BISWAJIT SUKUL versus DEO CHAND SARDA & ORS.

Citation: [2018] 11 S.C.R. 498 · Decided: 25-09-2018 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Leave Granted & Allowed

Judgment (excerpt)

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[2018] 11 S.C.R.
BISWAJIT SUKUL
v.
DEO CHAND SARDA & ORS.
(Civil Appeal No. 9956 of 2018)
SEPTEMBER 25, 2018
[ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]
Code of Civil Procedure, 1908 – Or.XLI, r.22 – Appellant-
plaintiff filed a suit for arrears of rent and eviction against the
respondents-defendants – Suit was dismissed by the trial Court on
finding that the defendant no.1 was plaintiff’s tenant and he did
not default in payment of rent – Plaintiff filed first appeal and
defendants did not file any cross objection u/Or.XLI, r.22 of CPC in
the appeal – First Appellate Court dismissed the appeal and held
that defendant no.1 was not plaintiff’s tenant – Revision petition
was dismissed by the High Court – On appeal, held: First Appellate
Court committed a jurisdictional error in deciding the legality and
correctness of the issue ‘whether defendant no.1 was plaintiff’s
tenant’, as plaintiff in his first appeal did not challenge the said
finding because it was already answered in his favour –
Defendants though suffered the adverse finding on this issue but
did not file any cross objection questioning its legality – First
Appellate Court had no jurisdiction to examine the legality and
correctness of the finding on this issue and reverse it against the
plaintiff as the same was not challenged by the defendants – High
Court also committed the same mistake by not noticing the
jurisdictional error committed by the First Appellate Court –
Therefore, case remanded to the First Appellate Court to decide the
first appeal filed by the plaintiff on its merits only to examine the
legality and correctness of the issues which were decided against
the plaintiff – Assam Urban Areas Rent Control Act.
Allowing the appeal, the Court
HELD: The High Court should have 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
[2018] 11 S.C.R. 498
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were decided by the Trial Court against the plaintiff and which
led to the dismissal of suit. Thus, the case is remanded to the
First Appellate Court to decide the first appeal filed by the plaintiff
(appellant) afresh on its merits only to examine the issues which
were decided against the plaintiff by the Trial Court.
[Paras 20 and 21] [502-G-H; 503-A-B]
CIVIL APPELLATE JURISDICTION :  Civil Appeal No. 9956
of 2018.
From the Judgment and Order dated  02.01.2014 of the Gauhati
High Court at Guwahati in Civil Revision Petition No. 381 of 2002.
Manoj Goel, Shuvodeep Roy, Advs. for the Appellant.
Avijit Bhattacharjee, Mrs. Upma Shrivastava, Ajoy Kr. Ghosh,
Abhay Kant Mishra, Sushil Kr. Kabra, Rameshwar Prasad Goyal, Advs.
for the Respondents.
The Judgment of the Court was delivered by
ABHAY MANOHAR SAPRE, J. 1. Leave granted.
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 of 2002 whereby the High Court dismissed the
Civil Revision Petition filed by the appellant herein.
3. In order to appreciate the short controversy involved in the
appeal, it is necessary to set out the relevant facts hereinbelow.
4. The appellant is the plaintiff whereas the respondents are the
defendants in the civil suit out of which this appeal arises.
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 referred to as  “suit premises”) filed a Civil Title Suit 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 arrears
of rent and eviction from the suit premises.
6. 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
BISWAJIT SUKUL v. DEO CHAND SARDA & ORS.
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respondent thereafter failed to pay rent from 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 (for Short ‘The A

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