Under Sub-rule (1) the respondent, though he might not have appealed from any part of the decree, the respondent is entitled not only to 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 given in his favour. For doing so, he is not required to file any cross objections. This is clear from the wording of Sub-rule (1) of Rule 22. A landlord in whose favour a decree has been passed on one or more of the several grounds, may not only support the decree for possession on the grounds on which it has been passed, but may also contend that the finding on the issues decided against him ought to have been given in his favour. In other words, he can support the decree not only on the ground in which the decree was passed but also on the other grounds which have been decided against him by the trial Court. Therefore, there is no merit in the contention that in the absence of cross objections the appellate Court could not have passed a decree on the ground of decree on the ground of default.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 929 of 1999
Decided On: 22.06.2004
Shri Lalji Ramnath Pande Vs. Smt. Hawabi Abdulla Shaikh
Hon'ble Judges/Coram:
D.G. Karnik, J.
Citation: 2004(4) MHLJ 1020,2004 Bom RC 303
1. By this petition, the petitioner tenant challenges the judgment and decree passed by the Vth Additional District Judge, Thane on 8th December, 1989 in Civil Appeal No. 269 of 1987 confirming a decree for possession passed by the Civil Judge, Jr. Division, Vasai.
2. The respondent landlord filed a suit for possession against the petitioner tenant on the ground of default and permanent construction. The trial Court negatived the ground of default in payment of the rent but decreed the suit on the ground that petitioner had made a pot mala without the permission of the respondent and that amounted to making of a permanent construction in the suit premises. On appeal, the appellate Court confirmed the decree on the ground of permanent additions and alterations in the suit premises and also held that the respondent was entitled to a decree for possession on the ground of default in payment of the rent by the petitioner.
3. The learned counsel for the petitioner submits that the respondent had not filed any appeal or cross-objections challenging the finding that the petitioner was not a defaulter and therefore, the appellate Court erred in reversing the finding of default in payment of the rent and passing a decree on that ground. The contention is fallacious. Sub-rule (1) of Rule 22 of Order 41 of the Code of Civil Procedure reads as under:-
22. (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.
Under Sub-rule (1) the respondent, though he might not have appealed from any part of the decree, the respondent is entitled not only to 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 given in his favour. For doing so, he is not required to file any cross objections. This is clear from the wording of Sub-rule (1) of Rule 22. A landlord in whose favour a decree has been passed on one or more of the several grounds, may not only support the decree for possession on the grounds on which it has been passed, but may also contend that the finding on the issues decided against him ought to have been given in his favour. In other words, he can support the decree not only on the ground in which the decree was passed but also on the other grounds which have been decided against him by the trial Court. Therefore, there is no merit in the contention that in the absence of cross objections the appellate Court could not have passed a decree on the ground of decree on the ground of default.
4. Mr. Gorwadkar, learned counsel for the petitioner then submits that the finding of the Appellate Court that the petitioner was a defaulter was erroneous in law. The Appellate Court has held that the case was covered by Section 12(3)(b) of the Bombay Rents and Lodging Houses Rates Control Act, 1947 (for short 'the Act') it then stood. In view of the fact that the case was covered Under Section 12(3)(b), submits the learned counsel, it was enough for the tenant to show that he had deposited the rent regularly in the Court. He submits that the tenant had deposited the rent with sufficient regularity and handed over to me a chart of payment which reads as under:-
5. Mr. Gorwadkar submits that the chart shows that the tenant had deposited the rent with sufficient regularity. I am afraid the contention is factually incorrect. The rent was Rs. 25/- p.m. At no point of time, the tenant deposited the rent month to month. He deposited the rent of 5 months to 8 months at a time as can be seen from the chart. It was open to the tenant, if he wanted to avoid the inconvenience of being required to go to the Court and deposit the rent every month, to deposit the rent in advance. What he has done is to allow the rent to remain in arrears from 2 to 3 months at a time and then deposit the arrears of rent of those months and further pay the rent of next 2 to 3 months. Advance. In this way at the time of every deposit the tent was in arrears of rent for 2-3 months. In Mranalini B. Shah v. Bapalal Mohanlal Shah, the Supreme court has observed:
"The above enunciation, clarified beyond doubt that the provisions of Clause (b) of Section 12(3) are mandatory, and must be strictly complied with by the tenant during the pendency of the suit or appeal if the landlord's claim for eviction on the ground of default in payment of rent is to eg defeated. The word "regularly" in Clause (b) of Section 12(3) has a significance of its own. It enjoins a payment or tender characterised by reasonable punctuality, that is to say, one made at regular times or intervals. The regularity contemplated may not be a punctuality, of clock-like precision and exactitude, but it must reasonably conform with substantial proximity to the sequence of times or intervals at which the rent falls due. Thus, where the rent is payable by the month, the tenant must, if he wants to avail of the benefit of the latter part of Clause (b), tender or pay it every month as it falls due, or at his discretion in advance. If he persistently defaults during the pendency of the suit or appeal in paying the rent, such as where he pays it at irregular intervals of 2 or 3 or 4 months - as is the case before us - the court has no discretion to treat what were manifestly irregular payments, as substantial compliance with the mandate of this clause, irrespective of the fact that by the time the judgment was pronounced all the arrears had been cleared by the tenant."
This passage was quoted with approval by a Bench of three Judges of the Supreme Court in Mohan Laxman Hede v. Noormohamed Adam Shaikh reported in MANU/SC/0286/1988 : [1988]3SCR461 . The present case is exactly like the case of Mranalini Shah wherein the tenant was depositing the rent at irregular intervals. On every occasion of deposit, the tenant was in arrears of rent for 2 to 4 months. In the circumstances, the appellate Court was right in passing a decree for possession Under Section 12(3)(b) of the Act.
6. As regards the finding of permanent additions and alterations, the learned counsel for the petitioner submits that the pleadings regarding permanent alterations and construction were neither proper nor sufficient and in the absence of pleadings, the Courts below erred in passing a decree for possession on that ground. The learned counsel relies upon the decision of this Court in Hotel Rosalia Pvt. Ltd. v. Metro Hotels reported in MANU/MH/0201/2001 : (2001)3BOMLR1 . There appears to be some substance in the submission of the learned counsel. However, the decree for possession has been rightly and properly passed on the ground of default in payment of the rent and therefore it is unnecessary for me to consider this aspect further.
7. Hence, petition is hereby dismissed.
Rule discharged with no order as to costs.
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