Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
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
order dated 02.01.2014 passed by the Gauhati High
Digitally signed by
ANITA MALHOTRA
Date: 2018.09.25
15:52:35 IST
Reason:
Court at Guwahati in Civil Revision Petition No.381
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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
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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
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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
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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
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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
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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
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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
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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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