Shahid Karim, J:- This is a second appeal under Section 100 of the Code of Civil Procedure (CPC ). It challenges the judgment and decree dated 07.09.200 4 passed by the Addl. District Judge, Multan as well as the judgment and decree dated 20.1 1.1995 passed by the Civil Judge, Multan.
2. The appellant filed a suit for recovery of Rs.24,99,052/- by way of damages against the respondent herein. The nub of the case set up in the plaint was that the Cotton Trading Corporation of Pakistan ("CTC") under the powers purportedly conferred by Cotton Ginning Control and Development Ordinance, 1976 took over the Oil Expelling Factory owned by the appellant. The appellant was compelled to file a constitutional petition in this Court which was decided on 30.06.1977. The factory was directed to be returned to the appellant. The damages claimed by the appellant were under various heads including the pilferage of the property and goods at the time of taking possession of the Oil Factory as well as the loss suffered by the appellant on account of the wrongful take over and the profits which would have accrued to the appellant in case the posses sion had not been taken over by the respondent. The suit was decreed on 20.11.1995 and thereby a partial decree was passed for an amount of Rs.13,03,572/- by way of damages sustained by the appellant. The appellant was also held entitled to the interest at the rate of 7% per annum from date of institution of the suit till realization of the decretal amount.
3. In the first appeal before the Addl. District Judge, Multan the decree was modi fied and the appellant was held entitled to damages to the tune of Rs.3,17,618.33. Thus, the loss allegedly occasioned to the appellant under some of the heads claimed in the plaint was discounted by the Addl. District Judge in particular and some of the losses claimed by the appellant were granted by partially modifying the decree.
4. The learned counsel for the appellant at the outset does not press the claim with regard to the findings rendered by the first appellate court on the appella nt's appeal. It is pertinent to mention that two appeals were filed, one by the appellant herein and the other by the respondent-CTC which were disposed of by a common judgment. The appeal filed by the appellant was dismissed. Also the appeal filed by the respondent was held to be barred by limitation. However , in the same vein the first appellate court converted the appeal filed by the respondent into cross-objections in terms of Order XLI, Rule 22 CPC and proceeded to decide the cross-objections and thereby reduced the amount of damages awarded to the appellant by the trial court. The learned counsel for the appellant has raised the following issue of law: Whether the first appellate court was empowered to convert the time barred appeal filed by the respondent in cross-objections under Order XLI, Rule 22 CPC without complying with the procedural formalities given in under Order XLI, Rule 22 CPC".
5. It may be stated that in terms of sectio n 100 CPC a second appeal shall lie to the High Court on the grounds mentioned in section 100 and upon no other ground. The question of law raised by the appellant is covered by clauses "a" and "c" of section 100 and the appellant argues that the decision of the first appellate court is contrary to law and a substantial error or defect in the procedure provided by the court has occurred which has produced error or defect in the decision upon the merits.
6. It would be appropriate to reproduce the findings of the first appellate court with regard to the appeal filed by the respondent being time barred and the manner in which the first appellate court proceeded to treat the said appeal, notwithstanding that the appeal was barred by time as cross-objections. It was held that: "...The respondent has not stated single word in the grounds of the appeal or in the application submitted by him under Section 5 of the Limitation Act that such date was given by the Copying Branch for the delivery of the attested copies but one the date so given by the Copying Branch, the same were not delivered by the Copying Branch. In fact this delay occurs due to non-collection of the attested copies by the respondent, therefore, the appeal filed by the respondent on the face of it is barred by 71 days. However , it is an admitted proposition of law that the respondent can also file cross objection in the appeal filed by the appellant in order to challenge the issues which have been decided by the learned Trial Court against him within 30 days after he received notice by the appellate court. In this case, the appeal was filed before the Hon'ble High Court as the District Judge lacks pecuniary jurisdiction at that time and the same was admitted for regular hearing by the Hon'ble High Court vide order dated 3.6.1996. It has also been held by the superior courts that even time barred appeal could be treated and disposed of as cross objection and reliance in this regard is placed on Dr. S.S. Naeem ul Hamid Vs. Mst.
Tahira Sultana and others (1991 CLC 853 Lahore). Therefore, following the dictum laid down in the above said judgment, the appeal filed by the respondent is hereby treated as cross objection, although the same is barred by time."
7. Thus, the Addl. District Judge Multan held the appeal filed by the respondent to be statute barred and having been filed beyond the period of limitation. This finding has attained finality and the respondent has not challenged the said finding. The learned counsel for the respondent in fact admits that the appeal was barred by time. However, the first appellate court without dismissing the appeal filed by the respondent considered the said appeal as cross-objections in terms of Order XLI, Rule 22 CPC and thereafter determined those cross- objections and partially allowed the contentions raised by way of cross-objections on the part of the respondents and reduced the amount of damages so awarded to the appellant herein.
8. Order XLI, Rule 22 CPC reads as under: "22 . Upon hearing respondent may object to decree as if he had preferred a separate appeal --
(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [409][but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow .
(2) Form of objection and provisions applicable thereto --Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
(3) Unless the respondent files with the objection a written acknowledgement from the party who may be affected by such objection or his pleader of havin g received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent.
(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.
(5) The provisions-relating to appeal by indigent persons shall, so far as they can be made applicable apply to an objection under this rule. "
9. There is no cavil that the mandate of Order XLI, Rule 22 CPC clearly is that any respondent may take any cross- objections to the decree which he could have taken by way of appeal. This is in case the said respondent has not filed any appeal from the decree. Rule 22 of the Order XLI, CPC further prescribes that such objections have to be filed before the appellate court within one month from the date of service on him or his pleader of notice of the date fixed for hearing for appeal or within such further time as the appellate court may see fit to allow. Clearly, the respondent did not file any cross-objections to the decree and therefore there was no occasion for the appellate court to fix the cross-objections for hearing with the appeal filed by the appellant. No question arose during the course of the hearing of the appeals whether any cross-objections had been filed or that they had been filed within one month from the date of service of notice and consequently the appellate court was not called upon to dilate upon and consider the filing of cross-objections or to condone the delay, if any, in its filing.
This question was only considered at the time of the passing of the final judgment and decree by the appellate court and thus the appellant herein was taken by surprise and had no opportunity of raising issue with the filing of cross-objections or to the act of treating the appeal filed by the respondent as cross-objections. Plainly, there is a purpose of Order XLI, Rule 22 CPC and that purpose cannot be circumvented or skirted by the appellate court by treating at its whim any appeal which is barred by time as cross-objections without recourse to the fundamental objects given in Rule 22 of the Order XLI, CPC. Also while doing so the appellate court lost sight of sub-rule 3 of Rule 22 which requires the respondent filing the objections to obtain written acknowledgement from the party who may be affected by such objections or if that has not been done, for the appellate court to cause a copy to be served as soon as may be after the filing of the objection of such party at the expense of the respondent. The exercise of jurisdiction by the first appellate court at the end of the hearing of the appeal and without notice to the appellant herein was a material irregularity and an error of law which impacted the right of appellant to a fair trial as well as to afford him an opportunity of properly responding to the grounds raised in the cross-objections. It can be seen that the appeal of the respondent was statute-barred and this was common knowledge and so the appellant in the absence of any cross-objections was satisfied that no adjudication on merits will take place on the appeal filed by the respondent. Therefore, what he had to contend with was his own appeal. It certainly came as a surprise to the appellant that without notice to the appellant the first appellate court of its own volition and without regard to the essential ingredients of the Order XLI, Rule 22 CPC, converted the appeal into cross-objections.
10. Sub-rule (3) is not without a purpose and must be viewed with the seriousness that it deserves. To what avail is the mandate of the provisions if it can be ignored without reasonable basis. The crucial words are "the party who may be affected by such objections". Thus the legislature was cognizant of the grave implications that such an act might entail. This case is a classic example of the need for the procedure to be followed meticulously . The appellant in this case has been adversely affected to its detriment for the failure on the part of the first appellate court to follow a proper procedure. It amounted to denial of right of hearing and fair trial.
11. The act of the first appellate court must have come as a surprise to CTC as well. Evidently , CTC had not made any request for its appeal to be converted into cross-objections let alone file any cross-objections. Thus the provisions require the taking of cross-ob jections by a respondent and if this is not done, then alternatively , a request to convert must also come from the respondent. Both these events did not happen and the act of the first appellate court was suo motu , and without legal basis. The first appella te court thus traveled beyond the periphery of powers conferred upon it by Order XLI, Rule 22 CPC and committed an error of law which is liable to be rectified in second appeal.
12. The learned counsel for the respondent relied upon the judgment reported as Dr. S.S. Naeemul Hamid v. Mst.
Tahira Sultana and others (1991 CLC 853) which was also relied upon by the first appellate court while treating the appeal of the respondent as cross-objections. However, there is a clear distinction in the said precedent from the case in hand. In that case the memo of appeal described the appeal as an appeal as well as cross-objections and so the intention of the respondent was quite apparent and on this basis the learned Single Judge of this Court proceeded to hold that the appeal could validly be treated as cross-objections. In the instant case, the first appellate court converted the time barred appeal of the respondent into cross-objections without adverting to the aspect whether this could at all be done. Also the first appellate court did not allude to the aspect of whether the cross-objections were within time within the contemplation of Order XLI, Rule 22 CPC or not. If the appeal was being treated as cross-objections, the least that the first appellate court should have done was to determine whether it was within time or not. Be that as it may, in my opinion, the process for converting an appeal into cross- objections had to be taken timously and after due notice to the appellant who was necessarily to be adversely impacted by the outcome of any determination of cross-objections.
13. However , the result reached by the first appellate court can still be sustained on the basis of Order XLI, Rule 33 CPC which gives broad and wide ranging powers to the appellate court to make any order that it deems necessary under the circumstances. The said provision provides that: "33. The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection: [Provided that the Appellate Court shall not make any order under section 35-A in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.]"
14. Therefore, the appellate court has the power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection. Thus even if the appeal filed by the respondent/CTC herein is taken out of the consideration as well as the conversion of the said appeal into cross-objections by the appellate court is also nullified, the fact remains that the appellate court has ample power to pass the judgment and decree that it did ultimately upon an appraisal of the evidence brought on record by the parties with regard to the issues No.10 and 12. Clearly , the first appellate court did not refer to any new material and based its decision primarily on the basis of the evidence on record as well as documents produced by the couns els on the appeal filed by the appellant herein. While juxtaposing the respective findings of the first appellate court as well as trial court, I am persuaded to hold that the appreciation of evidence by the first appellate court is based on proper appraisal and has more cogency and rationality and ought to be maintained. The first appellate court analyzed the evidence with regard to each head of damages claimed and came to the conclusion that no sufficient material was brought on record so as to prove the claim of mesne profit as well as a claim to 14% of interest of non delivery of the actual price of Oil Cakes in time.
Further more, the finding of the trial court with regard to a sum of Rs.100,000/- damages due to affliction was also noticed and found to have been based on surmises. There is no infirmity in the conclusion drawn by the first appellate court on this count as well. Although the first appellate court did not advert its attention to the grant of 7% of interest per annum from the institution of the suit till the realization of the decretal amount, once again the trial court has not given any basis for the award of the interest and its powers to do so. No provision of law has been cited in support of the award of the interest at the rate of 7% per annum and which too was unlawful and unsustainable.
15. In view of the above this appeal is without merit and is, therefore, dismissed . The judgment and decree of the first appellate court/ Addl. District Judge dated 07.09.2004 is hereby upheld.