BISWAJIT SUKUL vs DEO CHAND SARDA On 2018-09-25

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.
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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

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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
byholdingthatthesuitisnotbadfornon�joinderof
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
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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
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.
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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
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