Whether plaintiff should value his appeal on the basis of combined valuation of the plaint and counterclaim where both suit and counter-claim are dismissed?

 Where both suit and counter-claim are dismissed, the subject-matter of the appeal would be the plaint. Hence valuation would be as per the valuation of the plaint and Court fee as payable on the plaint; would be as due and payable thereon. The plaintiff cannot be made to value his appeal on the basis of the combined valuation of the plaint and counterclaim, in respect of which he makes no claim. {Para 48}.

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 283 of 2006

Decided On: 05.03.2007

Teofilo Barreto Vs. Sadashiva G. Nasnodkar and Ors.

Hon'ble Judges/Coram: V.C. Daga, J.

Citations: 2007 (4) BomCR 830, 2007 (6) MhLj 1, MANU/MH/0637/2007.

Read full Judgment here: Click here.

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Whether the District Court (Appellate Court) lacks jurisdiction to entertain appeal when valuation of cross-objection exceeds pecuniary jurisdiction of the District Court?

 Having noticed the change in old Code and new unamended Code of Civil Procedure, let me now turn to the further legislative change brought about in new Code by virtue of amendment of the year 1976; whereby provisions with respect to counter-claim under Order 8, Rule 6-A to 6-G came to be inserted. Consequent to this insertion provisions of Order 20, Rule 19(1), (2) also came to be amended and the words "counter-claim" were inserted immediately after the words "set off". Thus, by virtue of this amendment, set off and counter-claim are treated at par; and both were brought on the same platform with equal status. Therefore, while interpreting clause, Order 20, Rule 19(2), the same treatment which is given to a decree of set off, will have to be given to a decree in suit in which counter-claim was claimed. The legislative object which led to deletion of Section 216 and enactment of Order 20, Rule 19 in respect of decree of set off shall also hold good in respect of decree from counterclaim. As such decree passed in a suit where counter-claim was preferred has to be treated subject to the same provisions in respect of appeal to which it would have been subject, if no counter-claim had been preferred. If the legislative view is that the decree wherein the set off is claimed should go before the same Appellate Forum to which it would have been subject in normal course in absence of claim for set-off; then so far as the counter-claim is concerned; the same treatment will have to be accorded to a decree passed in a suit where counter-claim was preferred. As an extension of the same principle, the cross objection arising from the decree of set-off and/or counter-claim will have to be given similar treatment in the matter of determination of Appellate Forum. {Para 56}

 IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 283 of 2006

Decided On: 05.03.2007

Teofilo Barreto Vs. Sadashiva G. Nasnodkar and Ors.

Hon'ble Judges/Coram: V.C. Daga, J.

Citations: 2007 (4) BomCR 830, 2007 (6) MhLj 1, MANU/MH/0637/2007.

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What is the basic concept of legal right and how this concept is relevant to decide who is “person aggrieved” ?

 In this context, we may refer to a recent
pronouncement in Ayaaubkhan Noorkhan Pathan
v. The State of Maharashtra & ors.
2012 (11) SCALE 39wherein this
Court has held thus: -
“A “legal right”, means an entitlement
arising out of legal rules. Thus, it may be
defined as an advantage, or a benefit
conferred upon a person by the rule of law.
The expression, “person aggrieved” does
not include a person who suffers from a
psychological or an imaginary injury; a
person aggrieved must therefore,
necessarily be one, whose right or interest
has been adversely affected or
jeopardized. (Vide: Shanti Kumar R. Chanji
v. Home Insurance Co. of New York, AIR
1974 SC 1719; and State of Rajasthan &
Ors. v. Union of India & ors., AIR 1977 SC
1361).”

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 102 OF 2013
(Arising out of S.L.P. (C) No. 35271 of 2011)

Hardevinder Singh Vs  Paramjit Singh 

Dated: January 07, 2013
Dipak Misra, J.
Citation: (2013) 9 SCC 261; 2013 KHC 4017.

Read full Judgment here: Click here

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Whether Cross Objections Have All Trappings Of Regular Appeal and it Must Be Considered In Full?

 In the present case at hand, the Appellants herein, in the court of first appeal filed a cross objection. It is the claim of the Appellants herein that his cross objection was not considered by the High Court while passing the impugned judgment. At this stage, it must be noted that while cross objections, unlike a regular appeal, are filed within an already existing appeal, however, as per Order 41 Rule 22 of the Code of Civil Procedure, cross objections have all the trappings of a regular appeal, and therefore, must be considered in full by the court adjudicating upon the same.{Para 17}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4172 of 2023 

Decided On: 04.07.2023

 Dheeraj Singh Vs. Greater Noida Industrial Development Authority and Ors.

Hon'ble Judges/Coram:

Krishna Murari and Bela M. Trivedi, JJ.

Author: Krishna Murari, J.

Citation:  MANU/SC/0727/2023.

Read full Judgment here: Click here

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Whether Second appellate court should remand the case if first appellate court has failed to give it findings on cross objection?

 In the present case at hand, the Appellants herein, in the court of first appeal filed a cross objection. It is the claim of the Appellants herein that his cross objection was not considered by the High Court while passing the impugned judgment. At this stage, it must be noted that while cross objections, unlike a regular appeal, are filed within an already existing appeal, however, as per Order 41 Rule 22 of the Code of Civil Procedure, cross objections have all the trappings of a regular appeal, and therefore, must be considered in full by the court adjudicating upon the same. {Para 17}

18. A bare perusal of the impugned order would show that the issues raised by the Appellants in their cross objections have not been considered by the High Court. No mention of the cross objections filed by the Appellants herein have been found in the said judgment. While the High Court has given a detailed analysis of all other issues raised in the appeal and the both the lower court orders, however, the cross objections in specific, finds no discussion, much less even a mention.

19. In the case of Santosh Hazari v. Purushottam Tiwari (Dead) by LRs. MANU/SC/0091/2001 : (2001) 2 SC 407, this Court held that the court of appeal has a duty to apply its mind to all issues raised before it, and to discharge such duty, it must also record its findings against all such issues raised. 

21. Further, in the case of Jitendra Prasad Nayak v. Anant kumar Sah and Anr. MANU/SC/1506/1998 : (1998) 9 SCC 383, this Court, in an identical circumstance wherein the cross objections filed by the Appellant therein was not considered by the court of first appeal, held that remanded the case back to the High Court and observed as under:

....Admittedly, a cross-objection was filed by the Appellant-landlord against the rejection by the first appellate court of the existence of one of the two grounds of eviction. However, while deciding the appeal of the Respondent-tenant in his favour against the decision of the first appellate court on the other ground, the existence of the cross objection appears to have been missed by the High Court with the result that there is no decision given on the cross objection. The impugned judgment cannot, therefore, be sustained inter alia for this reason. We are also of the opinion that the question relating to existence of the ground of bona fide need which has been decided in favour of the tenant requires a fresh determination by the High Court along with the other point relating to default in payment of rent which was the subject matter of cross-objection

22. The abovementioned discussions and judgments, when contextualized to the present case, would show that the High Court was under an obligation to consider the cross objections filed by the Appellants herein. Since such an obligation was not discharged while passing the judgment in appeal, we are of the considered opinion that the matter is fit for remand to the High Court for fresh adjudication on the grounds raised in the cross objections during appeal by the Appellants herein. Accordingly, the present appeals are therefore allowed to such an extent.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4172 of 2023 

Decided On: 04.07.2023

 Dheeraj Singh Vs. Greater Noida Industrial Development Authority and Ors.

Hon'ble Judges/Coram:

Krishna Murari and Bela M. Trivedi, JJ.

Author: Krishna Murari, J.

Citation:  MANU/SC/0727/2023.

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Supreme Court: A party can challenge adverse findings without filing cross objection

 The effect of the amendment was considered in Banarsi & Ors. v. Ram Phal (2003) 9 SCC 606., where this Court held that after the 1976 amendment, the respondent could file cross-objections against the ‘findings’ of the lower court, while previously cross-objections could only be filed when the decree of the lower court was partly against the respondent. Justice R.C Lahoti (as the learned Chief Justice then was), speaking for the two judge bench observed:

“10-. […] There may be three situations:

(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.”

The court held that a memorandum of objection need not be filed when the appellant only assailed a ‘finding’ of the lower court:

“7. The High Court, in our view, was clearly in error in holding that the appellant not having filed a memorandum of cross-objections in terms of Order 41 Rule 22 of the Code, could not challenge the finding of the trial court that the suit was not barred by Order 2 Rule 2 of the Code. 

(emphasis supplied)

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 4448 of 2021

Shri Saurav Jain & Anr  Vs M/s A. B. P. Design 

Author: Dr Justice Dhananjaya Y Chandrachud

Dated: August 5, 2021

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Supreme Court judgment on cross-objection in appeals under the Motor Vehicles Act

 A conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI Rule 22 of the Code of Civil Procedure would reveal, that there is no restriction on the right to appeal of any of the parties. It is clear, that any party aggrieved by any part of the Award would be entitled to prefer an appeal. It is also clear, that any Respondent, though he may not have appealed from any part of the decree, apart from supporting the finding in his favour, is also entitled to take any cross-objection to the decree which he could have taken by way of appeal.

25. When in an appeal the Appellant could have raised any of the grounds against which he is aggrieved, we fail to understand, as to how a Respondent can be denied to file cross-objection in an appeal filed by the other side challenging that part of the Award with which he was aggrieved. We find, that the said distinction as sought to be drawn by the High Court is not in tune with conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI Rule 22 of the Code of Civil Procedure.

26. As a matter of fact, it could be seen from the prayer Clause in the appeal preferred by the Respondents herein (Insurance Company) before the High Court that the entire award was challenged by the Respondents-Insurance Company. Not only that, but the Appellants herein (the claimants) were also impleaded as party Respondents to the said appeal. In such circumstances, the High Court has erred in declining to consider the cross-objection of the Appellants herein (the claimants) on merits.

27. There is another angle to it. Sub-rule (4) of Rule 22 of Order XLI of the Code of Civil Procedure specifically provides, that even if the original appeal is withdrawn or is dismissed for default, the cross-objection would nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. We are, therefore, of the considered view, that even if the appeal of the Insurance Company was dismissed in default and the Insurance Company had submitted that they were not interested to revive the appeal, still the High Court was required to decide the cross-objection of the Appellants herein on merits and in accordance with law.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 838 of 2020 
Decided On: 30.01.2020

 Urmila Devi  Vs.  Branch Manager, National Insurance Company Ltd. and Ors.

Hon'ble Judges/Coram:
S.A. Bobde, C.J.I., B.R. Gavai and Surya Kant, JJ.
Citation: MANU/SC/0103/2020

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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 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

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Whether cross-objection will fail if civil appeal is rejected for non payment of court fees?

The next question which arises is with regard to cross-objections. In my opinion, it is quite clear that if an appeal is rejected for non-payment of court-fee, cross-objections must fail with the appeal. Cross-objections, under Order XLI, Rule 22, are a method by which the respondent may himself complain against the decree appealed from, but the right to lodge cross-objections is only given to a respondent on an appeal, and if the appeal is rejected, there can be no respondent and no cross-objections. Sub-rule (4) of Rule 22 provides that when an appeal is withdrawn or dismissed for default, cross-objections may be proceeded with; but where an appeal is rejected, it cannot, in my opinion, be said to be withdrawn or dismissed for default. The cases on the subject were discussed by the Rangoon High Court in U Shin v. Maung Tha Gywe (1930) I.L.R. 8 Ran. 538, and the learned Judges there came to the conclusion that where the memorandum of appeal is rejected for non-payment of court-fees, the cross-objections must fail with the appeal. I think that decision is correct.

IN THE HIGH COURT OF BOMBAY

Appeal No. 56 of 1939

Decided On: 10.01.1941

 Kashiram Chaudhuri  Vs.  Ranglal Motilalshet Marwadi

Hon'ble Judges/Coram:

J.W.F. Beaumont, Kt., C.J. and K.C. Sen, J.

Citation: AIR 1942 Bom. 242

Authored By : J.W.F. Beaumont, K.C. Sen

J.W.F. Beaumont, C.J.

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Leading Supreme Court judgment Banarsi Vs. Ram Phal on Cross-objection

A right to file cross objection is the exercise of right to appeal though in a different form. It was observed in Sahadu Gangaram Bhagade v. Special Deputy Collector, Ahmednagar and Anr. - MANU/SC/0438/1970 : [1971]1SCR146 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 be aggrieved thereby. Taking any cross objection is the exercise of right of appeal and takes the place of cross-appeal 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 well-settled position of law under the unamended CPC.

10. 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 cross objection. 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 stated. A respondent may defined 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 cross objection. The amendment inserted by 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations:

(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 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.

12. The fact remains that to the extent to which the decree is against the respondent and he wishes to get rid of it he should have either filed an appeal of his own or taken cross objection failing which the decree to that extent cannot be insisted on by the respondent for being interfered., set aside or modified to his advantage. The law continues to remain so post-1976 amendment. 

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1376-1377 of 2003

Decided On: 17.02.2003

 Banarsi  Vs.  Ram Phal

Hon'ble Judges/Coram:

R.C. Lahoti and Brijesh Kumar, JJ.

Citation: AIR 2003 SC 1989

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Whether defendant can file cross objection if suit against it is dismissed in default?

We find that the High Court has failed to draw the distinction

between the decree and a finding on an issue. It is the decree

against which an appeal lies in terms of Section 96 of the Code.

Decree in terms of Section 2(2) of the Code means formal

expression of an adjudication conclusively determining the rights of

the parties. The defendants-State could not file an appeal against

a decree which was of a dismissal of a suit simpliciter. The findings on Issue No. 1 against the State could be challenged by way of cross-objections in terms of amended provisions of Order XLI Rule 22 of the Code but such filing of cross-objections is not necessary to dispute the findings recorded on Issue No. 1 as the defendants have a right to support the ultimate decree passed by the trial court of dismissal of suit on grounds other than which weighed with the learned trial court. Even in terms of Order XLI Rule 33 of the Code, the Appellate Court has the jurisdiction to pass any order which ought to have been passed or made in proceedings before it.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 17486 OF 2017

STATE OF ANDHRA PRADESH  Vs B. RANGA REDDY

HEMANT GUPTA, J.

Dated: AUGUST 09, 2019.

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Whether cross objection filed by one respondent against other respondent is maintainable?

The Apex Court observed in Panna Lal Vs. State of Bombay MANU/SC/0240/1963 : AIR 1963 SC 1516

(C) In our opinion, the view that has now been accepted by all the High Courts that O.41 R. 22 permits as a general rule, a respondent to prefer an objection directed only against the appellant and it is only in exceptional cases, such as where the relief sought against the appellant in such an objection is intermixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the question being reopened between the objecting respondent and other respondents, that an objection under O.41 R. 22 can be directed against the other respondents, is correct.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Application No. 13940 of 2017, 

Decided On: 19.12.2018

Chhagan Trimbak Lokhande Vs. Dattatraya Krishna Patil and Ors.

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: 2019(3) MHLJ 780

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Whether first appellate court can examine legality of finding recorded in favour of plaintiff in absence of cross objection of defendant?

Mere perusal of the judgment of the Trial Court would go to show that while answering the issues, the Trial Court had divided issue No. 4 in two parts. So far as first part is concerned, it was in relation to the question as to whether Defendant No. 1 was the Plaintiff's tenant or not. In other words, it was in relation to the question as to whether the Plaintiff was able to prove the relationship of landlord and tenant between him and Defendant No. 1 in relation to suit premises. Indeed, this was one of the main questions involved in the suit.

16. This question, i.e., first part of issue No. 4 was decided by the Trial Court in Plaintiff's favour wherein it was held that Defendant No. 1 was the Plaintiff's tenant. So far as second part of issue No. 4 is concerned, it was in relation to the question as to whether Defendant No. 1 was a defaulter in payment of rent to the Plaintiff. This question was answered by the Trial Court against the Plaintiff and in Defendant No. 1's favour wherein it was held that Defendant No. 1 did not commit any default in payment of rent to the Plaintiff. It is for this reason, the suit was dismissed.

17. The Plaintiff in his first appeal did not challenge the finding of the Trial Court recorded on the first part of issue No. 4 and rightly so because it was already answered by the Trial Court in his favour. The First Appellate Court, therefore, could not examine the legality and correctness of this finding in Plaintiff's appeal unless it was challenged by the Defendants by filing cross objection Under Order 41 Rule 22 of the Code in the appeal.

18. As mentioned above, the Defendants though suffered the adverse finding on first part of issue No. 4 but did not file any cross objection questioning its legality. In the light of these admitted facts arising in the case, the First Appellate Court had no jurisdiction to examine the legality and correctness of the finding on first part of issue No. 4 in Plaintiff's appeal and reverse it against the Plaintiff.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9956 of 2018 

Decided On: 25.09.2018

Biswajit Sukul  Vs.  Deo Chand Sarda and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and S. Abdul Nazeer, JJ.

Citation: 2019(4) MHLJ 34

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Whether it is mandatory for court to decide cross objection on merit independently if it has disposed off appeal on merit?

The High Court having dismissed the appeals
filed by the State/NTPC was, therefore, required to
examine as to whether any case was made out by
the landowners (appellants herein) in their cross
objection for enhancement of compensation.
18. We find from the impugned order that the High
Court, in para 24, dismissed the cross objection
without assigning any reason. The order rejecting
the cross objection reads as under:
24. Crossobjection,
if any, shall also
stand disposed of.
19. Order 41 Rule 22(4) of the Code, provides that
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.

20. In our considered opinion, merely because the
High Court dismissed the appeals filed by the
respondents herein though on merits, yet that by
itself would not result in dismissal of the
landowners’ cross objection also. In our view, the
cross objection had to be disposed of on its merits
notwithstanding the dismissal of the appeals as
provided by in Order 41 Rule 22 (4) of the Code by
assigning reasons.
21. In other words, even though the High Court
dismissed the appeals of the State/NTPC on merits
yet it was obligatory on the part of the High Court to
have independently examined the issues raised by
the landowners (respondents in appeal) before the
High Court in the cross objection with a view to find
out as to whether any case was made out on facts
by the landowners for further enhancement in the
compensation and, if so, to what extent. The

question as to whether any case for enhancement of
compensation is made out or not was required to be
decided on appreciation of the evidence adduced by
the parties on the issue of market value of the
acquired land keeping in view the parameters laid
down in Section 23 of the Act.
22. In our view, the High Court failed to examine
the aforesaid question while dealing with the cross
objection of the landowners and wrongly rejected it
without assigning any reason as is clear from the
order quoted above. Rejection of cross objection
without any discussion and reason cannot be
countenanced. It is not, therefore, legally
sustainable.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.55575559
OF 2019

Shri Badru Vs   NTPC Limited (formerly National Thermal
Power Corporation Limited) 
Abhay Manohar Sapre, J.
Dated:July 16, 2019.

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Whether appellate court can examine legality of finding recorded against a party in absence of cross objection?

 This question, i.e., first part of issue No. 4 was decided by the Trial Court in Plaintiff's favour wherein it was held that Defendant No. 1 was the Plaintiff's tenant. So far as second part of issue No. 4 is concerned, it was in relation to the question as to whether Defendant No. 1 was a defaulter in payment of rent to the Plaintiff. This question was answered by the Trial Court against the Plaintiff and in Defendant No. 1's favour wherein it was held that Defendant No. 1 did not commit any default in payment of rent to the Plaintiff. It is for this reason, the suit was dismissed.

17. The Plaintiff in his first appeal did not challenge the finding of the Trial Court recorded on the first part of issue No. 4 and rightly so because it was already answered by the Trial Court in his favour. The First Appellate Court, therefore, could not examine the legality and correctness of this finding in Plaintiff's appeal unless it was challenged by the Defendants by filing cross objection Under Order 41 Rule 22 of the Code in the appeal.

18. As mentioned above, the Defendants though suffered the adverse finding on first part of issue No. 4 but did not file any cross objection questioning its legality. In the light of these admitted facts arising in the case, the First Appellate Court had no jurisdiction to examine the legality and correctness of the finding on first part of issue No. 4 in Plaintiff's appeal and reverse it against the Plaintiff.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9956 of 2018 (Arising out of SLP (C) No. 15192 of 2014)

Decided On: 25.09.2018

 Biswajit Sukul  Vs.  Deo Chand Sarda and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and S. Abdul Nazeer, JJ.

Citation:(2018) 10 SCC 584,(2018) 10 SCC 584,2019(4) MHLJ 34(SC)

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Whether appellate court can give relief to respondent?

Even a bare reading of Order 41, rule 33 is a sufficient to convince any one that the wide wording 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 respondent as "the case may require."

IN THE SUPREME COURT OF INDIA

Civil Appeals Nos. 207 to 209 of 1961

Decided On: 11.02.1963

Pannalal Vs. State Bombay and Ors.

Hon'ble Judges/Coram:

J.C. Shah, K.C. Das Gupta, K.N. Wanchoo, M. Hidayatullah and P.B. Gajendragadkar, JJ.

Citation: AIR 1963 SC 1516

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What are advantages of filing cross objection?

 In the case of Banarasi vs. Ram Phal (supra), the Hon'ble Supreme Court has taken into consideration the amendment of the aforesaid provision in the year 1976 and it has been held as follows:-

"10. 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 cross objection. 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 fling 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 cross objection. The amendment inserted by 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations:-

(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 & 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 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. "

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 197 of 2013

Decided On: 04.04.2018

 Kamlabai Narayanrao Wagh  Vs.  Muktabai and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(6) MHLJ 533

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Whether decree can be re-opened by appellate court in absence of cross objection by affected party?

 In so far as the first substantial question of law is concerned, it can be seen that the trial Court while answering Issue No. 1 held that the plaintiff had proved that the sale-deed dated 16th August, 1983 was a valid document. On that count, it granted the relief of declaration of title in favour of the plaintiff. It is only the plaintiff who preferred an appeal as the relief of possession and damages was refused by the trial Court. No Cross-objections were filed by the defendant. In such a situation, therefore, in absence of any Cross-objection or Cross-appeal by the defendant, the decree in so far as declaration of the plaintiff's title is concerned could not have been reopened. The legal position in this regard is well settled and reference in that regard can be made to the decision in Indrakumar Daulat Khushlani Vs. Atmaram Vitthal Zade [MANU/MH/2879/2014 : 2015 (3) Mh.L.J. 613]. It is, thus, clear that the first appellate Court committed an error in setting aside the partial decree passed by the trial Court without the same being challenged by the defendant. Substantial question of law No. 1 is answered by holding that the appellate Court committed an error in setting aside the decree with regard to declaration of the plaintiff's ownership.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 384 of 2003

Decided On: 09.02.2018

 Tulshidas  Vs. Madhukar

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2018(4) MHLJ 370

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Notes on Civil appeal

APPEALS FROM ORIGINAL DECREE: S 96-99A .Order 41 of CPC.

The word appeal has not been defined in the code. The term refers to the removal of cause from an inferior to a superior court for the purpose of testing the soundness of the decision of the inferior court. It is thus a remedy provided by law for getting the decree of lower court nullified, and is in fact,a complaint made to a higher court that the decree of lower court is unsound and wrong. An appeal must be preferred against

the whole decree and not any item or items in it. An appeal is only a continuation of original proceedings and it is a stage in the suit itself.

S 96 of CPC lays down four primary rules regarding appeals from original decree as follows:

1) Unless otherwise provided, an appeal lies from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeals from decisions of such a court.

2) An appeal can be even from an exparte decree.

3) However,no appeal lies from a consent decree.

4) Except on a question of law,no appeal lies from a decree in any suit cognizable by a small causes court,if value of subject matter of original suit does not exceed Rs. Ten Thousand.

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Whether respondent in writ petition while supporting order passed in his favour can challenge findings recorded against him?

So far as the first point is concerned, Order 41, rule 22 of the Code of Civil Procedure confers two distinct rights on the respondent in an appeal. The first is the right of upholding the decree of the Court of the first instance on any grounds, including the grounds on which the Court held against him, without filing any cross-objection.

We are quite satisfied that on general principles a party who has an order in its favour is entitled to show that the order is justified on some ground which was decided against it in the Court below.

In fact the Supreme Court in the following cases reiterated the proposition that the respondent in appeal can support the judgment in his favour even on grounds which were negatived in the judgment. 

We see no force in this submission of Shri Deopujari inasmuch as there are no rules which prohibit the respondent in a writ jurisdiction to exercise powers analogous to those conferred by Order 41, Rule 22 of the Code of Civil Procedure. In Management of the Northern Railway Co-operative Credit Society Ltd., Jodhpur v. Industrial Tribunal Rajasthan, Jaipur MANU/SC/0221/1967 : A I R 1967 S C 1182 the respondents were entitled to support the decision of the Tribunal even on the grounds which were not accepted by the Tribunal or any other grounds which may not have been taken notice of by the Tribunal while they were patent on the face of the record.

21. With reference to the first point, therefore, we observe that the respondent in a writ petition would be entitled to support the order passed by the Rent Controller even on findings which are pronounced against him. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

In Spl. C.A. No. 577, 578 and 579 of 1972

Decided On: 14.11.1979

 Vithaldas and others Vs. Mansukhlal

Hon'ble Judges/Coram:

B.C. Gadgil and M.R. Waikar, JJ.

Citation:1980 MHLJ 612

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