Case: BISWAJIT SUKUL Vs. DEO CHAND SARDA

3. In order to appreciate the short controversy involved in the appeal, it is necessary to set out the relevant facts. The appellant is the plaintiff whereas the respondents are the defendants in the civil suit out of which this appeal. The appellantclaiming to be thelandlord of a shop situatedin 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 (RespondentNo.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. 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 rentfrom 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 (forShort ‘The Act?). Defendant No.2 got himself impleaded in the suitclaiming to be thenecessary party. It was permitted. The respondents filed the written statement and denied the material averments of the plaint.

Reasoning:
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.