Nathu Ran v. Special Judge, (D. A. A. ) Jhansi — 1992 DIGILAW 1285 (ALL)

JUDGMENT S. R. Singh, J. 1. The Writ petition is directed against an order of eviction of the petitioner from ground floor of premises No. 161 situate la Mohalla Sabungram Kasba Mauranipur, district Jhansi passed by the Prescribed Authority/Munsif, Mauranipur on 3-5-1991 under Section 21 of the U. P. Act No. 13 of 1972 which order was maintained by the appellate order dated 30-4-1992. 2. The respondent landlord, Ram Sahai applied for eviction of the tenant petitioner from the premises in dispute and for release of the same in his favour on the ground that he bona fide required the premises in dispute for himself and for members of his family, in view of the facts and circumstances stated in paragraphs 3 and 4 of the release application From the tenor of the application it appears that the landlord wanted the premises in dispute for the purposes of his son, Harish Chandra, who, as alleged in the application, was married recently. It was also alleged in the release application that the tenant-petitioner had got constructed a big house in Mohalla Bajpaipura. Where he has already shifted and is residing along with his family members. The petitioner contested the release application on the ground that the need of the landlord was not bona fide and that he would suffer greater hardship in the event of release application being allowed. It was stated in the written statement that he had been in occupation of ground floor of house no 16 /1 together with its front portion as well as first floor of the building on a monthly rent of Rs. 40/- for the ground floor and its front portion and Rs 30/- for the first floor of the building. It was alleged in the written statement that the petitioner had taken ground floor of the building for the purposes of doing business of 'dhaga' (sut) and he used the ground floor as shop and godown while the first floor of the building was taken by him for residential purposes. It was alleged that the petitioner had been doing 'dhaga' business for the last 15-16 years and the respondeat landlord never objected to the ground floor from being used by the petitioner for business purposes. It was alleged that the petitioner had been doing 'dhaga' business for the last 15-16 years and the respondeat landlord never objected to the ground floor from being used by the petitioner for business purposes. It was also alleged that after the petitioner, constructed his house he shifited therein and vacated the first floor of the; building, which was subsequently let out by the respondent landlord to one Rajendra Prasad Dubey, even though the marriage of his son Harish Chandra had already taken place and thus it was suggested that if the need of landlord's son was bona fide, he would not have let out the first floor of the building to Rajendra Prasad Dubey. The Prescribed Authority upon consideration of the evidence on record and the facts and circumstances of the case, held that the respondent landlord did not bona fide require the premises in dispute either for himself or for any member of his family but it allowed the release application on the ground that the tenant petitioner having constructed his own house in the same town was not entitled to raise any objection to the release application and has objection was not entertainable in view of Explanation (I) to Section 21 (1) of the U. P. Act No. 13 of 1972 which provides that in case of a residential building, where the tenant or any member of this family who has been normally residing with or is wholly dependent on him, has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained. 3. The petitioner preferred an appeal under Section 22 of the U. P. Act No. 13 of 1972 against the aforesaid order passed by the Prescribed Authority. The Learned Special Judge reversed the finding of the Prescribed. Authority on the question of bona fide need of the respondent landlord and held that the need of the respondent landlord was genuine and not malafide one. The appellate authority, however upheld the view taken by the Prescribed Authority that in the facts and circumstances of the case objection filed by the petitioner against the release application was not liable to be entertained in view of Explanation (I) to Section 21 (1) of the Act. The appellate authority, however upheld the view taken by the Prescribed Authority that in the facts and circumstances of the case objection filed by the petitioner against the release application was not liable to be entertained in view of Explanation (I) to Section 21 (1) of the Act. The appeal was accordingly dismissed by the appellate authority vide judgment and order dated 30-4-1992. 4. Sri Shashi Nandan, learned counsel for the petitioner urged that the appellate authority was not justified in reversing the finding recorded by the Prescribed Authority on the question of bona fide need in absence of any cross objection. SRI G. N. Verma. Learned Counsel for the respondent landlord, on the other hand, urged that the appellate authority was competent to reverse the finding of the Prescribed Authority on the question of bona - fide need of the landlord even in absence of a cross objection. He placed reliance upon Order 4 rule 24 of the Code of Civil Procedure read with Section 38 of the Act and urged that the provisions contained in Order 41 rule 24 of the Code of Civil Procedure enabled the appellate authority to pronounce a correct judgment, on the basis of material before It, on the questions relating to bonafide need of the respondent landlord. Having considered the submissons made by the learned counsel appearing for the parties, I am of the opinion that although the provisions contained in Order 41 Rule 24 of the Code of Civil Procedure and Section 38 of the U. P. Act No 13 of 1992, reliance on which was placed by Sri C N. Verma learned counsel for the respondent landlord, are not attracted, but in my opinion the appellate authority did have the power to reverse the finding of the Prescribed Authority on the question of bona fide need even in absence of a cross objection. This power is conferred upon the appellate authority not by virtue of Order 41 rule 24 of the Code of Civil Procedure and Section 38 of the Act, but toy virtue of Section 34 of the Act read With Order 41 rule 22 of the Code of Civil Procedure. This power is conferred upon the appellate authority not by virtue of Order 41 rule 24 of the Code of Civil Procedure and Section 38 of the Act, but toy virtue of Section 34 of the Act read With Order 41 rule 22 of the Code of Civil Procedure. According to Section 34 of the Act the appellate Authority, while deciding the appeal under Section 22 of the Act, is supposed to have the "same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908. Thus the powers which are vetted in the appellate court under Order 41 rule 22 of the Code of Civil Procedure are exercisable by an appellate authority while deciding an appeal under Sec. 22 of the Act. 5. Order 41 rule 22 (1) of the Code of Civil Procedure provides that any respondent, though he may not have appealed from any part or the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour, and may also take any cross objection to the decree which he could have taken by way of appeal, provided he has filed "such objection" in the appellate court within one month from the date of service on him or his pleader of the notice of the day fixed for hearing the appeal or within such further time as the appellate Court may see fit to allow. The expression "such objection" has been sued in to denote "cross objection" against the decree in so far as it is against the respondent. No such cross objection is required to be filed under the rule against an adverse finding on a particular issue decided against the respondent if the decree is wholly in favour of the respondent and is not based on such adverse finding. 6. No such cross objection is required to be filed under the rule against an adverse finding on a particular issue decided against the respondent if the decree is wholly in favour of the respondent and is not based on such adverse finding. 6. Explanation to sub-rule (1) provides that the respondent aggrieved by the finding of the Court below in the: judgment on which the decree appealed against is based may, under this rule, file cross objection "in respect of the decree in so far as it is based on that finding", notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for decision of the suit, the decree, is wholly or in part, in favour of the respondent. It is clear that rule 22 gives two distinct rights to the respondent in an appeal. The first is the right to uphold the decree of the Court of the first instance on any of the grounds on which that court decided against him; and the second right is that of taking any cross objection to the decree which the respondent may have taken by way of appeal. In the first case the respondent supports the decree and in the second case he attacks the decree. The expression "but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour and may also take any cross objection" occuring in sub-rule (1) was substituted for the words, "on any of the grounds decided against him in the court below, to take any cross objection" by the Code of Civil Procedure (Amendment) Act, 1976. Although the Explanation to sub-rule (1) entitles a respondent in an appeal to file cross objection in respect of a finding adverse to him notwithstanding that the ultimate decision is wholly or partly In his favour but the Explanation, in my opinion, would be attracted only if the cross objection sought to be filed is 'in respect of the decree in so far as it is based on that finding". Further the Explanation would not preclude the concerned respondent to state before the appellate authority a right conferred by the main provision without filing a cross objection, that the finding against him in the court below in respect of any issue ought to have been in his favour by virtue of his rights under the fust part of sub-rule (1) of rule 22. The expression "may also state" occurring in sub-rule (1) suggests that a written objection need not be filed by the respondent for stating before the Appellate authority that the finding against him in the court below In respect of any issue ought to have been in his favour. This can be done orally. The language employed by the Legislature in sub-rule (1) is quite clear. The insertion of Explanation by Amending Act, 1976 w.e.f. 1-2-1977 would not have the effect of depriving the concerned respondent of his right conferred by the main provision. Even otherwise the Explanation has no application to the facts of the present case. 7. It is well settled, as Meld by the Supreme Court in S. Sundaram Pillai v V. R. Pallabhiraman, AIR 1985 SC 582 , that an explanation added to a statutory provision is not a substantive provision in any sense of the term, as the plain meaning of the word itself shows that it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision and that an explanation cannot in any way interfere with or change the enactment or any part thereof and further that the right with which any person under the Statute has been clothed with cannot be taken away or set at naught by the explanation. 8. In view of the above discussion, I am of the firm view that a respondent in an appeal under section 22 of the Act may orally state that any finding against him recorded by the prescribed Authority on any issue ought to have been in his favour, by virtue of expressed right conferred upon him under sub-rule (1) of rule 22, which, in my opinion is attracted in an appeal under section 22 of the Act by virtue of section 34. In Virdhachalam Pillai v. Chaldean Syrian Co Ltd, AIR 1964 SC 1425 . In Virdhachalam Pillai v. Chaldean Syrian Co Ltd, AIR 1964 SC 1425 . it has been held that the respondent is entitled to canvass the correctness of a finding against him in order to support the decree that has been passed against the appellant. That apart the appellate authority has very wide power under Order 41 rule 33 of the Code of Civil Procedure which provides that the appellate court shall have the power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or cross objection. 9. Accordingly I do not find any substance in 'the submission made by Sri Shashi Nandan that the trial court was not justified in reversing the finding of the Prescribed authority on the question of bona fide need of the landlord merely because no cross objection was filed by the respondent landlord. I am of the opinion that if the finding of reversal is other wise sustainable, it cannot be questioned merely on the ground that no cross objection was filed by the respondent landlord against the finding of the prescribed Authority on the question of bona fide need, for as held above, the respondent was entitled to orally question the finding before the appellate authority, which was empowered to reverse the finding as discussed above. 10. 10. The next submission made by the learned counsel for the petitioner is that the finding on the question of bona fide need recorded by the Prescribed Authority is vitiated by reason of the fact that the objection raised by the petitioner in his written statement was erroneously not considered by the Prescribed Authority or the appellate authority and further by reason of the fact that the admission contained in paragraph 23 of the affidavit of the respondent Ram Sahai (Annexure-R.A.-I to the rejoinder affidavit) filed before the Prescribed Authority stating therein that although the premises in dispute was let out for residential purposes but it was being used, without his (Ram Sahai's) consent for business connected with whole sale shop of dhaga (soot). The appelate authority while: considering the question as to whether the objections raised by the petitioner in his written statement could be looked into in the context of Explanation (I) to Sub-Sec (1) of section 21 has observed as under : "In this context it has to be mentioned here that the Learned Prescribed Authority had already held that the appellant was not doing any kind of business in the premises in dispute. That finding is totally correct, because the appellant failed to file any document to establish that he was doing the business of thread (Dhaga or soot) in the premises in dispute." 11. Obviously the above finding has been arrived at without making any reference to the admission made by the respondent landlord in paragraph 23 of his affidavit (Annexure-R A. 1 to the rejoinder affidavit) filed before the Prescribed Authority and it was on the basis of the aforesaid conclusion that the Appellate authority came to the conclusion that "the appellant Is not doing any kind of business in the premises in dispute then it will mean that the appellant used that premises for residential purpose" and It is on these findings that the appellate authority ultimately maintained the findings of the Prescribed Authority that the petitioner's objection to release application was not entertainable in view of Explanation (I) to sub-section (1) of section 21 of the Act. 12. The above noted finding of the appellate authority is nothing but English translation of the finding recorded by the Prescribed Authority in paragraph 4 of its order. 12. The above noted finding of the appellate authority is nothing but English translation of the finding recorded by the Prescribed Authority in paragraph 4 of its order. It may be observed that Explanation (I) to section 21 (1) of the U P. Act No. 13 of 1372 applies to residential building- Though there is no specific averment in the release application but in his affidavit Annexure-R A, 1 the respondent landlord has stated that the premises in dispute was let out to the tenant petitioner for residential purposes. But so far as the tenant petitioner is concerned, it was his case in the written statement as would appear from paragraph 10 of the written statement, that ground floor of the building that is to say the premises in dispute was taken by him on rent for the purpose of using it as a shop and godown for dhaga or soot and since the Explanation (I) to section 21 applies to residential building, the first question that ought to have been determined, with reference to evidence on record, by the authorities under the Act is as to whether the premises in dispute was a residential premises or it was a non residential one. A building may be wholly residential or non residential or it may be partly residential and partly non-residential. Whether a building or part thereof is residential or nonresidential, depends on factors such as the dominent object and purpose from the user point of view, of the building or part thereof as the case may be; the object and purpose of tenancy and the availability of facilities of residential or nonresidential nature in the building or part thereof as the case may be. It is a question of fact to be determined in each case on the basis of evidence on record. The authorities concerned with the case on hand have not addressed themselves on the question relating to the applicability of the Explanation (I) to sub-section (1) of section 21 of the Act in a correct perspective. A very serious consequence ensues and follows from the tenant's point of view. If the Explanation Is held attracted the tenant is rendered defenceless. Therefore the question relating to the applicability of the Explanation should be very scrupulously examined. A very serious consequence ensues and follows from the tenant's point of view. If the Explanation Is held attracted the tenant is rendered defenceless. Therefore the question relating to the applicability of the Explanation should be very scrupulously examined. A perusal of the impugned judgments indicates that the authorities under the Act have not examined the question in a correct perspective in as much as they have not adverted to the case set up by the petitioner in paragraph 10 of the written statement nor have they adverted to paragraph 23 of the affidavit filed by the respondent landlord (Annexure- R.A. 1). It is too well settled that non-consideration of material and relevant evidence vitiates the finding on question of fact and the decision based on such finding is liable to be quashed under Article 226 of the Constitution. 13. Keeping in view the unavoidable uncertainties of litigation and the delay that takes place at various stages in disposal of the cases, I would like to send back the case to the appellate authority instead of sending it back to the Prescribed Authority for decision afresh in accordance with law and in the light of the observations made in the judgment. 14. In the result the petition succeeds and is allowed. The impugned judgment of the appellate authority dated 30-4-1992 is quashed. The appellate authority is directed to decide the appeal in accordance with law and in the light of the observations made in the judgment, within four months from the date of presentation of a certified copy of this order. Petition allowed.