error and any clerical mistake regarding the date or number, such a party may apply to the concerned Court for correcting such an error in the judgment/order. However, a “Note for speaking to the Minutes” cannot be considered at par with a review application or in a given case, with an application for clarification/modification of an order. A “Note for speaking to the Minutes” can never be considered to be an application of such a nature. While passing the impugned order below the “Note for speaking to the Minutes”, the High Court has virtually modified its original order passed in the First Appeal. While passing the impugned order, the High Court has given further directions as if the High Court is passing the order on an application for clarification/modification. Therefore, such a course was not open to the High Court while deciding a “Note for speaking to the Minutes”. Since the High Court has travelled beyond its jurisdiction in regard to the scope of deciding a “Note for speaking to the Minutes”, we have no option but to set aside the impugned order passed below the “Note for speaking to the Minutes”.

Subsequently, the Supreme Court has directed the impugned order of the Joint Divisional Registrar to be modified to the extent of granting deemed conveyance of the area admeasuring 1009 sq. meters only.

Conclusively, the orders passed by the HC are quashed and set aside and the civil appeals arising from these orders are accordingly allowed.

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