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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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

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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

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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 S 5 of limitation Act is applicable for condonation of delay in filing of cross objection?

I have given careful consideration to the submissions. The first issue is regarding the condonation of delay in filing the cross-objection. A Reference will have to be made to sub rule (1) of Rule 22 of Order XLI of the said Code which reads thus:

Any respondent, though he may not have appealed from any part of the decree, may not only support the decree (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; and may also take any cross-objection) to the decree which he could have taken by way of appeal, provided he has filed such objection 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.

5. Thus, under sub-rule (1) of Rule 22 of Order XLI of the said Code, a power has been conferred upon the Appellate Court to extend the time to file cross-objection. The Appellate Court can grant such further time as it may see fit to allow. The sub-rule (1) of Rule 22 does not lay down that sufficient cause is required to be shown by the respondent. As the said Code vests the power to extend the time to file cross-objection in the Appellate Court, it is not at all necessary for the respondent in appeal to invoke section 5 of the Limitation Act, 1963. 

IN THE HIGH COURT OF BOMBAY

First Appeal No. 1323 of 2002 Alongwith Civil Application No. 2432 of 2011 and Cross Objection ST. No. 16210 of 2011

Decided On: 24.06.2011

 State of Maharashtra  Vs.  Kalu Ladku Mhatre

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka., J.

Citation: 2011(3) Civil court cases 796  Bom

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Whether defendant can question dismissal of counter claim by filing cross objection?

 A counter claim raised in a suit has all the incidents of a plaint and even in the discontinuance of the suit by the plaintiff in which such claim was raised, the counter claim has to be proceeded with. In answer to the counter claim, the plaintiff in the suit has to file a written statement and the court has to pronounce a judgment after trial on the counter claim. O. VIII R. 6 (a) to (g) of the Code clearly spell out that an adjudication of the counter claim as if it were a suit claim and pronouncement of the judgment leading to a decree is contemplated. The counter claim, therefore, for all intends and purposes is a suit by a party figuring as a defendant in another suit filed by the plaintiff and so much so, even a dismissal of the counter claim in the judgment rendered by the court, after trial, that it is not maintainable, amounts to dismissal of a suit, as if such a suit had been filed by the defendant as against the plaintiff in whose suit a counter claim was raised were the plaintiff. If that be so, can such a defendant, after dismissal of his counter claim raised in the suit, impeach the correctness of such dismissal by way of cross objections in the appeal preferred by the plaintiffs against the dismissal of their suit. No doubt, a cross objection is entertainable in such appeal only if the appellant/plaintiff is interested in the sense that it has got a material effect on the decree applied for by him in reversal of the dismissal of his suit by the trial court. The appellants/plaintiffs are in no way interested in the reconsideration of the decree passed by the court negativing the counter claim raised by the defendant in his suit and at any rate, such consideration cannot be sought for by the defendant in the appeal preferred by the plaintiff against the decree rendered in his suit to the extent he was aggrieved. As the judgment rendered in the counter claim give rise to a distinct decree in favour or against the defendant who had raised such a claim in a suit filed by another any challenge to such decree has to be raised by way of an independent appeal as provided by the Code by the defendant and not by way of cross objections, in the appeal preferred by the plaintiff against the dismissal of his suit. The counter claim of the defendant in fact was a cross suit, adjudicated with the suit filed by the plaintiff. The decree and judgment passed in that, cross suit arising from the counter claim of the defendant, no doubt, has to be challenged by the appellant, if she is aggrieved preferring an appeal and she has no right to question its correctness by way of cross objections in the appeal preferred by me plaintiff confined against the dismissal of his suit. So much so, the cross objections filed by the above common appellant, as against the dismissal of her counter claim in A.S. No. 42/02, which was preferred by the appellants therein against dismissal of their suit O.S. No. 118/96, was not at all maintainable under law, and it should have received an outright rejection.

IN THE HIGH COURT OF KERALA

R.S.A. No. 666 of 2007

Decided On: 12.10.2010

 Thomas Vs.  Sudha

Hon'ble Judges/Coram:

S.S. Satheesachandran, J.

Citation: 2011(1) Civil court cases 314 Kerala

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Supreme Court: In Christian law there is no prohibition against adoption

It is required to be noted that in the Christian Law, there is no prohibition against adoption. Nothing has been pointed out that unlike in Hindu law, there is any law prohibiting the Christian couple to adopt male or female child, although they may have natural born male or female child, as the case may be. 

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 7207-7208/2008

Decided On: 02.07.2019

 Pharez John Abraham Vs.  Arul Jothi Sivasubramaniam K. 

Hon'ble Judges/Coram:

L. Nageswara Rao and M.R. Shah, JJ.

Citation: AIR 2019 SC 4235

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Whether defendant can file cross objection at belated stage after remand of appeal?

 We, however, make it clear, that since the Defendants did not file any cross objection in the appeal Under Order 41 Rule 22 of the Code, they are not allowed to file the cross objection at such belated stage taking advantage of the remand of the appeal to the First Appellate Court by this Court.

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.

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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 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 one respondent can file cross objection against co-respondent?

In our opinion, the view that has now been accepted by all the High Courts that Order 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 re-opened between the objecting respondent and other respondents, that an objection under Or. 41, r. 22 can be directed against the other respondents, is correct. Whatever may have been the position under the old s. 561, the use of the word "cross-objection" in Or. 41 r. 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant. As Rajammannar C.J., said in Venkateswarlu v. Ramamma I.L.R. (1950) Mad. 874..

"The legislature by describing the objection which could be taken by the respondent as a "cross-objection" must have deliberately adopted the view of the other High Courts. One cannot treat an objection by a respondent in which the appellant has no interest as a cross-objection. The appeal is by the appellant against a respondent, the cross-objection must be an objection by respondent against the appellant".

We think, with respect, that these observations put the matter clearly and correctly. That the legislature also wanted to give effect to the views held by the different High Courts that in exceptional cases as mentioned above an objection can be preferred by a respondent against a correspondent is indicated by the substitution of the work "appellant" in the third paragraph by the words "the party who may be affected by such objection."

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.

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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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Whether appellate court can grant relief under O 41 R 33 of CPC even if it is not claimed in plaint?

While considering the scope of the powers of the appellate Court under provisions of Order-XLI, Rule 33 of the Code, the Constitution Bench of the Honourable Supreme Court in Panna Lal [supra] observed that the appellate Court while denying relief to the appellant could grant relief to the respondent as "the case may require." In Mahant Dhangir [supra], it was held that the provisions of Order-XLI, Rule 22 and Rule 33 of the Code were not mutually exclusive. Rule 33 was liberal enough and the only requirements for exercise of such discretion were that the parties before the lower Court should be there before the appellate Court and the question raised must arise properly out of the judgment of the lower Court.

In Chaya and others v. Bapusaheb and others [MANU/SC/0616/1994 : (1994) 2 SCC 41], it was observed by the Honourable Supreme Court in paragraph 14 of its decision as under:-

"14. This provision is based on a salutary principle that the appellate court should have the power to do complete justice between the parties. The object of the rule is also to avoid contradictory and inconsistent decisions on the same questions in the same suits. For this purpose, the rule confers a wide discretionary power on the appellate court to pass such decree or order as ought to have been passed or as the nature of the case may require, notwithstanding the fact that the appeal is only with regard to a part of the decree or that the party in whose favour the power is proposed to be exercised has not filed any appeal or cross- objection. While it is true that since the power is derogative of the general principle that a party cannot avoid the effect of a decree against him without filing an appeal or cross-objection and, therefore, the power has to be exercised with care and caution, it is also true that in an appropriate case, the appellate court should not hesitate to exercise the discretion conferred by the said rule."

14. From aforesaid, it can be seen that the appellate Court is vested with wide powers to enable it to do complete justice between the parties so as to pass such decree or order as the case may require even in absence of any appeal or cross-appeal. Though it was urged on behalf of the appellants that only such relief that was prayed for in the plaint could be granted in exercise of such powers, I am not in a position to accept said submission. The exercise of these wide powers is not trammeled by the absence of any prayer being made in the plaint. This exercise of power is, however, circumscribed for being exercised only in rare cases and when the facts of such case demand its exercise.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 280 of 2016

Decided On: 13.07.2017

 Sattarsha Dibarsha  Vs.  Ajizabi Dilbarsha and Ors.

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

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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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