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Chanchalgauri Ramanlal and ors. Vs. Narendrakumar Chandulal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported inAIR1986Guj55; (1985)1GLR359
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rule 22
AppellantChanchalgauri Ramanlal and ors.
RespondentNarendrakumar Chandulal and ors.
Appellant Advocate Sharad D. Shah, Adv.
Respondent Advocate M.B. Gandhi, Adv.
Cases ReferredP. H. Choudhary v. Altaf Ahmed
Excerpt:
.....in appeal dismissed - any person aggrieved by decree of court of first instance has right to file appeal against decree and also has additional right under order 41 rule 22 of filing cross-objections to decree - appeal can be filed independently within specified time - appeal not filed within specified time with no reasonable cause for excusing delay - appeal cannot be maintained - held, in present case cross objections cannot be considered on merits and have to be dismissed. - - 1. a simple but interesting question arises for decision in this appeal. but it would be a different case where the respondent who had failed to file an appeal challenging any part of the decree seeks to file a cross-objection in an appeal which is time barred. may be that the court may excuse the..........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 decision of the suit, the decree, is, wholly or in part, in favour of that respondent. form of objection and provisions applicable thereto - (2) 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 acknowledgment from the party who may be affected by such objection or his pleader of having received a, copy.....
Judgment:

P.S. Poti, C.J.

1. A simple but interesting question arises for decision in this appeal. The controversy concerns the maintainability of a cross- objection in an appeal, which is found to be not maintainable in law. Though cases have arisen where the controversy concerned the maintainability of a cross-objection in an appeal dismissed for non-payment of sufficient Court-fee or in an appeal filed out of time, a case such as the one before us has no precedent in law. The case here is one where an appeal in which the cross-objection was filed was obviously not maintainable in law and the appellants, accordingly, did not press the appeal. The appeal arose out of a suit for permanent injunction restraining the defendants from selling, transferring or dealing with suit plot, which, according to them was co-ownership property. The suit was dismissed for non-joinder of necessary parties. The defendants had, therefore, necessarily no Cause for grievance as there was no decree against them and they could not have filed an appeal Nevertheless they filed an appeal and it is W that appeal that the plaintiff chose to file a cross- objection. The cross-objection was not entertained by the appellate Court on the ground that since the appeal itself did not lie in Law in the absence of a decree against the defendants, in such an appeal no cross-objection would lie. It was not a case either of dismissal of appeal for default or withdrawal of the appeal. Could, under such circumstances the cross-objections be dealt with on the merits by the Court is the question that we are called upon to decide in this appeal.

2. Order 41, Rule 22 of the Code of Civil Procedure deals with cross-objection that a respondent may file. That rule reads:

'22(l) 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 6,8 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 decision of the suit, the decree, is, wholly or in part, in favour of that respondent.

Form of objection and provisions applicable thereto -

(2) 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 acknowledgment from the party who may be affected by such objection or his pleader of having received a, copy thereof, the Appellant 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.

(5) The provisions relating to pauper appeals shall so far as they can be made applicable, apply to an objection under this rule'.

Sub-rule (4) of this particularly specifies that a withdrawal of an appeal or dismissal of an appeal for default should be of no consequence to the maintainability of the cross- objections. If it were otherwise, the appellant may be withdrawing the appeal or permitting it to be dismissed for default and cause injury to the respondent who would have, on the strength of the fact that the appellant had filed an appeal, though it is not necessary to file an independent appeal and could have filed only a cross-objection in the appeal. But it would be a different case where the respondent who had failed to file an appeal challenging any part of the decree seeks to file a cross-objection in an appeal which is time barred. May be that the Court may excuse the delay in filing the appeal in which event the appeal is entertained and his cross-objection would then be good but if the delay is not excused and the appeal does not come on file, the cross-objection must fail.

3. By the provision in sub- rule (4) of Order 41, Rule 22, the party who files a cross-objection is sought to be saved in the event of a voluntary act on the part of the appellant which may normally have the consequence of rendering the cross-objection irrelevant if provision is not made therefore in the rule. But the position is different when, to the knowledge of the respondent who seeks to file an objection, there is no proceeding valid in law, no appeal maintainable and in such a case it would be as if there is no appeal at all before the Court and the cross-objection is not filed in accordance with Order 4 1, Rule 22.

4. To illustrate by another instance, where a person who is not a party to a suit files an appeal without leave of Court against a decree, that would not be an appeal maintainable in law and naturally, therefore, no party who wants to object to any decree or any part of decree could file cross-objection in such appeal. May be that a party who files an appeal has no decree against him which could be challenged in the appeal and, therefore, in law, no relief can be obtained by him in the appeal. In such case also, there is no validly instituted appeal. We need not multiply instances. Suffice to say that if an appeal does not lie and such an appeal has been filed, any cross-objection in such an appeal does not call for adjudication on the merits. If there is a properly instituted appeal which is entertainable by a Court and is entertained by the Court, the cross-objection filed therein would be as good as an appeal against a decree and that will have to be disposed of on the merits even in cases where the appellant thereafter seeks to withdraw the appeal or the appeal is dismissed for default.

5. The view that we have expressed here has been expressed by several High Courts, though earlier a contrary view seems to have been indicated in some decisions to which also we will advert.

6. The case before the Bombay High Court in Kashiram Senu Chaudhuri v. Ranglal Motilalshet Marwadi AIR 1941 Bom 242, was one where an appeal was dismissed for nonpayment of court-fees. The question arose whether that would be a case where the cross-objection could nevertheless survive. Beaumont, C. J. speaking for the Division Bench took the view that if an appeal is rejected for non-payment of court-fees, cross-objection must fail with the appeal. Evidently the Courts view was that the cross- objection under Order 41, Rule 22 was a method by which the respondent himself may complain against a decree appealed from but the right to lodge the cross-objection is only given to a respondent on an appeal and if the appeal is rejected, there can be no respondent and no cross- objection. The Court also referred to the view expressed by the Madras High Court in : AIR1931Mad133 and disagreed with the view that rejection of the memorandum of appeal for non-payment of court-fee amounted to dismissal for default.

7. This question arose again before the Bombay High Court in Charity Commissioner v. Padmavati, : AIR1956Bom86 . That was a case where the appeal was time-barred and the Court had to decide whether the crow objections filed in such appeal survived. Chief Justice Chagla speaking for the Bench expressed the view that the cross-objection cannot survive when once the appeal is found to be time-barred.

8. In the case before the Calcutta High Court in M/s. Malhati Tea Syndicate Limited v. Revenue Officer, Jalpaiguri : AIR1973Cal78 , company, despite its change of name, filed an appeal, in its original name. The question whether it could be treated as an appeal by the company in its true name was the main question which arose for decision there. It was found that the appeal was not maintainable and along with the death of the appeal, the cross-objections would also die. This view was followed by the High Court of Himachal Pradesh in Ram Chand v. Smt. Ramku . A reference was made therein to the earlier cases and approving the view expressed by the Bombay High Court and the Allahabad High Court the Court held that the cross-objections were not maintainable when once the appeals were held to be incompetent. The appeals were so found to be incompetent because the appellants were not aggrieved with the order under appeal and as such there was no scope for the appellants to file such appeals, a position similar to the one which we have here. The view expressed by the Bombay High Court in AIR 1941 Born 242 that a dismissal of an appeal for non-payment of court-fees is the rejection of an appeal not falling within Order 41, Rule 22(4) was same as the view later expressed by the Allahabad High Court in C. P. Mehra v. Smt. K. K Mehra : AIR1959All167 . The Court noticed that rejection of an appeal for non- payment of court-fees is not one of the grounds contemplated in Order 41, Rule 22(4), viz. dismissal for default and withdrawal of appeal and, therefore the cross-objections would not be saved under such circumstances.

9. What would happen if an appeal in which the respondent has filed a cross-objection abates for reason of failure of the appellant to implead the legal representatives of party in time? It is possible that in. such a case the respondent also might have failed to bring the legal representatives on the party array in time or it may be that the respondent may have brought the legal representatives on the party array but the appellant has failed to do so with the result that the appeal abates We should assume that this should be the extreme case; but even such a case, the High Court of Bombay and the High Court of Andhra Pradesh have held that the cross-objections would not be maintainable We need not be taken to have expressed our agreement with this view its we have not concerned ourselves with this aspect. We are referring to this only to show that even in such an instance the Bombay High Court in Abdullamiya Hamdumiya v. Mohomedmiya Gulamhuse in AIR 1949 Bom 276 and the Andhra Pradesh High Court in P. H. Choudhary v. Altaf Ahmed, : AIR1963AP382 went to the extent of holding that when once the appeal has abated the cross-objection cannot be heard and determined.

10. It may be necessary to advert to the view expressed in the earlier cases in view of the recent decisions to which we have referred We do not think that the request to treat the cross-objections as an independent appeal should succeed. Any person aggrieved by the decree of a Court of first instance has the right to file the appeal against the decree and has also an additional right conferred under Order 41, Rule 22 of filing cross-objections to the decree. One need not wait for filing cross-objections. He can independently file an appeal if he is aggrieved in which case he has to file such appeal within a specified time. If it is not so filed and there is no reasonable cause for excusing delay, whatever case he may have on the merits, he will lose. But he may choose to file a cross-objection which is an additional right conferred by the Code of Civil Procedure. The time within which he could file a cross-objection is not related to the time within which he could file an appeal, for; the former depends on the filing of appeal by the other side. He has to file the cross-objections within the time specified in Order 41, Rule 22 which is evidently dependent on the notice on the appeal filed by the other party. In such a case, normally he gets an extended time. He then has no obligation to file a copy of the decree which is an obligation of the person who files an appeal. In the case of cross-objections that would be competent because the decree is on the file in the appeal and by a rule of procedure the right is conferred on the respondent to file cross-objections, which would be an appeal for all practical purposes. But, this is not to say that a cross-objection is an appeal. It is not possible to say that a cross-objection can automatically be converted into an appeal, and there is no question of such conversion arising in this case.

11. In these circumstances, we agree with the learned single Judge that the cross-objections cannot be considered on the merits and have to be dismissed.

12. Hence we dismiss the appeal, but there will be no order as to costs. Rule in Civil Application No. 410 of 1982 is discharged.

13. Appeal dismissed.


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