SUKUMARAN v. SUSY ISAAC — 1985 DIGILAW 316 (KER)

Judgment :- 1. The tenant is the revision petitioner. The landlord sought eviction of the revision petitioner on the grounds of arrears of rent and bona fide need for own occupation coming under S.11 (2)(b) and 11 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the Act. The main contention of the tenant was that the applicant is not entitled to receive rent for the building and therefore the petition is not maintainable. Such a contention was raised under the following circumstances: By the judgment in OS. No. 143/71 on the file of the Munsiff's Court, Kottayam, two persons who were the original tenants of the landlord were allowed to receive the rent of the petition schedule building. There the original tenants had prayed for recovery of possession of the petition schedule building and also the movables from the revision petitioner. In that suit the present respondent who is the landlord was impleaded as additional 2nd defendant. The revision petitioner herein raised the contention that the plaintiffs therein had no leasehold interest or other right or possession of the building and therefore the plaintiffs therein are not entitled to any relief. However, the Munsiff's Court by Ext. BI judgment decreed the suit and held that the plaintiffs are entitled to recover possession of the plaint schedule building from the defendant with arrears of rent. It was under these circumstances that the revision petitioner contended that the respondent herein is not entitled to file this petition for eviction. 2. In view of Ext. BI judgment the Rent Control Court held that even though the landlord is entitled to evict the revision petitioner under S.11(3) of the Act, since the petition is not maintainable the petition was dismissed. 3. Ext. BI judgment was taken up in appeal and when the appeal from the Rent Control Court's order was pending before the Rent Control Appellate Authority the landlord produced the appellate judgment reversing Ex. BI judgment. It was conceded by counsel appearing on both sides that Ext. BI judgment was set aside and that the respondent herein is the landlord and the revision petitioner is a direct tenant under her. BI judgment. It was conceded by counsel appearing on both sides that Ext. BI judgment was set aside and that the respondent herein is the landlord and the revision petitioner is a direct tenant under her. Therefore the Appellate Authority reversed the finding of the Rent Control Court Regarding bona fide need, the Appellate Authority observed that since there is no cross-objections against that finding the finding regarding bona fide need has become final Accordingly the appeal was allowed and eviction was ordered under S.11(3) of the Act. In the revision under S.20 of the Act the District Court confirmed the finding regarding landlord and tenant relationship between the respondent and the revision petitioner. Thereafter the District Court considered the ground of bona fide need of the landlord. It was observed that since no cross-objection was filed the finding of the Rent Control Court has become final. After making this observation the District Court considered the question on merits and held that the finding regarding bona fide need is correct and accordingly dismissed the revision petition. 4. Challenging this order the learned counsel for the revision petitioner submitted that there is no provision to file Cross Appeal or Memorandum of Cross objections in the Act; and therefore the finding of the Appellate Authority that since no Cross Appeal is filed the Appellate Authority cannot consider the ground of bona fide need, is illegal and is liable to be set aside. It was further submitted that the consideration of this ground by the District Court is not proper since the District Court was also of the view that without a Memorandum of Cross Objections the tenant is not entitled to agitate this question and that, that observation has vitiated the finding of the District Court regarding bona fide need Under S 23 of the Act, Order XLI R.22 CPC. is not made applicable to proceedings under the Act Under R.15 and 16 of the Kerala Buildings (Lease and Rent Control) Rules, 1979, also there is no provision for filing any Cross Appeal or Memorandum of Cross Objections. Therefore the contention is that since there is no statutory provision enabling the tenant to file a Memorandum of Cross Objections or Cross Appeal the approach of the Appellate Authority was erroneous Reliance was placed on B. Pullayya v. M.A. Chetti (AIR, 1972 Andhra Pradesh 66). Therefore the contention is that since there is no statutory provision enabling the tenant to file a Memorandum of Cross Objections or Cross Appeal the approach of the Appellate Authority was erroneous Reliance was placed on B. Pullayya v. M.A. Chetti (AIR, 1972 Andhra Pradesh 66). where Chinnappa Reddi J. (as he then was) held as follows: "6 I am of opinion, that the provisions of 0.41, R.22, Civil P. C. are not inconsistent with any of the provisions of the Act and are, therefore, applicable to proceeding before the appellate authority under the Act. 7. The petitioner, therefore, was entitled, both on general principles and on the application of 0.41, R.22 to sustain the order of the Rent Controller before the Appellate Authority on the grounds decided against him by the Rent Controller." In C. P. J Temple v. Harikrishna (AIR. 1973 SC. 2565) the Supreme Court considered the contention that the respondents therein cannot raise an objection since they did not appeal from the decree of the High Court. That contention was disposed of by the Supreme Court with the following observations: 19A. It is no doubt true that the respondents cannot be allowed to impugn the decree passed by the High Court in favour of the appellants as they did not file any appeal from that decree. But we think that there is no reason why they should not be allowed to urge the plea that the orders of sanction were invalid when the appellants want not only to maintain the decree passed by the High Court but also to get a decree charging the entire properties. 1n other words, the bar against urging the plea of the invalidity of the orders of sanction would apply only if the respondents seek to impugn the decree already obtained by the appellants but not when the appellants seek to obtain further reliefs in the appeal on the basis of the orders. In such a case we are not aware of any rule of law which would preclude the respondents from urging the plea." The Bombay High Court in Badriprasad K. Agarwal & anr. v. Premier Garage & ors. (1980(1) RCJ. 385) also has held that the respondent is free to support the decree on any ground decided against him. In such a case we are not aware of any rule of law which would preclude the respondents from urging the plea." The Bombay High Court in Badriprasad K. Agarwal & anr. v. Premier Garage & ors. (1980(1) RCJ. 385) also has held that the respondent is free to support the decree on any ground decided against him. Even under Order XLI R.22 C.P.C., as per the Explanation inserted by the 1976 Amending Act, Cross Objections is not necessary to assail a finding on which the decree is not founded. (See Asst. Customs Controller v. N.C. Jute Mills: AIR. 1973 Cal. 91 and M/s. Shiv Shankar Prasad v. Union of India: AIR 1984 Patna 348). 5. The Madras High Court (in Venkateswaralu v. Lingayya: AIR. 1924 Mad. 689 and Raghava Aiyangar v. Irula Thevan: AIR. 1926 Mad. 974) and Jammu & Kashmir High Court (in J & K Bank v. Lal Mohamed: AIR. 1969 J. & K. 25 F8.) have held that where the point adversely decided against the defendant is correctly and substantially in issue and where in other proceedings the matter would be res judicata, he is not precluded from agitating the matter in appeal merely because the suit was decided in his favour on some other ground. The Jammu & Kashmir High Court has further held (in the above decision) that an appeal against a finding is maintainable in extreme cases. This Court in Koya Haji v. Satheedevi (1971 KLT. SN.19) has held that every order passed by the Rent Controller is appealable except interlocutory orders of a procedural nature. In that case it is further held that orders affecting rights or liabilities of the party should be taken up in appeal before the Appellate Authority if the party is serious about it, otherwise the order will stand against him in the further progress of the proceedings. 6. As noticed above there is no statutory provision enabling any party to a rent control proceeding to file a memorandum of Cross Objections or Cross Appeal in an appeal filed by the opposite party. The provisions of Order XLI R.22 CPC. are not inconsistent with any of the provision of the Kerala Buildings (Lease and Rent Control) Act, and therefore, on the reasoning adopted by the Andhra Pradesh High Court (B. Pullayya v. M. A Chetti: AIR. The provisions of Order XLI R.22 CPC. are not inconsistent with any of the provision of the Kerala Buildings (Lease and Rent Control) Act, and therefore, on the reasoning adopted by the Andhra Pradesh High Court (B. Pullayya v. M. A Chetti: AIR. 1972 Andhra Pradesh 68) I bold that Order XLI R.22 CPC or in any case the principles contained in that rule, are applicable to the proceedings before the Appellate Authority under the Kerala Rent Control Act also. In this connection, I may also respectfully adopt the reasoning of the Supreme Court in Ebrahim Aboobakar v. Custodian General (AIR. 1952 SC. 319) where the Supreme Court applied the principle of Order XXII R.6 CPC. in a proceeding before the Custodian General under the Administration of Evacuee Property Act, 1950, eventhough CPC. is not made applicable to such proceedings. I may also refer to the judgment of the Mysore High Court in Joseph D' Souze v. State of Mysore (1972 All India Rent Control Journal 483) where it is held that there need not be any Cross-objections against an adverse finding in a proceeding under the Mysore Rent Control Act and that the party has always the liberty to support the order in his favour on any ground before the Appellate Authority. 7. Under these circumstances, it has to be held that the Appellate Authority failed to exercise its jurisdiction to consider the tenant's contentions against the finding of the Rent Control Court regarding bona fide need of the landlord on the mere ground that the tenant did not file any Cross-objections against the finding of the Rent Control Court. No doubt the Revisional Court considered the question on merits. But that consideration was made either after entering a finding that the finding of the Rent Control Court regarding bona fide need has become final. 8. The learned counsel for the landlord pointed out that the decision is A. S. No. 104/81 was rendered on 22-2-1983. The hearing before the Rent Control Appellate Authority in this case was only on 3-6-1983 and so the tenant had sufficient opportunity to challenge the ground of bona fide need before the Appellate Authority. Therefore, the argument is that since the tenant did not avail of that opportunity it should be held that he is precluded from raising that contention. The hearing before the Rent Control Appellate Authority in this case was only on 3-6-1983 and so the tenant had sufficient opportunity to challenge the ground of bona fide need before the Appellate Authority. Therefore, the argument is that since the tenant did not avail of that opportunity it should be held that he is precluded from raising that contention. I do not think that this submission can be accepted in view of the fact that the Appellate Authority has mentioned in the order that the tenant is not entitled to challenge the ground of bona fide need since he did not file any Cross-objections. So it h clear that the tenant challenged the finding regarding bona fide need at the time of arguments before the Appellate Authority. 9. Under these circumstances, this Civil Revision Petition is allowed, the orders of the Appellate Authority and the Revisional Court are set aside and the Rent Control Appellate Authority, Kottayam, is directed to reconsider R.C.A. No. 69/82. The remand is ordered on condition that the Appellate, Authority will reconsider this ground alone and proceed to dispose of the appeal on the existing pleadings and evidence alone. The parties are directed to appeal before the Appellate Authority on 18-11-1985. Send back the records immediately.