JUDGMENT
Syed Bashir-Ud-Din, J.
1. Habib Dar, appellant-plaintiff, (who has by now died and is represented by his legal heirs) filed a suit for ejectment and recovery of arrears of rent against the respondent, in respect of a shop situated at Munwarabad, Srinagar. This suit was filed on 26th May’ 81, on various grounds and in main on the pleaded grounds that the respondent-defedant as a tenant has damaged the tenement and is a source of nuisance for other tenants and the people around. Besides, the plea of personal requirement was also raised. The suit was contested by the other side. Number of issues were raised in the suit. Parties led evidence. The trial concluded in the court of Judge, Small Causes, Srinagar. The suit was decreed in favour of the appellants on the ground of nuisance and annoyance to the adjoining/neighbouring tenants. The finding on all other issues was against the appellant-plaintiff.
2. The respondent-defendant preferred Civil 1st Appeal against the judgment and decree of the trial court, and filed it (1/1998) before the District Judge, Srinagar. The appellant-plaintiff also filed cross objections under Order 41 Rule 22 CPC, objecting the findings returned by the trial court on other issues. The 1st Appellant court, while accepting the appeal preferred by respondent, dismissed the cross objections filed by the appellant-plaintiff vide its order dated 20th Nov’ 89. It is against this order, the present second appeal has been preferred.
3. The learned counsel for the appellants submits that while deciding the appeal, the 1st Appelate court has not decided the cross objections, and thereby, injustice has been meted out to the appellant-landlord. It is further submitted that no reasons have been given and also the other factual and legal points raised in the cross objections have not been addressed by the court below. Mere mention that appeal is accepted and cross objections are rejected in the last lines of the impugned order passed by the 1st Appellate Court, is not the consideration of the cross objections, discussion of evidence led on each issue by the parties, addressing factual issues and legal aspects raised before appellate forum and recording reason while coming to conclusion to uphold appeal by upsetting judgment of lower court while dismising cross objections filed by respondent to appeal and plaintiff before trial court. It is submitted that ignoring/non-adjudication of the cross objections, while deciding the appeal by the 1st Appellate Court, is a legal issue of substantial nature required to be addressed by this court in further appeal (2nd appeal). It is also stated that there is other substantial legal issue involved in as much as the concept of nuisance within the meaning of Tenancy laws as a ground for ejectment is the matter, which is required to be considered by this court.
4. The learned counsel for respondent-tenant submits that notwithstanding that the factual and legal points raised in the cross objections preferred by the appellant-landlord have not been discussed by the 1st Appellate court, but the said court has confirmed the findings of the trial court except on the question of nuisance, and therefore, it cannot be said that the cross objections have not been addressed to. Merely because the 1st Appellate court has upset the judgment of the trial court on the question of nuisance, it cannot be said that the said court has not appreciated the matter in a legal manner.
5. On examination of the record, it is seen that the trial court decreed the suit on the ground that tenant’s acts of omission and commission on acount of running a bakery shop on the demised property is a nuisance to the adjoining inmates and to the school children sharing the same building with defendant-tenant. The other issues raised have not been found substantiated. The 1st Appellate court, while confirming the findings on other issues has upset the finding recorded on the issue of nuisance. It is further seen that the 1st Appellate court has not addressd the grounds taken in the cross objections. This apart, the court below has recorded the finding on other issues without looking for and adhering to the norm of proof required to prove a civil case. The norm, ‘prepondrance of probabilities’, appears not to have been applied to this case within the contours of grounds of apeal and cross objections raised. The 1st Appellate Court has, without discussing the evidence, recorded findings on all other issues other than issue No. 5, hardly in four or five lines. Mere mention of words that cross objections have been filed, without anything more, in absence of reasons and discussion of facts, evidence and legal aspects, is dealing with the matter not within the parameters of law. In Jitendra Prasad Nayak v. Anant Kumar Sah and Anr., (1998) 9 SCC 383, the Supreme Court of India, while remanding the case for fresh disposal, observed as under:-
“….Admittedly, a cross-objection was filed by the appellant-landlord against the rejection by the first appellate court of the existence of one of the two grounds of eviction. However, while deciding the appeal of the respondent-tenant in his favour against the decision of the first appellate court on the other ground, the existance of the cross objection appears to have been missed by the High Court with the result that there is no decision given on the cross objection. The impugned judgment cannot, therefore, be sustained inter alia for this reason. We are also of the opinion that the question relating to existence of the ground of bona fide need which has been decided in favour of the tenant requires a fresh determination by the High Court along with the other point relating to default in payment of rent which was the subject mater of cross-objection…….”
6. In Madhukar and Ors. v. Sangram and Ors., (2001) 4 SCC 756, it was observed that it is the duty of the first appellate court to record its finding only after dealing with all the issues of law as well as of facts and considering the evidence oral as well as documentary led by the parties. The court has to give reasons in support of its findings. If the court fails to discharge its obligation, then it has erred in not according consideration to the grounds on which the trial court on record. The Supreme Court of India accordingly remanded the case for fresh disposal.
7. The judgment of Delhi High Court reported as Shri Krishnan Gopal v. Haji Mohammed Muslim and Ors., AIR 1969 Delhi 126, cited by the learned counsel for the repondent-tenant, is not applicable to the facts and circumstances of this case. The question raised here is not as to when the cross-objections should be raised and when same are to be filed and adjudicated upon. The scope of Order 41 Rule 22 CPC, providingfor cross objections instead of filing an appeal when the other side files an appeal, is not as such a question raised in the present case. The question directly arising in the case is regarding failure on the part of first appellate court to discharge its legal duty of considering and deciding the cross objections, which for all purposes, is a cross appeal on factual and legal grounds raised in the memorandum of cross objections and submissions of the parties within the conspectus of pleadings and evidence led by the parties. Here a point of law based on factual format, available in the case is raised which is substantial one. The first appellate court has exercised its powers and discretion not in a judicial manner which obviously is both an error of law as well as of procedure of substantial nature fraught with potential injustice requiring interference in the second appeal by this court.
8. In the aforesaid view of the matter, this appeal is allowed. The impugned judgment of the first appellate court is set aside. The case is remanded to the first appellate court to decide the matter afresh in accordance with the law. Both the repondent-tenant’s appeal as also appellant-landlord’s cross objections shall be decided a fresh on the pleaded grounds of eviction after both the parties are given opportunity of being heard. Parties to appear before District Judge, Srinagar on 4th Feb’04. Send back record. Inform court below (District Judge Srinagar) of this order.
9. I may hasten to add that the first appellate court would come to its own findings and decide the matter without, in any manner, being shadowed by any observations made here to.
10. Disposed of as such
