CPC Order 41 Cross Objection

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CROSS-OBJECTIONS: RULE 22 ORDER 41 (CPC)

O. 41. R.22. UPON HEARING RESPONDENT MAY OBJECT TO DECREE AS IF HE HAD PREFERRED A SEPARATE APPEAL—

1. 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 Appellant 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.

Explanation—A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.

2. Form of objection and provisions applicable thereto— Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.

3. Unless the respondent files with the objection a written acknowledgement from the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent.

4. Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.

The provisions-relating to appeal by indigent persons shall, so far as they can be made applicable apply to an objection under this rule. Order 41 Rule 22 is a special provision permitting the respondent who has not filed an appeal against the decree to object to the said decree by filing cross-objections in the appeal filed by the opposite party.

Where the suit is partly decided in favour of the plaintiff and partly in favour of the defendant and the aggrieved party (either the plaintiff or the defendant) files an appeal, the opposite party may adopt any of the following courses:

1. He may prefer an appeal from that part of the decree which is against him. (Thus, there may be two appeals against the same decree; one by the plaintiff and the other by the defendant. They are known as "cross-appeals". Both these appeals will be disposed of together )

2. He may not file an appeal against the part of the decree passed against him but may take objection against that part. Such objections are called "cross-objections".

3. Without filing a cross-appeal or cross-objection, he may support the decree

a. on the grounds decided in his favour by the trial court; or

b. even on the grounds decided against him.

NATURE

A cross-objection is like cross-appeal. It has thus all the trappings of an appeal. The mere distinction between the two lies in the fact that whereas cross-objections form part of the same record, cross-appeals are two distinct and independent proceedings.

The right to file cross-objections is substantive in nature and not merely procedural. [Panna Lai v. State of Bombay, AIR 1963 SC 1516]

WHO MAY FILE CROSS-OBJECTIONS?

Cross-objections can be filed by the respondent

1. if he could have filed an appeal against any part of the decree; [R. 22(1); or

2. if he is aggrieved by a finding in the judgment, even though the decree is in his favour because of some other finding. [Expln. to R. 22(1).]

Cross-appeals and cross-objections provide two different remedies for the same purpose since the cross-objections can be filed on the points on which that party could have preferred a cross-appeal. [N. Jayaram Reddy v. Revenue Divisional Officer, (1979) 3 SCC 578: AIR 1979 SC 1393. It may, however, be stated that no appeal lies against a mere "finding" if such finding does not amount to "decree". But cross-objections can be filed even against a "finding" which may not amount to decree; Expln. to R. 22(1)].

AGAINST WHOM CROSS-OBJECTIONS MAY BE FILED

Ordinarily, cross-objections may be filed only against the appellant.

In exceptional cases, however, one respondent may file cross-objections against the other respondents; for instance, when the appeal by some of the parties cannot effectively be disposed of without opening the matter as between the respondents inter se; or in a case where the objections are common as against the appellant and co respondent.[Panna Lal, supra; Mahant Dhangir, supra, at p. 533 (SCC): at p. 57 (AIR).]

Thus, where the relief sought against the appellant in cross-objections is intermixed with the relief granted to the other respondents in such a way that the relief against the appellant cannot be granted without the question being reopened between the objecting respondent and other respondents, cross-objections by one respondent against the other respondents may be allowed.[R. 22(4)]

The principle that no decision can be made against a person who is not a party to the proceedings applies to cross objections also. Hence, cross-objections cannot be allowed against a person who is not a party to the appeal.

WHEN CROSS-OBJECTIONS MAY BE FILED?

Cross-objections may be filed only when an appeal is filed and also when such appeal is admitted by the appellate court and notice is issued on the respondent.[Balwant Singh v. State o/M.R, 1986 MP LJ 571:1986 Jab LJ 686.] • A stage of filing cross-objections arises only when an appeal is admitted and the court directs notice to be issued to the respondent.

No cross-objections, hence, can be filed if no appeal is filed by the appellant or an appeal is filed but has not been admitted. Mere posting of preliminary hearing of an appeal is not enough.

Similarly, prior to service of notice of hearing of appeal by the court, no cross-objections would lie.

AMBIT AND SCOPE

Where the respondent has filed cross-objections, even if the original appeal is withdrawn or dismissed for default, they will be heard and decided on merits.[R. 22(4);

Where an appeal is withdrawn or dismissed for default and the cross-objections are decided on merits, restoration of appeal and rehearing will not automatically warrant rehearing of cross-objections. [Nanoo Gopinathan v. Neelacantan Balakrishnan, AIR 1990 Ker 197.] But where the appeal is dismissed as time-barred or has abated or is held to be not maintainable, the cross objections cannot be heard on merits as they are contingent and dependent upon the hearing of the appeal. [N. jayaram Reddy v. Revenue Divisional Officer, (1979) 3 SCC 578: AIR 1979 SC 1393.]

CROSS-APPEAL WHETHER MAY BE TREATED AS CROSS-OBJECTIONS

An appeal filed beyond the period of limitation may be treated as cross-objections under Order 41 Rule 22. ▪ A cross-appeal may be treated as cross-objection only if such appeal is filed after the other appeal and not if it is filed before that appeal.

FORM

Cross-objections shall be in the form of a memorandum of appeal and they should be served on the party affected thereby or his pleader.[R. 22(2).] A respondent can file cross-objections as an indigent person. [R. 22(5).]

LIMITATION

Cross-objections can be filed within one month from the date of service on the respondent or his pleader of the notice of the date fixed for hearing of the appeal.[R. 22(1).]

The appellate court may, at its discretion, extend the period within which cross-objections can be filed. [Vishiva Nath v. Maharaji, AIR 1977 All 459.]

The discretion, however, must be exercised judicially and on sufficient cause for delay being shown and is open to review by the superior court.

CROSS-OBJECTION AGAINST FINDING: EXPLANATION TO RULE 22(1)

Explanation to sub-rule (1) of Rule 22 of Order 41, as added by the Amendment Act, 1976 permits respondent to file cross-objection not only against decree but also against finding not amounting to decree. The position, however, as regards filing of appeal has remained as it was before the amendment. After the amendment in Rule 22 now, a party to a suit who has succeeded and whose favour, a decree is passed by the court cannot file an appeal against any "finding" recorded against him, but if the other side prefers an appeal against the decree, he may file cross-objection against the "finding" of the lower court notwithstanding that the ultimate decision or decree may be partly or wholly in his favour.

PROCEDURE AT HEARING

The appeal and the cross-objections should be heard together and they should be disposed of by a common judgment incorporating the decisions on both; the appeal as well as the cross-objections. [R. 22(5)]

OMISSION TO FILE CROSS-OBJECTIONS

A party in whose favour a decree has been passed has a substantive and valuable right which should not be lightly interfered with.

As an ordinary rule, therefore, in the absence of a cross-appeal or cross-objection by a respondent, the appellate court has no power to disturb the decree of the lower court so far as it is in favour of the appellant. • This is, however, subject to the provisions of Order 41 Rule 33 of the Code.

DISPOSAL OF APPEAL AND CROSS-OBJECTIONS

The court should decide and dispose of appeal and cross-objections together by one judgment and such decision should be incorporated in one decree. This approach seeks to avoid contradictory and inconsistent decisions on the same questions in one and the same suit.

PRINCIPLES

The following principles govern cross-objections:

(1) An appeal is a substantive right. It is a creation of the statute. The right to appeal does not exist unless it is specifically conferred.

(2) A cross-objection is like an appeal. It has all the trappings of an appeal. It is filed in the form of a memorandum and the provisions of Rule 1 of Order 41 of the Code, so far as these relate to the form and contents of the memorandum of an appeal, apply to a cross-objection as well.

(3) Court fee is payable on a cross-objection like that on the memorandum of an appeal. Provisions relating to appeals by indigent persons also apply to cross-objections.

(4) Even where an appeal is withdrawn or is dismissed for default, a cross-objection may nevertheless be heard and determined.

(5) A respondent even though he has not appealed may support the decree on any other ground but if he wants to modify it, he has to file a cross-objection to the decree which objection he could have taken earlier by filing an appeal.

(6) The time for filing an objection which is in the nature of an appeal is extended by one month after service of notice on him of the day fixed for hearing the appeal. This time can also be extended by the Court like in an appeal.

(7) A cross-objection is nothing but an appeal, a cross-appeal at that. It may be that the respondent wanted to give quietus to the whole litigation by his accepting the judgment and decree or order even if it was partly against his interest. When, however, the other party challenges the same by filing an appeal, the statute gives the respondent a second chance to file an appeal by way of a cross-objection if he still feels aggrieved by the judgment and decree or order.

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