DIWAN CHAND Vs. CHANDAR SINGH

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 9. 02. 1987, passed by the learned Additional District Judge, No. 2, Jaipur City, Jaipur, in civil misc. application No. 34/84, in a civil regular appeal No. 163/1982.

(2.) BRIEF facts of the case are that the appeal has been submitted by the present non-petitioner. Present petitioner submitted cross- objection within time. Cross-objections were also heard and written arguments were submitted by the petitioner before the decision of the appeal. The court-below while dismissing the appeal of the present non-petitioner did not pass any order in relation to the cross-objections. Present petitioner moved an application before the court-below and submitted that the cross- objections have not been decided and they should be decided now. The application was rejected by the appellate-court on the ground that after the decision of the appeal cross-objections can not be decided afresh, as it will lead to the re-opening become final

(3.) CROSS-objections have been equated with cross-appeal for all practical purposes under Rule 22 of 0. 41 CPC. If two appeals are filed, one by the plaintiff and other by the defendant being aggrieved with the same judgment and decree ordinarily both the appeal should be heard simultaneously and should be disposed of with a common judgment and with common decree. However, if by mistake or in-advertent one-appeal has been decided and one appeal arising out of the same judgment and decree remains pending the party who has preferred the appeal will not be asked to suffer on account of the mistake committed by the court or by the advocate. Appeal is vested right and party who files an appeal can claim as of right that his appeal should be decided according to law though the appeal of the opposite party arising out of the same judgment and decree has been decided. This principle applies also equally with the same force in the matter of cross- objection. As soon as the cross objection is filed within time stipulated by the law and cross objections has been treated at per with cross-appeal the right of the person filing a cross-objection is just like a person filing a cross-appeal. There is no reason why it should not be treated as cross-appeal for all practical purpose. CROSS-objection gives a cause to the aggrieved party to get the matter adjudicated on the points decided against him. The party may choose whether he should file a cross-appeal or he should wait and file a cross-objection. If he chooses that he should wait and file a cross-objection then the cross-objection takes the shape of cross-appeal under Rule 22 0. 41 of the CPC. In the case of Kishna Gopal Vs. Haji Mohd. Muslim and Ors. (Supra) Hon'ble Chief Justice Dua, has also held that the cross-objection is to be heard as a general rule, the Court is expected to dispose of both the appeals and the cross-objection together by one judgment and the decision should be incorporated in one decree. If it is so then the question arises if the court commits mistake whether the party should be punished for no fault. In the instant case, the petitioner was cautious enough and submitted the written statement also as stated by Mr. Maloo, learned counsel for the petitioner. Even otherwise, it is a mistake of the court and the party cannot be punished for the mistake of the court. Explanation has been added in CPC vide amending Act. 1976. The respondent files a cross-objection and the cross-objection is pleaded like an appeal and prayer is made in the cross-objection that after hearing both the parties the points or the issues or part of the decree which has been decided against the respondent should be set-aside, and the relief should be granted to the respondent. Thus, just like an appeal prayer is made in the cross-objection that the person filing cross- objections should be given an additional relief which has been rejected by the court-below. Where an appeal has been disposed of on the merits and the cross-objections have by sheer inadvertence remain to be decided it cannot be legitimately having regard to the language of Rule 22 of O. 41, CPC that cross-objections do not survive, that would be more so where the mistake on account of which the cross-objection which should be decided in that court.