Supreme Court of India
HARI SHANKAR RASTOGI versus SHRI SHAM MANOHAR AND ORS.
- Decided
- 16 March 2005
- Judges listed
- S.N. VARIAVA
- Disposal
- Appeal(s) allowed
Citations
- Official
- [2005] 2 S.C.R. 950 · 2005 INSC 151
- Also cited as
- (2005) 3 SCC 761
Learned from how other judgments cite this one, in their text or in the official Supreme Court Reports' lists of cases they refer to: each is cited this way by at least two judgments, and at least twice as often as any other citation to this judgment in that report. We hold no commercial reporter's text, only these citation strings.
Cited by
We found no other Supreme Court judgment we hold that cites this one.
Counted only in the Supreme Court judgments we hold whose text we could read, not in High Court judgments. We match each citation to a judgment automatically, so a citation we cannot match is not counted. "Cited" says only that a judgment refers to this one, not whether it followed, distinguished or overruled it.
The Court's text
Paragraphs from our copy of the Supreme Court Reports print, with the Court's own paragraph numbers, the printed page and, where printed, the margin letter. The Court did not number this judgment's paragraphs, so they are listed by page. Link to paragraph N with #para-N.
S.N. V ARIA VA, J. Leave granted. Heard parties.
p. 951, margin B
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 By the impugned Judgment, it has been held that as the Appeal has been withdrawn the ci:oss objections emanating from the Regular Second Appeal automatically cease to survive.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.
p. 951, margin B
The question whether the cross objections are maintainable, even when the Appeal has been withdrawn was considered by this Court in Superintending Engineer and Ors.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 : -
p. 951, margin D
"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 :
p. 951, margin E
( 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. 951, margin E
(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.
p. 951, margin E
(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.
p. 951, margin G
(4) Even where the appeal is withdrawn or is dismissed for default, cross-objection may nevertheless be heard and determined.
pp. 951–952, margin H
(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.
p. 952, margin A
(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
p. 952, margin B
if he still felt aggrieved by the judgment and decree or order."
p. 952, margin C
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.
p. 952, margin D
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, reported in [2004] 3 SCC 250, However, in our view this au~1ity does not lay down any contrary proposition . In the Judgment, it has alJo 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 fonn of cross objection is merely a matter of procedure.
p. 952, margin E
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.
p. 952, margin G
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 A the Judgment appealed against, even though he may have withdrawr. his Appeal.
pp. 952–953, margin G
The Al'peal stands disposed of accordingly. There will be no order as to costs. R.P. Appeal allowed.
p. 953