Ex Parte at Trial, Active in Appeal: Can the Defendant File Fresh Documents in First Appeal?

Q :- Suit is proceeded exparte against defendant before trial court. trial court has dismissed the suit of plaintiff. plaintiff has filed appeal against dismissal of his suit. in that appeal, notice is issued to defendant. he appears before appellate court and produce copies of documents in support of his case. whether appellate court can consider those documents while deciding that appeal. what role defendant can play in the appeal?

Ans:-A defendant who was proceeded ex parte before the trial court does not get an unrestricted right to introduce fresh documents when he appears as respondent in the plaintiff’s first appeal. The appellate court normally decides the appeal on the trial court record, and any fresh documents can be considered only if they are admitted as additional evidence under Section 107 CPC read with Order XLI Rule 27 CPC.

Print Page

Questions and answers on law (Part 83)

 Q 1:- What is distinction between Cross‑objection and cross‑decree?

Cross-objections (filed under Order 41 Rule 22 CPC) are objections raised by a respondent within an existing appeal, treated as part of that same record to challenge an adverse finding, whereas cross-decrees refer to separate, opposing decrees between the same parties for money, allowing for set-off under Order 21 Rule 18 CPC. 

Key Differences:

Print Page

Whether appellate court can interfere in decree passed by trial court in absence of cross objection if that decree grants relief to appellant contrary to law?

 The powers of an appellate court to interfere with a decree passed by a trial court in the absence of a cross-appeal or cross-objection are governed by specific legal principles under the Code of Civil Procedure.

General Rule: No Interference Without Cross-Appeal or Cross-Objection

Print Page

Restricting Appellate Modification of Decrees Without Cross-Appellate Objection: Analysis of Banarsi v. Ram Phal

 The landmark Supreme Court of India case of Banarsi And Others v. Ram Phal (2003) 9 SCC 606  established crucial limitations on the power of appellate courts to modify decrees in the absence of cross-appeals or cross-objections. This case provides significant guidance on the boundaries of appellate jurisdiction under the Code of Civil Procedure (CPC).

Case Background

Print Page

What is distinction between cross objection and cross appeal as per indian law?

 Under Indian law, cross objections and cross appeals serve similar purposes but have distinct procedural characteristics. Here are the key distinctions:

Procedural Nature and Independence

Cross objections are filed within an existing appeal and form part of the same record as the main appeal. They are contingent upon another party having already filed an appeal and cannot exist independently.

Cross appeals, on the other hand, are separate and independent proceedings. Each cross appeal constitutes a distinct appeal that can be filed independently of any other appeal.

Print Page

Supreme court: Respondent in appeal can without filling cross-objections attack adverse finding upon which decree has been passed against him

We hold that the respondent-defendant in an appeal can, without filing cross-objections attack an adverse finding upon which a decree in part has been passed against the respondent, for the purpose sustaining the decree to the extent the lower court had dismissed the suit against the defendants-respondents. The filing of cross-objection, after the 1976 Amendment is purely optional and not mandatory. In other words, the law as stated in Venkata Rao's case by the Madras Full Bench and Chandre Prabhuji's case by this Court is merely clarified by the 1976 Amendment and there is no change in the law after the Amendment.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6036 of 1990

Decided On: 14.09.1999

Ravinder Kumar Sharma Vs. The State of Assam and Ors.

Hon'ble Judges/Coram:

M. Jagannadha Rao and M. Srinivasan, JJ.

Author: M. Jagannadha Rao, J.

Citation: AIR 1999 SC 3571, MANU/SC/0561/1999.

Print Page

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.

Print Page

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.

Print Page

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

Print Page

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

Print Page

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.

Print Page

Bombay HC: 9% is the appropriate rate of interest to be awarded in motor accident compensation cases

  The Tribunal awarded an interest @ 6% p.a. from the date of application till its realization and I find substance in the submission of the learned counsel to the effect that the interest ought to have awarded @ 9% p.a., which is the appropriate rate of interest to be awarded in case of compensation to be payable for motor accidents and the Apex Court in case of Kaushnuma Begum & Ors. Vs. New India Assurance Co., MANU/SC/0002/2001 : 2001 (1) SCR 8, has observed that 9% is the appropriate rate of interest to be awarded in motor accident compensation cases. Perusal of the latest decision of the Apex Court in case of Parvinder Singh (supra), the compensation is awarded with interest @ 9%.

{Para 21}

IN THE HIGH COURT OF BOMBAY

First Appeal ST No. 96999 of 2020, 

Decided On: 07.03.2022

Manager, National Insurance Co. Ltd. Vs. Nilesh Suresh Bhandari and Ors.

Hon'ble Judges/Coram:

Bharati H. Dangre, J.

Citation: MANU/MH/1455/2022.

Read full Judgment here: Click here

Print Page

Whether claimant must prove percentage of loss of earning capacity, arising from a permanent disability in motor accident case?

 When a claimant suffers a disability as a result of such injuries and on ascertaining that the disability is of permanent nature, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. It is expected that the mechanical formulae of calculating the loss of earning capacity depending upon the percentage of permanent disability, is not to be applied as in most of the cases, the percentage of economic loss i.e. the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability.

Accepting the aforesaid principle, it can be seen that as far as the respondent claimant is concerned, the disability certificate has certified his disability to be 83% and the Tribunal has accepted his functional disability to be 83% and therefore, the loss of earning capacity to be 83%. However, if the claim of the claimant is that on 83% disability, he has incurred 100% functional disability, then it was imperative for the claimant to bring on record some evidence to that effect. Since the claimant suffer 83% physical disability in the present case, in order to establish that this amounted to 100% functional disability, none of the witnesses are examined by the claimant to prove the said aspect. The claimant has not projected his case before the Tribunal to the effect that on account of the permanent disability incurred by him, his functional disability is also 100%, which has resulted in loss of 100% earning capacity. In absence of any such specific evidence being brought on record, the submission of learned Advocate Ms. Nandini Chittal to that effect, do not deserve any consideration. {Para 20}

IN THE HIGH COURT OF BOMBAY

First Appeal ST No. 96999 of 2020, 

Decided On: 07.03.2022

Manager, National Insurance Co. Ltd. Vs. Nilesh Suresh Bhandari and Ors.

Hon'ble Judges/Coram:

Bharati H. Dangre, J.

Citation: MANU/MH/1455/2022.

Read full Judgment here: Click here

Print Page

What are Special Damages and General Damages under which compensation is awarded in motor accident cases?

 The heads under which compensation is awarded in personal injury cases are the following:

Pecuniary damages (Special Damages)

(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:

(a) Loss of earning during the period of treatment;

(b) Loss of future earnings on disability. account of permanent

(iii) Future medical expenses.

Non-pecuniary damages (General Damages)

(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

(vi) Loss of expectation of life (shortening of normal longevity).

Recording that in routine personal injury cases, compensation will be awarded only under Head 1, 2-A and 4, but in serious cases of injury where there is specific medical evidence, corroboration the evidence of the claimant, that compensation will be granted under the heads (ii)(b), (iii), (v) and (vi), relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.

20. When a claimant suffers a disability as a result of such injuries and on ascertaining that the disability is of permanent nature, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. It is expected that the mechanical formulae of calculating the loss of earning capacity depending upon the percentage of permanent disability, is not to be applied as in most of the cases, the percentage of economic loss i.e. the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability.

IN THE HIGH COURT OF BOMBAY

First Appeal ST No. 96999 of 2020, 

Decided On: 07.03.2022

Manager, National Insurance Co. Ltd. Vs. Nilesh Suresh Bhandari and Ors.

Hon'ble Judges/Coram:

Bharati H. Dangre, J.

Citation: MANU/MH/1455/2022.

Read full Judgment here: Click here

Print Page

Whether the court can enhance compensation in motor accident case even if claimant has not filed cross-Appeal or cross-objection?

 The counsel for the claimant/respondent Ms. Nandini would submit that though the claimant has not filed any Appeal, against the inadequate amount of compensation awarded to him, though his claim was to the tune of Rs. 1,50,00,000/-, the compensation is awarded in the meager sum of Rs. 52,63,219/- and this require enhancement.

The said claim of the learned counsel is opposed by the counsel for the appellant but in the wake of the settled legal position, I do not have any hesitancy in accepting the submission of the learned counsel for the claimant that the Court on it's motion is also empowered to enhance the compensation, if it is found that the compensation awarded is not 'just' compensation. {Part 14}

15. The Motor Vehicles Act is a beneficial piece of legislation and provide for some solace to a victim, who meet with an accident or to the family of the victim who is a sufferer, when the bread-earner is disabled or succumb to the said accident. The duty of the Court in granting compensation to the victim or to his family, for its survival and meet the harness is to ensure 'just' compensation, irrespective of whether any plea in that behalf was raised by the claimant. The parameters of awarding compensation and the various heads under which the claimant is entitled for compensation are well determined by the Constitution Bench and the Apex Court in case of National Insurance Co. Ltd. Vs. Pranay Sethi MANU/SC/1366/2017 : 2017(16) SCC 680, and if the compensation is not accorded, in accordance with the legal settled position by the Tribunal, it is the duty of the Court to ensure just and fair compensation.

The learned counsel for the respondent has placed reliance upon the decision of this Court in case of United India Insurance Co. Ltd. and Ors. vs. Kunti Binod Pandey & ors., 2020 (1) BCR, 629, where a similar objection was raised in an Appeal filed by the Insurance Company, challenging the judgment and award of compensation by the MACT, holding that it is a statutory obligation of the Tribunal and the Court to do complete justice and award, 'just compensation', it has been held that by the learned Single Judge of this Court (Justice R.D. Dhanuka), that there can be no restriction to enhance compensation in appropriate case even in absence of cross-Appeal or cross-objection.

 IN THE HIGH COURT OF BOMBAY

First Appeal ST No. 96999 of 2020, 

Decided On: 07.03.2022

Manager, National Insurance Co. Ltd. Vs. Nilesh Suresh Bhandari and Ors.

Hon'ble Judges/Coram:

Bharati H. Dangre, J.

Citation: MANU/MH/1455/2022

Print Page

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

Print Page

Does Section 96 of CPC restrict the scope of cross-objections only to questions of merit excluding any aspect of procedural lapses?

 The first appellate Court has heavily relied on the case holding

of Bhanu Kumar Jain v Archana Kumar. (2005) 1 SCC 787 Then, it has held that the judicial dictum of Bhanu Kumar Jain is unmistakable and that an appeal under Section 96 of CPC cannot accommodate the grounds available for the appellants under Order 9 Rule 13 of CPC. Therefore, it has concluded

that instead of filing the cross-objections, the contesting defendants could have invoked Order 9 Rule 13 CPC.

12. In this context, we may straight away refer to para 24 of Bhanu Kumar Jain. It declares that an appeal under Section 96(2) of CPC against an ex parte decree could be filed on two grounds: (i) that the materials brought on record [the merits] in the ex parte suit proceedings by the plaintiff would not entail a decree in his favour, and (ii) that the suit could not have been posted for ex parte hearing. Thus, the procedural lapse that

has led to the ex parte decree can be very much a ground of appeal under Section 96. It is under the rubric “that the suit could not have been posted for ex parte hearing.”

21. Though the Appellate Court has acknowledged the contesting

defendants’ right to file cross-objections, it has concluded that under Section 96 of the Code, no plea about procedural lapses such as nonservice of suit summons can be taken; it ought to be purely on the merits.

22. We have already examined Bhanu Kumar Jain but have found no such judicial dictum as suggested by the First Appellate Court. Even Section 96 of the Code imposes no such restriction. Section 96, in fact, allows the first appeal against “every decree passed by any Court exercising original jurisdiction.” Under sub-section (2), it explicitly mentions that “an appeal may lie from an original decree passed ex parte.”

25. The First Appellate Court has rejected those cross-objections on the premise Section 96 of the Code allows a challenge only on the merits, but not on procedural lapses. As we have already discussed, Bhanu Kumar Jain’s dictum does not endorse this interpretation of Section 96, as the First Appellate Court has erroneously believed.

26. So, I am constrained to hold that the First Appellate Court has

misread the case holding of Bhanu Kumar Jain and misapplied its judicial dictum. Pithily put, an appeal under Section 96 can contain pleas not only on the merits but also on questions like non-service of suit summons and the illegality of the order setting the defendant ex parte – procedural lapses.

IN THE HIGH COURT OF BOMBAY AT GOA

SECOND APPEAL NO.61 OF 2019

 Mr. Carlton Gilbert Fortes V/s Smt. Sonhia Lobo,

Coram: - DAMA SESHADRI NAIDU, J.

Date: - 3rd March 2020

Citation: 2020(6) MHLJ 703

Print Page

Whether the Appellate court can permit conversion of the civil appeal into cross-objection?

The Appellate Bench of the Court appears to have also considered various judgments cited at the Bar on the applicability of Section 151 of the Code. The court held that the provisions of Section 151 could be invoked, only when there was no specific provision to deal with the issue. Though the relevance of this principle has not been fully stated by the court in the context of the issue at hand, the emphasis appears to be on the fact that there is a specific provision, namely, Order 41 Rule 22 of the Code, whereunder the respondent to an appeal could file a cross objection; that provision did not provide for conversion of an appeal into a cross-objection; and therefore, there was no scope to allow conversion of the present appeal into a cross-objection. No doubt there is no specific provision to permit this, but there is equally no specific provision barring the court from ordering such conversion. Since a cross-objection was anyway maintainable and there was no specific provision barring conversion of an appeal into cross-objection, there was a legitimate case for invoking the provisions of Section 151 of the Code and ordering such conversion. The provisions exist for enabling civil courts to do complete justice, when a particular course seems to be advisable or just, but there is no specific provision to allow such course. The provision cannot be resorted to, however, when a specific provision of law bars such a course, either expressly or by implication.

9. Accordingly, the impugned order of the Appellate Court cannot be sustained. Rule is made absolute and the writ petition is allowed by quashing and setting aside the impugned order and allowing the Petitioners' application, being Exhibit '10'. 

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 93 of 2017

Decided On: 06.09.2019

 Nelufer Behram Irani  Vs. Asha R. Kotian and Ors.

Hon'ble Judges/Coram:

S.C. Gupte, J.

Citation: MANU/MH/2612/2019,2020(2) MHLJ703

Print Page

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

Print Page

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

Print Page