# The New India Assurance Co. Ltd v. Smt. Neelam Jaiswal & Ors

- **Citation:** (2020) 2 ILRA 1299
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020
- **Case number:** First Appeal From Order No. 366 of 2005
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-new-india-assurance-co-ltd-v-smt-neelam-jaiswal-ors-45661
- **Pages:** 13

## Headnote

A. Civil Law-Civil Procedure Code (5 of
1908) - O.41 R.33 - Power of Court of
Appeal - to enhance the compensation
amount awarded even in absence of
cross-appeal
or
cross
objection
by
claimant - object sought to be achieved is
to avoid inconsistency and unworkable
decree - Usually power under Rule 33 is
exercised when the portion of the decree
appealed
against
is
so
inseparably
connected with the portion not appealed
against that for the reason of the latter
portion
being
left
untouched
either
injustice would result or inconsistent
decrees would follow

Insurance company preferred appeal in the
year 2005 - claimant/respondents neither filed
any cross appeal nor filed any cross objection
and permitted the quantum to become final -
when the judgment was being dictated, oral
plea for enhancement of compensation
amount raised by the claimant - plea turned
down by High Court - Held - Insurance
Company challenged award on limited ground
whether the said award was to be satisfied by
the Insurance Company or the owner - There
was no challenge to the quantum - Nothing
prevented the claimant from filing an appeal or
taking cross objections - dismissal of Insurance
company appeal would not result in any
inconsistent, contrary or unworkable decree
(Para 25)

B. Civil Law-Motor Vehicles Act, 1988 - Ss
166 - Practice & Procedure - Claim
Petition - merely by quoting wrong
provisions under which the claim petition
is filed will not denude the jurisdiction of
the Authority of the Claims Tribunal

In claim petition it was mentioned it was being
filed under Section 163-A, 166, 140 of the
Motor Vehicles Act, 1988 - Insurance company
contention
claimants
could
not
have
simultaneously pressed their claim petition in
the aforesaid sections - Held - it was clear in
the mind of the parties that the claim petition
was proceeded under Section 166 and merely
by
incorporating
Section
163-A
in
the
nomenclature of the claim petition alongwith
Section 166 will not make claim petition to be
bad (Para 12)

C. Civil LawMotor Vehicles Act, 1988 - Ss
166 - Practice & Procedure - Claim -
merely taking a plea in the written
statement will not partake the nature of
evidence before the tribunal - unless
effort
is
made
to
establish
and
substantiate the said plea by leading
evidence (Para 14)

First Appeal From Order dismissed (E-5)

List of cases cited :

## Text

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2 All. The New India Assurance Co. Ltd. Vs. Smt. Neelam Jaiswal & Ors.
1299
dated 29.02.2008 of the Madras High
Court, relied by the respondent-claimants
in which the accident had occurred on
18.03.1996, was allowed on the ground
that death arose out of and in the course of
employment and the work of claimant can
not be considered to be one of casual
nature
but
the
learned
Deputy
Commissioner had ignored the material
evidence on record. The court has also
observed that from the definition of word
'Workman' in section 2(1)(n) of the Act it
is seen that a person other than a person
whose employment is of casual nature and
who is employed otherwise than for the
purposes of employer's trade or business is
a workman as per the definition. Similarly,
the other case cited by the learned counsel
for the respondents of Kerala High Court
in the case of Kottayan Vs. Zacharia
Kurien @ Babu decided on 22.03.2014 is
also of no assistance because it is not
proved in the present case that the
deceased was a mechanic of engine and
employed by the appellant.

29. The Hon'ble Apex Court, in the
case of Smt. T.S. Shylaja Vs. Oriental
Insurance Company & Another; AIR
2014 SC 893, relied by the respondentclaimants, has held that the High Court
could not have, without adverting to the
documents vaguely referred to by it have
upset the finding of fact which the
Commissioner was entitled to record and
the High Court has neither referred to nor
determined any question of law much less
a substantial question of law in existence
whereof was a condition precedent for the
maintainability of any appeal under
Section 30, which can not be disputed.

30. In view of above discussion, this
court is of the considered opinion that the
respondent-claimants have failed to prove
that the deceased was a workman as per
the definition under Section 2(1)(n) of the
Act of 1923 and there was any relation of
employer and employee between the
appellant and the deceased. The findings
recorded by the learned Commissioner are
without application of mind and without
considering and appreciating correctly the
material and evidence on record, therefore
the same are not sustainable in the eyes of
law and liable to be set-aside.

31. Thus, the substantial questions of
law involved in this appeal are decided in
favour of the appellant and against the
respondent-claimants. Consequently, the
judgment and award dated 22.01.2004
passed in Case No.13/5/3/3/3/1/25 under
Section 22 of the Act of 1923 passed by
the
Workmen's
Compensation
Commissioner / Collector, Kheri is hereby
set-aside and the application filed by the
respondent-claimants is dismissed.

32. The appeal is, accordingly,
allowed. No order as to costs.
----------
(2020)02ILR A1299

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.01.2020

BEFORE
THE HON'BLE JASPREET SINGH, J.

First Appeal From Order No. 366 of 2005

The New India Assurance Co. Ltd.
 ...Appellant
Versus
Smt. Neelam Jaiswal & Ors.
 ...Respondents

Counsel for the Appellant:
Anand Mohan, G.S. Chadha, H.S. Chadha,
I.P. Singh Chadha
1300 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
Ravindra Pratap Singh

A. Civil Law-Civil Procedure Code (5 of
1908) - O.41 R.33 - Power of Court of
Appeal - to enhance the compensation
amount awarded even in absence of
cross-appeal
or
cross
objection
by
claimant - object sought to be achieved is
to avoid inconsistency and unworkable
decree - Usually power under Rule 33 is
exercised when the portion of the decree
appealed
against
is
so
inseparably
connected with the portion not appealed
against that for the reason of the latter
portion
being
left
untouched
either
injustice would result or inconsistent
decrees would follow

Insurance company preferred appeal in the
year 2005 - claimant/respondents neither filed
any cross appeal nor filed any cross objection
and permitted the quantum to become final -
when the judgment was being dictated, oral
plea for enhancement of compensation
amount raised by the claimant - plea turned
down by High Court - Held - Insurance
Company challenged award on limited ground
whether the said award was to be satisfied by
the Insurance Company or the owner - There
was no challenge to the quantum - Nothing
prevented the claimant from filing an appeal or
taking cross objections - dismissal of Insurance
company appeal would not result in any
inconsistent, contrary or unworkable decree
(Para 25)

B. Civil Law-Motor Vehicles Act, 1988 - Ss
166 - Practice & Procedure - Claim
Petition - merely by quoting wrong
provisions under which the claim petition
is filed will not denude the jurisdiction of
the Authority of the Claims Tribunal

In claim petition it was mentioned it was being
filed under Section 163-A, 166, 140 of the
Motor Vehicles Act, 1988 - Insurance company
contention
claimants
could
not
have
simultaneously pressed their claim petition in
the aforesaid sections - Held - it was clear in
the mind of the parties that the claim petition
was proceeded under Section 166 and merely
by
incorporating
Section
163-A
in
the
nomenclature of the claim petition alongwith
Section 166 will not make claim petition to be
bad (Para 12)

C. Civil LawMotor Vehicles Act, 1988 - Ss
166 - Practice & Procedure - Claim -
merely taking a plea in the written
statement will not partake the nature of
evidence before the tribunal - unless
effort
is
made
to
establish
and
substantiate the said plea by leading
evidence (Para 14)

First Appeal From Order dismissed (E-5)

List of cases cited :

1. Jitendra Khimshankar Trivedi & Ors Vs
Kasam Daud Kumbhar & Ors 2015 (1) T.A.C.
673

2. New India Assurance Co. Ltd. Vs Resha Devi
& Ors 2017 (4) T.A.C. 288

3. Banarsi & Ors Vs Ram Phal 2003 (9) SCC
606

4. Indian Bank Vs ABS Marine Products 2006
(5) SCC 72

5. Lakshmanan & Ors Vs G. Ayyasamy 2016
(13) SCC 165

(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard Shri I. P. Chadha learned
counsel for the appellant and Shri R. P.
Singh learned counsel appearing for the
claimant-respondents no.1, 2 and 3.

2. None has put in appearance on
behalf of the respondents no.4 to 6 and
accordingly the appeal has been heard in
their absence.

3. The insurance company has
preferred
the
instant
appeal
being
aggrieved
against
the
award
dated
2 All. The New India Assurance Co. Ltd. Vs. Smt. Neelam Jaiswal & Ors.
1301
18.01.2005 passed in Claim Petition
No.442 of 1998 by the Motor Accident
Claims Tribunal/Additional District Judge,
Court No.2, Barabanki wherein a sum of
rupees three lakh forty seven thousand
alongwith six per cent interest per annum
has been awarded in favour of the
claimant-respondents no.1, 2 and 3.

4. The submission of the learned
counsel for the appellant is two fold:-

(i) The claim petition was bad at
the very inception since it mentioned that
it was being filed under Section 163-A,
166, 140 of the Motor Vehicles Act, 1988.
Thus, it has been urged that the claimants
could not have simultaneously pressed
their claim petition in the aforesaid
sections and they had to elect whether it
was under 163-A or under Section 166.
This not having been done, has vitiated the
proceedings and accordingly the award is
bad.

(ii) It has also been urged that a
specific plea was taken by the offending
truck owner that his truck was not
involved in the accident which is said to
have occurred within the jurisdiction of
Barabanki while at the alleged given time
and date of the accident the said truck was
stationed at Muzaffar Nagar. It has also
been stated that in the FIR which was
lodged post the accident. The truck
number was not mentioned nor the police
upon investigation found the involvement
of the aforesaid truck. Consequently, the
finding given by the tribunal in respect of
the truck being involved in the accident
also suffers from error and for the said
reason, the award cannot be sustained.

5. Per contra Shri R. P. Singh learned
counsel for the respondents no.1, 2 and 3
has submitted that merely by quoting
wrong provisions under which the claim
petition is filed will not denude the
jurisdiction of the Authority of the Claims
Tribunal.

6. In light of the pleadings and the
evidence led it was clear in the mind of the
parties that the claim petition was
proceeded under Section 166 and merely
by incorporating Section 163-A in the
nomenclature
of
the
claim
petition
alongwith Section 166-A will not make
claim petition to be bad and the aforesaid
submissions of the learned counsel for the
appellant does not merit consideration.

7. It has further been submitted by
Shri R.P.Singh that a specific issue was
framed and in light thereof the party had to
lead evidence. Since the owner of the truck
had raised a plea in his written statement
that on the date and time of the alleged
accident the aforesaid truck was at
Muzaffar Nagar, this plea was required to
be proved by the truck owner. However, he
led no evidence on the aforesaid point and
therefore merely by taking a plea in the
written statement will not partake the
nature of evidence before the tribunal, to
consider the aforesaid plea as having been
proved and thus the other ground as raised
by the learned counsel for the appellant
also has no force.

8. The Court has heard the learned
counsel for the parties and also perused the
record.

9. Briefly, the facts giving rise to the
aforesaid appeal are, that the claim petition
bearing No.442 of 1998 was filed before
the
Motor
Accident
Claims
Tribunal/Additional District Judge, Court
No.2, Barabanki with the averments that
Ashok Kumar Jaiswal on 10.11.1998 was
1302 INDIAN LAW REPORTS ALLAHABAD SERIES
riding his scooter bearing number UME
8120 and was moving towards Zaidpur. It
is pleaded that while he had reached
Phalahri
Chauraha
in
police
station
Barabanki, a truck bearing number HR37/2901 which was being driven rashly
and negligently hit the scooter of Ashok
Kumar Jaiswal who fell and sustained
grievous injuries as a result he died on the
spot. The accident was reported to the
police concerned by the real brother of
Ashok Kumar Jaiswal and a case was
registered in respect thereto. It is in respect
of the aforesaid that the claim petition was
filed by the wife and children of Ashok
Kumar Jaiswal stating that Ashok Kumar
Jaiswal was earning about rupees five
thousand a month and for the aforesaid
loss, a total claim compensation of rupees
eleven lakh forty seven thousand one
hundred and twenty was claimed.

10. The owner of the offending truck
filed his written statement wherein he
pleaded that his vehicle was duly insured
with New India Assurance Company Ltd.
which was valid for the period 19.01.1998
to 18.01.1999. It also pleaded that the
vehicle had a valid permit and its driver
also had an effective and valid licence.
The substantial plea raised by the truck
owner was to the effect that on the date of
the aforesaid accident his truck was at
Muzaffar Nagar and that in the FIR also no
truck number was mentioned and that the
police also filed a final report and in view
thereof the involvement of the truck was
questionable while a specific plea was
taken that no accident had occurred from
the aforesaid truck.

11. Upon the pleadings of the parties,
the tribunal framed five issues. The
tribunal after considering the evidence
including the statement of two eye
witnesses concluded that the accident
occurred on account of rash and negligent
driving of the truck bearing number HR
37/2901 wherein Ashok Kumar Jaiswal
received
injuries
and
ultimately
he
expired. The tribunal also found that the
aforesaid truck was duly insured. Its driver
had a valid licence and all the necessary
papers, accordingly upon assessing the
compensation, it awarded a sum of rupees
three lakh forty seven thousand alongwith
six per cent interest by means of award
dated 18.01.2005. It is this award which
has been assailed in the instant appeal.

12. Upon considering the material
available on record in light of the
submissions made by the learned counsel
for the appellant. This Court finds that
merely because in the claim petition there
is a mention of Section 163-A alongwith
Section 166 will not denude the powers of
the tribunal to try the case. The income of
the deceased was stated to be rupees five
thousand per month coupled with the fact
that clear evidenced was led to establish
the negligence of the truck driver.

13. In view of the above as well
as in light of the evidence led before
the tribunal, there can be no doubt that
the parties were clear in the mind what
case they had to meet and the claim
petition was apparently under Section
166 of the Motor Vehicles Act. The
ground taken by the learned counsel
for the appellant is wholly super
technical without any basis coupled
with the fact that there is nothing on
record to indicate that at any point of
time the appellant had tried to confine
to bring the inquiry within the scope of
163-A. Thus, for the aforesaid reasons,
the first contention of the learned
counsel for the appellant fails.
2 All. The New India Assurance Co. Ltd. Vs. Smt. Neelam Jaiswal & Ors.
1303

14. Coming to the other ground it
would be relevant to note that the
claimants have been able to establish the
factum of the accident with the truck in
question by examining two eye witnesses.
The plea was raised by the truck owner.
However, he did not lead any evidence to
indicate that his truck was stationed at
Muzaffar Nagar. Rather no evidence has
been led at all on behalf of the truck
owner. Merely by raising the plea in his
written statement will not give the
leverage to either the truck owner or to the
insurance company who has been saddled
with the liability, when no such plea was
raised before the tribunal and no effort was
made to establish and substantiate the
aforesaid plea.

15. At this stage, learned counsel for
the claimant-respondents Shri R. P. Singh
has made a submission that the award
passed by the tribunal is on the lower side;
inasmuch
as
amount
towards
nonpecunary damages have been inadequately
awarded. It has further been submitted that
the Court while hearing on appeal can
enhance the amount awarded if it finds
that the amount is inadequate.

16. The Court had put a query to the
learned counsel for the respondents that
the appeal has been preferred in the year
2005 and the claimant-respondents have
not filed any cross appeal nor filed any
cross
objection,
then
under
what
circumstances at the stage when the
judgment was being dictated, this plea has
been raised regarding enhancement in
absence of any cross objections or cross
appeal.

17. Shri R. P. Singh submits that the
Court has ample power under Order 41
Rule 33 CPC and in order to do substantial
justice, the Court can enhance the amount.
Shri Singh has also relied upon a decision
of the Apex Court in the case of Jitendra
Khimshankar Trivedi and others Vs.
Kasam Daud Kumbhar and others
reported in 2015 (1) T.A.C. 673 and a
Division Bench Judgment of this Court in
the case of New India Assurance Co. Ltd.
Vs. Resha Devi and others reported in
2017 (4) T.A.C. 288.

18. Relying upon the aforesaid
decisions,
learned
counsel
for
the
claimant-respondents has submitted that
the Division Bench of this Court in the
case
of
Resha
Devi
(supra)
more
specifically in paragraph-16 has laid down
that where circumstances exist which
necessitates the exercise of discretion
conferred by Rule 33 of Order 41, the
Court cannot be found wanting when it
comes to the exercise of such powers and
therefore even though the claimantrespondents have not filed any cross
appeal or cross objections yet the award
can be enhanced.

19. Before dealing with the aforesaid
submission of Shri R. P. Singh, it will be
apposite to note the provisions of Order 41
Rule 33 CPC and order 41 Rule 22 CPC
and how they differ in its applicability.

20. This aspect of the matter
regarding the difference between Order 41
Rule 22 and Rule 33 CPC was considered
by the Apex Court in the case of Banarsi
and others Vs. Ram Phal reported in
2003 (9) SCC 606. The question before the
Apex Court was regarding the powers of
the appellate court to interfere and reverse
or modify the decree appealled against by
the appellant in absence of any cross
appeal
or
cross
objection
by
the
respondents under Order 41 Rule 22 CPC
1304 INDIAN LAW REPORTS ALLAHABAD SERIES
and the scope and power conferred on the
appellate court under Rule 33 of Order 41
CPC.

21. The Apex Court taking note of
the amendment brought in Rule 22 of
Order 41 CPC and relying upon the earlier
judgments noticing the scope of the
aforesaid provisions first dealt with the
scope of Order 41 Rule 22 CPC and the
relevant portion reads as under:-

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. Where a plaintiff seeks a
decree against the defendant on grounds
(A) and (B), any one of the two grounds
being enough to entitle the plaintiff to a
decree and the court has passed a decree
on ground (A) deciding it for the plaintiff
while ground (B) has been decided against
the plaintiff, in an appeal preferred by the
defendant, in spite of the finding on
ground (A) being reversed the plaintiff as
a respondent can still seek to support the
decree by challenging the finding on
ground (B) and persuade the appellate
court to form an opinion that in spite of
the finding on ground (A) being reversed
to the benefit of the defendant-appellant
the decree could still be sustained by
reversing the finding on ground (B) though
the
plaintiff-respondent
has
neither
preferred an appeal of his own nor taken
any cross-objection. A right to file crossobjection is the exercise of right to appeal
though in a different form. It was observed
in Sahadu Gangaram Bhagade v. Special
Dy. Collector, Ahmednagar [(1970) 1 SCC
685 : (1971) 1 SCR 146] that the right
given to a respondent in an appeal to file
cross-objection is a right given to the same
extent as is a right of appeal to lay
challenge to the impugned decree if he can
be said to be aggrieved thereby. Taking
any cross-objection is the exercise of right
of appeal and takes the place of crossappeal though the form differs. Thus it is
clear that just as an appeal is preferred by
a person aggrieved by the decree so also a
cross-objection is preferred by one who
can be said to be aggrieved by the decree.
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 CPC.

10. The CPC 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 crossobjection. 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 crossobjection. 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:
2 All. The New India Assurance Co. Ltd. Vs. Smt. Neelam Jaiswal & Ors.
1305

(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.

11. In the type of case (i) it was
necessary for the respondent to file an appeal
or take cross-objection against that part of the
decree which is against him if he seeks to get
rid of the same though that part of the decree
which is in his favour he is entitled to support
without taking any cross-objection. The law
remains so post-amendment too. In the type of
cases (ii) and (iii) pre-amendment CPC did not
entitle nor permit the respondent to take any
cross-objection as he was not the person
aggrieved by the decree. Under the amended
CPC, read in the light of the explanation,
though it is still not necessary for the
respondent to take any cross-objection laying
challenge to any finding adverse to him as the
decree is entirely in his favour and he may
support the decree without cross-objection; the
amendment made in the text of sub-rule (1),
read with the explanation newly inserted, gives
him a right to take cross-objection to a finding
recorded against him either while answering
an issue or while dealing with an issue. The
advantage of preferring such cross-objection is
spelled out by sub-rule (4). In spite of the
original appeal having been withdrawn or
dismissed for default the cross-objection taken
to any finding by the respondent shall still be
available to be adjudicated upon on merits
which remedy was not available to the
respondent under the unamended CPC. In the
pre-amendment era, the withdrawal or
dismissal for default of the original appeal
disabled the respondent to question the
correctness or otherwise of any finding
recorded against the respondent.

22. The matter before the Apex
Court in the case of Banarsi (supra)
was considering an appeal arising out
of a suit for specific performance
wherein the trial court had passed a
decree of refund of the earnest money.
However, it also provided a conditional
decree that in case if the aforesaid sum
was not paid within a period of two
months,
then
the
defendant
was
directed to execute the sale deed.
Before the appellate court two appeals
came to be filed and both the appeals
were dismissed. However, a fact to be
noted was that the respondents did not
file any cross objection. Thereafter the
matter came up before the High Court
where
again
two
appeals
were
preferred and the High Court opined
that it was open for the respondents not
to file an appeal against the trial court's
decree on the belief that he would
either get his money back within two
months as provided or the contract
would be specifically performed. On
account of the interim order since the
decretal amount was not paid, hence
while dismissing the appeal the High
Court in exercise of powers under
Order 41 Rule 33 passed a decree for
specific performance in favour of the
respondents.

23. It is in this backdrop as
noticed
above,
the
Apex
Court
considered the provisions of Order 41
Rule 22 and then it explained the
applicability
for
the
aforesaid
propositions which read as under:-

"12. ....A plaintiff who files a suit
for
specific
performance
claiming
1306 INDIAN LAW REPORTS ALLAHABAD SERIES
compensation in lieu of or in addition to
the relief of specific performance or any
other relief including the refund of any
money has a right to file an appeal against
the original decree if the relief of specific
performance is refused and other relief is
granted. The plaintiff would be a person
aggrieved by the decree in spite of one of
the alternative reliefs having been allowed
to him because what has been allowed to
him is the smaller relief and the larger
relief has been denied to him. A defendant
against
whom
a
suit
for
specific
performance has been decreed may file an
appeal
seeking
relief
of
specific
performance being denied to the plaintiff
and instead a decree of smaller relief such
as that of compensation or refund of
money or any other relief being granted to
the plaintiff for the former is larger relief
and the latter is smaller relief. The
defendant would be the person aggrieved
to that extent. It follows as a necessary
corollary from the abovesaid statement of
law that in an appeal filed by the
defendant laying challenge to the relief of
compensation or refund of money or any
other relief while decree for specific
performance was denied to the plaintiff,
the plaintiff as a respondent cannot seek
the relief of specific performance of
contract or modification of the impugned
decree except by filing an appeal of his
own or by taking cross-objection.

13. We are, therefore, of the
opinion that in the absence of cross-appeal
preferred or cross-objection taken by the
plaintiff-respondent the first appellate
court did not have jurisdiction to modify
the decree in the manner in which it has
done. Within the scope of appeals
preferred by the appellants the first
appellate court could have either allowed
the appeals and dismissed the suit filed by
the respondent in its entirety or could have
deleted the latter part of the decree which
granted
the
decree
for
specific
performance conditional upon failure of
the defendant to deposit the money in
terms of the decree or could have
maintained the decree as it was passed by
dismissing the appeals. What the first
appellate court has done is not only to set
aside the decree to the extent to which it
was in favour of the appellants but also
granted an absolute and out-and-out
decree
for
specific
performance
of
agreement to sell which is to the prejudice
of the appellants and to the advantage of
the respondent who has neither filed an
appeal nor taken any cross-objection."

24. Thereafter the Apex Court
considered the provisions of Order 41 Rule
33 and also its scope and relying upon the
earlier decisions of the Apex Court in the
case of Pannalal Vs. State of Bombay
reported in A.I.R. 1963 S.C. 1516,
Harihar Prasad Singh Vs. Balmiki
Prasad Singh reported in (1975) 2 S.C.R.
932 and Nirmala Bala Ghose Vs. Balai
Chand Ghose, reported in A.I.R. 1965
S.C. 1874 has held in under paras 15, 16,
17, 18 and 19 as under:-

15. Rule 4 seeks to achieve one
of the several objects sought to be
achieved by Rule 33, that is, avoiding a
situation of conflicting decrees coming
into existence in the same suit. The above
said provisions confer power of the widest
amplitude on the appellate court so as to
do complete justice between the parties
and
such
power
is
unfettered
by
consideration of facts like what is the
subject-matter of the appeal, who has filed
the appeal and whether the appeal is being
dismissed, allowed or disposed of by
modifying the judgment appealed against.
While dismissing an appeal and though
2 All. The New India Assurance Co. Ltd. Vs. Smt. Neelam Jaiswal & Ors.
1307
confirming the impugned decree, the
appellate court may still direct passing of
such decree or making of such order which
ought to have been passed or made by the
court below in accordance with the
findings of fact and law arrived at by the
court below and which it would have done
had it been conscious of the error
committed by it and noticed by the
appellate court. While allowing the appeal
or otherwise interfering with the decree or
order appealed against, the appellate
court may pass or make such further or
other, decree or order, as the case would
require being done, consistently with the
findings arrived at by the appellate court.
The object sought to be achieved by
conferment of such power on the appellate
court is to avoid inconsistency, inequity,
inequality in reliefs granted to similarly
placed parties and unworkable decree or
order
coming
into
existence.
The
overriding consideration is achieving the
ends of justice. Wider the power, higher
the need for caution and care while
exercising the power. Usually the power
under Rule 33 is exercised when the
portion of the decree appealed against or
the portion of the decree held liable to be
set aside or interfered by the appellate
court is so inseparably connected with the
portion not appealed against or left
untouched that for the reason of the latter
portion
being
left
untouched
either
injustice would result or inconsistent
decrees would follow. The power is subject
to at least three limitations: firstly, the
power cannot be exercised to the prejudice
or disadvantage of a person not a party
before the court; secondly, a claim given
up or lost cannot be revived; and thirdly,
such part of the decree which essentially
ought to have been appealed against or
objected to by a party and which that party
has permitted to achieve a finality cannot
be reversed to the advantage of such party.
A case where there are two reliefs prayed
for and one is refused while the other one
is granted and the former is not
inseparably connected with or necessarily
depending on the other, in an appeal
against the latter, the former relief cannot
be granted in favour of the respondent by
the appellate court exercising power under
Rule 33 of Order 41.

16.Panna Lal v. State of Bombay
[AIR 1963 SC 1516 : (1964) 1 SCR 980]
so sets out the scope of Order 41 Rule 33
in the widest terms:

The wide wording of Order 41
Rule 33 was intended to empower the
appellate court to make whatever order it
thinks fit, not only as between the
appellant and the respondent but also as
between a respondent and a respondent. It
empowers the appellate court not only to
give or refuse relief to the appellant by
allowing or dismissing the appeal but also
to give such other relief to any of the
respondents as ''the case may require'. If
there was no impediment in law the High
Court in appeal could, therefore, though
allowing the appeal of the defendantappellant by dismissing the plaintiff's suits
against it, give the plaintiff-respondent a
decree against any or all the other
defendants who were parties to the appeal
as respondents. While the very words of
the rule make this position abundantly
clear the Illustration puts the position
beyond argument.

The suit was filed by the plaintiff
impleading the State Government and the
Deputy Commissioner seeking recovery of
compensation for the work done under a
contract and the price of the goods
supplied. The trial court held that the State
was liable as it had beyond doubt
benefited by the performance of the
plaintiff. The suit was decreed against the
1308 INDIAN LAW REPORTS ALLAHABAD SERIES
State. The State preferred an appeal in the
High Court. The plaintiff and other
defendants
including
the
Deputy
Commissioner
were
impleaded
as
respondents. Disagreeing with the trial
court, the High Court held that the
contract entered into by the Deputy
Commissioner was not binding on the
State
Government;
that
the
Deputy
Commissioner signed the contract at his
own discretion; and further, that the
contract not having been entered into in
the form as required under Section 175(3)
of the Government of India Act, 1935, was
not
enforceable
against
the
State
Government. The High Court also held
that the Government could not be held to
have ratified the action of the contract
entered into by the Deputy Commissioner.
The State was held also not to have
benefited by the performance of the
plaintiff. On this finding, the High Court
set aside the trial court's decree passed
against the State Government. In an
appeal to this Court, the Constitution
Bench held that it was a fit case for the
exercise of jurisdiction under Order 41
Rule 33 CPC. On the findings arrived at
by the High Court, while setting aside the
decree against the State, the High Court
should have passed a decree against the
Deputy
Commissioner.
It
was
not
necessary for the plaintiff to have filed any
cross-objection
and
the
Illustration
appended to Order 41 Rule 33 was enough
to find solution.

17. In Rameshwar Prasad v.
Shambehari Lal Jagannath [AIR 1963 SC
1901 : (1964) 3 SCR 549] the three-Judge
Bench speaking through Raghubar Dayal,
J. observed that:

"Rule 33 really provides as to
what the appellate court can find the
appellant entitled to. It empowers the
appellate court to pass any decree and
make any order which ought to have been
passed or made in the proceedings before
it and thus could have reference only to the
nature of the decree or order insofar as it
affects the rights of the appellant. It
further empowers the appellate court to
pass or make such further or other decree
or order as the case may require. The
court is thus given a wide discretion to
pass such decrees and orders as the
interests of justice demand. Such a power
is to be exercised in exceptional cases
when its non-exercise will lead to
difficulties in the adjustment of rights of
the various parties." (vide AIR p. 1905,
para 17)

(emphasis supplied)

18. In Harihar Prasad Singh v.
Balmiki Prasad Singh [(1975) 1 SCC 212]
the following statement of law made by
Venkatarama Aiyar, J. (as His Lordship
then was) in the Division Bench decision
in Venukuri Krishna Reddi v. Kota
Ramireddi [AIR 1954 Mad 848 : (1954) 2
MLJ 559] was cited with approval which
clearly brings out the wide scope of power
contained in Rule 33 and the Illustration
appended thereto, as also the limitations
on such power: (SCC p. 236, para 36)

"Though Order 41 Rule 33
confers wide and unlimited jurisdiction
on courts to pass a decree in favour of
a party who has not preferred any
appeal, there are, however, certain
well-defined principles in accordance
with which that jurisdiction should be
exercised. Normally, a party who is
aggrieved by a decree should, if he
seeks to escape from its operation,
appeal against it within the time
allowed after complying with the
requirements of law. Where he fails to
do so, no relief should ordinarily be
given to him under Order 41 Rule 33.
2 All. The New India Assurance Co. Ltd. Vs. Smt. Neelam Jaiswal & Ors.
1309

But there are well-recognised
exceptions to this rule. One is where as a
result of interference in favour of the
appellant it becomes necessary to readjust
the rights of other parties. A second class
of cases based on the same principle is
where the question is one of settling
mutual rights and obligations between the
same parties. A third class of cases is
when the relief prayed for is single and
indivisible but is claimed against a number
of defendants. In such cases, if the suit is
decreed and there is an appeal only by
some of the defendants and if the relief is
granted only to the appellants there is the
possibility that there might come into
operation at the same time and with
reference to the same subject-matter two
decrees
which
are
inconsistent
and
contradictory. This, however, is not an
exhaustive enumeration of the class of
cases in which courts could interfere
under Order 41 Rule 33. Such an
enumeration would neither be possible nor
even desirable."

19. In the words of J.C. Shah, J.
speaking for a three-Judge Bench of this
Court in Nirmala Bala Ghose v. Balai
Chand Ghose [AIR 1965 SC 1874 : (1965)
3 SCR 550] the limitation on discretion
operating as bounds of the width of power
conferred
by
Rule
33
can
be
so
formulated: (AIR p. 1884, para 22)

"The
rule
is
undoubtedly
expressed in terms which are wide, but it
has to be applied with discretion, and to
cases where interference in favour of the
appellant necessitates interference also
with a decree which has by acceptance or
acquiescence become final so as to enable
the court to adjust the rights of the parties.
Where in an appeal the court reaches a
conclusion which is inconsistent with the
opinion of the court appealed from and in
adjusting the right claimed by the
appellant it is necessary to grant relief to a
person who has not appealed, the power
conferred by Order 41 Rule 33 may
properly be invoked. The rule however
does not confer an unrestricted right to
reopen decrees which have become final
merely because the appellate court does
not agree with the opinion of the court
appealed from."

25. Thus applying the aforesaid
principles as laid down by the Apex
Court, it would indicate that the decree
passed by the tribunal is not inseparablly
connected nor there are two reliefs. The
award is in favour of the claimants and
the amount was crystallized. The dispute
before this Court as raised by the
Insurance Company was limited to the
extent whether the said award was to be
satisfied by the Insurance Company or
the owner. There was no challenge to the
quantum which by not filing a cross
appeal or cross objection had attained
finality.
Nothing
prevented
the
respondents herein from filing an appeal
or taking cross objections. The dismissal
of the present appeal is not resulting in
any inconsistent, contrary or unworkable
decree which may come into existence
while the Appellate Court interferes with
the award so as to enable this Court to
exercise its power under Order 41 Rule
33 CPC.

26. In the aforesaid backdrop as
well as the dictum of the Apex Court
under what circumstances Order 41
Rule 33 CPC is to be applied, does not
apply
in
the
present
facts
and
circumstances and for the said reason,
this
Court
is
not
inclined
to
countenance the arguments raised by
the learned counsel for the claimantsrespondents.
1310 INDIAN LAW REPORTS ALLAHABAD SERIES

27. There is another angle to look at
the aforesaid situation. In the decision
relied upon by the learned counsel for the
respondents in the case of Resha Devi
(supra) it would be seen that the appeal
had been preferred by the Insurance
Company. The submission of the learned
counsel for the Insurance Company is
noted in paragraph-4 of the judgment of
the Division Bench and from the perusal
whereof, it would indicate that the
question before Hon'ble the Division
Bench as raised by the Insurance Company
was on quantum; inasmuch as it had been
contended that the multiplier as adopted by
the tribunal was on the higher side and the
compensation accordingly was excessive.

28. It is in the aforesaid circumstance,
where the question of quantum was before the
Division Bench and in such circumstance
considering the fact that the Division Bench
found that the award was on the lower side had
applied the power under Order 41 Rule 33
CPC and has enhanced the award by adding
non-pecuniary damages. Thus, it would be
seen that the facts before the Division Bench
were completely different; inasmuch as the
issue of quantum was before the High Court
specifically raised by the Insurance Company
and as an appeal is a continuation of the
proceedings and the tribunal is required to hold
an inquiry to ascertain the compensation which
is just and fair, hence in the aforesaid
circumstances where the Division Bench came
to be conclusion that the Insurance Company
was contending that the award was excessive,
but it found that it was on the lower side, hence
in order to do substantial justice despite the
claimants did not file a cross appeal the
Division Bench exercised its power under
Order 41 Rule 33 CPC and enhance the same.

29. Similarly, in the case of Jitendra
Khimshankar Trivedi (supra) the issue before
the Apex Court was regarding the quantum of
compensation. Moreover, the decision of the
Apex Court in paragraph-15 has clearly
noticed that the said judgment was being
passed by exercising powers under Article 142
of the Constitution and accordingly the
relevant portion reads as under:-

"15.