SHRI SAURAV JAIN & Anr. v. M/S A. B. P. DESIGN & Anr.

ULCRA on 27 September 1988. However, once the order was set aside by the District Judge and the case was remanded back to the Competent Authority, no further order was passed under Section 8(4) and consequently, no notification was published under Section 10(1). Thus, at the relevant time, that is between the order dated 6 January 1993 remanding the matter to the Competent Authority and when the sale deed was executed on 22 June 1993, there was no notification under Section 10(1) of the ULCRA. Thus, the dual requirement for a valid transfer under Section 5(3) was not fulfilled. Any transfer in contravention of the provisions of Section 5(3) would be null and void. The suit instituted by the first respondent was founded on his alleged claim of title based on the transfer by ZH and was liable to fail on this ground alone. [Para 19][1042-G; 1043-A-D]

2.2 There is a specific finding of fact in the judgment of the trial court that the permission which was issued on 5 May 1993 to ZH for the transfer of 1295.04 sq mt of land was in modification of an earlier order dated 29 March 1993. The permission was in respect of the 2000 sq. mt of land which was retained by ZH. The High Court has not adverted to this finding of fact at all nor has it found any substantive basis to displace the finding. That apart, it is evident, that the order of the Competent Authority dated 16 March 1988 was set aside in appeal by the District Judge on 6 January 1993 and the case was remanded for fresh adjudication of the excess land in view of the amended Master Plan. In such an instance, when the case was remanded, ZH could not have transferred the suit property, having regard to the clear bar which is contained in the provisions of Section 5(3). No transfer of the land could have been lawfully made and any such transfer in contravention with the provision would be null and void. [Para 20][1043-D-E; 1044-A-B]

2.3 Apart from the above findings which negate the basis and foundation of the suit, the appellant-defendant has also raised an objection to the jurisdiction of the trial court to entertain the instant suit, given the bar on jurisdiction under the ULCRA. The appellant submitted that the first respondent, through an artful drafting of the plaint in the course of the pleadings in the suit placed in issue the entire gamut of proceedings under the A B C D E F G H SHRI SAURAV JAIN & ANR. v. M/S A. B. P. DESIGN & ANR. 1025 ULCRA, without impleading either the State of Uttar Pradesh or the Competent Authority under the ULCRA. At the outset, it is noted that the ground of lack of jurisdiction of the trial court over the suit was raised in the proceedings before the court of first instance. The trial court rejected the objection raised by the appellant-defendant on the exercise of its jurisdiction, holding that the suit for declaratory relief against the auction sale and for an injunction could be entertained. In the appeal against the judgment of the trial court filed by the first respondent before the High Court, the appellant did not file a cross-objection against this finding of the trial court on the exercise of its jurisdiction. The appellant has urged before this Court that the jurisdiction of the civil court is impliedly excluded under the provisions of the ULCRA. Reliance has been placed by the appellant on Order XLI Rule 22 of the CPC to argue that a party, in whose favour the civil court has decreed a suit, can raise arguments against findings without having to file a cross- objection, in the appeal. [Para 21][1044-C-F]

2.4 Order XLI Rule 22(2) of the CPC states that a “cross- objection shall be filed 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.”It is apparent from the amended provisions of Order XLI Rule 22 CPC that there are two changes that were brought by the 1976 amendment. First, the scope of filing of a cross-objection was enhanced substantively to include objections against ‘findings’ of the lower court; second, different forms of raising cross-objections were recognised. The amendment sought to introduce different forms of cross-objection for assailing the findings and decrees since the amendment separates the phrase “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” from “may also take any cross- objection to the decree” with a semi colon. Therefore, the two parts of the sentence must be read disjunctively. Only when a part of the decree has been assailed by the respondent, should a memorandum of cross-objection be filed. Otherwise, it is sufficient to raise a challenge to an adverse finding of the court of first instance before the appellate court without a cross objection. [Para 24, 25][1047-A-B; 1048-C-E] A B C D E F G H 1026 SUPREME COURT REPORTS [2021] 8 S.C.R.