Case: BISWAJIT SUKUL Vs. DEO CHAND SARDA

the plaintiffs 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 plaintiff. By answering these four issues, the Trial Court dismissed the plaintiffs 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 plaintiffs revision and affirmed the judgment of the First Appellate Court which gives 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. 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 plaintiffs 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 plaintiffs favour wherein it was held that defendant No.1 was the plaintiffs 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 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 plaintiffs 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 plaintiffs 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 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 plaintiffs appeal and reverse it against the. Second, the High Court also committed the same mistake by not noticingthe aforesaid jurisdictional error committed by the First Appellate Court. The High Court, in plaintiffs 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 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. 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. 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 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.. We, however, make it clear, that since the defendants did notfile 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.