Important points:
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.

ORDER :

S.Manikumar, J.

Instant unnumbered cross objection has been filed against the judgment dated 16.11.2020 in W.P.(C)No.24241 of 2020.

2. On this day, when the matter came up for hearing, we were informed that a Hon'ble Division Bench of this court in George J. v. State of Kerala and Others reported in 2019 (3) KHC 755, has considered the issue as to whether cross objection under Order XLI rule 22 of the Code of Civil Procedure is maintainable in a writ appeal filed under Section 5 of the Kerala High Court Act.

3. After considering the statutory provisions stated supra, powers of the High Court under Section 141 of the Code of Civil Procedure, Section 5 of the Kerala High Court Act, Rule 159 of the Rules of the High Court of Kerala and several decisions including a Full Bench decision of the High Court of Madhya Pradesh in Jabalur Development Authority v. Y.S. Sachan and Others reported in ILR (2004) M.P. 231, a Hon'ble Division Bench held thus:

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(iv) Even where the appeal is withdrawn or is dismissed for default, cross-objection may nevertheless be heard and determined.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