P L D 1992 Karachi 78, (PLP)

(7) What is the extent of liability of the defendant in terms of Air‑way bill as well as law governing the air‑consignment? (8) What should the decree be? Relying on Pakistan International Airlines v. Muhammad Younus, PLD 1976 Karachi 184 the carriers contended that the plaintiffs‑respondents were not the consignees and the suit was not maintainable. The learned trial Court, proceeding on the ratio in the cited authority, found the suit non maintainable and dismissed it. It, however, upon the evidence and the Rules applicable, as interpreted by it, on merits, found that the plaintiffs‑respondents were entitled to the amount claimed but could not get it because of the non maintainability and improper frame of the suit. The plaintiffs‑respondents appealed against the decree. The learned, appellate Court distinguished the above, referred Division Bench Judgment on the ground that the plaintiffs were also' the consignees of the goods, the Chartered Bank, having only acted as the plaintiffs' agent. The respondents‑defendants namely, the carriers were not allowed to be heard on merits in the appeal because, according to the learned Court, they had neither file an appeal, as to the decision on merits nor even preferred cross‑objections to the decree, taken in its entirety. Aggrieved, the applicants‑carriers have come in revision and challenge the findings on the questions touching maintainability and merits, as inclusive of the procedure followed, resulting in denial of hearing to the carriers, on the substance of the dispute..‑‑ The crucial question in this revision, therefore, hinges on the interpretation of Order 41 Rules 22 and 33, C.P.C. pertaining to the scope of interference in appeal As regards the matters, which may or may not be attacked therein from the,‑ side of a‑ respondent, who has neither himself appealed from the decree not, failing that, even preferred cross‑obligations, as the law permits him. It would be of use to re produce here such Rules in order 41 of the Code:‑‑ Order XLI of the Code of Civil Procedure, 1908 'RULE‑

22. Upon hearing, respondent may object to decree as if he had preferred separate appeal.‑‑(I) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross‑objection to the decree which he could have taken by way of appeal, provided he has filed such objections in the appellate 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. "RULE

33. Power of Court of Appeal ‑‑ 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‑ Both the learned counsel have ably advanced arguments in.support of their respective contentions, Mr. Khalid Rehman for the applicants‑carriers, placing reliance on Henry Stanley Ramsdem v. S.M. Fazail and Company PLD 1964 Kar. 290, Muhammad Tufail v. Barkat Ali PLD 1967 Kar. 151 and Sargodha Central Cooperative Bank Ltd. v. New Hamshire Insurance Company PLD 1982 Kar. 627 and Mr. Ghulam Muhammad Ibrahim for the respondents‑plaintiffs, citing S.M. Yousuf and Brothers v. Muhammad Mehdi Pooya, PLD 1965‑Supreme Court 15, Khairati v. Aleemuddin 1972 SCMR 415 and Khairati v. Aleemuddin PLD 1973 Supreme Court

295. In the citations from the side of the applicants-carriers it has been opined that a successful party in a suit is entitled to raise in the appeal all questions producing the same result as well as to attack the findings of the trial Court upon other issues and this it could do without filing a cross‑appeal or cross objection like wise, the successful party in a suit or other proceeding is entiteld to support the order in its fovour and correspondingly the appellate Court or authority competent to uphold it on grounds different from those on which the initial decision rests. The Supreme Court ‑ enunciation in the ;case of S.M Yousaf and Brother (supra) is also to the effect that the terms of Rule 3 of order 41,C.P.C. are of the widest amplitude to enable the appellate Court to pass a decree according to the justice of the case. The language used in the provision, according this, dictum, is affirmative and the rule is further strengthened: by NON OBSTANTE clauses giving the clear impression that the intention is beneficial, so that no legal right should be denied which the appellate Court considers should be allowed within the framework of the suit. The two other Supreme Court decisions, either reported as Khairati v. Aleemuddin, above referred., the first in a civil petition and the second on review, could, at the first . sight, convey a somewhat equivocal impression but that, if examined on he facts of the case, may not be so. Such facts involved a deed, dated December 8, 1960, executed by one Dinu which purported to be a deed of mortgage but contained a recital, to the effect that, such Dinu had realised full consideration for, the property, subject matter of the deed, and would execute due sale on getting the P. T. D. in his favour. Dinu aforesaid expired on November 4,1962, but was issue in his name on December 5, 1965. The other party to the, purported mortgage field a suit for specific performance and ~ only alternatively for ‑a mortgage, decree that in the sum of Rs.12,5W. The heirs of Dinu disputed ‑that the deed constituted an agreement to sell but admitted that it evidenced a mortgage and on the plea last mentioned sought to redeem the property. It was also urged in defence that in case it was held that the agreement constituted an, agreement of sale, the suit for specific performance would be barred by time. On the issue of, limitation, the trial Court found the suit for specific performance to be within time. Since, at the same time, it was also, opined that the deed was only in the nature of a mortgage, redemption was allowed. The heirs of Dinu, who were, defendants in the suit, deposited the mortgage money but the other party went in appeal, where such heirs filed no cross‑objections "nor did they challenge the, finding of the trial Court on the question of limitation of the: suit for specific performance". The appeal was ultimately, allowed, and a decree for specific performance was passed., In a second appeal: taken by the representatives of Dinu only a feeble attempt was made to argue that the suit was barred by Limitation and such second appeal was dismissed in limine. Dinu's heirs then went to the Supreme Court where the question of limitation was disallowed (1972 SCMR 415). In review (PLD 1973 Supreme Court 295), it was observed that while, undoubtedly, a respondent can support a decree even‑on points decided against him. he may not attack such decree or ask for its variation without‑ submitting cross‑objections. On the foregoing facts, it is clear that, in the final analysis, there was a decree against the heirs of Dinu, as defendants and even though it was a decree for redemption yet it operated against them. In appeal they, as respondents, could not assail the decree. Besides, as seen, they did not even re‑agitate the question of limitation at the stage of the first appeal and, only feebly at the stage of the second appeal. The Supreme Court disallowed the question for such reasons and also, apparently, because the same was correctly decided. It would be proper now to. closely examine the relevant provisions in the Code of Civil Procedure, as applicable to this revision. These consist of Rules 22 and 33 in Order 41 of the Code and have already been reproduced. An examination of Order 41, Rule 22 of the Code would reveal that a respondent, though he may not have appealed from any part of the decree, yet, without any conditions or restrictions may support the decree, not only on grounds decided in his favour but also on all or any of the grounds decided against him in the Court below. However, in the event a respondent to an appeal desires to attack the decree, wholly or in part, he may only do so by, taking necessary cross‑objections to the decree, such as he could have raised, had he preferred an appeal. Thus, if respondent to an appeal is only supporting the decree he would be free to do so by urging any lawful grounds, since the endeavour cannot conceivably, affect the outcome or the result flowing from the decree. Grounds for support in the Rule under discussion may often be synonymous with issues in the suit. Thus stated, a respondent supporting the decree in appeal may do so not only vis‑a‑vis any adjudication of issues in his favour but equally effectively by attacking the findings on the issues which have gone against the respondent. As regards an appeal or cross‑objections against the decree , either of them, inherently are directed towards assailing rather than. supporting the decree. Decree itself in a suit, as defined in section 2(2) of the, Code is not more than a formal expression of an ‑adjudication which, "so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit ....... Thus, irrespective 'of the decision on any issue, in a suit, the decree in such suit is essentially concerned with the rights of the parties, as reflected in the operative part in the judgment. The conclusion is strengthened upon the practice, generally prevalent, whereby in framing decrees prayers in the suit are re‑cast. and decision of the Court thereon is concisely recorded. It is also of no little significance that if the judgment and the decree based thereon is in ‑favour of a party such party cannot appeal against it. It can only support the decree‑ Such support, in terms of the opening part of Rule 22 in Order 41 of the Code can be on grounds, as inclusive of issues, which have gone in favour of as well as against the successful party. Prohibition is applied only where the respondent, otherwise entitled to appeal, without having appealed, or, alternatively, without having raised cross‑objections, attempts to question the decree. This, of course, can be done only through an appeal properly filed or cross‑objections, duly preferred. This is so far as Rule 2t of Order 41, C.P.C. goes. Even the rigours in Rule 22 of Order 41 as regards the, necessity of filing an appeal or cross objections, have been greatly softened upon the occurrence of a later provision in the same Order namely Rule 33 which expanding upon the powers and jurisdiction of the appellate Court, as distinguished from the rights of parties, postulates that such Court , may pass any decree and make any order, which ought to have been" passed ‑or made aid to pass or make' such further or other, decree or order as the case may require and this power may be exercised notwithstanding that the appeal is as to part of the decree only and may also 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 cross‑objections. To put the matter more lucidly, whereas upon the strict terms in Order 41, Rule', 22, C.P.C., a challenge or other partisan objection to a decree or order arises only on an appropriate filing of an appeal or lodging of cross‑objections, such technicalities arc confined to parties alone and the appellate Court, by virtue of Rule 33 in the, same Order, has been rendered free to fashion relief according to the requirements of a case, irrespective of absence of requisite appeal or cross objections contemplated in Rule 22 of Order

41. The object of arming the appellate Court with such to extensive and wide ranging power seems to be none other than, to ensure prompt; and ready relief in cases of hardship as also generally to "redress wrongs and to do complete justice in the case. Having examined the matter in this ‑revision application from ' every possible angle, I am of the view that the learned appellate Court was in error when it disallowed the applicants‑ carriers ,''as respondents before such Court, to raise objections as to the decision on issues in the suit, which had gone against such carriers but the decree being favourable to them, the carriers could not appeal or even take cross‑objections. Accordingly, the, matter is liable to be remitted to the learned appellate Court for hearing the applicants‑carriers on the issues decided against such carriers and for that purpose the appeal SW be deemed to be pending. I do not propose to express any opinion, ,this stage, about the finding of the learned appellate Court on the question of maintainability of the suit. If necessary, that question may be dealt with upon the decision on the issues involving merits, that is to say, if at all it become relevant to do so upon one or the other party re‑approaching this Court. Subject to the foregoing, this revision application was allowed through a left order passed in Court today, reasons where for are recorded herein. AA./P‑22 W Revision allowed