Sunday, 7 June 2020

Whether cross objection is maintainable in a civil revision application ?

The cross­objections contemplated under O.41 R.22 are in the nature of substantive right available to the person interested in opposing the appeal cause for which would commence on service of notice upon such person. It is not merely a procedure since the procedure would normally regulate the rights and liabilities of the parties and not invest substantial rights. It is settled law that the statutory rights are exercisable when provided for and in absence of explicit conferment of such right or a remedy, it cannot be claimed. Therefore, the reliance on O.41 R.22 which does not explicitly contemplate a right to cross­objections in revision is of C/X-OBJ/34217/2019 ORDER no benefit to the petitioner.

Gujarat High Court
Nasiruddin Fakhruddin Munshi vs Legal Heirs Of Decd. Mohammed Alam ... on 16 January, 2020
Bench: G.R.Udhwani

The captioned cross­objection is sought to be filed in the captioned revision in absence of the provision contemplating the right akin to the one contemplated under O.41 R.22 of the Code of Civil Procedure (for short CPC). In absence of the provision, the objection against its registration has been raised by the Registry and at the instance of the learned Counsel for the objectors, the cross­objections are listed for hearing for the limited purpose as to its maintainability.
Learned Counsel for the petitioners would invite the attention of this Court to Section 141 of the CPC which by deeming fiction extends the procedure applicable to the suit, also to other civil proceedings including those under O.9 of the CPC, except those under Article 226 of the Constitution of India. On the strength of the said provision, learned Counsel would seek application of O.41 R.22 contemplating the cross­objections in appeal, to the revision. He would submit that the scope of revision under Section 29(2) of the Rent Act is wider than the one contemplated under Section 115 of the CPC and therefore a right to cross­objection should be read in O.41 R.22 read C/X-OBJ/34217/2019 ORDER with Section 141 of CPC.
This Court is not able to accept the submissions. Section 141 pre­supposes the contemplation of "proceeding" in relation to which the procedure as provided in the provision should be followed. Therefore, there must exist a provision contemplating the 'proceedings' in the nature of cross­objection in revision so that the procedure applicable to the suits can be applied to such 'proceeding'. The fallacy in the argument lies in the presumptive contemplation of such 'proceeding', when none is contemplated. If 'proceedings' are not contemplated, the question of applying procedure to the non­existing 'proceeding' would not arise. Therefore, notwithstanding the wider scope of the revision under Section 29(2) of Rent Act, in the opinion of this Court, the remedy of cross­objections in the revision would not be available to the petitioner.
The cross­objections contemplated under O.41 R.22 are in the nature of substantive right available to the person interested in opposing the appeal cause for which would commence on service of notice upon such person. It is not merely a procedure since the procedure would normally regulate the rights and liabilities of the parties and not invest substantial rights. It is settled law that the statutory rights are exercisable when provided for and in absence of explicit conferment of such right or a remedy, it cannot be claimed. Therefore, the reliance on O.41 R.22 which does not explicitly contemplate a right to cross­objections in revision is of C/X-OBJ/34217/2019 ORDER no benefit to the petitioner.
        
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