Rastogi Vs. Sham Manohar & Ors  Insc 179 (16 March 2005)
N. Variava & H. K. Sema
out of S.L.P. (C) No.10396 of 2004] S. N. VARIAVA, J.
Appeal is against the Judgment dated 22nd January, 2004 passed by the High Court of Delhi.
The Respondent had filed the Second Appeal. The Appellant (herein) filed
cross-objections in that Appeal. When the Appeal reached hearing, the
Respondent withdrew his Second Appeal. By the impugned Judgment, it has been
held that as the Appeal has been withdrawn the cross objections emanating from
the Regular Second Appeal automatically cease to survive. On this reasoning,
the cross objection has been dismissed.
question whether the cross objections are maintainable, even when the Appeal
has been withdrawn was considered by this Court in Superintending Engineer and
Ors. vs. B. Subba Reddy reported in 1999(4) SCC 423. After considering various
Judgments, it was held as follows:- "From the examination of these judgments
and the provisions of Section 41 of the Act and Order 41 Rule 22 of the Code,
in our view, the following principles emerge:
Appeal is a substantive right. It is a creation of the statute. Right to appeal
does not exist unless it is specifically conferred.
Cross-objection is like an appeal. It has all the trappings of an appeal. It is
filed in the form of 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
appeal apply to cross-objection as well.
Court fee is payable on cross-objection like that on the memorandum of appeal.
Provisions relating to appeal by an indigent person also apply to
Even where the appeal is withdrawn or is dismissed for default, cross-objection
may nevertheless be heard and determined.
The 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 cross-objection to
the decree which objections he could have taken earlier by filing an appeal.
Time for filing objection which is in the nature of appeal is extended by one
month after service of notice on him of the day fixed for hearing the appeal.
This time could also be extended by the court like in appeal.
Cross-objection is nothing but an appeal, a cross-appeal at that. It may be
that the respondent wanted to give a quietus to the whole litigation by his
accepting the judgment and decree and order even if it was partly against his
interest. When, however, the other party challenged the same by filing an
appeal the statute gave the respondent a second chance to file an appeal by way
of cross-objection if he still felt aggrieved by the judgment and decree or
order." Thus, it is clear that cross objection is like an Appeal. It has
all the trappings of an Appeal. Even when the Appeal is withdrawn or is
dismissed, cross-objection can still be heard and determined.
behalf of the Respondents, reliance was placed upon the authority of this Court
in Municipal Corporation of Delhi and Ors.
vs. International Security and Intelligence Agency Ltd. reported in 2004 (3)
SCC 250, However, in our view this authority does not lay down any contrary
proposition . In the Judgment, it has also been held that right to prefer cross
objection partakes of the right to prefer an Appeal. It has been held that a
party may rest content by partial success with a view to giving a quietus to
if he finds that the other party is not interested in burying the hatchet, then
he may also like to exercise his right of Appeal which he may do by filing
cross objections. It has been held that the substantive right is the right of
Appeal and the form of cross objection is merely a matter of procedure.
cross objection is in the nature of an Appeal, the High Court was wrong in
holding that the cross-objection did not survive on the Appeal being withdrawn.
this view of the matter, we set aside the impugned Judgment and remit the cross
objections back to the High Court for disposal on merits. The Respondent,
herein will be entitled to take up all contentions in support of the Judgment
appealed against, even though he may have withdrawn his Appeal.
Appeal stands disposed of accordingly. There will be no order as to costs.