RANJITSINGH S O KIRATSINGH BAGHELE Vs. SHAMABAI

JUDGEMENT

(1.) Whether cross-objections under Order 41, Rule 22 Civil Procedure Code are maintainable in respect of appeals filed under section 28 of the Hindu Marriage Act is a point of law raised in the present second appeal.

(2.) The answer to this question principally depends upon the combined reading of sections 21 and 28 of the Act. Contention of one side is that right to appeal as well as to file cross-objections are both substantive rights and as the Act specifically provides for appeals, and not for cross-objections, provisions contained in section 21 do not spell out such right. The other side contends that both cannot be equated. Right to file cross-objections is merely procedural and as procedure regulating the appeal under section 28 is not separately provided for and section 21 makes C.P. Code applicable to the proceedings under the Act, Order 41, Rule 22 Civil Procedure Code is attracted. In my judgment, the answer to this question has to be in favour of maintainability of cross-objections for the reasons that follow.

(3.) New section 28 does not provide for any special procedure governing the appeals. The only relevant section dealing with procedure is section 21. It makes Civil Procedure Code applicable to the proceedings under the Act "subject to the other provisions" and "as far as may be". Read together these expressions mean that all provisions of Civil Procedure Code which are neither inconsistent nor contrary to the provisions of the Act shall apply, subject to the matters specifically provided for. This takes me to the point whether cross-objections can be placed at par with appeals. Right to appeal has always been considered substantive right. Even under Civil Procedure Code the provisions regarding first appeals are contained in section 96, but no specific section deals with cross-objections. Order 41 of the Civil Procedure Code deals with procedure governing the appeals under section 96. Order 41, Rule 9 and onward rules are consolidated under the heading "procedure on admission of appeal". By the very nature of things, the right to file cross-objection does not arise independently by arises only if appeal is filed. Thus there is nothing like cross-objection de hors of appeal. Order 41, Rule 22 gives a second chance to the respondent on certain conditions to challenge the adverse findings in the event of his opponent choosing to challenge the matters held against him. Thus, it is obvious that both stand on a different footing and cannot be equated.