HARI SHANKAR RASTOGI versus SHRI SHAM MANOHAR AND ORS.

Citation: [2005] 2 S.C.R. 950 · Decided: 16-03-2005 · Supreme Court of India · Bench: S.N. VARIAVA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
HARi SHANK.AR RASTOGI 
v .. 
SHRI SHAM MANOHAR AND ORS. 
MARCH 16, 2005 
B 
[S.N .. VARIA VA AND H.K. SEMA, JJ.] 
Code of Civil Procedure, I 908 : 
Order 41, Rules I and 22-Cross-objection in second appeal-Appeal 
C withdrawn-Status of cross-objection-Held, a cross-objection is in the nature 
of an appeal-Even if the appeal is withdrawn or dismissed, cross-objection 
can be heard and determined. 
. 
. 
.~-
Respondent filed a second appeal in the High Court. Appellant filed 
D cross-objections in that appeal. Later, the respondent withdrew the appeal. 
E 
The High Court dismissed the cross-objections holding that on the appeal 
being withdrawn, the cross-objection did not survive. Aggrieved, the 
appellant filed the present appeal . 
. Allowing the appeal, the Court 
HELD : A cross-objection is in the nature of an appeal. Even when 
the appeal is withdrawn or is dismissed, cross-objection can still be heard 
and determined. The High Court was wrong in holding that the cross-
objection did not survive on the appeal being withdrawn. [952-D-G] 
F 
Superintending Engineer and Ors. v. B. Subba Reddy, [1999) 4 SCC 
423, relied on. 
Municipal Corporation of Delhi and Ors. v. International Security and 
Intelligence Agency ltd, [2004) 3 SCC 250, referred to. 
G 
CIVIL AP PELLA TE JURISDICTION : Civil Appeal No. 1787 of 2005. 
H 
From the Judgment and Order dated 22.1.2004 of the Delhi High Court 
in R.S.A.No. 157 of 2001. 
950 
-
H.S. RASTOGI v. S. MANOHAR [VARI;\ VA • .I.] 
951 
Mohit Khanna and M.K. Dua for the Appellant. 
Suresh Chandra Tripathy for t~e Respondents. 
The Judgment of the Court was delivered by 
S.N. V ARIA VA, J. Leave granted. 
Heard parties. 
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impugned Judgment, it has been held that as the Appeal has been withdrawn 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 ci:oss objections emanating from the Regular Second Appeal automatically 
cease to survive. On this reasoning, the cross objection has been dismissed. 
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 Reddy, reported in [1999] 4 SCC 423. After 
considering various Judgments, it was held as follows : -
A 
B 
C, 
D 
"From the examination of these judgments and the provisions of E 
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. 
p 
(2) Cross-objection is like an appeal. It has all the trappings of an 
appeal. It is filed in the fonn of memorandum and the provisions of 
Rule I of Order 41 of the Code, so far as these relate to the fonn and 
contents of the memorandum of appeal apply to cross-objection as 
well. 
G 
(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, H 
·' 
A 
B 
c 
D 
952 
SUPREME COURT REPORTS 
[2005] 2 S.C.R. 
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 nothfog 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. Ev

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