HUSEENIBHAI ABDULKARIM v. ABDUL HUSSEIN NAZARALI — 1992 DIGILAW 215 (GUJ)

A. N. DIVECHA, J. ( 1 ) THE original landlord has invoked the revisional jurisdiction of this Court under Section 29 (2) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (the Act for brief) for challenging the legality and validity of the judgment and order passed by the Appellate Bench of the Small Causes Court at Ahmedabad on 13/08/1979 in Civil Appeal No. 43 of 1977. Thereby the Appellate Court was pleased to accept the appeal of the tenant and to set aside the decree for possession of the rented premises passed by the learned Judge of the Small Causes Court (Court No. 7) at Ahmedabad on 16/12/1976 in H. R. P. Suit No. 3767 of 1971. It may be mentioned that the learned Trial Judge had decreed the landlords suit for possession of the rented premises on the ground of acquisition of a suitable residence by the tenant after coming into force of the Act. ( 2 ) THE facts giving rise to this revisional application move in a narrow compass. The dispute centres round the ground floor of the building bearing Survey No. 2705 and Municipal Census No. 2412 (the suit property for convenience ). The petitioner is its owner and the respondent is its tenant on the monthly rent of Rs. 21. 00. The present petitioner filed one suit against the present respondent in the Small Causes Court at Ahmedabad for possession of the suit property on the ground of change of user bona fide and reasonable requirement thereof for personal use arrears of rent. and acquisition of suitable residence by the tenant after coming into operation of the Act. That suit came to be registered as H. R. P. Suit No. 3757 of 1971. The tenant filed his written statement at Exh. 9 on the record of the suit and resisted it on various grounds. The suit appears to have been assigned to Court No. 7 of the Small Causes Court at Ahmedabad for trial and disposal. The learned Trial Judge appears to have framed the necessary issues. The tenant filed his written statement at Exh. 9 on the record of the suit and resisted it on various grounds. The suit appears to have been assigned to Court No. 7 of the Small Causes Court at Ahmedabad for trial and disposal. The learned Trial Judge appears to have framed the necessary issues. After recording evidence and hearing the parties by his judgment and decree passed on 16/12/1976 in H. R. P. Suit No. 3767 of 1971 the learned Judge of the Small Causes Court (Court No. 7) at Ahmedabad was pleased to decree the landlords suit for possession solely on the ground that the tenant had acquired a suitable residence after coming into force of the Act. The learned Trial Judge dismissed the claim for possession on the other grounds. The aggrieved tenant carried the matter in appeal before the Appellate Bench of the Small Causes Court at Ahmedabad. His appeal came to be registered as Civil Appeal No. 43 of 1977. After hearing the parties by its judgment and order passed on 30/08/1991 in Civil Appeal No. 43 of 1977 the Appellate Court was pleased to accept the tenants appeal and to set aside the decree for possession passed by the Trial Court. The aggrieved landlord has thereupon invoked the revisional jurisdiction of this Court under Section 29 (2) of the Act for questioning the correctness of the aforesaid decision of the Appellate Court in appeal. ( 3 ) IT may be mentioned that on behalf of the present petitioner not only the decree passed by the Trial Court was sought to be supported but the findings recorded by the Trial Court against the plaintiff on the claim for possession on other grounds were also sought to be assailed. The Appellate Court refused to entertain the challenge to the findings recorded by the Trial Court on the other issues against the present petitioner solely on the ground that no cross-objections were filed on behalf of the present petitioner in appeal. Shri Vyas for the petitioner has questioned the correctness of such an approach made by the lower Appellant Court before me. Shri Vyas for the petitioner has questioned the correctness of such an approach made by the lower Appellant Court before me. ( 4 ) SHRI Vyas for the petitioner appears to be right in his submission to the effect that Order 41 Rule 33 of the Civil Procedure Code 1908 (the Code for brief) would be applicable in the present case and it would be open to the successful litigant in appeal to question the correctness of the findings recorded against him while supporting the decree under challenge on the issue decided in his favour. According to Shri Vyas for the petitioner it is not necessary to prefer any cross objection against any finding against the litigating party when the decree in its favour is challenged by the judgment debtor. ( 5 ) IT would be quite proper at this stage to look at the provisions of Order 41 Rule 22 (1) of the Code. They read: (1) Any respondent though he may not have appealed from any part of 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 notice of the day fixed for hearing the appeal or within such further time as the Appellate Court may see fit to allow. EXPLANATION: A respondent aggrieved by a finding of the Court 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 the decision of the suit the decree is wholly or in part in favour of that respondent. A bare perusal thereof would show that any respondent in an appeal is given certain options thereby. He can file a cross appeal if he also wants to challenge the decree under appeal to the extent it is against him. A cross appeal has certainly to be filed within the prescribed period of limitation. A bare perusal thereof would show that any respondent in an appeal is given certain options thereby. He can file a cross appeal if he also wants to challenge the decree under appeal to the extent it is against him. A cross appeal has certainly to be filed within the prescribed period of limitation. The respondent is also empowered to challenge the decree to the extent it is against him by filing his cross-objections thereto. If he has not to challenge the decree and he wants to challenge certain findings recorded against him in the judgment he is again given two options. He is permitted to state his case on such findings without filing any cross-objection. In the alternative he can file his cross-objections and challenge those findings recorded against him in the judgment. ( 6 ) IT is a settled principle of law that no appeal lies against a mere finding in view of the ruling of the Supreme Court in the case of Ganga Bai v. Vijay Kumar reported in AIR 1974 SC at page 1126. An appeal is usually filed for assailing attacking of challenging a decree. A decree is admittedly different from a judgment. A judgment contains the reasoning in support of the decree ultimately ordered to be passed therein. Findings are recorded in a judgment on the basis of which ultimately the decree is passed. What is challenged in appeal is the decree passed in an original proceeding. An appeal is not designed merely to challenge findings recorded in the judgment. It cannot be gainsaid that a cross-objection is in the nature of a cross appeal. A cross-objection should therefore be filed if the decree under appeal is sought to be assailed attacked or challenged. No. cross-objection would be necessary if the decree under appeal is not to be disturbed but only findings recorded in the judgment are to be assailed. Order 41 Rule 22 as it stands in the statute book empowers the respondent in an appeal to challenge the findings recorded in the judgment against him in both ways by filing his cross objection or without filing his cross-objection. If he files his cross-objections he has to do it according to law. If he does not want to file his cross-objection his right of challenging the findings recorded against him in the judgment is certainly not lost. If he files his cross-objections he has to do it according to law. If he does not want to file his cross-objection his right of challenging the findings recorded against him in the judgment is certainly not lost. He can still assail the findings recorded against him without filing any cross-objection. ( 7 ) THIS Court had an occasion to examine the question of payment of Court-fees on a cross-objection made in an appeal for challenging the findings recorded against the successful party in the judgment under challenge in appeal in the light of the provisions contained in Order 41 Rule 22 of the Code in the case of Jamaluding G. v. Municipal Corporation Ahmedabad reported in (1979) 20 G. L. R. at page 567. In that context it has been held:cross-OBJECTIONS are filed or are maintainable when they are directed against a part of the relief which has been denied by the Court below to the respondent. In the instant case the decree passed by the Trail Court and confirmed in appeal by the High Court is entirely in favour of the respondent. Therefore what the respondent has filed is not a memorandum of cross-objections even though it might have been so styled. What he has done is to file a statement showing that he challenges the aforesaid finding recorded against him. He appears to have done so under amended sub-rule (1) of Rule 22 of Order 41 of the Code of Civil Procedure 1908the amended sub-rule (1) of Rule 22 of Order 41 therefore not only contemplates cross-objections but also contemplates a statement showing the finding which an otherwise successful respondent wants to challenge in appeal. xxx xxx xxx xxx therefore though what the respondent has filed is styled by him as cross-objections in reality he has filed a statement showing the finding which he intends to challenge. This provision to file such a statement has been newly inserted in sub-rule (1) of Rule 22 of Order 41. I think the principle of law enunciated by this Court in its aforesaid ruling in the case of Jamaludin (supra) lends support to the view taken by me in this case. ( 8 ) TO the same effect is the ruling of the Madras High Court in the case of Madhavan v. Muniammal and Ors. reported in (1985) II Madras Law Journal at page 54. ( 8 ) TO the same effect is the ruling of the Madras High Court in the case of Madhavan v. Muniammal and Ors. reported in (1985) II Madras Law Journal at page 54. In that case the successful party to a decree under appeal challenged the findings against him by filing his cross-objection there against. The lower Appellate Court directed him to pay the requisite court fees on his cross-objections. The matter was therefore carried in revision before the Madras High Court. In that context it has been held:the amendment and the introduction of the Explanation by Act 104 of 1976 to Order 41 Rule 22 C. P. Code has not altered the impact and implication of the rule but only a more convenient language has been adopted to have the position clarified. The explanation has been added empowering the respondent to file cross-objection in respect of a finding adverse to him notwithstanding that the ultimate decision is wholly or partly in his favour. Order 41 Rule 22 of the Code gives two distinct rights to the respondent in an appeal. The first one is the right to support the decree of the first Court on any of the grounds decided against him by the first Court. The respondent can state that the ground ought to have been found in his favour by the first Court and by this the respondent does not attack the decree which ensued in his favour. He only supports the decree and wants to demonstrate that an adverse finding by the first Court is not a correct one. By doing this he only supports the decree and does not attack it. The second right given to the respondent is to take cross objections to the decree as such/passed by the first Court which decree would have gone against him in part and/or would have ensured to him in other respects. That cross-objection is cross-objection in the real sense and it partakes the character of an appeal for all practical purposes including payment of court-fees. The real test is to find out as to whether the respondent attacks the decree or supports the decree or in other language takes exception to the decree or accepts the decree irrespective of the fact that the decree wholly or in part is in his favour. The real test is to find out as to whether the respondent attacks the decree or supports the decree or in other language takes exception to the decree or accepts the decree irrespective of the fact that the decree wholly or in part is in his favour. With respect I am in full agreement with the view expressed in the aforesaid ruling of the Madras High Court in the case of Madhavan (supra ). It buttresses the view that has been taken by me in this judgment. ( 9 ) IN this connection a reference deserves to be made to the ruling of the Madhya Pradesh High Court (Indore Bench) in the case of Tej Kumar Jain v. Purshottam reported in AIR 1981 M. P. at page 55 as relied on by Shri Vyas for the petitioner in support of this revisional application. In that case the plaintiff filed a suit for possession of the rented premises under Section 12 (1) (a) 12 and 12 (1) (e) of the M. P. Accommodations Control Act 1961 (the M. P. Act for brief ). The Trial Court decreed the suit under Section 12 of the M. P. Act but rejected the claim for the decree for possession under Section 12 and 12 (1) (c) thereof. The first Appellate Court affirmed the decree in appeal. In further appeal before the High Court the plaintiff tried to support the decree and also challenged the finding against him with respect to the claim based on Section 12 (1) (a) of the M. P. Act. The challenge to the finding against the plaintiff on his claim under Section 12 (1) (a) of the M. P. Act was sought to be resisted solely on the ground that no cross-objections there against were filed. In that context on interpretation of the relevant provisions contained in Order 41 Rule 22 of the Code it has been held by the Madhya Pradesh High Court: The expression provided he has filed such objection in the appellate Court in Order 41 R. 2 governs only the words and may also take any cross-objection to the decree which he could have taken by way of appeal and does not govern the words 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. Therefore even under the amended R. 22 (1) the respondent without filing any cross-objection can support the decree of the Court below by asserting that the matter decided against him should have been decided in his favour. ( 10 ) THE aforesaid ruling of the Madhya Pradesh High Court in the case of Tej Kumar (supra) fully supports the petitioner in the instant case. As observed earlier the lower Appellate Court did not find favour with the challenge to the findings recorded by the Trial Court against the present petitioner in the course of hearing of the appeal solely on the ground that cross-objections against those findings were not filed. I think with respect the interpretation placed by the Madhya Pradesh High Court on the relevant provisions contained in Order 41 Rule 22 of the Code in its aforesaid ruling in the case of Tej Kumar (supra) deserves concurrence. I am in full agreement with such interpretation of Order 41 Rule 22 of the Code. In that view of the matter I am of the opinion that the lower Appellate Court was not right in refusing to entertain the challenge made to the findings recorded against the present petitioners in the course of hearing of the appeal simply because no cross-objections were filed. ( 11 ) A reference also deserves to be made to the ruling of the Patna High Court in the case of Shivshankar Prasad v. Union of India reported in AIR 1984 Patna at page 348. In that case a suit was decreed by the Trial Court. In appeal the Appellate Court set aside the judgment of the lower Court on merits and passed the decree in favour of the defendant but held that the written statement was not properly verified and the defence taken therein could not be looked into. In the second appeal preferred by the plaintiff the respondent without filing any cross- objection sought to challenge the finding of the lower Appellate Court as regards improper verification of the written statement. The plaintiff raised an objection-that in view of Order 41 Rule 22 (1) read in the light of the Explanation the defendant could not have done so without filing his cross-objection thereto. The plaintiff raised an objection-that in view of Order 41 Rule 22 (1) read in the light of the Explanation the defendant could not have done so without filing his cross-objection thereto. In that context it has been held:the cross-objection was not necessary there being no part of the decree against the defendant and the defendant not being desirous of any variation of the decree of lower Appellate Court. The decree of lower Appellate Court was not based upon the finding about the improper verification of written statement. Where a person could not have appealed against the judgment and decree he is not required to file a cross-objection in order to assail a finding against him on which finding the decree is not founded. Under Order 41 Rule 22 Explanation a cross-objection is contemplated only when the respondent could have also appealed independently against the decree and the finding must be such on which finding the decree is founded. It is only in such situation that a cross-objection to that part of the decree which is based on such finding can be filed. With respect I am in full agreement with the view expressed by the Patna High Court in its ruling in the case of Shivshankar Prasad (supra ). It also supports the view taken by the Madhya Pradesh High Court and the Madras High Court in the aforesaid rulings in the case of Tej Kumar (supra) and in the case of Madhavan (supra) respectively. ( 12 ) EVEN otherwise the lower Appellate Court ought not to have lost sight of the relevant provisions contained in Order 41 Rule 33 of the Code in that regard as rightly submitted by Shri Vyas for the petitioner. The relevant provisions contained in Order 41 Rule 33 of the Code would empower the Appellate Court to examine the correctness of each and every finding recorded by the Trial Court even if no such finding is challenged by way of cross appeal or cross-objections. ( 13 ) I am fortified in this view of mine by the ruling of the Supreme Court in the case of Dhangir v. Madan Mohan reported in AIR 1988 SC at page 54. It has been held therein:the sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent but also between respondent and co-respondents. It has been held therein:the sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent but also between respondent and co-respondents. The Appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The Appellate Court could also pass such other decree or order as the case may require. The words as the case may require used in Rule 33 of Order 41 have been put in wide terms to enable the Appellate Court to pass and or decree to meet the ends of justice. The only constraint on the power are these That the parties before the lower Court should be there before the Appellate Court. The question raised must properly arise out of the judgment of the lower Court. If these two requirements are there the Appellate Court could consider any objection against any part of the judgment or decree of the lower Court. It may be urged by any party to the appeal. I think the aforesaid dictum of law pronounced by the Apex Court is quite clear and eloquent and needs no further elaboration or elucidation. I think the lower Appellate Court could have resorted to the relevant provisions contained in Order 41 Rule 33 of the Code for the purpose of entertaining the challenge made to the findings recorded against the present petitioner in the course of the hearing of the appeal prefer red against the decree passed by the Trial Court even in absence of cross-objection. ( 14 ) THIS Court itself had an occasion to examine the nature of the powers of the Appellate Court under Order 41 Rule 33 of the Code in its ruling in the case of Balkrishna Chatrabhuj Thaker v. Devabhai reported in 1985 Gujarat Law Herald at page 654. It has been held therein that the Appellate Court has power to modify a decree even when no cross appeal is or cross-objections are filed. ( 15 ) IN view of my aforesaid discussion the approach of the lower Appellate Court to the challenge made on the findings recorded against the present petitioner by the Trial Court at the time of hearing of the appeal was erroneous and cannot be upheld in law. ( 15 ) IN view of my aforesaid discussion the approach of the lower Appellate Court to the challenge made on the findings recorded against the present petitioner by the Trial Court at the time of hearing of the appeal was erroneous and cannot be upheld in law. The judgment and order passed by the lower Appellate Court deserves to be quashed and set aside on this limited ground. ( 16 ) THE effect of this judgment of mine will be to remand the matter to the lower Appellate Court for deciding the challenge of the petitioner to the findings recorded against him by the Trial Court. It may be mentioned at this stage that the findings recorded by the lower Appellate Court on the question of acquisition of a suitable residence by the tenant after coming into operation of the Act is not disturbed at present. The correctness thereof is also not examined at this stage. That question is left open. If the challenge made by the present petitioner against the findings recorded by the Trial Court is accepted by the Appellate Court on any ground it would be open to the Appellate Court to pass an appropriate decree. In that case it would be open to the present petitioner to challenge the finding recorded by the lower Appellate Court of the question of acquisition of a suitable residence by the tenant after coming into operation of the Act in any revisional application that the tenant might be required to file against the decision of the Appellate Court in appeal. In case the Appellate Court negatives the present petitioners challenge to the findings recorded against him by the Trial Court in appeal it would be open to the petitioner in his revisional application if any against the judgment and order passed by the lower Appellate Court inter alia to question the correctness of the findings recorded by the lower Appellate Court in its impugned decision in this revisional application on the question of acquisition of a suitable residence by the tenant. ( 17 ) IN the result this revisional application is accepted to the aforesaid limited extent. The Judgment and order passed by the Appellate Bench of the Small Causes Court at Ahmedabad on 13/08/1979 in Civil Appeal No. 43 of 1977 is quashed and set aside to the aforesaid limited extent. ( 17 ) IN the result this revisional application is accepted to the aforesaid limited extent. The Judgment and order passed by the Appellate Bench of the Small Causes Court at Ahmedabad on 13/08/1979 in Civil Appeal No. 43 of 1977 is quashed and set aside to the aforesaid limited extent. The matter is now remanded to the Appellate Bench of the Small Causes Court at Ahmedabad for its fresh decision according to the law on the challenge of the petitioner to the findings recorded by the Trial Court against him on other issues in the light of this judgment after restoring the appeal to file. Rule is accordingly made absolute to the aforesaid extent however with no order as to costs on the facts and in the circumstances of the case. (RPV) Appeal partly allowed. .