CRA/10420/2005 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 104 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = ANANTRAI HARIBHAI & 1 - Applicant(s) Versus NALINKANT JAMNADAS PAREKH - Opponent(s) ========================================= = Appearance : MR ASHISH M DAGLI for Applicant(s) : 1 - 2. MR AMAR D MITHANI for Opponent(s) : 1, ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 05/12/2008 ORAL JUDGMENT 1. RULE. Shri Amar Mithani, learned advocate waives CRA/10420/2005 2/7 JUDGMENT service of rule on behalf of the opponent. 2. With the consent of the learned advocates appearing on behalf of the respective parties, the present Civil Revision Application is taken up for final hearing today. 3. The facts leading to the present Civil Revision Application in a nutshell are that the opponent-original plaintiff-landlord had instituted Regular Civil Suit No. 650/1993 in the Court of learned Civil Judge (Junior Division), Junagadh for getting possession of the rented premises on the following grounds; (i) that applicant no. 1-original defendant no. 1 has acquired alternative suitable accommodation; (ii) that applicant no. 1-original defendant no. 1 has subletted the suit premises to applicant no. 2-original defendant no. 2; (iii) that applicant no. 2-original defendant no. 2 has damaged the suit property in question while carrying on the business. 4. On appreciation of evidence and after giving an opportunity to all the concerned, the learned trial Court held issue no. 1 in the affirmative in favour of the opponent -original plaintiff and issue nos. 2 and 3 in the negative and passed a decree for possession against applicant no. 1-original defendant no. 1 on the ground of having acquired alternative suitable accommodation. 5. Being aggrieved and dissatisfied with the judgement and order passed by the learned trial Court dated CRA/10420/2005 3/7 JUDGMENT 24/04/2004 in Regular Civil Suit No. 650/1993, the applicants- tenant have preferred Regular Civil Appeal No. 49/2004 before the learned District Court, Junagadh challenging the findings of the learned trial Court with respect to issue no. 1, which was held against them. It appears that the opponent-original plaintiff did not file any cross objection and/or appeal against the findings of the learned trial Court with respect to issue nos. 2 and 3. Thereafter, by the impugned judgement and order the learned 3rd Extra Assistant Judge, Junagadh by an order dated 09/02/2005 allowed the appeal holding issue nos. 2 and 3 against the applicants-original defendants and issue no. 1 in the negative and passed a decree for possession holding issue nos. 2 and 3 in the affirmative in favour of the opponent- original plaintiff. Being aggrieved and dissatisfied with the judgement and order passed by the learned appellate Court dated 09/02/2005 in Regular Civil Appeal No. 49/2004, the applicants-tenants have preferred the present Civil Revision Application. 6. Shri Ashish Dagli, learned advocate appearing on behalf of the applicants-tenants has submitted that when the learned trial Court held issue nos. 2 and 3 in the negative in favour of the applicants-original defendants, appeal was preferred only challenging the findings of the learned trial Court with respect to issue no. 1 holding it in the affirmative against the applicants-original defendants, and, therefore, the learned appellate Court ought not to have set aside and/or disturbed the findings of the learned trial Court with respect to issue nos. 2 and 3 without giving an opportunity to the petitioner and without drawing the attention of the applicants-original defendants with respect to issue nos. 2 and 3. CRA/10420/2005 4/7 JUDGMENT 6.1. It is submitted that in the present case issue no. 1, which was held in the affirmative has been held negative by the learned appellate Court and issue nos. 2 and 3, which was held negative in favour of the applicants-original defendants have been held affirmative against the applicants-original defendants without giving an opportunity and without drawing the attention of the applicants-original defendants, who had preferred the appeal. It is submitted that assuming that Order 41 Rule 33 of the Civil Procedure Code confers power with the learned appellate Court to consider the findings without any cross objection, still it was incumbent on the part of the learned appellate Court to draw the attention of the applicants- original defendants that he is likely to hold against the applicants-original defendants with respect to issue nos. 2 and 3 and, therefore, it is requested to quash and set aside the impugned judgement and order passed by the learned appellate Court. 7. Shri Amar Mithani, learned advocate appearing on behalf of the opponent-original plaintiff has tried to support the impugned judgement and order passed by the learned appellate Court. However he is not in a position to satisfy the Court that the learned appellate Court can hold the issue in the affirmative, which was held in the negative by the learned trial Court without drawing the attention of the applicants-original defendants. It is submitted by him that Order 41 Rule 33 of the Code of Civil Procedure permits the learned appellate Court to consider all the findings and go to an independent conclusion irrespective of the fact whether the opponent-original plaintiff has preferred any cross objection or not. It is further submitted CRA/10420/2005 5/7 JUDGMENT that if on the aforesaid ground, this Court is satisfied with the impugned judgement and order passed by the learned appellate Court in that case, the appeal may be remanded to the learned appellate Court for deciding the same afresh in accordance with law and on its own merits considering all the findings and the issues with suitable observation that this Court has not quashed and set aside the impugned order passed by the learned appellate Court on merits. 8. Heard the learned advocates appearing on behalf of the respective parties. It is not in dispute that the learned trial Court framed three issues. (i) that applicant no. 1-original defendant no. 1 has acquired alternative suitable accommodation; (ii) that applicant no. 1-original defendant no. 1 has subletted the suit premises to applicant no. 2-original defendant no. 2; (iii) that applicant no. 2-original defendant no. 2 has damaged the suit property in question while carrying on the business. 9. By the judgement and decree, the learned trial Court held issue no. 1 in affirmative in favour of the opponent-original plaintiff-landlord and held issue nos. 2 and 3 in negative in favour of the applicants-original defendants and passed the decree only on the basis of holding issue no. 1 in affirmative. Being aggrieved and dissatisfied with the judgement and decree passed by the learned trial Court, which was on the basis of the finding of issue no. 1 in affirmative and passing the decree on that basis, applicant no. 1-original defendants no. 1 CRA/10420/2005 6/7 JUDGMENT preferred an appeal before the learned appellate Court. It is to be noted that the opponent-original plaintiff had not filed any cross objection before the learned appellate Court against the findings with respect to issue no. 2 and 3, which were held to be in the negative. However, considering Order 41 Rule 33 of the Code of Civil Procedure, without filing any cross objection in the appeal, the learned appellate Court can consider all the findings and the issues, however, the party in whose favour the findings are given by the learned trial Court is to be given an opportunity and/or his attention to be drawn that the issues are held in his favour and the findings which are in his favour, are to be quashed and set aside. 10. In the present case admittedly and on considering the impugned order passed by the learned appellate Court, it appears that such a procedure has not been followed and the attention of the respective parties with respect to issue nos. 2 and 3 has not been drawn by the learned appellate Court. Under the circumstances, the impugned judgement and order passed by the learned appellate Court deserves to be quashed and set aside only on that ground and the matter is to be remanded to the learned appelalte Court for deciding the apepal afresh in accordance with law on its own merits considering the issues and the findings of the learned trial Court. Shri Ashish Dagli, learned advocate appearing on behalf of the applicants-original defendants has submitted that now when he is put to notice that the learned appellate Court is to consider all the issues and the findings afresh, he has no objection, if the appeal is decided and disposed of by the learned appellate Court considering all the findings and issues decided by the learned trial Court. CRA/10420/2005 7/7 JUDGMENT 11. For the reasons stated hereinabove, the petition succeeds. The impugned order passed by the learned appellate Court dated 09/02/2005 in Regular Civil Appeal No. 49/2004 is hereby quashed and set aside and the matter is remanded to the learned appellate Court for deciding the appeal in accordance with law and on its own merits considering the issues and the findings of the learned trial Court. In the facts and circumstances of the case, the learned appellate Court to decide the appeal within a period of six months from the from the date of receipt of this order. 12. It is made clear that this Court has not expressed any opinion on merits in favour of either parties on any of the issues and the findings and the impugend order is set aside solely on the aforesaid ground. It goes without saying that the till the appeal is decided the learned appellate Court, the judgement and order passed by the learned trial Court is stayed. 13. With this, the present Civil Revision Application is disposed of as allowed. Rule is made absolute. There shall be no order as to costs. (M.R. SHAH, J.) siji