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CASE NO.: Appeal (civil)  1787 of 2005

PETITIONER: Hari Shankar Rastogi

RESPONDENT: Sham Manohar & Ors

DATE OF JUDGMENT: 16/03/2005

BENCH: S. N. Variava & H. K. Sema

JUDGMENT: J U D G M E N T

[Arising out of S.L.P. (C) No.10396 of 2004]

S. N. VARIAVA, 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   By the impugned Judgment, it has been held that  as the Appeal has been withdrawn the cross objections emanating  from the Regular Second Appeal automatically cease to survive.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                 The question whether the cross objections are  maintainable, even when the Appeal has been withdrawn was  considered by this Court in Superintending Engineer and Ors. 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               (4)    Even where the appeal is withdrawn or is  dismissed for default, cross-objection may nevertheless be  heard and determined.

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               (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.                 On behalf of the Respondents, reliance was placed upon  the authority of this Court in Municipal Corporation of Delhi and  Ors. vs. International Security and Intelligence Agency Ltd.  reported  in 2004 (3) SCC 250,  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.                   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.                 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.                   The Appeal stands disposed of accordingly.      There will  be no order as to costs.