D. L. MEHTA, J. - (1.) THIS revision petition is directed against the order dated 9. 02. 1987, passed by the learned Additional District Judge, No. 2, Jaipur City, Jaipur, in civil misc. application No. 34/84, in a civil regular appeal No. 163/1982.
(2.) BRIEF facts of the case are that the appeal has been submitted by the present non-petitioner. Present petitioner submitted cross- objection within time. Cross-objections were also heard and written arguments were submitted by the petitioner before the decision of the appeal. The court-below while dismissing the appeal of the present non-petitioner did not pass any order in relation to the cross-objections. Present petitioner moved an application before the court-below and submitted that the cross- objections have not been decided and they should be decided now. The application was rejected by the appellate-court on the ground that after the decision of the appeal cross-objections can not be decided afresh, as it will lead to the re-opening become final Mr. Maloo, learned counsel for the petitioner submitted that cross par. objections is at with cross appeal and it should be decided by the court on merits. He has invited my attention to Rule 22 of 0. 41 CPC. Rule 22 provides that any respondent may file the cross-objections in respect of any issues which should have been decided in his favour and may also take any cross-objection to the decree which he could have taken by way of appeal. He further submitted that the cross-objections are nothing but appeal filed by the non-petitioner and it should be decided according to law. He further placed reliance on Rule 33 of 0. 41 CPC and submits that it is a cross-appeal and the court should pass proper order and should decide the cross-objections according to law. On the other hand, learned counsel for the non-petitioner submits that cross -objections should be deemed to have been rejected. He further submits that the revision petition does not lie against the order dated 9. 2. 1987. He further submits that the matter relating to interest is a discretionary matter and this court should not make any interference in the matter,. I have heard the rival contentions of both the parties. The party has a right to agitate the matter and he cannot direct the court how to write the judgment and what order should be passed. In the instant case, the written arguments were submitted by the petitioner before the appellate court and in the arguments he has pressed the points raised in cross-objection. It was the duty of the court to pass necessary order on the cross-objection. Learned counsel for the non-petitioner has cited before me the case of Shri Krishna Gopal vs. Haji Mohammed Muslim and Ors. (1) in which His Lordship held that O. 41, Rule 22 CPC is apparently (1) A. I. R. 1969 a special provision permitting a respondent who has not appealed from a decree, to object to the said decree in the opposite party's appeal as if he had himself preferred a separate appeal. It is the settled law also that appeal and cross-objections should heard together. There should be one judgment and one decree and the decision should be incorporated in one decree. His Lordship, has considered the provisions of Rule 22 and held as under: - Order 41 R. 22 is apparently a special provision permitting a respondent who has not appealed from a decree, to object to the said decree in the opposite party's appeal as if he had himself preferred a separate appeal. Where a decree is partly against one suitor and partly against another one of such parties being satisfied with his partial success may not prefer an appeal within limitation but, on the, other party appealing may like to reopen the adverse part of the decree. In the larger interest of the cause of justice. It is in such circumstances that the party satisfied with partial success is granted another opportunity of challenging the part of the decree against upon his opponent preferring an appeal, of which notice is served on him. In order to avail of this right he has to take cross-objection within one month from the date of service on him of notice of the hearing of his opponent's appeal. " This court also had the opportunity to consider the provisions on Rule 22 and 33 of 0. 41 CPC in a case of Thakur Ummed Singh vs. Amolak Chand (2), in which the Hon'ble Justice I. N. Modi held as under- "where an appeal has been disposed of on the merits and the cross-objection has by sheer inadvertence remained to be decided, it cannot be legitimately held having regard to the language of 0. 41 R. 22 that the cross-objection cannot survive and be disposed of by the appellate court. That would be all the more so where the mistake on account of which the cross-objection has not been decided is committed by the court itself before which the cross-objection is filed. If this leads to an interference with the decree of the court passed on appeal and thereby the finality of that decree would be affected and perhaps two inconsistent decrees may come into existence, the difficulty should be enable under the provisions of 0. 41 R. 33, the object of which clearly is to enable the appellate court to do complete justice between the parties and to avoid contradictory and inconsistent decisions on the questions arising in the same suit. It is for this purpose that a discretionary power is vested in the appellate court under this provision to pass such decree or order as the justice of the case may require. "
(3.) CROSS-objections have been equated with cross-appeal for all practical purposes under Rule 22 of 0. 41 CPC. If two appeals are filed, one by the plaintiff and other by the defendant being aggrieved with the same judgment and decree ordinarily both the appeal should be heard simultaneously and should be disposed of with a common judgment and with common decree. However, if by mistake or in-advertent one-appeal has been decided and one appeal arising out of the same judgment and decree remains pending the party who has preferred the appeal will not be asked to suffer on account of the mistake committed by the court or by the advocate. Appeal is vested right and party who files an appeal can claim as of right that his appeal should be decided according to law though the appeal of the opposite party arising out of the same judgment and decree has been decided. This principle applies also equally with the same force in the matter of cross- objection. As soon as the cross objection is filed within time stipulated by the law and cross objections has been treated at per with cross-appeal the right of the person filing a cross-objection is just like a person filing a cross-appeal. There is no reason why it should not be treated as cross-appeal for all practical purpose. CROSS-objection gives a cause to the aggrieved party to get the matter adjudicated on the points decided against him. The party may choose whether he should file a cross-appeal or he should wait and file a cross-objection. If he chooses that he should wait and file a cross-objection then the cross-objection takes the shape of cross-appeal under Rule 22 0. 41 of the CPC. In the case of Kishna Gopal Vs. Haji Mohd. Muslim and Ors. (Supra) Hon'ble Chief Justice Dua, has also held that the cross-objection is to be heard as a general rule, the Court is expected to dispose of both the appeals and the cross-objection together by one judgment and the decision should be incorporated in one decree. If it is so then the question arises if the court commits mistake whether the party should be punished for no fault. In the instant case, the petitioner was cautious enough and submitted the written statement also as stated by Mr. Maloo, learned counsel for the petitioner. Even otherwise, it is a mistake of the court and the party cannot be punished for the mistake of the court. Explanation has been added in CPC vide amending Act. 1976. The respondent files a cross-objection and the cross-objection is pleaded like an appeal and prayer is made in the cross-objection that after hearing both the parties the points or the issues or part of the decree which has been decided against the respondent should be set-aside, and the relief should be granted to the respondent. Thus, just like an appeal prayer is made in the cross-objection that the person filing cross- objections should be given an additional relief which has been rejected by the court-below. Where an appeal has been disposed of on the merits and the cross-objections have by sheer inadvertence remain to be decided it cannot be legitimately having regard to the language of Rule 22 of O. 41, CPC that cross-objections do not survive, that would be more so where the mistake on account of which the cross-objection which should be decided in that court. It is true, that the decree of the court passed on an appeal leads to the finality and if cross-objections are allowed to be heard, there is a possibility that the decree would be affected and perhaps in-consistent decree may come into existence. The difficulty should be curable under 0. 41 R. 23 CPC. The object which clearly is to enable the court to do complete justice between the parties and to avoid the contradictory and in- consistent decision on the question arising in the same suit. It will not be out of place here to mention that after hearing the cross-objections if the decree needs modification it will be modified by the court by rectifying the mistake committed by the court and the finality will be attached to the decree which has been passed after rectifying the mistake so committed. The original decree shall merge in the subsequent rectified the decree and there will not be two decree but there will be one decree only. Reference of the original decrees will also come in the modifying decree if any and thus, it will be a case of merger in the original decree in the subsequent decree. Thus, I do not find any force in the submissions made by Mr. Juniwala learned counsel for the respondent. It is a case in which the court has not exercised the powers vested in it by decline to decide the cross-objection. Thus, the question of jurisdiction is involved in it. Apart from that there will be a gross injustice to the party if the cross-objections are not decided according to law. For this reason I hold that the revision petition lies. ;