SUPREME COURT OF INDIA
Hari Shankar Rastogi
Vs.
Sham Manohar
C.A.No.1787 of 2005
(S.N.Variava and H.K.Sema JJ.)
16.03.2005
S. N. Variava, J.
1. Leave granted.
2. Heard parties.
3. This 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it has been held that as the Appeal has been withdrawn the cross objections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.
4. The 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Appeal has been withdrawn was considered by this Court in Superintending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 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:
(1) Appeal is a substantive right. It is a creation of the statute. Right to
appeal does not exist unless it is specifically conferred.
(2) 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.
(3) 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
cross-objection.
(4) Even where the appeal is withdrawn or is dismissed for default,
cross-objection may nevertheless be heard and determined.
(5) 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.
(6) 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."
5. 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.
6. On 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 , 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 the litigation.
7. However, 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.
8. As a 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.
9. In 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.
10. The Appeal stands disposed of accordingly. There will be no order as to
costs.