BBA LLB (H) – YEAR 2 – SEMESTER 4

1st Internal Assessment – Civil Procedure Code

Critical Analysis of Order 41 Rule 22 r.w. Order 41 Rule 33

Name: Rubi Birju Vasani

Division: B

PRN: 21010126127

Course: BBA LLB (H)

Batch: 2021-26

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 TABLE OF CONTENTS

BIBLIOGRAPHY....................................................................................................................3

INTRODUCTION....................................................................................................................4

ORDER 41 RULE 22.................................................................................................................4

ORDER 41 RULE 33.................................................................................................................5

RELATION WITH APPEAL AND CROSS APPEAL........................................................6

CASE ANALYSIS....................................................................................................................8

CONCLUSION.........................................................................................................................9

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 BIBLIOGRAPHY

Articles, papers and cases referred to:

 "Order 41 Rule 33 CPC: Additional evidence, substantial justice and discretion of the
Court" by Anubhav Pandey, published on Bar & Bench
(https://www.barandbench.com/apprentice-lawyer/order-41-rule-33-cpc-additional-
evidence-substantial-justice-and-discretion-of-the-court)
 "Order 41 Rule 33: The Sword of Damocles" by Shubham Gupta, published on Legal
Service India (http://www.legalserviceindia.com/legal/article-2216-order-41-rule-33-
the-sword-of-damocles.html)
 Panna Lal v. State of Bombay, AIR 1963 SC 1516.

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 INTRODUCTION

ORDER 41 RULE 22

O41 R22 is a provision providing the respondent with a form of remedy available to the
respondent. It permits the respondent to object to a decree that he hasn’t appealed against by
filing a ‘cross objection’ in the appeal filed by the appellant.

Through Order 41 rule 221, the respondent in the appeal is granted two separate entitlements.
The first is the right to uphold the decision of the court of first instance on any grounds on
which it ruled against them. In this situation, no notification or memo is necessary under the
later provisions of the rule. The second entitlement is the right to raise any objection, which is
known as "cross-objection," to the verdict that the respondent may have submitted via appeal.

A cross objection can be filed by the respondent in two cases –

i. In the event that he had the opportunity to contest any element of the decree or
ii. If he feels dissatisfied with a particular conclusion in the judgement, despite the
fact that the decree favours him.2

Due to the nature of cross objections, which is that it can be directed against the appellant by
the respondent (it cannot be treated as an objection unless an appellant has an interest in it as
a cross objection) it can only be filed when an appeal is admitted by an appellate court and
the respondent has received a notice. In exceptional circumstances, a cross objection can be
filed by a respondent against another respondent, such as if the objections are common
against the appellant and co-respondent or when the appeal cannot be disposed of without
opening the matter between the respondents inter se.3

However, even if the original appeal is dismissed or withdrawn, the cross objection will still
be heard on merits, unless the appeal was dismissed as time barred or was abated. It is
pertinent to note, that in this situation, even if the appeal is restored and reheard, it does not
warrant a rehearing of the cross objections.

ORDER 41 RULE 33

1
Code of Civil Procedure, 1908, § 41, rule 22.
2
Mahadev Govind Charge v Land Acquisition Officer, (2011) 6 SCC 321
3
Panna Lal v State of Bombay, AIR 1963 SC 1516

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Order 41 Rule 33 provides the appellate court with wide-ranging powers to pass any order
that it thinks fit, in order to finally determine the appeal before it. The rule empowers the
appellate court to exercise the same jurisdiction and powers as the court from which the
appeal is preferred.

The appellate court may modify or reverse the decree passed by the lower court, either in part
or in whole. It may also remand the case back to the lower court for further proceedings if it
deems it necessary. The court may also set aside the decree and decide the matter afresh if it
considers that such an order is necessary. Additionally, the appellate court may take
additional evidence if it is satisfied that such evidence is necessary to enable it to pronounce
judgment in the appeal. The court may also frame issues and direct the lower court to take
evidence on such issues, or it may itself take evidence or require the production of
documents.

Furthermore, the appellate court may also pass any incidental or consequential orders that are
necessary to give effect to its decision in the appeal. This includes orders for costs, interest,
and any other relief that may be necessary to do complete justice between the parties.

In summary, Order 41 Rule 33 confers wide-ranging powers on the appellate court to pass
any order that it thinks fit in order to finally determine the appeal before it. These powers
include the power to modify, reverse or remand the decree passed by the lower court, to take
additional evidence, to frame issues and pass consequential orders, and to do complete justice
between the parties.

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 RELATION WITH APPEAL AND CROSS APPEAL

The relationship between Order 41 Rule 22 4and Order 41 Rule 33 5can be understood in the
context of appeals and cross-appeals. An appeal is a legal proceeding initiated by a party to a
case who is dissatisfied with the judgment or order passed by the lower court. A cross-appeal,
on the other hand, is an appeal filed by the respondent against some aspect of the decree or
judgment passed against them.

Primary difference is that an appeal is by the appellant against the respondent, while a cross
objection is must be an objection by a respondent against the appellant.

an appeal is a legal proceeding initiated by a party to a case who is dissatisfied with the
judgment or order passed by the lower court. The purpose of an appeal is to challenge the
decision of the lower court and seek a review or reversal of the judgment. However, when an
appeal is filed, the respondent (the party who won the case in the lower court) may also have
some issues or grievances with the judgment, which were not addressed or fully resolved by
the lower court.

This is where Order 41 Rule 22 6 comes into play. It allows the respondent to file a cross-
objection against the appellant in response to the appeal filed by the latter. The cross-
objection can be filed within the same time limit as that for filing an appeal. The purpose of
this rule is to ensure that the respondent can raise any issue or argument that may have been
missed or overlooked by the appellant in their appeal.

In other words, the respondent can use the cross-objection to challenge any aspect of the
decree or order that is unfavourable to them, or to seek additional relief that was not granted
by the lower court. By filing a cross-objection, the respondent is essentially using the
opportunity to argue that the decision of the lower court was incorrect or incomplete, and that
the appellant's appeal should therefore be dismissed or modified.

However, in some cases, the respondent may want to challenge some aspect of the decree or
order that was passed against them, but which was not covered by the appellant's appeal. This
is where Order 41 Rule 33 comes into play. This rule allows the respondent to file a cross-

4
Code of Civil Procedure, 1908, § 41, rule 22.
5
Code of Civil Procedure, 1908, § 41, rule 33.
6
Code of Civil Procedure, 1908, § 41, rule 22.

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appeal against the appellant in response to the latter's appeal. The cross-appeal can also be
filed within the same time limit as that for filing an appeal.

The purpose of this rule is to ensure that the respondent can seek a different or more
favorable relief from the court. By filing a cross-appeal, the respondent is essentially asking
the court to review or modify some aspect of the decree or order that was passed against
them, but which was not covered by the appellant's appeal.

To summarize, the relationship between Order 41 Rule 22 7 and Order 41 Rule 338 can be
understood as follows: when an appeal is filed by the appellant, the respondent has the option
to either file a cross-objection (under Rule 22) or a cross-appeal (under Rule 33), depending
on whether they want to challenge some aspect of the appeal or some aspect of the decree or
order passed against them that was not covered by the appeal. Both rules serve to ensure that
the respondent has the right to challenge any aspect of the case that is unfavorable to them,
and seek appropriate relief from the court.

7
Code of Civil Procedure, 1908, § 41, rule 22.
8
Code of Civil Procedure, 1908, § 41, rule 33.

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 CASE ANALYSIS

SHRI SAURAV JAIN & ANR V. M/S A. B. P. DESIGN & ANR 9

In this case, the Trial Court dismissed a suit despite rejecting the defendant's objection to the
court's jurisdiction. The plaintiff appealed this decision to the High Court, which
subsequently ruled in their favor and held the auction conducted by Moradabad Development
Authority for the disputed land to be null and void. However, the High Court did not consider
the question of jurisdiction, as the defendant had failed to file a cross-objection against the
Trial Court's finding on the issue.

The defendant, Saurav Jain, who had purchased the disputed land from the MDA through
auction, appealed to the Apex court. Jain argued that the jurisdiction of the civil court was
implicitly excluded under the provisions of the Urban Land (Ceiling and Regulation) Act,
1976. He further contended that, as per Order XLI Rule 22 of the CPC, a party in whose
favour the civil court has decreed a suit can challenge findings without filing a cross-
objection during an appeal.

After perusing the facts and arguments presented, the court in this case analysed the history
and scope of Order XLI Rule 22 of the CPC. The court concluded that the Urban Land
(Ceiling and Regulation) Act (ULCRA) implicitly excludes the jurisdiction of the civil court
in matters arising out of ceiling proceedings.

In this regard, the court noted that the appellant had not challenged the Trial Court's finding
on the issue of jurisdiction before the High Court under Order XLI Rule 22 of the CPC, either
by filing a memorandum of cross-objection or otherwise. However, the court held that the
appellant was not precluded from raising the argument before the Apex Court.

The court invoked its plenary jurisdiction under Article 136 of the Constitution, read with its
power to do complete justice under Article 142, and held that it could entertain new grounds
raised for the first time, provided that the grounds involved a question of law that did not
require the abduction of additional evidence, specifically one concerning the jurisdiction of
the court that goes to the root of the matter.

In essence, the court held that while the appellant had failed to raise the issue of jurisdiction
before the High Court, he could still raise it before the Apex Court. The court emphasized
9
[ CIVIL APPEAL NO. 4448 OF 2021]

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that it had the power to entertain new grounds raised for the first time, as long as the grounds
concerned a question of law and did not require additional evidence, and specifically
concerned the jurisdiction of the court, which goes to the root of the matter. The court's ruling
highlights the importance of jurisdiction in civil proceedings and the ability of parties to raise
jurisdictional challenges at any stage of the proceedings.

CONCLUSION

In the context of the Code of Civil Procedure 1908, cross objections and cross appeals are
two important concepts that are closely related. While appeals and cross appeals allow parties
to challenge decisions of a lower court, cross objections allow a respondent to challenge
some aspect of the decree or judgment passed against them.

Cross objections and cross appeals are related in the sense that they both arise out of the same
judgment or decree passed by a lower court. Cross appeals are appeals filed by a party who is
dissatisfied with some aspect of the lower court's judgment, while cross objections are
objections filed by the respondent against some aspect of the decree or judgment passed
against them.

In some cases, a respondent may file cross objections even if the appellant has not filed a
cross appeal. This is because cross objections allow the respondent to challenge some aspect
of the judgment that may be adverse to them, even if the appellant has not challenged that
aspect of the judgment.

It is important to note that cross objections and cross appeals are governed by specific rules in
the CPC 1908. Order 41 Rule 22 deals with cross objections, while Order 41 Rule 33 deals
with cross appeals. These rules lay down the procedure for filing cross objections and cross
appeals, as well as the time limits within which they must be filed.

In conclusion, cross objections and cross appeals are important concepts in the context of the
CPC 1908. They allow parties to challenge decisions of a lower court and ensure that justice
is served. While cross objections and cross appeals are closely related, they are governed by
separate rules and procedures, and it is important for parties to understand these rules in order
to effectively exercise their rights under the law.

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