cross objection or cross appeal or support in whole
CASE I : DHEERAJ SINGH vs GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY & ORS. (6 different ppl filed 6 different appeals against GNIDA)
https://api.sci.gov.in/supremecourt/2018/30692/30692_2018_8_1502_44751_Judgement_04-Jul-2023.pdf
Special Leave Petition (Civil) No. 26491 of 2018 dt 4 july 2023
"12. Order 41 Rule 22, which is the governing law in the present case, elaborates on the remedies available to a respondent in the court of first appeal where an original decree has been challenged. An analysis of the said provision, in our opinion, is essential to adjudicate upon the present case.
13. In cases where the decree passed by the court of first instance is in favor of the respondent in whole, in such circumstance, no remedy exists in favour of the respondent to appeal such decree, since no right to appeal can be vested onto a party, which is successful.
14. However, in cases where the decree given by the court of first instance, is partly in favour of the respondent, but is also partly against the respondent, two remedies within Order 41 Rule 22 remain with the respondent, which are (i) To file their cross objections and, (ii) To support the decree in whole. A third remedy in law also exists, which is the right to file a cross appeal, which will also be discussed in brief.
15. In cases where the opposing party files a first appeal against part or whole of the original decree, and the respondent in the said first appeal, due to part or whole of the decree being in their favour, abstains from filing an appeal at the first instance, in such cases, to ensure that the respondent is also given a fair chance to be heard, he is given the right to file his cross objections within the appeal already so instituted by the other party, against not only the contentions raised by the other party, but also against part or whole of the decree passed by the court of first instance.
16. In a similar circumstance, where the other party in the first instance has preferred an appeal, apart from the remedy of cross objections, the respondent can also file a cross appeal within the limitation period so prescribed, which in essence is a separate appeal in itself, challenging part or whole of the original decree, independent of the appeal filed by the other party. The respondent also has the right to fully support the original decree passed by the lower court in full.
19. In the case of Santosh Hazari Vs. Purushottam Tiwari (Dead) by LRs. [(2001) 2 SC 407], this Court held that the court of appeal has a duty to apply its mind to all issues raised before it, and to discharge such duty, it must also record its findings against all such issues raised. For the sake of convenience, the relevant paragraph of the said judgment is being extracted herein: "The Appellate Court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law. the whole case is therein open for rehearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the Appellate Court. While reversing a finding of fact the Appellate Court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the First Appellate Court had discharged the duty expected of it."
20. In the case of Madhukar and Ors. Vs. Sangram and Ors. [(2001) 4 SCC 756], this Court, while reiterating the principles laid down in the Santosh Hazari Judgment (Supra), observed that the court of first appeal has a duty to record its findings qua all the issues raised before it, and in cases where the High Court fails to do the same, the matter must be remanded to the same court again for fresh adjudication.
21. Further, in the case of Jitendra Prasad Nayak Vs. Anant kumar Sah and Anr.[(1998) 9 SCC 383], this Court, in an identical circumstance wherein the cross objections filed by the appellant therein was not considered by the court of first appeal, held that remanded the case back to the High Court and observed as under: "....Admittedly, a cross-objection was filed by the appellant-landlord against the rejection by the first appellate court of the existence of one of the two grounds of eviction. However, while deciding the appeal of the respondent-tenant in his favour against the decision of the first appellate court on the other ground, the existance of the cross objection appears to have been missed by the High Court with the result that there is no decision given on the cross objection. The impugned judgment cannot, therefore, be sustained inter alia for this reason. We are also of the opinion that the question relating to existence of the ground of bona fide need which has been decided in favour of the tenant requires a fresh determination by the High Court along with the other point relating to default in payment of rent which was the subject mater of cross-objection......."
"
Case II Hari Shankar Rastogi vs Sham Manohar & Ors
DATE OF JUDGMENT: 16/03/2005
Civil Appeal 1787/2005
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 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:
(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." 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.
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14. Cross objection, whether necessary:
Order 41 Rule 22 (1) and 33 are quoted below-
"22. Upon hearing respondent may object to decree as if he had preferred 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 Appellate 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.
33. Power of Court of appeal.-
The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may where there have been decrees in crosssuits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.”
Cross objection is necessary only if some direction has been issued against the respondent or respondent wants to challenge the finding on the basis of which part relief has been granted to the plaintiff otherwise even without cross objection, finding against him may be challenged in appeal by the respondent.
In S. Nazeer Ahmad v. State Bank of Mysore AIR, 2007 SC 989 (para 7) suit was dismissed as barred by time but the issue of bar of O. 2 Rule 2 C.P.C. was decided in favour of plaintiff. Plaintiff filed appeal. It was held that the defendant respondent in the appeal could argue that the issue of bar of Order 2, Rule 2 was wrongly decided in favour of plaintiff appellant by the trial Court, without filing any cross objection.
However in Laxman T. Kankate v. T. H. Dhatrak AIR 2010 SC 3025 in a suit for specific performance of agreement for sale, relief of specific performance was disallowed and suit was decreed for return of earnest money. In appeal by plaintiff, respondent defendant sought to argue that the finding of the trial court that the agreement was genuine was erroneous and must be set aside. It was held that it could not be done in the absence of cross objection.
In M/s S.K.L. Co. v. Chief Commercial Officer, AIR 2016 SC 193 (para 2) it has been held that respondent cannot question in appeal a direction issued against him by the Court below without cross objection. Same principle applies to revision vide Nalakath. Sainuddin v. Koorikadan Sulaiman, AIR 2002 SC 2562.
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