REPORTABLE INTHESUPREMECOURTOFINDIA CIVILAPPELLATEJURISDICTION CIVILAPPEALNO.9956OF2018 [ArisingoutofSLP(C)No.15192of2014] BiswajitSukul ..Appellant(s) Versus DeoChandSarda&Ors. ..Respondent(s) JUDGMENT AbhayManoharSapre,J. 1) Leavegranted. 2) This appeal arises from the final judgment and order dated 02.01.2014 passed by the Gauhati High Court at Guwahati in Civil Revision Petition No.381 1 of 2002 whereby the High Court dismissed the Civil RevisionPetitionfiledbytheappellantherein. 3) In order to appreciate the short controversy involved in the appeal, it is necessary to set out the relevantfactshereinbelow. 4) The appellant is the plaintiff whereas the respondentsarethedefendantsinthecivilsuitoutof whichthisappealarises. 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 referredtoas suitpremises)filedaCivilTitleSuit 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 arrearsofrentandevictionfromthesuitpremises. 2 6) Accordingtotheappellant(plaintiff),respondent No.1wastheappellantstenantonamonthlyrent.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 thereafte
REPORTABLE INTHESUPREMECOURTOFINDIA CIVILAPPELLATEJURISDICTION CIVILAPPEALNO.9956OF2018 [ArisingoutofSLP(C)No.15192of2014] BiswajitSukul ..Appellant(s) Versus DeoChandSarda&Ors. ..Respondent(s) JUDGMENT AbhayManoharSapre,J. 1) Leavegranted. 2) This appeal arises from the final judgment and order dated 02.01.2014 passed by the Gauhati High Court at Guwahati in Civil Revision Petition No.381 1 of 2002 whereby the High Court dismissed the Civil RevisionPetitionfiledbytheappellantherein. 3) In order to appreciate the short controversy involved in the appeal, it is necessary to set out the relevantfactshereinbelow. 4) The appellant is the plaintiff whereas the respondentsarethedefendantsinthecivilsuitoutof whichthisappealarises. 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 referredtoas suitpremises)filedaCivilTitleSuit 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 arrearsofrentandevictionfromthesuitpremises. 2 6) Accordingtotheappellant(plaintiff),respondent No.1wastheappellantstenantonamonthlyrent.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 thesuit wasfiledto claim arrearsof 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 writtenstatementanddeniedthematerialaverments oftheplaint. 3 7) The Trial Court on the basis of the pleadings framedfollowingissues: 1. Whether the suit is maintainable in fact andlaw 2. Whether the suit is bad for non joinder of necessaryparties 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 decreeasprayedfor 6.Towhatrelief/reliefsthepartiesarefound entitledto 8) Parties adduced their evidence. The Trial Court byjudgment/decreedated23.12.1999dismissedthe suit. So far as issue No.1 is concerned, the Trial Court answered in favour of the plaintiff by holding thatthesuitismaintainable.SofarasissueNo.2is 4 concerned, it was also answered in plaintiffs favour byholdingthatthesuitisnotbadfornonjoinderof necessary partiesand maintainable. So far asissue No.3 is concerned, it was answered against the plaintiffbyholdingthattherewasnocauseofaction to file a suit. So far as No.4 is concerned, it was dividedintwoparts.Sofarasfirstpartisconcerned, it was answered in plaintiff's favour wherein it was heldthatdefendantNo.1wastheplaintiff'stenantin respect of the suit premises. In other words, it was heldthattherelationshipofthelandlordandtenant 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 Courtdismissedtheplaintiff'ssuit. 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 Courtagainstthedefendantsintheappeal. 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)dismissedtheplaintiff'srevisionandaffirmed thejudgmentoftheFirstAppellateCourtwhichgives 6 rise to filing of the present appeal by way of special leavebytheplaintiffinthisCourt. 11) Heard Mr. Manoj Goel, learned counsel for the appellant and Mr. Avijit Bhattacharjee, learned counselfortherespondents. 12) Afterhearingthelearnedcounselfortheparties and on perusal of the record of the case, we are inclinedtoallowtheappealinpartandwhilesetting aside the impugned order and also the judgment of the First Appellate Court, remand the case to the First Appellate Courtfor 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 morethanonereasonasmentionedhereinbelow. 7 14) First, the First Appellate Court committed a jurisdictional error in deciding the legality and correctnessofthefirstpartofissueNo.4onmerits. 15) MereperusalofthejudgmentoftheTrialCourt would go to show that while answering the issues, theTrialCourthaddividedissueNo.4intwoparts. Sofarasfirstpartisconcerned,itwasinrelationto 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 tenantbetweenhimanddefendantNo.1inrelationto suit premises. Indeed, this was one of the main questionsinvolvedinthesuit. 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'stenant.SofarassecondpartofissueNo.4 isconcerned,itwasinrelationtothequestionasto 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.1s favour wherein it was held that defendant No.1 did not commit any default in paymentofrenttotheplaintiff. Itisforthisreason, thesuitwasdismissed. 17) Theplaintiffinhisfirstappealdidnotchallenge 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 examinethelegalityandcorrectnessofthisfindingin plaintiffs appeal unless it was challenged by the 9 defendants by filing cross objection under Order 41 Rule22oftheCodeintheappeal. 18) As mentioned above, the defendants though sufferedtheadversefindingonfirstpartofissueNo. 4but didnot fileany cross objection questioning its legality.Inthelightoftheseadmittedfactsarisingin the case, the First Appellate Court had no jurisdictiontoexaminethelegalityandcorrectnessof the finding on first part of issue No. 4 in plaintiff's appealandreverseitagainsttheplaintiff. 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 FirstAppellateCourt.Thisfindingoughttohavebeen 10 setasidebytheHighCourtonlyontheshortground that the First Appellate Court had no jurisdiction to examineitinplaintiffsappeal. 20) In our opinion, the High Court should have noticed the aforementioned mistake and remanded thecasetotheFirstAppellateCourtfordecidingthe plaintiffs 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 andwhichledtothedismissalofsuit. 21) Inouropinion,inthelightofwhatwehaveheld 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 AppellateCourttodecidethefirstappealfiledbythe plaintiff(appellantherein)afreshonitsmeritsonlyto 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 appealunderOrder41Rule22oftheCode,theyare notallowedtofilethecrossobjectionatsuchbelated stagetakingadvantageoftheremandoftheappealto theFirstAppellateCourtbythisCourt. 23) In view of the foregoing discussion, the appeal succeedsandisaccordinglyallowed.Impugnedorder andthejudgmentoftheFirstAppellateCourtareset aside. The case is remanded to the First appellate Courtfordecidingtheplaintiff'sfirstappealafreshin accordancewithlawonmeritsasmentionedabove. 12 24) We, however, make it clear that we have not applied our mind to the merits of the controversy havingformedanopiniontoremandthecaseforthe reasons mentioned above and hence the First Appellate Court would decide the plaintiff's first appeal on merits without being influenced by any of ourobservations.Lettheappealbedecidedwithinsix months. ...................................J. [ABHAYMANOHARSAPRE] .....................................J. [S.ABDULNAZEER] NewDelhi; September25,2018 13
Show less
Create annotations and case research papers through full feature set along with access to entire Supreme Court Judgements database. Sign up Now!
Diary Number 11232 / 2014
Case Number C.A. No.-009956-009956 / 2018
Judgment Date 25-09-2018
Bench HON'BLE MR. JUSTICE ABHAY MANOHAR SAPRE, HON'BLE MR. JUSTICE UDAY UMESH LALIT
SHUVODEEP ROY
RAMESHWAR PRASAD GOYAL