Cross-objections under Order XLI Rule 22 CPC are maintainable if based on substantive grounds, not merely procedural, and must be filed within the stipulated timeframe.

Order

REPORTABLE

01/03/2024

1. Both the cross-objections were preferred by the defendant Nos. 1 and 2/Cross-Objectors, aggrieved from judgment and decree dated 01.05.1998 in civil suit Nos. 10/1994 and 11/1994 passed by learned Additional District judge No.6, Jaipur Metro.

2. The facts of the matter inter alia are that minor plaintiff(s) filed separate suits as indigent persons through natural guardians for recovery of damages for the injuries caused in an accident happened at petrol pump on 01.10.1989 operated by defendants/cross-objectors. The trial court after considering the material on record and also the evidence of the parties has dismissed both the civil suits on 28.09.1995. Aggrieved from aforesaid, S.B. Civil First Appeal Nos. 08/1996 and 09/1996 were preferred by the plaintiff(s) which was partially allowed on 06.01.1998 and decree dated 28.09.1995 was set aside and both matters were remanded back to the trial court.

3. After remand, both civil suits were decided afresh on 01.05.1998 and both the suits were again dismissed by learned Additional District Judge No.6, Jaipur Metro. Aggrieved from aforesaid S.B. Civil First Appeal Nos. 323/1998 and 324/1998 were preferred by the plaintiff(s) (Appellants) and same were allowed on 25.08.1999 and following decree was passed by a Co- ordinate Bench of this Court:

4. Aggrieved from aforesaid, D.B. Special Appeal (Civil) Nos. 86/1999 and 87/1999 were preferred by present cross-objectors before Hon’ble Division Bench of this Court and on the direction dated 04.10.2023 these matters are listed for disposal.

5. Learned senior advocate for cross-objectors while relying upon grounds of cross-objection would submitted that under the law, cross-objection are same as that of cross-appeal so cross- objection is maintainable independent of appeal. He specifically referred Order XLI Rule 22 CPC and submitted that only two contingencies were provided hence same instant cross-objection required to be adjudicated on merits. He also submitted that the Co-ordinate Bench while considering the appeal has not considered the grounds raised by present cross-objectors and without considering these cross-objection(s), had allowed the appeal(s) of appellant(s)/plaintiff(s). He specifically submitted that aggrieved from dismissal of suit in 1995 the appeal was preferred in 1996 then applications under Order XLI rule 27 and Order VI Rule 17 CPC were also filed by present defendants but same were not considered by learned Single Judge and defendants had to approach the Division Bench by filing D.B. Special Appeal (Civil) Nos. 35/1998 and 36/1998, wherein Hon’ble Division Bench has directed the trial court to consider applications under Order VI Rule 17 and Order XLI Rule 27 CPC on its own merits. He referred the order-sheet dated 01.04.1998 of the trial court and submitted that without any cogent reasons, application under Order VI Rule 17 CPC was dismissed and cross-objectors are entitled to raise grounds of dismissal of application in cross-objection under Section 105 CPC. He also submitted that application under Order XIII Rule 2 CPC was allowed on cost but while deciding the issue No.2 on 01.05.1998 the trial court has not considered the documents submitted by present cross-objectors defendants. He referred the findings of issue Nos. 2 to 5 and submitted that the conduct of the trial court clearly indicated that while deciding the civil suit the trial court has failed to consider the material on record which is apparent on face of record. He also submitted that cross-objection is in form of cross appeal and party to the proceedings has a right to maintain cross-objection on its own merits. He specifically referred the dealership agreement and submitted that the responsibility to maintain the petrol pump was upon defendant No.3 and defendant Nos. 1 and 2 were merely a commission agent, thus entire liability of payment of damages is upon respondent No.3. He would submitted that the terms of dealership agre