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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Appellant: M.I. Joseph
Judges
  • John Mathew, J.
Acts
  • S. 11(2)(b) and 11(3) of the Kerala Buildings (Lease and, Rent Control) Act, 1952, hereinafter referred to as the Act.
  • rules 15 and 16 of the Kerala Buildings (Lease and Rent Control) Rules, 1979,
  • 1972 Andhra Pradesh 68) I hold that Order XLI rule 22 CPC
  • ADMINISTRATION OF EVACUEE PROPERTY ACT 1950
  • provisions of Order 41. Rule 22, Civil P.C
  • provisions of Order XLI Rule 22 CPC.
  • 1976 Amending Act, Cross Objections
  • Order XLI rule 22 C.P.C
  • Kerala Rent Control Act
  • Mysore Rent Control Act
  • Order XXII rule 6 CPC.
  • Rent Control) Act,
  • Order 41. Rule 22
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Appellant: M.I. Joseph
Judges
  • John Mathew, J.
Acts
  • S. 11(2)(b) and 11(3) of the Kerala Buildings (Lease and, Rent Control) Act, 1952, hereinafter referred to as the Act.
  • rules 15 and 16 of the Kerala Buildings (Lease and Rent Control) Rules, 1979,
  • 1972 Andhra Pradesh 68) I hold that Order XLI rule 22 CPC
  • ADMINISTRATION OF EVACUEE PROPERTY ACT 1950
  • provisions of Order 41. Rule 22, Civil P.C
  • provisions of Order XLI Rule 22 CPC.
  • 1976 Amending Act, Cross Objections
  • Order XLI rule 22 C.P.C
  • Kerala Rent Control Act
  • Mysore Rent Control Act
  • Order XXII rule 6 CPC.
  • Rent Control) Act,
  • Order 41. Rule 22
See more information ...
Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The revision petitioner is the tenant; the respondent is the landlord who sought eviction under S. 11(2)(b) and S. 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1952 on grounds of arrears of rent and bona fide need for own occupation.

The tenant's principal contention was that the landlord was not entitled to receive rent for the building and therefore the eviction petition was not maintainable. This contention arose because of an earlier suit (O.S. No. 143/71, Munsiff's Court, Kottayam) where two original tenants of the landlord were decreed (Ext. B1) to recover possession of the same building and arrears of rent; in that suit the present respondent (landlord) had been impleaded as an additional defendant. The tenant argued that the plaintiffs in O.S. No. 143/71 had no leasehold interest and so were not entitled to relief, but the Munsiff's Court decreed the suit in their favour.

On the eviction petition, the Rent Control Court held that though the landlord was entitled to evict under S. 11(3), the petition was not maintainable and therefore dismissed it. On appeal, while the appeal from the Rent Control Court's order was pending, the landlord produced an appellate judgment reversing Ext. B1; it was conceded by counsel that Ext. B1 had been set aside and that the respondent was the landlord with the revision petitioner as her direct tenant. The Appellate Authority reversed the Rent Control Court and, noting that there were no cross-objections against the Rent Control Court's finding on bona fide need, treated that finding as final and ordered eviction under S. 11(3).

In revision under S. 20 of the Act, the District Court confirmed the landlord–tenant relationship and, after observing that no cross-objection was filed (thus treating the Rent Control Court's finding on bona fide need as final), considered the question on merits and dismissed the revision petition.

Legal Issues Presented

  1. Whether, in proceedings under the Kerala Buildings (Lease and Rent Control) Act, a tenant/respondent is precluded from challenging a Rent Controller's finding on bona fide need before the Appellate Authority merely because there is no statutory provision for filing cross-objections or a cross-appeal.
  2. Whether the principles of Order XLI Rule 22 of the Civil Procedure Code (CPC), or its underlying principles, are applicable to appellate proceedings under the Kerala Rent Control Act even though the CPC is not fully made applicable to those proceedings.
  3. Whether the Rent Control Appellate Authority and the Revisional Court erred in refusing to consider the tenant's contentions regarding bona fide need on the ground that no memorandum of cross-objections or cross-appeal had been filed.

Arguments of the Parties

Revision Petitioner's (Tenant's) Arguments

  • The tenant contended that the landlord was not entitled to receive rent for the building (relying on the earlier Ext. B1 decree) and therefore the eviction petition was not maintainable.
  • The tenant argued there is no provision in the Act or in rules (Rules 15 and 16 of the Kerala Buildings (Lease and Rent Control) Rules, 1979) to file a Cross-Appeal or a Memorandum of Cross-Objections; consequently the Appellate Authority's approach of treating the absence of cross-objections as precluding consideration was illegal and should be set aside.
  • The tenant relied on B. Pullayya v. M.A. Chetti where it was held that Order 41 Rule 22 CPC is applicable to proceedings before the appellate authority under a rent control enactment, arguing that the same principle should govern the present case.

Respondent's (Landlord's) Arguments

  • The landlord's counsel pointed out that the decision in A.S. No. 104/81 was rendered on 22-2-1983 while the hearing before the Rent Control Appellate Authority in the present case took place on 3-6-1983, so the tenant had sufficient opportunity to challenge the bona fide need ground before the Appellate Authority. On that basis it was argued that the tenant should be precluded from now raising that contention.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
B. Pullayya v. M.A. Chetti (AIR. 1972 Andhra Pradesh 66) Held that the provisions of Order XLI Rule 22 CPC are applicable to proceedings before the appellate authority under the rent control Act. The court adopted the Andhra Pradesh High Court's reasoning to support applicability of Order XLI Rule 22 (or its principles) to the Kerala Rent Control appellate proceedings.
C.P.J. Temple v. Harikrishna ((1973) 2 SCC 665 : AIR. 1973 SC. 2565) Permits respondents to urge pleas (e.g., invalidity of orders) even if they did not appeal a decree when appellants seek further reliefs based on such orders. The court relied on this Supreme Court observation to justify allowing the tenant to urge the plea regarding bona fide need despite not having filed a cross-appeal.
Badriprasad K. Agarwal v. Premier Garage (1980 (1) RCJ. 385) Respondent is free to support the decree on any ground decided against him; cross-objections need not be necessary to assail a finding on which the decree is not founded. Referenced to show supporting authorities that favor allowing a respondent to support or challenge aspects of a decree without formal cross-objections.
Asst. Customs Controller v. N.C. Jute Mills (AIR. 1973 Cal. 91) Shows that after the Explanation to Order XLI Rule 22 by the 1976 Amending Act, cross-objections are not necessary to assail a finding on which a decree is not founded. Used as an authority supporting the proposition that cross-objections are not a prerequisite to challenge certain findings.
M/S. Shiv Shankar Prasad… v. Union Of India… (AIR. 1984 Patna 348) Also cited for the proposition that cross-objections are not necessary to challenge a finding on which a decree is not founded. Relied on as further support for the proposition on cross-objections and the scope of Order XLI Rule 22 principles.
Venkateswaralu v. Lingayya (AIR. 1924 Mad. 689) Where a point adversely decided against a party is correctly and substantially in issue and would be res judicata in other proceedings, the party is not precluded from agitating it in appeal merely because the suit was decided in his favour on some other ground. Referenced among High Court authorities to support the view that parties may raise such points in appeal despite the absence of cross-objections.
Raghava Aiyangar v. Irula Thevan (AIR. 1926 Mad. 974) Same principle as Venkateswaralu v. Lingayya regarding ability to agitate adversely decided points in appeal. Used to demonstrate historical High Court support for permitting such issues to be raised on appeal.
J. & K. Bank v. Lal Mohamed (AIR. 1969, J. & K. 25) Holds that an appeal against a finding is maintainable in extreme cases. Referred to for the limited circumstances in which an appeal against a finding may be entertained.
Koya Haji v. Satheedevi (1971 K.L.T. SN. 19) Every order passed by the Rent Controller is appealable except interlocutory/procedural orders; orders affecting rights should be appealed if the party is serious about it. Invoked to note the general right to appeal Rent Controller's orders and the practical expectation that parties take appeals on orders affecting rights.
Ebrahim Aboobakar v. Custodian General (AIR. 1952 SC. 319) Applied the principle of Order XXII Rule 6 CPC in a proceeding under the Administration of Evacuee Property Act even though CPC was not made applicable to such proceedings. Adopted by the court as precedent for applying CPC principles (even where CPC is not formally applicable) to specialized statutory proceedings.
Joseph D’Souze v. State of Mysore (1972 All India Rent Control Journal 483) Held that there need not be cross-objections against an adverse finding in a rent control proceeding and that a party can support an order in his favour on any ground before the Appellate Authority. Used to reinforce the proposition that cross-objections are not an absolute precondition to raise certain points before the Appellate Authority.

Court's Reasoning and Analysis

The court proceeded in these principal analytical steps, strictly following the material contained in the opinion:

  1. Recognition of procedural posture and dispute: The Rent Control Appellate Authority declined to consider the tenant's challenge to the Rent Control Court's finding on bona fide need on the ground that no memorandum of cross-objections or cross-appeal had been filed; the Revisional Court took a similar view but nevertheless considered the matter on merits after recording that the Rent Control Court's finding had become final.
  2. Legal question on procedural permissibility: The court observed that there is no statutory provision in the Kerala Buildings (Lease and Rent Control) Act, 1952, or in Rules 15 and 16 of the Kerala Buildings (Lease and Rent Control) Rules, 1979, expressly enabling a party to file a memorandum of cross-objections or a cross-appeal in the appellate proceedings.
  3. Applicability of CPC principles: Relying on judicial authorities, including the Andhra Pradesh High Court in B. Pullayya and Supreme Court and High Court precedents, the court held that the provisions of Order XLI Rule 22 CPC, or at least the principles embodied therein, are not inconsistent with the Kerala Rent Control Act and hence are applicable to appellate proceedings under that Act. The court also drew support from Ebrahim Aboobakar where CPC principles were applied in a statutory regime that did not generally make CPC applicable.
  4. Precedential support for permitting parties to urge grounds without cross-objections: The court cited several authorities (including C.P.J. Temple, Badriprasad, Asst. Customs Controller, Joseph D’Souze and others) to demonstrate that a respondent or party is not necessarily precluded from supporting or challenging orders on grounds decided against them merely because they did not file cross-objections; cross-objections may not be a necessary precondition in all circumstances.
  5. Application to facts: On the facts, the court concluded that the Appellate Authority failed to exercise its jurisdiction when it refused to consider the tenant's contentions on bona fide need solely because the tenant had not filed cross-objections. The Revisional Court's consideration, although on merits, was tainted by having reached a preliminary conclusion that the Rent Control Court's finding on bona fide need had become final.
  6. Addressing the landlord's procedural-opportunity argument: The court rejected the landlord's contention that the tenant had been afforded sufficient opportunity to raise the point before the Appellate Authority (given the timing of a prior decision) because the Appellate Authority expressly stated that the tenant was not entitled to challenge the finding due to the absence of cross-objections; therefore the tenant did in fact seek to raise the issue during arguments.

Holding and Implications

Holding:

The Civil Revision Petition was allowed. The court set aside the orders of the Rent Control Appellate Authority and the Revisional Court and directed that the Rent Control Appellate Authority, Kottayam, reconsider R.C.A. No. 69/82 limited to the question of the landlord's bona fide need.

Core Ruling: THE CIVIL REVISION PETITION IS ALLOWED; THE ORDERS OF THE APPELLATE AUTHORITY AND THE REVISIONAL COURT ARE SET ASIDE.

Specific directions and direct consequences:

  • The Appellate Authority is directed to reconsider only the ground of bona fide need and to dispose of the appeal on the existing pleadings and evidence alone.
  • The remand is conditional: reconsideration must be confined to the bona fide need ground, without permitting fresh pleadings or evidence beyond the existing record.
  • The parties were directed to appear before the Appellate Authority on 18-11-1985; the lower court records were to be sent back immediately.

Broader legal implication (as articulated in the opinion):

The court articulated and applied the principle that the provisions or principles of Order XLI Rule 22 CPC are not inconsistent with the Kerala Rent Control Act and may be applied in appellate proceedings under that Act, meaning that the absence of a statutory provision for cross-objections does not automatically bar a party from urging relevant grounds before the Appellate Authority. The Appellate Authority's refusal to consider the tenant's contentions solely on the absence of cross-objections was therefore a failure to exercise jurisdiction.

If no broader implications were intended beyond the above, the immediate practical effect is the remand for reconsideration on the specified narrow ground; the decision corrects the procedural error in the appellate authority's approach rather than laying down an extensive new legal doctrine beyond adopting established principles from cited authorities.

Disposition: The revision petition is allowed; orders of the Appellate Authority and Revisional Court set aside; remand to Appellate Authority to reconsider bona fide need only; hearing fixed for 18-11-1985; records to be sent back immediately.

Show full summary ...

    Sukumaran v. Susy Isaac

    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, 1952, 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 O.S 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 moveables 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. B1 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. B1 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. B1 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. B1 judgment. It was conceded by counsel appearing on both sides that Ext, B1 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 rule 22 CPC. is not made applicable to proceedings under the Act Under rules 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), where Chinnappa Reddi, J. (as he then was) held as follows:

    “6 I am of opinion, that the provisions of Order 41. Rule 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 Order 41. Rule 22 to sustain the order of the Rent Controller before the Appellate Authority on the grounds decided against him by the Rent Controller.”

    5. In C.P.J Temple v. Harikrishna ((1973) 2 SCC 665 : 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 entice properties. In 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.”

    6. The Bombay High Court in Badriprasad K. Agarwal v. Premier Garage (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 rule 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).

    7. 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 K.L.T 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.

    8. 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 Rule 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 hold that Order XLI rule 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 rule 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.

    9. 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.

    10. 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. 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 is clear that the tenant challenged the finding regarding bona fide need at the time of arguments before the Appellate Authority.

    11. 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.

    12. Allowed.

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    Comments

    Sukumaran v. Susy Isaac
    (Oct 11, 1985)