M/S. Clyde Stores Pvt. Ltd vs Sri Arun Kumar Gupta & Ors
2022 Latest Caselaw 1097 Cal

03.   09.03.2022
       Ct. No.21



                                                  C.O. 1092 of 2020

                                         M/s. Clyde Stores Pvt. Ltd.
                                                  -Versus-
                                        Sri Arun Kumar Gupta & Ors.

                                            (Through Video Conference)

                        Mr. Subhasis Sen Gupta,
                        Mr. Sarosij Das Gupta,
                        Ms. Subhra Das,
                                                               ...for the Petitioner
                        Mr.   Tanmoy Mukherjee,
                        Mr.   Sounak Bhattacharya,
                        Mr.   Sounak Mondal,
                        Mr.   Souvik Das,
                        Mr.   Rudranil Das,
                        Mr.   K.R. Ahmed,
                                                               ...for the opposite parties

                        The present application under Article 227 of the

              Constitution of India is at the instance of the plaintiff being

              aggrieved by the order passed by the learned Judge, 4th Bench,

              City Civil Court, at Calcutta in Title Appeal No. 112 of 2011 on

              26.02.2020 whereby learned Appellate Court has been pleased

              to allow the respondent's application dated 29.08.2019

granting them liberty to advance argument in respect of issue

no. 5 and 6 though no cross objection has been filed to that

effect.

The fact which is necessary for determination of the

present application in gist is that plaintiffs/opposite

parties/the landlord owners have filed an Ejectment Suit no.

297 of 2004 before the 5th Bench, Presidency Small Causes

Court for eviction of the defendant/petitioner on the ground of

reasonable requirement for subletting and for causing addition

and alteration works in the disputed tenanted premises. The

said suit was decreed only on the ground of a reasonable

requirement on 29.07.2011.

Being aggrieved by the decree of eviction the

defendant/tenant preferred Title Appeal being no. 112 of 2011.

The learned First Appellate Court below was pleased to set

aside the judgment and decree dated 29.07.2011 and send

back the case on remand with a direction to provide

opportunities to the parties to take necessary steps for

conducting Commission in respect of 10/C/ Janaki Saha Road

vide its judgment dated 30.09.2013.

The plaintiffs/landlords being aggrieved by the order

passed by the First Appellant Court preferred Miscellaneous

Appeal being no. FMA 1435 of 2014 before this Hon'ble High

Court. The said FMA was disposed of by an order dated

26.08.2016 wherein learned First Appellate Court was directed

to take into consideration the pendency of cross appeal while

deciding the appeal to dispose of cross appeal if the same is

maintainable after giving reasonable opportunity to the other

side to adduce evidence, if required.

It was found that no cross appeal was ever preferred by

the plaintiffs for dismissal of their prayer for eviction of the

defendant/tenant on the ground of subletting and for effecting

addition and alteration works in the tenanted premises.

Consequently, the plaintiffs filed an application under Section

151 C.P.C. along with a true copy of purported cross objection

for disposal with regard to issue no. 5 and 6. Xerox copy of

cross objection filed by the plaintiff in respect of issue no. 5

and 6 was kept pending subject to decision of the Hon'ble High

Court in pending C.O no 4167 of 2017.

Hon'ble High Court in CO. No. 4167 of 2017 inter alia

observed that no conclusive proof of filling cross objection by

the plaintiffs has been produced at any stage, be it in the form

of a filing slip or an entry no., filing no. or the like. Mere

service of a copy of a purported cross objection, could not be

equated with filing of a cross objection. However, the plaintiffs

who have not filed formal cross objection should be allowed to

make submission in respect of cross objection and decide the

objection along with appeal.

From the impugned order it appears that in-compliance

of the direction given by the Hon'ble High Court in CO. No.

4167 of 2017 the learned Appellate Court below has given

liberty to the plaintiffs to advance their argument in respect of

issue no. 5 and 6 though no formal objection has been filed to

that effect.

Therefore, the only question that requires determination

in the present revisional application is whether without filling

formal cross objection in respect of issue no. 5 and 6 which

have gone against the plaintiff though they have obtained a

decree of eviction against the petitioner/defendant on the

ground of reasonable requirement can be allowed to advance

their argument on those two issues?

It has been contended by the learned advocate for the

petitioner that in view of Order 41 Rule 22 and Rule 33 C.P.C.

the plaintiffs/landlords though who have obtained decree of

eviction against the defendant/petitioner on the ground of

reasonable requirement when their case for eviction fails on

the ground of subletting and for causing addition and

alteration works in the disputed tenancy then the

plaintiffs/landlords have to file cross objection/ cross appeal

against those two issues and without written cross objection or

cross appeal they cannot raise the issue before the Appellate

Court.

He in support referred to Hardevinder Singh vs Paramjit

Singh and others reported in (2013) 9 SCC 261, where Hon'ble

Supreme Court after taking into consideration Banarshi and

others vs Ram Phal reported in (2003) 9 SCC 606 held that

"after the 1976 Amendment of Order 41 Rule 22, the insertion

made in sub-rule (1) makes it permissible to file a cross-

objection against a finding. The difference is basically that a

respondent may defend himself without taking recourse to file

a cross-objection to the extent the decree stands in his favour,

but if he intends to assail any part of the decree, it is

obligatory on his part to file the cross- objection. In Banarsi

and Others v. Ram Phal , it has been observed that the

amendment inserted in 1976 is clarificatory and three

situations have been adverted to therein. Category No. 1 deals

with the impugned decree which is partly in favour of the

appellant and partly in favour of the respondent. Dealing with

such a situation, the Bench observed that in such a case, it is

necessary for the respondent to file an appeal or take cross-

objection against that part of the decree which is against him if

he seeks to get rid of the same though he is entitled to support

that part of the decree which is in his favour without taking

any cross-objection. In respect of two other categories which

deal with a decree entirely in favour of the respondent though

an issue had been decided against him or a decree entirely in

favour of the respondent where all the issues had been

answered in his favour but there is a finding in the judgment

which goes against him, in the pre-amendment stage, he could

not take any cross-objection as he was not a person aggrieved

by the decree. But post-amendment, read in the light of

explanation to sub-rule (1), though it is still not necessary for

the respondent to take any cross- objection laying challenge to

any finding adverse to him as the decree is entirely in his

favour, yet he may support the decree without cross-

objection. It gives him the right to take cross-objection to a

finding recorded against him either while answering an issue

or while dealing with an issue. It is apt to note that after the

amendment in the Code, if the appeal stands withdrawn or

dismissed for default, the cross-objection taken to a finding by

the respondent would still be adjudicated upon on merits

which remedy was not available to the respondent under the

unamended Code".

Learned advocate for the petitioner also referred to State

of Andhra Pradesh and Others vs B. Ranga Reddy (D) By LRS

and Others reported in (2020) 15 SCC 681 in support of his

contention.

On the other hand learned advocate appearing for the

opposite parties referred to Saurav Jain and Another vs A.B.P.

Designs and Another reported in 2021 SCC Online SC 552 and

submitted that the decree is entirely in favour of the opposite

parties/ respondents though two issues have been decided

against them and as such the case of the opposite parties does

not fall under the post amended provision of Order 41 Rule 22

of C.P.C rather it falls under the provisions pre amendment of

Order 41 Rule 22 C.P.C and which does not permit the

respondent to take any cross objection as they were not the

persons aggrieved by the decree. Under the amended C.P.C

read in the light of the explanation, though it is still not

necessary for the opposite parties to take any cross objection

laying challenge to any finding adverse to them as the decree

is entirely in their favour and they may support the decree

without cross objection. The amendment gives them a right to

take cross objection to a finding recorded against them either

while answering an issue or while dealing with an issue.

Perused the judgment passed by the learned Trial Court

in Ejectment Suit No.297 of 2004. The issue no.5 which reads

"whether the defendant has illegally transferred, assigned or

sublet the suit premises?" On such issue, the learned Trial

Court held that defendant Company has not transferred the

tenancy to any third person; rather they sold the shares of the

Company to the persons who are still continuing the said

business under the same name and style and decided the

issue against the plaintiffs.

Issue no. 6 deals "whether the defendant is guilty of

making addition and alteration in the suit premises without

the consent of the landlord?" On such issue the learned Trial

Court held that the plaintiffs have failed to prove addition and

alteration work being carried out in the disputed tenanted

premises by the defendant and decided the issue against the

plaintiffs.

Now, a question arise in the mind of this Court that in

case the Appellate Court hold that plaintiffs do not require the

disputed tenanted premises for their own use and occupation

as held by the trial court then the case of the plaintiffs fails in

its entirety. So plaintiffs to safeguard their interest they on

their own interest ought to have filed cross appeal/ cross

objection to the extent to which the decree is against them.

They in order to get rid of the issues that have been decided

against them they ought to have either filed cross appeal on

their own or should have taken cross objection. That without

filing cross objection against issue no.5 and 6 the plaintiffs

cannot insist for hearing on those issues to their advantage.

It is true Order 41 Rule 33 C.P.C conferred very wide

powers on Appellate Court to do complete justice between

parties but such power cannot be exercised by ignoring any

legal interdict. Therefore, this Court is of view the plaintiffs

who have failed to file written cross objection in the form of a

memorandum under Order 41 Rule 22 C.P.C within one

month of service of notice of appeal in respect of issue no. 5

and issue no.6 which have been decided against them, then

Appellate Court under no circumstances can give them relief

under provision of Order 41 Rule 33 C.P.C.

The Hon'ble Coordinate Bench of this Hon'ble High

Court while disposing C.O No.4167 of 2017 on 26.06.2019 has

passed an order to the effect that "petitioners will be free to

urge such contention before the Appellate Court and in the

event Appellate Court is satisfied with such contention, it will

be open to the first Appellate Court to permit the petitioners to

take such cross objection to the judgment and decree assailed

in the appeal and decide such objection along with the appeal

itself."

It appears from the impugned order that learned

Appellate Court below in view of the order passed by Hon'ble

Coordinate Bench of this Hon'ble High Court in C.O No. 4167

of 2017 and on being satisfied with the contention made by the

parties has given liberty to the petitioner to advance their

argument in respect of issue no.5 and 6 though no cross

objection has been filed by them.

Though first Appellate Court who has been vested with

wide powers to re appreciate evidence and have power to pass

decree or order, in favour of all or any of the parties even

though appeal is as to part of only of decree and such party

may not have filed appeal, but under no circumstances can

give relief under Order 41 Rule 33 of C.P.C to a party who have

failed to file memorandum of cross objection under Order 41

Rule 22 C.P.C or cross appeal.

Therefore, in view of the discussion made above this

Court holds the impugned order suffers from material

irregularity and liable to be set aside.

Accordingly, C.O. 1092 of 2020 is allowed.

Connected application, if any, is disposed of.

Interim order, if any, stands discharged.

There will be no order as to costs.

All parties are directed to act on a server copy of

this order duly downloaded from the official website of

this Court.

Urgent Photostat certified copies of this order, if

applied for, be given to the parties upon compliance of all

requisite formalities.

( Kesang Doma Bhutia, J.)