Biswajit Sukul vs Deo Chand Sarda

CIVIL APPEAL NO.9956 OF 2018 [Arising out of SLP (C) No.15192 of 2014]

Biswajit Sukul .. Appellant(s)

Versus

Deo Chand Sarda & Ors. .. Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal arises from the final judgment and Signature Not Verified Digitally signed by ANITA MALHOTRA Date: 2018.09.25 order dated 02.01.2014 passed by the Gauhati High 15:52:35 IST Reason:

Court at Guwahati in Civil Revision Petition No.381

1 of 2002 whereby the High Court dismissed the Civil

Revision Petition filed by the appellant herein.

3) In order to appreciate the short controversy

involved in the appeal, it is necessary to set out the

relevant facts hereinbelow.

4) The appellant is the plaintiff whereas the

respondents are the defendants in the civil suit out of

which this appeal arises.

5) The appellant (plaintiff) claiming to be the

landlord of a shop situated 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 of Munsiff No.1

Cachar at Silchar. The suit was filed for claiming

arrears of rent and eviction from the suit premises.

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6) According to the appellant (plaintiff), respondent

No.1 was the appellant’s tenant on a monthly rent. It

was averred that respondent No.1 paid some money

in advance to the appellant, which the appellant

adjusted against the rent ending July 1977. It was

averred that the respondent thereafter failed to pay

rent from August 1977 despite repeated demands

and hence the suit was filed to claim arrears of rent

and the eviction of the respondent as defaulter in

payment of rent. The suit was filed under the

provisions of Assam Urban Areas Rent Control Act

(for Short ‘The Act’). Defendant No.2 got himself

impleaded in the suit claiming to be the necessary

party. It was permitted. The respondents filed the

written statement and denied the material averments

of the plaint.

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7) The Trial Court on the basis of the pleadings

framed following issues:

“1. Whether the suit is maintainable in fact and law?

2. Whether the suit is bad for non joinder of necessary parties?

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

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

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

6. 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 is concerned, the Trial

Court answered in favour of the plaintiff by holding

that the suit is maintainable. So far as issue No.2 is

4 concerned, it was also answered in plaintiff’s favour

by holding that the suit is not bad for non­joinder of

necessary parties and maintainable. So far as issue

No.3 is concerned, it was answered against the

plaintiff by holding that there was no cause of action

to file a suit. So far as No.4 is concerned, it was

divided in two parts. So far as first part is concerned,

it was answered in plaintiff's favour wherein it was

held that defendant No.1 was the plaintiff's tenant in

respect of the suit premises. In other words, it was

held that the relationship of the landlord and tenant

is established between the plaintiff and defendant

No.1 in relation to the suit premises. So far as

second part of issue No.4 is concerned, it was held

against the plaintiff by answering that defendant

No.1 is not a defaulter in payment of rent to the

5 plaintiff. By answering these four issues, the Trial

Court dismissed the plaintiff's suit.

9) The plaintiff felt aggrieved and filed first appeal

before the Civil Judge No.1 (Silchar), Cachar being

Title Appeal No.14/2000. It is pertinent to mention

here that the defendants did not file any cross

objection under Order 41 Rule 22 of Code of Civil

Procedure (hereinafter referred to as “the Code”)

against any of the findings recorded by the Trial

Court against the defendants in the appeal.

10) By judgment dated 14.08.2002, the first

Appellate Court dismissed the appeal. The plaintiff

felt aggrieved and filed revision in the Gauhati High

Court. By impugned order, the High Court (Single

Judge) dismissed the plaintiff's revision and affirmed

the judgment of the First Appellate Court which gives

6 rise to filing of the present appeal by way of special

leave by the plaintiff in this Court.

11) Heard Mr. Manoj Goel, learned counsel for the

appellant and Mr. Avijit Bhattacharjee, learned

counsel for the respondents.

12) After hearing the learned counsel for the parties

and on perusal of the record of the case, we are

inclined to allow the appeal in part and while setting

aside the impugned order and also the judgment of

the First Appellate Court, remand the case to the

First Appellate Court for deciding the first appeal on

merits in accordance with law as directed

hereinbelow.

13) In our considered opinion, the need to remand

the case to the First Appellate Court has arisen for

more than one reason as mentioned hereinbelow.

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14) First, the First Appellate Court committed a

jurisdictional error in deciding the legality and

correctness of the first part of issue No. 4 on merits.

15) Mere perusal of the judgment of the Trial Court

would go to show that while answering the issues,

the Trial Court had divided issue No. 4 in two parts.

So far as first part is concerned, it was in relation to

the question as to whether defendant No.1 was the

plaintiff's tenant or not. In other words, it was in

relation to the question as to whether the plaintiff

was able to prove the relationship of landlord and

tenant between him and defendant No.1 in relation to

suit premises. Indeed, this was one of the main

questions involved in the suit.

16) This question, i.e., first part of issue No.4 was

decided by the Trial Court in plaintiff's favour

wherein it was held that defendant No.1 was the

8 plaintiff's tenant. So far as second part of issue No.4

is concerned, it was in relation to the question as to

whether defendant No.1 was a defaulter in payment

of rent to the plaintiff. This question was answered

by the Trial Court against the plaintiff and in

defendant No.1’s favour wherein it was held that

defendant No.1 did not commit any default in

payment of rent to the plaintiff. It is for this reason,

the suit was dismissed.

17) The plaintiff in his first appeal did not challenge

the finding of the Trial Court recorded on the first

part of issue No.4 and rightly so because it was

already answered by the Trial Court in his favour.

The First Appellate Court, therefore, could not

examine the legality and correctness of this finding in

plaintiff’s appeal unless it was challenged by the

9 defendants by filing cross objection under Order 41

Rule 22 of the Code in the appeal.

18) As mentioned above, the defendants though

suffered the adverse finding on first part of issue No.

4 but did not file any cross objection questioning its

legality. In the light of these admitted facts arising in

the case, the First Appellate Court had no

jurisdiction to examine the legality and correctness of

the finding on first part of issue No. 4 in plaintiff's

appeal and reverse it against the plaintiff.

19) Second, the High Court also committed the

same mistake by not noticing the aforesaid

jurisdictional error committed by the First Appellate

Court. The High Court, in plaintiff's revision again,

went into the legality of the findings of first part of

issue No.4 on merits and affirmed the finding of the

First Appellate Court. This finding ought to have been

10 set aside by the High Court only on the short ground

that the First Appellate Court had no jurisdiction to

examine it in plaintiff’s appeal.

20) In our opinion, the High Court should have

noticed the aforementioned mistake and remanded

the case to the First Appellate Court for deciding the

plaintiff’s appeal afresh on merits confining its

enquiry by the First Appellate Court to decide only

the legality and correctness of those issues, which

were decided by the Trial Court against the plaintiff

and which led to the dismissal of suit.

21) In our opinion, in the light of what we have held

above, we have no option but to set aside the

impugned order and also the judgment of the First

Appellate Court and remand the case to the First

Appellate Court to decide the first appeal filed by the

plaintiff (appellant herein) afresh on its merits only to

11 examine the legality and correctness of the issues

which were decided against the plaintiff by the Trial

Court such as issue No. 3 and second part of issue

No. 4.

22) We, however, make it clear, that since the

defendants did not file any cross objection in the

appeal under Order 41 Rule 22 of the Code, they are

not allowed to file the cross objection at such belated

stage taking advantage of the remand of the appeal to

the First Appellate Court by this Court.

23) In view of the foregoing discussion, the appeal

succeeds and is accordingly allowed. Impugned order

and the judgment of the First Appellate Court are set

aside. The case is remanded to the First appellate

Court for deciding the plaintiff's first appeal afresh in

accordance with law on merits as mentioned above.

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24) We, however, make it clear that we have not

applied our mind to the merits of the controversy

having formed an opinion to remand the case for the

reasons mentioned above and hence the First

Appellate Court would decide the plaintiff's first

appeal on merits without being influenced by any of

our observations. Let the appeal be decided within six

months.

………...................................J. [ABHAY MANOHAR SAPRE]

…...……..................................J. [S. ABDUL NAZEER] New Delhi;

September 25, 2018

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