Order XLI Rule 22 CPC- Cross Objection Not Necessary To Challenge Adverse Findings: Supreme Court

The Supreme Court observed that a party in whose favour a court has decreed the suit can challenge an adverse finding before the appellate court without a cross objection.

It is not necessary that a challenge to the adverse findings of the lower court needs to be made in the form of a memorandum of cross-objection, the bench comprising Justices DY Chandrachud and MR Shah observed.

The Court also observed that it can entertain new grounds raised for the first time in an appeal under Article 136 of the Constitution if it involves a question of law which does not require adducing additional evidence.

In this case, the Trial Court dismissed a suit though it rejected the defendant's objection regarding lack of jurisdiction of the Trial Court. The High Court allowed the appeal by the plaintiff and reversed the judgment of the Trial Court. It was held that the auction conducted by Moradabad Development Authority in respect of the land in dispute is null and void. The question of jurisdiction was not considered by the High Court because he did not file a cross-objection against this finding of the Trial Court on the exercise of its jurisdiction.

Saurav Jain, the defendant- auction purchaser who purchased the suit land from the MDA, approached the Apex court in appeal. He contended that the jurisdiction of the civil court is impliedly excluded under the provisions of the Urban Land (Ceiling and Regulation) Act 1976. Referring to Order XLI Rule 22 of the CPC, it was contended that a party, in whose favour the civil court has decreed a suit, can raise arguments against findings without having to file a cross- objection, in the appeal.

Addressing these contentions, the bench discussed the history and scope of Order XLI Rule 22(1).

"25 It is apparent from the amended provisions of Order XLI Rule 22 CPC and the above authorities that there are two changes that were brought by the 1976 amendment. First, the scope of filing of a cross-objection was enhanced substantively to include objections against 'findings' of the lower court; second,  different forms of raising cross-objections were recognised. The amendment sought to introduce different forms of cross-objection for assailing the findings and decrees since the amendment separates the phrase "but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour" from "may also take any cross-objection to the decree" with a semi colon. Therefore, the two parts of the sentence must be read disjunctively. Only when a part of the decree has been assailed by the respondent, should a memorandum of cross-objection be filed. Otherwise, it is sufficient to raise a challenge to an adverse finding of the court of first instance before the appellate court without a cross objection."

The court then discussed the applicability of the principle in Order XLI Rule 22 CPC to proceedings before this Court under Article 136 of the Constitution

"The principle stipulated in Order XLI Rule 22 of CPC can be applied to petitions under Article 136 of the Constitution because of this Court's wide powers to do justice under Article 142 of the Constitution. Since the principle in Order XLI Rule 22 of the CPC furthers the cause of justice by providing the party other than the 'aggrieved party' to raise any adverse findings against them, this Court can draw colour from Order XLI Rule 22 CPC and permit objections to findings.", the bench observed.

The bench noted that the ground of jurisdiction was only raised by the appellant before the Trial Court and not before the High Court.  However, referring to earlier judgments, the bench said that the plea of a bar or lack of jurisdiction can be entertained at any stage, since an order or decree passed without jurisdiction is nonest in law.

Thus, considering the case on merits, the bench held that ULCRA impliedly excludes the jurisdiction of the civil court on matters arising out of the ceiling proceeding.

"Though the appellant did not assail the finding of the Trial Court on the issue of jurisdiction before the High Court under Order XLI Rule 22 CPC either by filing a memorandum of cross-objection or otherwise, he is not precluded from raising the argument before this Court. This Court in view of its plenary jurisdiction under Article 136 of the Constitution read with its power to do complete justice under Article 142, can entertain new grounds raised for the first time if it involves a question of law which does not require adducing additional evidence, specifically one concerning jurisdiction of the court which goes to the root of the matter.", the court said while disposing the appeal.

Case: Saurav Jain Vs.  A. B. P. Design ; CA 4448 of 2021

Coram: Justices DY Chandrachud and MR Shah

Counsel: Adv Venkita Subramoniam T.R. for appellant, Sr. Adv  Manoj Swarup and Adv Jawad Tariq for respondent

Citation: LL 2021 SC 354

Click here to Read/Download Judgment