Cro.Obj.(MD)No.4 of 2026

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 09.02.2026

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

and

THE HONOURABLE MRS.JUSTICE R.KALAIMATHI

Cros.Obj.(MD)No.4 of 2026

in

A.S.(MD)No.194 of 2025

and

C.M.P.(MD)No.845 of 2026

Hameetha Beevi ... Cross Appellant / 9

th

Respondent

Vs.

1.Shanmugavel

2.Kaniammal

3.M.Velammal

4.Murugammal ... Respondents 1 to 4 / Appellants

V.A.Seyad Muhammed (Died)

5.Asiya Banu

6.Syed Ismayil Muhaitheen

7.Syed Alima Parveen

8.V.A.Syed Appas

9.V.S.Yasmin Banu

Madasamy (Died)

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Cro.Obj.(MD)No.4 of 2026

10.Seethaiammal

11.Balasubramanian

12.M.Esakumuthu ... Respondents 5 to 12 / Respondent 1 to 8

Prayer : Cross Objection filed under Order 41 Rule 22 of Civil

Procedure Code, to set aside the judgment and decree passed in

O.S.No.127 of 2015 dated 20.01.2023 on the file of the 3

rd

Additional

District Court, Tirunelveli insofar, rejecting the appellant / 9

th

defendant's

claim alone.

For Cross Appellant: Mr.H.Arumugam

ORDER

(By G.R.SWAMINATHAN, J.)

The Registry has raised an objection as to whether the cross-

objector in A.S.(MD)No.194 of 2025 can file cross-objection by paying

standard court fee of Rs.150/- by nominally valuing the appeal at

Rs.5,000/- or whether court fee has to be paid on ad valorem basis.

2.Before answering this legal question, the facts of the case may be

summarized. O.S.No.127 of 2015 was filed on the file of the III

Additional District Court, Tirunelveli by one V.A.Seyad Muhammed

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Cro.Obj.(MD)No.4 of 2026

seeking the relief of specific performance. According to Seyad

Muhammed, he had entered into sale agreement with the appellants

through their power agent for purchasing the suit property. During the

pendency of the suit, Seyad Muhammed passed away. I.A. was filed by

Asiya Banu and her children to come on record to prosecute the suit. The

IA was allowed. Subsequently, Hameetha Beevi (cross-objector) filed an

application to implead herself as one of the defendants. Hameetha Beevi

pointed that the marriage between Asiya Banu and Seyad Muhammed

was dissolved in the manner known to law and that it was also confirmed

by a decree of declaration. She also pointed out that the marriage

between herself and Seyad Muhammed was duly registered. Seyad

Muhammed was a municipal employee. It is Hameetha Beevi who is

receiving the family pension and not Asiya Banu. She categorically

asserted that she alone enjoyed the status of wife of Seyad Muhammed

since the marriage between Seyad Muhammed and Asiya Banu was

dissolved in the manner known to law.

3.The Court below while granting the relief of specific

performance vide judgment and decree dated 20.01.2023 did not grant

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Cro.Obj.(MD)No.4 of 2026

any relief to Hameetha Beevi. The denial rested on two grounds: (a)

Hameetha Beevi was not a party to the agreement and (b) she did not join

herself as a co-plaintiff. Aggrieved by the decree passed by the Court

below, the defendants have already filed A.S.No.194 of 2025. In the

said appeal, Hameetha Beevi filed cross-objection. The Registry raised

the issue regarding payment of court fee. Since the Hon'ble Supreme

Court in the decision reported in (2019) 9 SCC 154 (P.Surendran Vs.

State) had held that the issue of maintainability has to be decided only by

the Court and not by the Registry, we directed the Registry to number the

cross-objection and list the same for maintainability. Accordingly, the

matter stands posted before us today.

4.The learned counsel for the cross-objector relied on the decision

reported in 1995 (98) L.W. 200 (Madhavan Vs. Muniammal) in support

of his contention that court fee need not be paid on ad valorem basis by

the cross-objector. We regret to remind the learned counsel that this

decision far from supporting his case is actually against him. That was a

case in which the revision petitioners had preferred cross-objection in a

regular first appeal. The first appellate Court had directed payment of

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Cro.Obj.(MD)No.4 of 2026

court fees on the cross-objections. The High Court noted that the

revision petitioners had not questioned the trial Court's decree but

challenged only an adverse finding and therefore, the question of

payment of court fee did not arise. In the case on hand, the cross-

objector questions the trial Court's decree since no relief was granted to

her. She has not assailed the findings alone. In Madhavan Vs.

Muniammal, it was held that a cross-objection in the real sense partakes

the character of an appeal for all practical purposes including payment of

court fees. The real test is to find out whether the cross-objector attacks

the decree or supports the decree. If the cross-objection is in respect of

the decree in the sense it attacks the decree, it cannot escape being

treated as an appeal as such and it would have all the incidents of an

appeal annexed to it including payment of court fees. In our view, the

above decision of Hon'ble Mr.Justice Nainar Sundaram settles the issue

and the Registry need not have any doubt on this score.

5.But as a matter of practice, it appears that cross-objections had

been numbered without insistence on payment of court fee on ad

valorem basis. But Courts have been careful enough to direct the cross-

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Cro.Obj.(MD)No.4 of 2026

objector to pay court fees when relief was finally granted in favour of the

cross-objector. For instance, in the decision reported in 2010 (2) CTC 1

(The Special Tahsildar, Adi Dravidar Welfare Scheme, Thiruvallur Vs.

M.Gopinathan), while dismissing the department's appeal and partly

allowing the cross-objection by enhancing the compensation amount

payable to the claimant, the Hon'ble Division Bench passed the following

directions:-

“32.In the result, the compensation amount payable to the

respondent/claimant is enhanced to Rs. 55,38,960 and Cross-

Objection is partly allowed. It is stated that appellant has

deposited Rs. 44,10,000/- along with 15% solatium and the

accrued interest. The appellant is directed to deposit the balance of

enhanced compensation along with 15% solatium and 6% interest

from the date of award to the credit of L.A.O.P. No. 100 of 2000

within a period of twelve weeks from the date of receipt of a copy

of this order.

33.On such deposit, the claimant is permitted to withdraw

the entire amount less Rs. 7,50,000/-. After withdrawal of the

amount respondent/claimant is directed to pay the requisite Court

Fee payable in L.A.O.P. No. 100 of 2000 under Section 51 Tamil

Nadu Court Fees and Suits Valuation Act and also in the High

Court in this Appeal Suit within a period of two weeks from the

date of withdrawal of the amount. On payment of necessary Court

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Cro.Obj.(MD)No.4 of 2026

Fee, both in the Additional District Court, Thiruvallur as well as in

the High Court, and on production of necessary certificate for

payment of Court Fee respondent/claimant is permitted to

withdraw the balance of Rs. 7,50,000/-.”

We can cite many such judgments rendered in first appeals / second

appeals [(2019) SCC OnLine Mad 29945] / civil miscellaneous appeals

[1999 (2) CTC 271] . Unless, the cross-objections were allowed to be

numbered in the first instance without payment of ad valorem court fee,

the question of directing payment of court fee to enjoy the benefit of the

decree passed in the cross-objection would not have arisen at all.

6.The Hon'ble Supreme Court in the decision reported in (1999) 4

SCC 423 (Superintending Engineer Vs. B.Subba Reddy) had held that a

cross objection is nothing but an appeal and that it has all the trappings

of an appeal and is filed in the form of memorandum under Order 41

Rule 22 of CPC and that all the provisions that apply to an appeal would

apply to cross-objections / cross-appeals also. We hesitatingly refer to

this decision because in Urmila Devi Vs. National Insurance Company

Limited (2020) 11 SCC 316, a three Judges Bench of the Hon'ble

Supreme Court held that (1999) 4 SCC 423 (Superintending Engineer

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Cro.Obj.(MD)No.4 of 2026

Vs. B.Subba Reddy) has been partly overruled. The Court noted that in

MCD Vs. International Security and Intelligence Agency Limited

(2004) 3 SCC 250, the issue that arose was whether the cross-objection

must be heard and decided on merits though the appeal by reference to

which cross-objection has been filed is itself dismissed as not

maintainable. B.Subba Reddy was overruled on this point in MCD Vs.

International Security and Intelligence Agency Limited. It was held in

this decision that the observation in B.Subba Reddy that filing of cross-

objection is not procedural in nature is incorrect and proceeds on the

wrong premises. It was laid down that form of cross-objection is

procedural and it is only a manner of exercising right of appeal which is

substantive. Even though the 2004 decision had expressly expressed

their disagreement with B.Subba Reddy, interestingly in Hari Shankar

Rastogi Vs. Sham Manohar (2005) 3 SCC 761, it was observed that

MCD Vs. International Security Agency Limited does not lay down any

proposition contrary to B.Subba Reddy. Justice V.Ramkumar, former

Judge of the Hon'ble Kerala High Court in his article published in

LiveLaw on 09.04.2015 titled “My understanding of Order 41 Rule 22

CPC” remarks that B.Subba Reddy decision will have to be understood

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Cro.Obj.(MD)No.4 of 2026

only with reference to that category of cross-objections which assail a

part of the decree appealed from in the main appeal and that the

observations in B.Subba Reddy cannot obviously apply to cross-

objections which merely assail an adverse finding.

7.Be that as it may, the case on hand involves payment of court fee

which issue did not arise in any of the aforesaid decisions. But once we

take the view that cross-objection to the decree is like a substantive

appeal warranting payment of court fee on ad valorem basis, we have to

hold that on account of non-payment of requisite court fee, this cross-

objection is not maintainable. To sum up the legal position, if the cross

objection is against the decree, court fee has to be paid accordingly. If it

is against a mere finding, the question of paying ad valorem court fee

does not arise at all.

8.This view also receives strength from the decision of the Hon'ble

Kerala High Court reported in 2012 SCC OnLine Ker 31993

(Peethambara Panicker Vs. Pratheepkumar). It was held therein that if

the cross-objection is against any part of the decree, cross-objectors may

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Cro.Obj.(MD)No.4 of 2026

have to pay court fee as required by law. But, when a cross-objection is

against a finding, it is not necessary for the cross-objectors to pay ad

valorem court fee.

9.In fact, all these academic discussions may not even be necessary

because as per Section 3(i) of the Tamil Nadu Courts Fee and Suits

Valuation Act, 1965, appeal includes a cross-objection. Section 16 of the

Act states that the provisions of Sections 10 to 14 relating to the

determination and levy of fee on plaints in suits shall apply mutatis

mutandis to the determination and levy of fee in respect of the

memorandum of appeal, cross-objections or other proceedings in second

appeal or in an appeal under the Letters Patent. Section 16 is silent about

a first appeal filed under Section 96 of CPC. Section 52 states that the

fee payable in an appeal shall be the same as the fee that would be

payable in the court of first instance on the subject matter of the appeal.

Thus, the cross-objector will have to pay the same court fee on the cross-

objection which he / she would have had to pay if the relief sought for

before the appellate Court was sought before the Court of first instance.

In the case on hand, the plaintiff passed away and the cross-objector has

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Cro.Obj.(MD)No.4 of 2026

to be recognized as one of his legal heirs. Decree for specific

performance has been granted in favour of plaintiffs 2 to 6. The trial

Court ought not to have included Asiya Banu as one of the decree

holders. On the other hand, the defendants 1 to 8 should have been

directed to execute the sale deed in favour of plaintiffs 3 to 6 and the

cross-objector. The suit could not have been dismissed as against the

cross-objector. She should have been included as one of the decree

holders. The plaintiff had paid court fee of Rs.1,20,000/-. The cross-

objector is one of the five legal heirs. As widow, her 1/8

th

share of court

fee would come to Rs.15,000/-.

10.Even though we have held that this cross-objection is not

maintainable, considering the special facts obtaining in this case and to

render substantial justice, in the event of this Court finally upholding the

decree for specific performance, the power under Order 41 Rule 33 of

CPC will have to be invoked in favour of Hameetha Beevi. The object of

the rule is to empower the appellate Court to do complete justice between

the parties (Mulla's 21

st

edition by Justice K M Joseph and Sharath

Chandran, Volume 3, Pages 4207 to 4209). The Hon'ble Supreme Court

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Cro.Obj.(MD)No.4 of 2026

in Mahant Dhangir Vs. Mathan Mohan AIR 1988 SC 54 held that the

appellate Court could exercise the power under Order 41 Rule 33 even if

the respondent may not have filed any appeal or objection. The sweep of

the power is wide enough to determine any question not only between the

appellant and respondent but also between respondent and co-

respondents. The appellate Court could pass any decree or order which

ought to have been passed in the circumstances of the case to meet the

ends of justice. The power under this rule is in derogation of the general

principle that a party cannot avoid a decree against him without filing an

appeal or cross-objection. The Court will exercise the power according

to justice, equity and good conscience (Choudhary Sahu Vs. State of

Bihar (1982) 1 SCC 232).

11.In the above decision (Choudhary Sahu), the Hon'ble Supreme

Court held that while exercising the power conferred under Order 41

Rule 33, the Court should not lose sight of the provisions of the other

laws, viz., the law of limitation or the law of court fees etc. Therefore, in

the event of this Court invoking the power under Order 41 Rule 33 CPC,

decree can be drafted in favour of Hameetha Beevi and issued to her only

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Cro.Obj.(MD)No.4 of 2026

if the court fee as mentioned above is paid by her. But then, she runs a

risk. Suppose the appellants and the plaintiffs compromise the matter

among themselves and this appeal itself is withdrawn, Hameetha Beevi

may be left in the lurch. If Hameetha Beevi pays court fee and maintains

this cross-objection, even if the appellants withdraw the appeal,

Hameetha Beevi can independently pursue her cross-objection. Hence,

we answer the issue of maintainability in the following terms:-

The cross-objector is given eight weeks from today to pay the ad

valorem court fee failing which the cross-objection will be dismissed as

not maintainable. Even in that event, if the decree for specific

performance were to be upheld, this Court would invoke the power under

Order 41 Rule 33 in favour of Hameetha Beevi with a caveat that she

would have to pay ad valorem court fee. This Court can even indicate

that failure to remit such court fee by her would lead to affirmation of the

trial Court's decree as such. We say so because the other contesting

respondents namely, the children of the deceased plaintiff should not be

prevented from executing the decree on account of non-payment of court

fee by Hameetha Beevi. She should not be allowed to ride piggy back on

their shoulders.

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Cro.Obj.(MD)No.4 of 2026

12.We have made such elaborate observations to avoid future

ambiguities. But we should not be understood even remotely as having

suggested anything adverse to the case of the defendants / appellants.

We have not ventured into the merits of the matter at all.

13.The objection raised by the Registry is sustained and this cross-

objection is ordered as above. No costs. Consequently, connected

miscellaneous petition is closed.

(G.R.S. J.,) & (R.K.M. J.,)

09.02.2026

NCC : Yes/No

Index : Yes / No

Internet : Yes/ No

ias

To:

The III Additional District Court,

Tirunelveli.

Copy to:

The Section Officer,

ER/VR Section,

Madurai Bench of Madras High Court,

Madurai.

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Cro.Obj.(MD)No.4 of 2026

G.R.SWAMINATHAN, J.

and

R.KALAIMATHI, J.

ias

Cros.Obj.(MD)No.4 of 2026

in

A.S.(MD)No.194 of 2025

and

C.M.P.(MD)No.845 of 2026

09.02.2026

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