Code of Civil Procedure, 1908 – Or.XLI, r.22 – Appellantplaintiff 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 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]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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