BISWAJIT SUKUL versus DEO CHAND SARDA & ORS. on 25 September 2018

498

[2018] 11 S.C.R. 498

SUPREME COURT REPORTS

[2018] 11 S.C.R.

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BISWAJIT SUKUL

v.

DEO CHAND SARDA & ORS.

(Civil Appeal No. 9956 of 2018)

BSEPTEMBER 25, 2018

[ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]

Code of Civil Procedure, 1908 – Or.XLI, r.22 – Appellant-plaintiff filed a suit for arrears of rent and eviction against therespondents-defendants – Suit was dismissed by the trial Court onCfinding that the defendant no.1 was plaintiff’s tenant and he didnot default in payment of rent – Plaintiff filed first appeal anddefendants did not file any cross objection u/Or.XLI, r.22 of CPC inthe appeal – First Appellate Court dismissed the appeal and heldthat defendant no.1 was not plaintiff’s tenant – Revision petitionDwas dismissed by the High Court – On appeal, held: First AppellateCourt committed a jurisdictional error in deciding the legality andcorrectness of the issue ‘whether defendant no.1 was plaintiff’stenant’, as plaintiff in his first appeal did not challenge the saidfinding because it was already answered in his favour –Defendants though suffered the adverse finding on this issue butEdid not file any cross objection questioning its legality – FirstAppellate Court had no jurisdiction to examine the legality andcorrectness of the finding on this issue and reverse it against theplaintiff as the same was not challenged by the defendants – HighCourt also committed the same mistake by not noticing theFjurisdictional error committed by the First Appellate Court –Therefore, case remanded to the First Appellate Court to decide thefirst appeal filed by the plaintiff on its merits only to examine thelegality and correctness of the issues which were decided againstthe plaintiff – Assam Urban Areas Rent Control Act.

GAllowing the appeal, the Court

HELD: The High Court should have remanded the case tothe First Appellate Court for deciding the plaintiff’s appeal afreshon merits confining its enquiry by the First Appellate Court todecide only the legality and correctness of those issues, which H

were decided by the Trial Court against the plaintiff and whichled to the dismissal of suit. Thus, the case is remanded to theFirst Appellate Court to decide the first appeal filed by the plaintiff(appellant) afresh on its merits only to examine the issues whichwere decided against the plaintiff by the Trial Court.[Paras 20 and 21] [502-G-H; 503-A-B]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9956of 2018.

From the Judgment and Order dated 02.01.2014 of the GauhatiHigh Court at Guwahati in Civil Revision Petition No. 381 of 2002.

Manoj Goel, Shuvodeep Roy, Advs. for the Appellant.

Avijit Bhattacharjee, Mrs. Upma Shrivastava, Ajoy Kr. Ghosh,Abhay Kant Mishra, Sushil Kr. Kabra, Rameshwar Prasad Goyal, Advs.for the Respondents.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal arises from the final judgment and order dated02.01.2014 passed by the Gauhati High Court at Guwahati in CivilRevision Petition No.381 of 2002 whereby the High Court dismissed theCivil Revision Petition filed by the appellant herein.

3. In order to appreciate the short controversy involved in theappeal, it is necessary to set out the relevant facts hereinbelow.

4. The appellant is the plaintiff whereas the respondents are thedefendants in the civil suit out of which this appeal arises.

5. The appellant (plaintiff) claiming to be the landlord of a shopsituated in holding No.257 (old)/58 (new) at Tulapatty Silchar Town(hereinafter referred to as “suit premises”) filed a Civil Title Suit No.189/1977 against one Deo Chand Sarda (Respondent No.1) in the Court ofMunsiff No.1 Cachar at Silchar. The suit was filed for claiming arrearsof rent and eviction from the suit premises.

6. According to the appellant (plaintiff), respondent No.1 was theappellant’s tenant on a monthly rent. It was averred that respondentNo.1 paid some money in advance to the appellant, which the appellantadjusted against the rent ending July 1977. It was averred that the A

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Arespondent thereafter failed to pay rent from August 1977 despiterepeated demands and hence the suit was filed to claim arrears of rentand the eviction of the respondent as defaulter in payment of rent. Thesuit was filed under the provisions of Assam Urban Areas Rent ControlAct (for Short ‘The Act’). Defendant No.2 got himself impleaded in thesuit claiming to be the necessary party. It was permitted. The respondentsBfiled the written statement and denied the material averments of theplaint.

7. The Trial Court on the basis of the pleadings framed followingissues:

C“1. Whether the suit is maintainable in fact and law?2. Whether the suit is bad for non joinder of necessaryparties?

3. Whether there is cause of action for this suit?

D4. Whether the defendant No.1 is a tenant under the plaintiffin respect of the suit house and if so whether defendantNo.1 is a defaulter in payment of rent since August 1977?

5. Whether the plaintiff is entitled to a decree as prayedfor?

E6. To what relief/reliefs the parties are found entitled to?”8. Parties adduced their evidence. The Trial Court by judgment/decree dated 23.12.1999 dismissed the suit. So far as issue No.1 isconcerned, the Trial Court answered in favour of the plaintiff by holdingthat the suit is maintainable. So far as issue No.2 is concerned, it wasFalso answered in plaintiff’s favour by holding that the suit is not bad fornon-joinder of necessary parties and maintainable. So far as issue No.3is concerned, it was answered against the plaintiff by holding that therewas no cause of action to file a suit. So far as No.4 is concerned, it wasdivided in two parts. So far as first part is concerned, it was answered inplaintiff’s favour wherein it was held that defendant No.1 was theGplaintiff’s tenant in respect of the suit premises. In other words, it washeld that the relationship of the landlord and tenant is established betweenthe plaintiff and defendant No.1 in relation to the suit premises. So faras second part of issue No.4 is concerned, it was held against the plaintiffby answering that defendant No.1 is not a defaulter in payment of rent H

to the plaintiff. By answering these four issues, the Trial Court dismissedthe plaintiff’s suit.

9. The plaintiff felt aggrieved and filed first appeal before theCivil Judge No.1 (Silchar), Cachar being Title Appeal No.14/2000. It ispertinent to mention here that the defendants did not file any crossobjection under Order 41 Rule 22 of Code of Civil Procedure (hereinafterreferred to as “the Code”) against any of the findings recorded by theTrial Court against the defendants in the appeal.

10. By judgment dated 14.08.2002, the first Appellate Courtdismissed the appeal. The plaintiff felt aggrieved and filed revision in theGauhati High Court. By impugned order, the High Court (Single Judge)dismissed the plaintiff’s revision and affirmed the judgment of the FirstAppellate Court which gives rise to filing of the present appeal by wayof special leave by the plaintiff in this Court.

11. Heard Mr. Manoj Goel, learned counsel for the appellant andMr. Avijit Bhattacharjee, learned counsel for the respondents.

12. After hearing the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeal in part andwhile setting aside the impugned order and also the judgment of the FirstAppellate Court, remand the case to the First Appellate Court for decidingthe first appeal on merits in accordance with law as directed hereinbelow.

13. In our considered opinion, the need to remand the case to theFirst Appellate Court has arisen for more than one reason as mentionedhereinbelow.

14. First, the First Appellate Court committed a jurisdictional errorin deciding the legality and correctness of the first part of issue No. 4 onmerits.

15. Mere perusal of the judgment of the Trial Court would go toshow that while answering the issues, the Trial Court had divided issueNo. 4 in two parts. So far as first part is concerned, it was in relation tothe question as to whether defendant No.1 was the plaintiff’s tenant ornot. In other words, it was in relation to the question as to whether theplaintiff was able to prove the relationship of landlord and tenant betweenhim and defendant No.1 in relation to suit premises. Indeed, this wasone of the main questions involved in the suit.

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A16. This question, i.e., first part of issue No.4 was decided by theTrial Court in plaintiff’s favour wherein it was held that defendant No.1was the plaintiff’s tenant. So far as second part of issue No.4 isconcerned, it was in relation to the question as to whether defendantNo.1 was a defaulter in payment of rent to the plaintiff. This questionwas answered by the Trial Court against the plaintiff and in defendantBNo.1’s favour wherein it was held that defendant No.1 did not commitany default in payment of rent to the plaintiff. It is for this reason, thesuit was dismissed.

17. The plaintiff in his first appeal did not challenge the finding ofthe Trial Court recorded on the first part of issue No.4 and rightly soCbecause it was already answered by the Trial Court in his favour. TheFirst Appellate Court, therefore, could not examine the legality andcorrectness of this finding in plaintiff’s appeal unless it was challengedby the defendants by filing cross objection under Order 41 Rule 22 ofthe Code in the appeal.D

18. As mentioned above, the defendants though suffered theadverse finding on first part of issue No. 4 but did not file any crossobjection questioning its legality. In the light of these admitted facts arisingin the case, the First Appellate Court had no jurisdiction to examine thelegality and correctness of the finding on first part of issue No. 4 inEplaintiff’s appeal and reverse it against the plaintiff.

19. Second, the High Court also committed the same mistake bynot noticing the aforesaid jurisdictional error committed by the FirstAppellate Court. The High Court, in plaintiff’s revision again, went intothe legality of the findings of first part of issue No.4 on merits and affirmedFthe finding of the First Appellate Court. This finding ought to have beenset aside by the High Court only on the short ground that the FirstAppellate Court had no jurisdiction to examine it in plaintiff’s appeal.

20. In our opinion, the High Court should have noticed theaforementioned mistake and remanded the case to the First AppellateGCourt for deciding the plaintiff’s appeal afresh on merits confining itsenquiry by the First Appellate Court to decide only the legality andcorrectness of those issues, which were decided by the Trial Court againstthe plaintiff and which led to the dismissal of suit.

21. In our opinion, in the light of what we have held above, wehave no option but to set aside the impugned order and also the judgmentof the First Appellate Court and remand the case to the First AppellateCourt to decide the first appeal filed by the plaintiff (appellant herein)afresh on its merits only to examine the legality and correctness of theissues which were decided against the plaintiff by the Trial Court suchas issue No. 3 and second part of issue No. 4.

22. We, however, make it clear, that since the defendants did notfile any cross objection in the appeal under Order 41 Rule 22 of theCode, they are not allowed to file the cross objection at such belatedstage taking advantage of the remand of the appeal to the First AppellateCourt by this Court.

23. In view of the foregoing discussion, the appeal succeeds andis accordingly allowed. Impugned order and the judgment of the FirstAppellate Court are set aside. The case is remanded to the First appellateCourt for deciding the plaintiff’s first appeal afresh in accordance withlaw on merits as mentioned above.

24. We, however, make it clear that we have not applied our mindto the merits of the controversy having formed an opinion to remand thecase for the reasons mentioned above and hence the First AppellateCourt would decide the plaintiff’s first appeal on merits without beinginfluenced by any of our observations. Let the appeal be decided withinsix months.

Ankit Gyan

Appeal allowed.

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