My understanding of Order XLI Rule 22 CPC

My understanding of Order XLI  Rule 22 CPC

1. Under sub-rule 1 of Order XLI Rule 22 CPC a respondent may,  not only support the decree (which is wholly in his favour) but also may assail any (adverse) finding against him without filing any appeal or cross- objection.  As per the said provision, a respondent can also assail any part of the decree either by filing a separate appeal or by filing a memorandum of cross-objection. The words “respondent may object to decree as if he had preferred separate appeal”  occurring in the heading of Rule 22 of Order XLI, themselves indicate the purport of the said provision.  Where the respondent chooses to file a separate appeal against any adverse portion of the decree, the period of limitation starts running from the date of such decree.  But, if he chooses to file a cross-objection against the adverse portion of the decree, the law (the aforesaid provision) gives him the advantage of filing such cross-objection within one month of the date of service on him the notice intimating the hearing date of the main appeal or within such further time as the appellate court may deem fit to allow. In that event, the period of limitation does not run from the date of the impugned decree but from the date of service of the notice of hearing of the main appeal.  In such a case the cross-objecting respondent need not produce the decree and this is presumably because the decree is already before the appellate court in the main appeal. Now, after the insertion of the “Explanation” to Order XLI Rule 22(1) CPC with affect from 01-02-1977 onwards a respondent feeling aggrieved by any adverse  finding against him is also permitted to file a cross-objection which is really not against any portion of the decree that is appealed against in the main appeal. (Vide Hardevinder Singh v/s Paramjit Singh and Others – (2013) 9 SCC 261 = 2013 KHC 4017)

2. Thus, we have two species of cross-objections - one which do not assail any portion of the decree but merely assail an adverse finding, and the other which assail the adverse portion of the decree as well. It is this last category of cross-objections which can strictly be called a “cross – objection” having all the characteristics of a regular appeal.  The former category of cross – objection which merely assail an adverse finding, cannot be strictly called a “cross-objection”.  That is why it has been held in Peethambara Panicker v/s Pratheep Kumar – 2013 KHC 3685 = 2013 (4) KLT 716 that if the cross-objection is against any part of the decree, the cross-objector may have to pay court fee as required by law, whereas, if the cross-objection is only against a finding, it is not necessary for the cross– objector to pay ad-valorem court fee and he need only pay petition fee as provided under Schedule II, Article 11(t) of the Kerala Court Fees and Suits Valuation Act, 1959.    The nature and scope of “cross-objection” as enunciated  in Superintending Engineer and Others v/s B. Subba Reddy – AIR 1999 SC 1747 have to be understood only with reference to that category of cross-objections which assail a part of the decree appealed from in the main appeal.  The observations of the Supreme Court in that decision cannot obviously apply to cross-objections which merely assail an adverse finding.  If so, the cross-objections which are filed against any part of the decree require admission under Order XLI Rule 11 CPC and such cross-objections which are filed in second appeals (RSAs) can be admitted only if the High Court is satisfied that the cross-objections involve a “substantial question of law” as enjoined by Section 100 read with Order XLII Rule 2 CPC.  But a cross-objection filed merely against any adverse finding and which does not assail any part of the decree, does not require any admission under Order XLI Rule 11 CPC.

3. Division Bench of the Kerala High Court to which the author of this article was also a party, had occasion to take judicial notice of the above distinction, while commenting upon the practice followed by the Registry of the High Court. This is what the Division Bench observed impromptu on 21-12-2012:-

“There appears to be some confusion in the Appeal Section as to whether payment of full court fee should be insisted when cross-objections are filed.

     Strictly speaking, a cross-objection filed under Order XLI Rule 22 C.P.C.  cannot be treated as an appeal since a cross-objection is invariably filed assailing an adverse finding recorded by the lower court against the cross-objector.     Those are all cases where the decree passed by the lower court may be wholly in favour of the cross-objector and he only seeks to challenge an adverse finding made against him.  Since such an adverse finding cannot constitute a decree, an appeal against such finding will not lie under Sec. 96 read with Order XLI Rule 1 C.P.C.  But,  there may be very rare cases where a cross-objection is filed not only challenging an adverse finding but also a portion of the decree which is the direct result of such adverse finding.  It is only in such rare cases that such cross-objections could be treated as a separate appeal.  Barring such rare cases, cross-objections cannot be treated as appeals so as to warrant a hearing for admission under Order XLI Rule 11 CPC. Hence, all those cross-objections will have to be filed after paying the full court fee.   However, there seems to be in vogue a practice (which is strictly not in accordance with law) of posting cross-objections   for admission.  If such a practice is in existence,  it may not be discontinued and the cross-objectors can be permitted to pay 1/3 of the court fee at the time of filing and balance court fee   shall  be allowed  be  paid thereafter.

                                                                                                     Sd/-  V. Ramkumar, Judge

  21-2-2012                   

                                                                                                     Sd/-  K. Harilal, Judge”

The order  passed by the  Division Bench has to be understood in the above  perspective although the latter part of the same does not appear to be happily worded.   The payment of  full court fee on the Cross-Objections  and posting  the same for hearing on admission will have to be limited to  those Cross-Objections  in which a  portion of the decree is challenged.    The office Circular No.1 of 2003 dated 16-06-2003 issued by D1(A) Section of the High Court of Kerala directing all cross-objections filed in First appeals, Second Appeals,  MFAs etc.  to be treated as the main case,  also does not appear to be legal or proper.  Those cross-objections will have to be confined only to regular cross-objections in which  a portion of the decree has been assailed.

Justice V.Ramkumar is a Former Judge, High Court of Kerala and  Chairman, Advisory Board, Kerala Anti-social Activities Prevention  Act