IMPORTANT POINTS:
Order XLIA of the C.P.C. deals with appeals to the High Court from original decrees of subordinate courts and does not deal with appeals to the Division Bench from the judgment of the Single Judge- Rule 1 of Order XLIA of the C.P.C. states that the rules contained in Order XLI shall apply to appeals in the High Court of Kerala with the modifications contained in 'this Order'. But neither Order XLI nor Order XLIA applies to proceedings under Article 226 of the Constitution of India in view of the Explanation to Section 141 of the C.P.C. Secondly, Rule 159 of the Rules can be called in aid to urge that the 'procedure' prescribed for appeals in Order XLIA of the Code, excluding Rule 2 thereof shall be followed in writ appeals-Rule 159 of the Rules cannot by any stretch of imagination be treated as one in pari materia with Section 5 of the Act under which provision a writ appeal is filed.

V. CHITAMBARESH, J.

1. Is a cross-objection under Order XLI Rule 22 of the Code of Civil Procedure, 1908 ('the C.P.C.' for short) maintainable in a writ appeal filed under Section 5 of the Kerala High Court Act, 1958 ('the Act' for short)? Mr. P.N.Santhosh, Senior Government Pleader alertly points out that the cross-objection filed by the first respondent/writ petitioner is not maintainable in law. The writ appeal has been filed by respondents 1 and 2 in the writ petition which pertains to the rate of payment of basic pension as revised from time to time with arrears thereon. The writ petition was allowed in part by the judgment impugned granting a lesser rate than that was claimed and the appellants as well as the first respondent are aggrieved.

2. We heard Mr. N.Sukumaran, Senior Advocate for the cross objector and Mr P.N.Santhosh, Senior Government Pleader as well as Mr. P.G.Jayashankar, Advocate as amicuscuriae.

3. The law on the maintainability of a cross objection under Order XLI Rule 22 of the C.P.C. has been succinctly laid down in Superintending Engineer and others v. B.Subba Reddy [AIR 1999 SC 1747) as follows:

“(i) Appeal is a substantive right. It is creation of the statute. Right to appeal does not exist unless it is specifically conferred.

(ii) 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.

(iii) 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.

(iv) Even where the appeal is withdrawn or is dismissed for default, cross-objection may nevertheless be heard and determined.

(v) 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.

(vi) 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.”

Can a cross-objection filed by a respondent in a writ appeal filed by the writ petitioner against the dismissal of his writ petition be proceeded with when the writ appeal is withdrawn or dismissed for default? Can the respondent be granted any relief in the writ petition which is not pursued at the appellate stage when the writ petitioner does not seek the issue of any writ or direction? The answer can only be in the negative which is sufficient and more to demolish the contention that a cross-objection is maintainable in a writ appeal filed in the High Court.

4. It has been explained in Section 141 of the C.P.C. that the expression 'proceedings' in any court of civil jurisdiction appearing therein does not include that under Article 226 of the Constitution of India as follows:

“141. Miscellaneous proceedings.-The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

Explanation-In this section, the expression 'proceedings' includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.” (emphasis supplied)

The Supreme Court in the celebrated decision in Puran Singh and other