OUTLINE

By : Urvi Agarwal

Cross-objection

Order 42 Rule 22
The provisions laid down Order 42 Rule 22 in the Code of Civil Procedure, 1908, {herein
forth CPC} govern cross-Objections. A respondent files a cross-objection if he chooses not to
file an appeal or he has missed the limitation for filing the appeal.
Who files it and when?
It is filed by the respondent against the appellant {and in exceptional cases co-respondents}
in an appeal filed by the appellant against the respondent. Hence, for a cross-objection to
arise there needs to be the existence of an appeal.

Cross-objections are NOT allowed against a person who is not a party to the appeal as the
principle that no decision can be made against a person who is not a party to the proceeding
applies.
Obligatory or Mandatory?
It is a special provision which is optional. It is a permissive and enabling provision and not a
peremptory or obligatory one.
When is a cross-appeal considered a cross-objection?
An appeal filed beyond the period of limitation may be treated as a cross-objection under
Order 42 Rule 22.

Limitation Period
Limitation period of a Cross Objection

= 1 month from the date of service on the

respondent/pleader from the date fixed for hearing of the appeal

Appellate Court may at its discretion extend the period within which cross-objection
can be filed if a sufficient cause for the delay is shown.

Written by: Urvi Agarwal

Ambit and Scope

1) Original Appeal -

Withdrawn or Dismissed for Default -

Cross Objection
will be heard and
decided on merits

Where the respondent has filed cross-objections, even if the original appeal is withdrawn or
dismissed for default, they will be heard and decided on merits. The reason for this is as the
original appeal is withdrawn not due to lacking merit or by the virtue of being frivolous but
due to default such as the appellant not turning up to Court.

2) Appeal

- Dismissed for: -

Cross- Objection
1) Time-barred

cannot be

2) Abated

maintained

3) Not maintainable

Where the appeal is dismissed as time-barred, or has abated, or is held to be not maintainable,
the cross-objections cannot be heard on merits as they are contingent and dependent upon the
hearings of the appeal. Conversely, here the original appeal has lost its merit due to being
time-barred, abated, or not maintainable and hence the cross-objection also loses ground to
enter.

Strategic Importance of Cross-Objections & the difference between Cross Objections &
Cross-Appeals:
It is used as a strategic tool in appellate litigation to buy time. But, it is not averse to risk.

Timeline
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Written by: Urvi Agarwal

Date:
X

- N = Limitation Period-
30days

Service
Y days

Date of
Appeal
Date of
decree

Date of
Servic

Cross
Objectio

Therefore, looking at the timeline above, one can not only understand not only the strategic
importance of cross objections but also the difference between cross-appeals & crossobjections.

X = Date decree is passed

N = Limitation period for filing an appeal after the decree is passed
Y = Number of days gone in service to respondants after date of appeal
30 days = Limitation period for cross objection after service is completed and appeal is filed
Hence, from the timeline one can deduce that : Appeal = N days
Cross Objection = N + Y + 30 days

Written by: Urvi Agarwal

Therefore, cross-appeal and cross objection have different remedies for the same purpose.
Cross-objection needs the crutch of an appeal filed by the opposite party. Its existence is
contingent on the filing of an appeal. Cross-objections are a parasitic device that latch on to
the appeal filed by the other side to make an entry into the arena of judicial ball game. They
are a useful tool in appellant jurisdiction and provide the respondent with the benefit of time.
The flipside of this is that they do not come without risk.

Jurisdiction
Appeal

Cross Appeal

Cross-Objection latches onto the

appeal as a parasitic tool to enter
the judicial domain

In a nutshell, the concept of cross-objection can be understood as envisaged

and laid out in the judgment, Superintending & Co. & Ors. v. B. Subba Reddy ( AIR 1999
SC 1747). These are the key features of a cross-objection : -

(1) Appeal is a substantive right. It is a creation of the statute. Right to appeal does not
exist unless it is specifically conferred.
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Written by: Urvi Agarwal

(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 appeals by 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.
(5) Respondent even though he has not appealed may support the decree on any other
ground but if 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 quietus to whole litigation by his accepting the judgment
and decree or order even if it was partly against his interest. When, however, the
other party challenged the same by filing an appeal 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.

Second Appeal
The right to appeal is not a natural or inherent right attached to litigation. It does not
exist unless expressly conferred by a statute.
Second Appeal

Written by: Urvi Agarwal

S.100 of the CPC confers the right to appeal at the High Court to an aggrieved party
as long as certain conditions are met. This appeal submitted to the High Court is
called the Second Appeal.
S. 108 of the CPC governs the procedural aspect of the Second Appeal.

Key Features
1) The second appeal is on a substantial question of law between the two parties. The
question should be pivotal in determining the outcome of the case.
2) The memorandum of appeal filed by the appellant should state the substantial
question of law involved.
3) If the High Court is satisfied that a substantial question of law exists it shall
formulate such question.
4) If the High Court does not frame a substantial question of law and goes ahead and
passes a judgment then the judgment is vitiated due to lack of jurisdiction.
5) Post the formulation of such question, the appeal is heard on this question so
formulated and the respondent shall be allowed to argue that the case does not involve
such question.
6) The proviso of S.100 is in the form of a saving clause that bestows the High with
discretion to hear the appeal on any other question of law (not been formulated by it)
provided the High Court records its reason for doing so.

Substantial Question of Law

The key reason to for restricting the ambit of adjudication to a substantial question of law
in the Second Appeal is to prevent a third trial of facts and prevent giving the litigants
another opportunity of playing one more dice in the gamble.

There is no straightjacket formula to determine the substantial question of law.

Some guidelines to create a minimum threshold for a substantial question of law are
listed below:

Written by: Urvi Agarwal

1) It should directly and substantially affects the rights of the parties.
2) A principle of law that is already settled by the Supreme Court and requires mere
application does not qualify as a substantial question of law. The substantial question
of law should be debatable and have no binding precedent on it.
3) There can be a substantial question of law related to a question of fact if it leads to a
question of law.
Examples:
Lease or License
Whether a document is a lease or license Nomenclature is not of importance but
the Court needs to examine the form of the document.
Burden of Proof
If the burden of proof was on placed on the wrong party.
Hearsay
If the outcome of a suit was based on hearsay evidence.
Witness
If a crucial witness was not allowed to give evidence during the pendency of trial.
Duty of the Appellant: It is the duty of the appellant to precisely state the substantial
question of law in the memorandum of appeal involved in the appeal.

S.102 of the CPC states that cases involving the subject matter below Rs. 25,000 cannot be
appealed under S.100 of the CPC.

Appeals to the Supreme Court

S.109 of the CPC is the governing provision regarding appeals to the Supreme Court. This
provision is subject to Chapter IV of Part V of the Constitution
.
There are twin guidelines regarding appeals that lie in the Supreme Court :
1) The substantial question of law arising in the appeal should be a question of general
importance.
2) This question requires a grant of certificate from the High Court in order to reach
the Supreme Court.

Written by: Urvi Agarwal

The High Court may or may not grant the certificate to the question. The High Courts are
careful in granting certification for appeal in the Supreme Court to prevent overcrowding
of cases at the Supreme Court.
If the High Court does not grant certificate, the appellant can chose to file a special leave
petition {herein forth, SLP} to the Supreme Court under Article 136 of the Constitution.
If the special leave petition gets admitted after the admissions stage it transforms from an
SLP to an appeal.

Appealable Orders

Appealable orders are those orders which can be appealed during the pendency of the appeal.
Hence, these appeals are interlocutory.
S.104, 105 and S.106 of the CPC govern appeals from order.

All orders do not have the luxury of appeals only the orders listed in Order 43 Rule 1 are
appealable.

S.106 of CPC lays down the principle that an appealable order is appealed at the same Court
where the decree of the suit would be appealed.

S.104 (2) of CPC says that there are no second appeals in the case of orders. Hence, since
there are no second appeals, if a point is lost in the appeal, it is lost forever. Hence the
advantage decrees have over orders is that they have the opportunity to appeal again in the
form of second appeal.

If the decree is at a stage where it would be appealed in the High Court in the form of a
second appeal, at this stage if an order is appealed for the first time it would also go to the
High Court on application of S.106 of the CPC.

Written by: Urvi Agarwal

Litigants appeal from order as a strategic device to waste time and cause delay.

REFERENCE
S.113
Section 113 of the CPC empowers a lower court to seek the opinion of the High Court it is
subordinate to if a doubt regarding a question of law has arisen during the process of
adjudicating upon a particular case.

The High Court may make such order thereon as it thinks fit.

S.113 of the CPC requires that the question of law that the lower Court sends to the High
Court should be regarding the validity of an Act, Ordinance or Regulation or provision.

While submitting their doubt regarding a question of law to the High Court, the lower
Court is suppose to chalk out the facts of the case with their own opinion on the question
of law.

Order 46 Rule 1
Order 42 Rule 1 provides for another form of reference for suits or appeals whose
decrees are not subject to an appeal.
It is regarding any question of law. It is not limited by the contours drafted in S.113.
The Court needs to entertain a reasonable doubt regarding a question of law to send a
reference under this Order.
Reference under this order can be sent suo motto by the Court in question or on
application on any of the parties. The option of allowing any of the parties to send a
reference under this Order goes hand in hand with the fact that the references under this
Order are non-appealable. Hence, since the parties do not get a remedy under appeal they
are allowed a reference under this Order.

Written by: Urvi Agarwal

Further, while submitting their doubt regarding a question of law to the High Court, the
lower Court is suppose to chalk out the facts of the case with their own opinion on the
question of law.

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