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2019 DIGILAW 672 (CAL)

Jyotsna Das v. Sailendra Nath Paul

2019-06-27

JAY SENGUPTA, SANJIB BANERJEE

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JUDGMENT : 1. The principal question of law which is sought to be raised in this second appeal is whether a party who is not aggrieved by the decree of the trial court is obliged to file a cross-objection against any finding rendered on an issue against such party by the trial court in any other party’s appeal for the decision on the relevant issue to be reversed. 2. Following a written notice issued to the widow of the deceased original tenant, a suit was instituted against such widow for eviction. An objection was taken by the defendant, who seeks to prefer the present second appeal, that the suit was not maintainable since the original tenant was survived by other heirs who had not been impleaded in the suit. The trial court found the suit not to be maintainable on such ground. However, in consonance with the somewhat strange command of Order XIV Rule 2(1) of the Code, despite the trial court holding that the suit was not maintainable, it proceeded to address the other issues, including the one as to whether the plaintiff was entitled to possession on the ground of reasonable requirement. Quite surprisingly, the issue was answered in favour of the plaintiff and in a rather cursory manner. 3. The plaintiff preferred an appeal against the dismissal of the suit. No cross objection was filed by the defendant who is the would-be second appellant. On the maintainability of the suit, the respondent-landlord asserted before the first appellate court that in view of Section 2(g) of the West Bengal Premises Tenancy Act, 1997, the landlord was obliged only to implead the widow of the original tenant as a party to the eviction suit since the other heirs of the original tenant had either surrendered their rights in favour of the widow or the other heirs had no further right to continue in possession of the tenanted premises. The first appellate court agreed with the landlord. The defendant-widow does not challenge such finding of the first appellate court. 4. The first appellate court agreed with the landlord. The defendant-widow does not challenge such finding of the first appellate court. 4. However, the defendant submits that notwithstanding the first appellate court having reversed the finding on the issue as to the maintainability of the suit, it was incumbent on the first appellate court to look into the grounds for eviction made out and permit the defendant to urge that the decision of the trial court on the relevant issue was erroneous before disposing of the appeal. 6. The defendant takes particular objection to what is recorded at paragraph 7 of the appellate judgment: “(7) It appears from the case record that Ld. Trial Court decided issue No.3 (Whether the instant suit is barred by any principles of law), issue No.4 (Whether the notice to quit dt.23.05.2012 is legal, valid and sufficient and it has been served properly to the defendant) and issue No.6 (Whether the plaintiff reasonably requires the suit property for self and for use of his family members) in favour of the plaintiff. No cross appeal has been preferred from the side of defendant/respondent challenging the observation of Ld. Trial Court in respect of issues No.3, 4 & 6. In the decision reported in (2017) 2 Supreme Court Cases (Civ) 241 (Laxman & others Vs G. Ayyasamy) it has been held that in the absence of an independent appeal or cross-objection being filed by the aggrieved party in respect of the relief concerned, the relief which was denied by the courts below cannot be granted in 2nd appeal filed by the appellant. So, I do not find any reason for interference with the observation of the Ld. Trial Court in respect of issues No.3, 4 & 6.” 7. Though it is evident from paragraph 7 of the appellate judgment sought to be assailed herein that the first appellate court thought that the issue as to reasonable requirement could not be reopened in the absence of any cross-objection being taken by the defendant, it does not appear from the grounds taken in the second appeal or from the recording of what transpired before the first appellate court in the impugned judgment that any attempt was made by the defendant to question the propriety of the finding of the trial court on the issue of reasonable requirement. 8. 8. It is contended on behalf of the plaintiff that a cross-objection ought to have been filed by the defendant or the defendant was otherwise precluded from assailing the finding of the trial court on the issue of reasonable requirement. The submission on behalf of the plaintiff is that it would not do for a party who has suffered a reverse on any issue to sit quietly and only stand up at the final hearing of the appeal to assail the finding and, thereby, take the appellant by surprise. The plaintiff asserts that if a party taking a cross objection is liable to file such objection within the period of limitation or within the extended period as the appellate court may allow, on a conjoint reading of the substantial provision of Order XLI Rule 22 of the Code and the Explanation thereto, it is evident that the non-appellant has to state the objection as regards any finding on an issue that has gone against such non-appellant within the period of limitation. 9. Several judgments have been cited on behalf of the parties, including the ones reported at (1999) 7 SCC 435 , (2002) 6 SCC 1 , (2007) 11 SCC 75 , (2013) 9 SCC 261 and (2018) 10 SCC 584 . 10. In the earliest of the judgments cited, the Supreme Court took a view, as was later emphasised in the judgment of 2007, that the insertion in the substantive part of Order XLI Rule 22 of the Code by the 1976 Amendment did not alter the sense of the law as embodied therein or change the legal provision in any manner whatsoever and even the addition of the Explanation could not be said to have varied the position at law than what obtained prior to the amendment. The substantive part of the Order XLI Rule 22 of the Code, in its form before the 1976 Amendment and thereafter, contemplates two situations: where the concerned non-appellant is not aggrieved at all by the decree and where the concerned non-appellant is partly aggrieved by the decree. 11. When a party is not aggrieved at all by the decree but is aggrieved by a finding on an issue rendered by the trial court, such party may than merely state that it assails the finding for the purpose of supporting the decree that is questioned in the appeal by another party. 11. When a party is not aggrieved at all by the decree but is aggrieved by a finding on an issue rendered by the trial court, such party may than merely state that it assails the finding for the purpose of supporting the decree that is questioned in the appeal by another party. Such challenge is, ordinarily, indicated at the hearing of the appeal. However, if a party who has not preferred an appeal is partly aggrieved by the decree, instead of filing an independent appeal, such party may file a cross objection. It is, thus, that the period of limitation applies to a party who intends to file a cross-objection to challenge any part of the decree, but not to a party who need not file a cross-objection but may assail a finding on an issue without assailing the decree. 12. The Explanation introduced by way of the 1976 Amendment permits a finding to also be challenged by way of a cross objection, even if the party challenging the finding is not aggrieved by the decree. It only implies that it may not be necessary to file a cross-objection if a party is aggrieved only by the finding on an issue but not by the decree. However, if a party to a decree not aggrieved by the decree chooses to file a cross-objection, such cross-objection has to be carried within the period of limitation. But Order XLI Rule 22 of the Code does not imply that if a person is not aggrieved by a decree but is aggrieved only by a finding on an issue, then such person must file a cross-objection in any other person’s appeal to be entitled to challenge the finding on such issue. 13. In view of the legal position as noticed above and as is evident from the Supreme Court judgments cited by the parties, particularly the judgments of 1999 and 2007, the finding of the lower appellate court as evident from paragraph 7 of the impugned judgment is not acceptable. However, since it does not appear otherwise that the appellant herein had attempted to challenge the finding on the issue of reasonable requirement before the first appellate court, it cannot be said that such ground can be raised for the first time in course of the second appeal. 14. However, since it does not appear otherwise that the appellant herein had attempted to challenge the finding on the issue of reasonable requirement before the first appellate court, it cannot be said that such ground can be raised for the first time in course of the second appeal. 14. Accordingly, the judgment and order impugned do not call for any interference and the decree obtained by the plaintiff is left undisturbed. 15. SAT 18 of 2019 is disposed of. There will be no order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.