The Gauhati High Court has reaffirmed that an appellate court cannot overlook cross-objections filed by respondents, even if not explicitly argued, when those objections form part of the record. This judgment underscores the mandatory duty of appellate courts to engage with all material before them under the Code of Civil Procedure, particularly in suits involving property rights and limitation.
Background & Facts
The Dispute
The dispute centers on a registered agreement for sale dated 07.01.2008, wherein the defendant, Dharma Narayan Sarkar, agreed to sell a portion of land measuring 7 ½ Lessa (Schedule A) under patta No. 142(N), Dag No. 599(O), 875(N), Bidyapara, Dhubri, to late Hiru Vengsarkar for Rs. 90,000. An advance of Rs. 10,000 was paid at execution, and the balance of Rs. 80,000 was received on 15.12.2008. The agreement stipulated that the defendant would execute a sale deed upon obtaining necessary permissions from the Deputy Commissioner.
Key Facts
- The land was jointly held by Dharma Narayan Sarkar and his legal heirs (defendants and proforma defendants)
- Hiru Vengsarkar, the buyer, died on 06.05.2011; his legal heirs (plaintiffs) inherited his rights
- Sale permission was granted by the Deputy Commissioner, Dhubri, on 21.12.2010 (Ext.4)
- The plaintiffs filed the suit for specific performance on 28.02.2012
- The defendants filed a counter-claim alleging tenancy and arrears of Rs. 25,500 in house rent since 01.01.2008
- The defendants and proforma defendants are joint pattadars; no formal partition of the land occurred
- The agreement for sale was executed by only one joint owner (Dharma Narayan Sarkar), without consent of all co-owners
Procedural History
- 07.01.2008: Registered agreement for sale executed between Dharma Narayan Sarkar and Hiru Vengsarkar
- 15.12.2008: Defendant received Rs. 80,000 as balance consideration; issued written receipt
- 21.12.2010: Deputy Commissioner granted permission for sale of the land to Pritikona Ghosh (plaintiff No. 1)
- 27.05.2011: First legal notice served by plaintiff No. 1 demanding execution of sale deed
- 02.09.2011: Second legal notice issued
- 05.02.2012: Plaintiff No. 1 personally requested execution of sale deed; refused
- 28.02.2012: Suit for specific performance filed (Title Suit No. 82/2012)
- 26.05.2017: Munsiff, Dhubri dismissed the suit on grounds of limitation and dismissed counter-claim on procedural grounds
- 12.07.2018: First Appellate Court (Civil Judge, Dhubri) reversed the Munsiff’s order, holding the suit within limitation, but failed to address cross-objections
- 05.09.2017: Cross-objections filed by respondents in Title Appeal No. 20/2017
- 12.07.2018: Appellate judgment pronounced without reference to cross-objections
- 14.02.2018: Revision petition filed before Gauhati High Court (CRP/142/2018)
- 05.03.2026: Judgment reserved
- 20.03.2026: Judgment pronounced
The Parties' Positions
Plaintiffs (Petitioners): Argued that the agreement was valid, consideration was fully paid, permission was obtained, and possession was delivered. They claimed readiness and willingness to perform and asserted that limitation commenced only after refusal post-21.12.2010.
Defendants (Respondents): Contended that the agreement was void ab initio as it was executed by one joint owner without consent of others. They asserted tenancy status of plaintiffs since 1989, claimed arrears of Rs. 25,500 in rent, and argued that the counter-claim was improperly dismissed.
Relief Sought
The petitioners sought quashing of the appellate judgment dated 12.07.2018 and remand for fresh adjudication with proper consideration of cross-objections. The respondents sought affirmation of the Munsiff’s dismissal of the suit and upholding of the counter-claim for eviction and recovery of rent.
The Legal Issue
Whether an Appellate Court commits a material irregularity by failing to refer to or consider cross-objections filed by respondents under Order 41 Rule 31 CPC, even if not orally argued, when those objections are part of the record?
Arguments Presented
For the Petitioner
Learned counsel for the petitioners relied on Nafees Ahmad & Another v. Soinuddin & Others (2025 INSC 520) to argue that while appellate courts have discretion to refer to lower court proceedings, they cannot ignore material filed in the record, especially cross-objections. The failure to address cross-objections renders the judgment procedurally defective and violates the principles of natural justice.
For the Respondent
Learned counsel for the respondents contended that since no specific oral submissions were made on the cross-objections during the hearing, the Appellate Court was not obligated to discuss them. They argued that the judgment was otherwise correct on limitation and that the cross-objections were merely procedural formalities.
The Court's Analysis
The Court examined the provisions of Order 41 Rule 31 CPC, which mandates that the Appellate Court shall state the points for determination, the decision thereon, and the reasons for the decision. The Court emphasized that Rule 31 is not merely procedural but substantive - it ensures transparency and accountability in appellate adjudication.
"It is competent to pronounce judgment after hearing what the parties or their pleaders submit to it for consideration. It follows therefore that if the appellant submits nothing for its consideration, the Appellate Court can decide the appeal without any reference to any proceedings of the courts below..."
The Court acknowledged the holding in Nafees Ahmad that an appellate court is not bound to refer to every document or submission if not urged. However, the Court drew a critical distinction: cross-objections are not mere submissions - they are formal pleadings filed under Order 41 Rule 22 CPC, and are part of the record by operation of law. Their existence cannot be ignored.
The Appellate Court’s judgment made no mention of the cross-objections filed on 05.09.2017, despite their direct relevance to the validity of the agreement, the tenancy claim, and the counter-claim. The Court held that this omission amounted to a failure to exercise jurisdiction vested by law and constituted a material irregularity.
The Court further noted that the Appellate Court’s reasoning on limitation, while potentially correct, was rendered legally unsound because it proceeded without addressing the fundamental challenge to the agreement’s validity - namely, the absence of consent from all joint pattadars. This issue, raised in the cross-objections, could have rendered the entire suit void.
The Verdict
The Gauhati High Court set aside the Appellate Court’s judgment dated 12.07.2018. The matter was remanded to the learned First Appellate Court for fresh adjudication, with directions to consider all material on record, including the cross-objections filed on 05.09.2017, and to give the parties an opportunity to present oral submissions on all issues. The Appellate Court must pass a reasoned order addressing each point raised in the cross-objections and the original appeal.
What This Means For Similar Cases
Cross-Objections Are Not Optional
- Practitioners must ensure that cross-objections are formally filed and preserved in every appeal
- Appellate courts cannot assume that unargued cross-objections are abandoned
- Failure to address them renders the judgment liable to be set aside on grounds of procedural illegality
Limitation Cannot Be Decided in a Vacuum
- Even if limitation appears favorable, courts must first determine whether the underlying contract is legally enforceable
- In joint property cases, consent of all co-owners is essential for a valid sale agreement
- Courts must examine the validity of the contract before applying limitation rules
Appellate Courts Must Record Engagement with Record
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A judgment that omits reference to filed cross-objections is vulnerable to challenge
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The mere existence of cross-objections in the record triggers a duty to engage with them
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Appellate courts should explicitly state whether they have considered or rejected each cross-objection
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Always cite Nafees Ahmad v. Soinuddin to distinguish between discretionary reference and mandatory consideration
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In property suits, always verify joint ownership status before filing for specific performance
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When drafting pleadings, ensure cross-objections clearly articulate legal and factual challenges
