# Ajmer Singh & Ors v. Maulvi Zahoor Ahmad & Ors

- **Citation:** (2016) 4 ILRA 288
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-03
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajmer-singh-ors-v-maulvi-zahoor-ahmad-ors-43585
- **Pages:** 3

## Headnote

Sri Manoj Kumar Rai
4 All. Ajmer Singh & Ors. Vs Maulvi Zahoor Ahmad & Ors.
289
Specific performance - Cross-objection not decided - Original Suit No. 549/1989 for specific performance
decreed only for alternative relief of refund of advance consideration by judgment dated 24.09.2013;
plaintiff's Civil Appeal No. 72/2013 allowed by ADJ, Court No. 11, Saharanpur on 20.11.2015 granting decree
for specific performance in place of refund - Defendants had filed cross-objection in the same appeal, but the
first appellate court, while allowing the appeal, did not advert to or decide the cross-objection, there being no
reference to it in the judgment - Held, under Order XLI Rule 22(2) & (4) CPC, cross-objection is to be treated
as a memorandum of appeal and must be heard on merits even if the main appeal is withdrawn or dismissed;
non-consideration of duly filed cross-objection is a serious jurisdictional error causing prejudice to
respondents, vitiating the appellate judgment - Second appeal allowed; judgment dated 20.11.2015 set aside;
matter remanded to lower appellate court to hear and decide the appeal and cross-objection afresh,
expeditiously, preferably within three months, without being influenced by any observation on merits. (Paras
2-7)

Appeal Allowed

## Text

288 INDIAN LAW REPORTS ALLAHABAD SERIES
"8.(1) The Authority shall be the chief policy making body for the Centralised
Service. The Authority shall have following powers, duties and responsibilities:-
(x)..... to hear appeals against the orders passed by the District Administrative
Committee."

27. From the aforesaid provision it is clear that the power to hear the appeal has been
conferred upon the State Cadre Authority and not only upon its Secretary, whose powers are
defined under Rule 9. This rule only describes/identifies the appellate authority competent to hear
appeals against the orders of District Level Committee.

28. The Authority/Member Secretary can hear and decide only such appeals which are
statutorily provided for. The identification of the appellate authority will not mean that the
Authority/Member Secretary on his own can entertain appeals which are not statutorily provided.

29. What applies to the Authority applies with more rigor to the Member Secretary of the
Authority as he has no power beyond that conferred upon the Authority itself.

30. As already noticed above, against the order of compulsory retirement made in exercise
of powers under Rule 29, no appeal under the Rules, 1976 or under the Regulation, 1978 has been
provided for. Therefore, the Member Secretary, could not have entertained the appeal filed by the
petitioner appellant against the decision of compulsory retirement dated 28.11.2005.

31. For all the aforesaid reasons, we do not find any illegality in the order of the Hon'ble
Single Judge. The present special appeal has no merit. It is dismissed.

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APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Second Appeal No.- 233 Of 2016

Ajmer Singh & Ors. ...Appellants
Versus
Maulvi Zahoor Ahmad & Ors. ...Respondents

Counsel for the Appellants:
Sri Ashfaq Ahmed Ansari

Counsel for the Respondents:
Sri Manoj Kumar Rai
4 All. Ajmer Singh & Ors. Vs Maulvi Zahoor Ahmad & Ors.
289
Specific performance - Cross-objection not decided - Original Suit No. 549/1989 for specific performance
decreed only for alternative relief of refund of advance consideration by judgment dated 24.09.2013;
plaintiff's Civil Appeal No. 72/2013 allowed by ADJ, Court No. 11, Saharanpur on 20.11.2015 granting decree
for specific performance in place of refund - Defendants had filed cross-objection in the same appeal, but the
first appellate court, while allowing the appeal, did not advert to or decide the cross-objection, there being no
reference to it in the judgment - Held, under Order XLI Rule 22(2) & (4) CPC, cross-objection is to be treated
as a memorandum of appeal and must be heard on merits even if the main appeal is withdrawn or dismissed;
non-consideration of duly filed cross-objection is a serious jurisdictional error causing prejudice to
respondents, vitiating the appellate judgment - Second appeal allowed; judgment dated 20.11.2015 set aside;
matter remanded to lower appellate court to hear and decide the appeal and cross-objection afresh,
expeditiously, preferably within three months, without being influenced by any observation on merits. (Paras
2-7)

Appeal Allowed

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. Heard learned counsel for the appellants on point of admission of second appeal and
perused the records. During hearing, it was found that this appeal may be decided at this stage on
the basis of admitted facts. Therefore, it is accordingly being decided.

2. Admittedly Original Suit no. 549/1989, Maulvi Zahoor Ahmad v. Smt. Bharto & others,
was filed for specific performance of contract of sale of property. After affording opportunity of
hearing, by its judgment dated 24.9.2013 the court of Ist Additional Civil Judge (Senior Division),
Saharanpur had decreed this suit for alternative relief of advance consideration paid by plaintiff to
defendant. Aggrieved by this judgment of trial court, first Civil Appeal No. 72/2013, Maulvi
Zahoor Ahmad Vs. Smt. Bharto and others, was preferred by the plaintiff of the original suit for
seeking relief of specific performance of contract. This appeal was heard and allowed by the
Additional District Judge, Court No.-11, Saharanpur by its judgment dated 20.11.2015, by which
decree of trial court for refund of advance consideration was amended and replaced by decree of
specific performance of contract of sale.

3. Against this judgment of first appellate court, present second appeal has been preferred
by defendants of the original suit.

4. It is also admitted fact that when Civil Appeal No. 72/2013 was preferred by plaintiff of
the original suit against the judgment of trial court dated 24.9.2013, then in same appeal cross
objection was also filed by defendant-respondents of that appeal. It is also admitted that lower
appellate court had decided the Civil Appeal no. 72/2013 but had not considered the crossobjection. A perusal of certified copy of judgment of said civil appeal reveals that there is no
mentioned of cross objection in it.

5. Under Rule 22(2) of Order XLI CPC the cross-objection should be filed in form of
memorandum of appeal under Rule 1 of this Order. This is also settled legal position, as discussed
in sub-rule (4) of Rule 22 aforesaid that even if original appeal is withdrawn or dismissed for
290 INDIAN LAW REPORTS ALLAHABAD SERIES
default, in that case also such cross-objection so filed have to be heard on merits. Thus, crossobjection has effect of cross-appeal.

6. Admittedly in present matter, at the time of passing of the impugned judgment dated
20.11.2015, the lower appellate court had considered the memorandum of appeal filed by plaintiff
under Rule 1 of Order XLI CPC, but had not considered the cross-objection filed under Rule 22 of
said Order. Thus the first appellate court had manifestly erred when it had considered case of
appellant only, and failed to consider the case of respondent-defendants. This error may be due to
inadvertence but it is a serious error, which may cause serious prejudice to the legal rights of
defendants. For this reason the impugned judgment is liable to be quashed, so that civil appeal may
be decided afresh alongwith cross-objection filed in it, without being influenced by any finding of
this court on merits of the matter.

7. For the reasons discussed above, this appal is allowed. Impugned judgment dated
20.11.2015 of lower appellate court is set aside. The matter is remanded back to lower appellate
court with direction to afford afresh opportunity of hearing to parties and decide the first appeal and
cross-objection, very expeditiously, preferable within three months from receipt of copy of this
judgment.

8. Let a copy of this judgment be sent to lower appellate court immediately.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.04.2016

BEFORE

THE HON'BLE RAJAN ROY, J.

Service Single No.- 326 Of 2016
&
Service Single No.- 7334 Of 2015

Mahendra Pratap Singh & Ors. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Laltaprasad Misra, Abhishek Misra

Counsel for the Respondents:
C.S.C., Ajay Kumar, D P Shukla, Samir Kalia, V P Tewari

AND