Case: URMILA DEVI  Vs. BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD.

the judgment in the case of Bhadurmal vs. Bizaatunnisa Begum AIR 1964 AP 365 wherein an issue with regard to maintainability of cross-objection in an appeal preferred under Sections 47 to 49 of Hyderabad Jagirdars Debt Settlement Act, 1952 was considered. It also relied on the judgment in the case of Inayatullah Khan vs. Diwanchand Mahajan AIR 1959 MP 58 , wherein maintainability of cross objection in an election appeal under Section 116A of the Representation of the People Act, 1951 was upheld. It further relied on the judgment of the Calcutta High Court in the case of Ramasray Singh & Ors. vs. Bibhisan Sinha AIR 1950 Cal 372, upholding the right of the respondent to file cross-objection in an appeal contemplated under Section 38 of Bengal Money-Lenders Act, 1940. 20. It further relied on certain observations of this Court in the case of Baru Ram vs. Prasanni AIR 1959 SC 93 : 1959 SCR 1403 This Court did not agree with the contrary view taken by the learned two-judge Bench of this Court in the case of Superintending Engineer & Ors. vs. B. Subba Reddy (1999) 4 SCC 423 . However, holding so, this Court held that since the right to appeal under Section 39 of the Arbitration Act, 1940 was only restricted to clauses (i) to (vi) of sub-section (1) thereof, the cross-objection also must conform to the said requirement. In other words, it was held that a cross-objection would be maintainable only if the subject-matter thereof falls in any of the category carved out under clauses (i) to (vi) of sub-section (1) of Section 39 of the Arbitration Act, 1940. 21. This Court further found that the entire Order XLI rule 22 CPC would apply to a cross-objection including the provisions of sub-rule (4) thereof. It was held, that if the original appeal is found to be incompetent or not maintainable if it is filed against an order not falling under any of the clauses (i) to (vi) of sub-Section (1) of Section 39, then the cross objection shall also fail on that ground and cannot be adjudicated upon on merits. It could, thus, be seen that the view taken by the Court is that the cross- objection would be tenable only if appeal is validly tenable. 22. A perusal of Section 173 of the M.V. Act would reveal that the said provision does not restrict the right to file an appeal as is restricted under Section 39 of the Arbitration Act, 1940. It provides, that any person aggrieved by an award of a Claims Tribunal, subject to the provisions of sub- section (2) thereof, may prefer an appeal to the High Court. The restriction imposed under sub-section (2) of Section 173 is with regard to non-filing of appeal against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees. Needless to mention that this is subject to the provisions about limitation. 23. As already discussed herein above, the learned single judge of the High Court himself has observed that in view of Rule 249 of the Bihar Motor Vehicle Rules, 1992, there cannot be any issue with regard to the tenability of the cross- objection. Sub-rule (3) of Rule 249 of the Bihar Motor Vehicle Rules, 1992 would show, that save as provided in sub-rules (1) and (2), the provisions of Order XLI and Order XXI in First Schedule to the CPC shall apply mutatis mutandis to appeals preferred to the High Court under Section 173 of the M.V. Act. 24. A conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI rule 22 of the CPC would reveal, that there is no restriction on the right to appeal of any of the parties. It is clear, that any party aggrieved by any part of the Award would be entitled to prefer an appeal. It is also clear, that any respondent, though he may not have appealed from any part of the decree, apart from supporting the finding in his favour, is also entitled to take any cross-objection to the decree which he could have taken by way of appeal. 25. When in an appeal the appellant could have raised any of the grounds against which he is aggrieved, we fail to understand, as to how a respondent can be denied to file cross-objection in an appeal filed by the other side challenging that part of the Award with which he was aggrieved. We find, that the said distinction as sought to be drawn by the High Court is not in tune with conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI rule 22 of the CPC. 26. As a matter of fact, it could be seen from the prayer clause in the appeal preferred by the respondents herein (Insurance Company) before the High Court that the entire award was challenged by the respondents – Insurance Company. Not only that, but the appellants herein (the claimants) were also impleaded as party respondents to the said appeal. In such circumstances, the High Court has erred in declining to consider the cross-objection of the appellants herein (the claimants) on merits. 27. There is another angle to it. Sub-rule (4) of Rule 22 of Order XLI of the CPC specifically provides, that even if the original appeal is withdrawn or is dismissed for default, the cross-objection would nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. We are, therefore, of the considered view, that even if the appeal of the Insurance Company was dismissed in default and the Insurance Company had submitted that they were not interested to revive the appeal, still the High Court was required to decide the cross-objection of the appellants herein on merits and in accordance with law.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]22. A perusal of Section 173 of the M.V. Act would reveal that the said provision does not restrict the right to file an appeal as is restricted under Section 39 of the Arbitration Act, 1940. It provides, that any person aggrieved by an award of a Claims Tribunal, subject to the provisions of sub- section (2) thereof, may prefer an appeal to the High Court. The restriction imposed under sub-section (2) of Section 173 is with regard to non-filing of appeal against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees. Needless to mention that this is subject to the provisions about limitation23. As already discussed herein above, the learned single judge of the High Court himself has observed that in view of Rule 249 of the Bihar Motor Vehicle Rules, 1992, there cannot be any issue with regard to the tenability of the cross- objection. Sub-rule (3) of Rule 249 of the Bihar Motor Vehicle Rules, 1992 would show, that save as provided in sub-rules (1) and (2), the provisions of Order XLI and Order XXI in First Schedule to the CPC shall apply mutatis mutandis to appeals preferred to the High Court under Section 173 of the M.V. Act24. A conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI rule 22 of the CPC would reveal, that there is no restriction on the right to appeal of any of the parties. It is clear, that any party aggrieved by any part of the Award would be entitled to prefer an appeal. It is also clear, that any respondent, though he may not have appealed from any part of the decree, apart from supporting the finding in his favour, is also entitled to take any cross-objection to the decree which he could have taken by way of appeal25. When in an appeal the appellant could have raised any of the grounds against which he is aggrieved, we fail to understand, as to how a respondent can be denied to file cross-objection in an appeal filed by the other side challenging that part of the Award with which he was aggrieved. We find, that the said distinction as sought to be drawn by the High Court is not in tune with conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI rule 22 of the CPC26. As a matter of fact, it could be seen from the prayer clause in the appeal preferred by the respondents herein (Insurance Company) before the High Court that the entire award was challenged by the respondents – Insurance Company. Not only that, but the appellants herein (the claimants) were also impleaded as party respondents to the said appeal. In such circumstances, the High Court has erred in declining to consider the cross-objection of the appellants herein (the claimants) on merits27. There is another angle to it. Sub-rule (4) of Rule 22 of Order XLI of the CPC specifically provides, that even if the original appeal is withdrawn or is dismissed for default, the cross-objection would nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. We are, therefore, of the considered view, that even if the appeal of the Insurance Company was dismissed in default and the Insurance Company had submitted that they were not interested to revive the appeal, still the High Court was required to decide the cross-objection of the appellants herein on merits and in accordance with law.