Hari Shankar Rastogi Vs. Sham Manohar & Ors.
EmailAppeal: Civil Appeal No. 1787 of 2005
(Arising out of S.L.P. (C) No.10396 of 2004)
(From the Judgment and Order dated 22.1.2004 of the Delhi High Court in R.S.A. No. 157 of 2001)
(Arising out of S.L.P. (C) No.10396 of 2004)
(From the Judgment and Order dated 22.1.2004 of the Delhi High Court in R.S.A. No. 157 of 2001)
Petitioner: Hari Shankar Rastogi
Respondent: Sham Manohar & Ors.
Apeal: Civil Appeal No. 1787 of 2005
(Arising out of S.L.P. (C) No.10396 of 2004)
(From the Judgment and Order dated 22.1.2004 of the Delhi High Court in R.S.A. No. 157 of 2001)
(Arising out of S.L.P. (C) No.10396 of 2004)
(From the Judgment and Order dated 22.1.2004 of the Delhi High Court in R.S.A. No. 157 of 2001)
Judges: S.N. VARIAVA & H. K. SEMA, JJ.
Date of Judgment: Mar 16, 2005
Appearances:
Mr. Mohit Khanna and Mr. M.K. Dua, Advocates for the Appellant.
Mr. Suresh Chandra Tripathy, Advocate for the Respondents.
Mr. Suresh Chandra Tripathy, Advocate for the Respondents.
Head Note:
PRACTICE & PROCEDURE
Appeals – Second appeal – Withdrawal of the appeal – Effect – Whether the cross objections emanating therefrom automatically cease to survive. Held a cross objection is like an appeal and has all the trappings of an appeal. Even where the appeal is withdrawn or is dismissed the cross objection can still be heard and determined. High Court therefore erred in holding that the cross objection does not survive upon withdrawal of the appeal. (Paras 5, 6 & 7)
Appeals – Second appeal – Withdrawal of the appeal – Effect – Whether the cross objections emanating therefrom automatically cease to survive. Held a cross objection is like an appeal and has all the trappings of an appeal. Even where the appeal is withdrawn or is dismissed the cross objection can still be heard and determined. High Court therefore erred in holding that the cross objection does not survive upon withdrawal of the appeal. (Paras 5, 6 & 7)
Cases Reffered:
1. Municipal Corporation of Delhi and Ors. v. International Security and Intelligence Agency Ltd. (JT 2003 (2) SC 103) (Para 6)
2. Superintending Engineer and Ors. v. B. Subba Reddy ( JT 1999 (3) SC 311) (Para 4)
2. Superintending Engineer and Ors. v. B. Subba Reddy ( JT 1999 (3) SC 311) (Para 4)
JUDGEMENT:
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. v. B. Subba Reddy1. 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. v. International Security and Intelligence Agency Ltd.1, 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. 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.
7. 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.
8. 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.
9. The appeal stands disposed of accordingly. There will be no order as to costs.
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. v. B. Subba Reddy1. 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. v. International Security and Intelligence Agency Ltd.1, 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. 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.
7. 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.
8. 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.
9. The appeal stands disposed of accordingly. There will be no order as to costs.
