Andhra HC (Pre-Telangana)
Ballani Ranganayakulu And Others vs Mattupalli Nageswara Rao on 18 November, 1991
Equivalent citations: AIR1992AP294, 1992(1)ALT526, AIR 1992 ANDHRA PRADESH 294, (1992) 1 ANDHWR 620, (1992) 1 APLJ 108, (1992) 1 ANDH LT 526, (1992) 1 LS 94, (1992) RENTLR 11, (1992) 2 RENCJ 440
ORDER
1. This is tenants' revision petition. Both the Courts below held that there was default in payment of rent from March, 1978 as pleaded for the eviction petitioner. While the Rent Controller held that there was no sub-letting, the Appellate Court held that there was sub-letting without the consent of the landlord. The said finding was given by the Appellate court, though the eviction petitioner had not filed any cross-objections.
2. The points that arise for consideration are:
(1) Whether the respondent-landlord can support the order of eviction by canvassing the correctness of the findings held against him, even though he had not preferred cross-objeclions; and (2) Whether there is any illegality, irregularity or impropriety in the findings; (a) that there was wilful default in payment of rent from March 1978; and (b) that there was subletting without the written consent of the landlord.
POINT No. 1:
3. Section 20 of the A. P. Buildings (Lease, Rent & Eviction) Control Act, 1960 (for short 'the Rent Control Act") provides for an appeal as against the order passed by the Rent Controller. It-does not refer to cross-objections.
4. It was held in Iswarayya v. Iswarayya, AIR 1931 PC 234 that there was no need for the respondent in the appeal to prefer cross-objections, when the impugned order/decree is in his favour, though some of the findings are against him. The wife in that case, filed two petitions for alimony for herself and for maintenance of her children. One decree was passed on those two applications. Rs. 30/-per month was ordered for the eldest girl and Rs. 40/- for each of the other 3 children and thus in all Rs. 150/- was awarded for the children, an amount of Rs. 160/- per monlh was awarded for the wife. The said decree was passed, when a sum of not less than Rs. 300/-per month was prayed for the maintenance of the children and Rs.260/- per month was claimed for the alimony of the wife. When the matter had come up before the High Court in the appeal, the High Court opined that since the children had all ceased to be minors within the meaning of Divorce Act, 1869, no provision could be made for them. But upon the facts of the case, the High Court felt that the wife's alimony should be increased to Rs. 260/- per month as claimed by her. Then it was urged before the Privy Council that as the wife had not preferred any appeal or cross-objections against the decree for alimony at Rs. 160/- per month, the High Court erred in enhancing it at Rs.260/-per month. While adverting to the said contention, the Privy Council observed "that there was no reason why the wife should appeal from the order, which the District Judge had made; there was every reason why she should be satisfied therewith." It was stated that the Appellate Court could enhance the alimony of Rs. 260/-in that case in exercise of the power conferred under 0.41, R. 33, CPC, though no cross-objections were preferred by the wife.
5. In Seetaram v. Ramabai, the relevant facts considered are as under:
6. Eviction was claimed on 3 grounds :(1) wilful default, (2) requirement of the building for effecting repairs and reconstruction and (3) sub-lease without the permission of the landlord. The Rent Controller therein held against the landlord in regard to first two grounds, but ordered eviction on the ground of sub-lease. The tenant preferred the appeal. When the landlord sought the canvass the correctness of the findings in regard to grounds 1 and 2 before the Appellate Court in order to support the order of eviction, he was not permitted to do so. He then challenged it by preferring writ petition. It was held therein that "on general principles, a party who has an order his favour is entitled to show that the order is justified on some ground, which was decided against him in the Court below. By referring to Iswarayya's case (AIR 1931 PC 234) (supra), il was observed that "there was no reason why the landlord should appeal from the order which the Rent Controller had made; there was every reason why they should be satisfied therewith."
7. The same can be stated in this case also. The landlord herein had every reason why he should be satisfied with the order of eviction. Thus, there was no reason why he should appeal from the order which the Rent Controller had made though the finding in regard to sub-lease was against him.
8. In Virdhachalam Pillai v. Chaldean Bank, , it was held that "the respondent in appeal is entitled to canvass the correctness of the findings against him in order to support the decree that has been passed agaisnt the appellant." It was so observed by the Supreme Court when it was urged for the appellant that when the Court categorically found that there was an antecedent debt which was discharged by the suit mortgage loan only to the extent of Rs. 59,000/- and odd and there being no appeal from the bank against the finding that the balance of Rs. 80,000/- had not gone in discharge of an antecedent debt, the respondent was precluded from putting forward a . contention that the entire sum of Rs. 80,000/-went for the discharge of antecedent debt.
9. Thus, on general principle, a party who has an order in its favour, is entitled to show that the order is justified on some ground, which was decided against it in the Court below. The said general principle is not inconsistent with Section' 20 of the Rent Control Act, for there is no provision for filing cross-objections.
10. Then the question arises as to whether the provisions of the Code of Civil Procedure are applicable to the proceedings before the Rent Controller. It was held in Harikishan Singh v. B. Narayana, (1989) 1 APU 290 that "the provisions of CPC would as far as possible be applied to the proceedings under the Rent Control Act in cases where no adequate provision is made in the Act or the rules, and provided that the provisions sought to be applied are not inconsistent with any express provision of the Act or with the scheme and purpose of the enactment". The same view was referred to with approval by Full Bench of 5 Judges of this Court in P. N. Rao v. K. Radhakrishnamacharyulu, .
11. In this context, the following passage from Craies on Statutory Law, 6th Edn., P. HI, can be cited:
"If a statute is passed for the purpose of enabling some thing to be done, but omits to mention in terms some detail which of great importance (if not actually essential) to the proper and effectual performance of the work which the statute has in contemplation, the Courts are at liberty to infer that the statutory implication empowers that detail to be carried out."
Thus, the principle enunciated is that where enabling statute omits some details of procedure, the Courts have ancillary powers to deal with the situation appropriately: G. Satyanarayanav. S. Satyanarayana Murthy, (1967) 2 Andh WR 479. Thus, where no provision is made in the Rent Control Act or the Rules made thereunder and if the provisions of CPC are not inconsistent with the same, the provisions of CPC are made applicable for proceedings before the Rent Controller and the Appellate Authority under the Rent Control Act.
12. Order 41, Rule 22(1), C.P.C. is the relevant provision that has to be considered in regard to this point and it is as follows:
Order 41, Rule 22 "22. Upon hearing respondent may object to decree as if he had preferred se'parate appeal.--
(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;......."
It is manifest from the above that the respondent in the appeal can support the order of the Rent Controller by canvassing the correctness of the findings held against him, even though he had not preferred any appeal. When the respondent has such a right, no need or occasion arises for the respondent to Hie cross-objections as against such findings.
13. In Salah Begum v. R.V. Bhupal Prasad; (1984) 2 Andh Pra WR 44 it was merely held that in an appeal preferred under S. 20 of the Rent Control Act, the respondent therein can file cross-object ions, as 0.41, R. 22, C.P.C. is not inconsistent with either S. 20 of the Rent Control Act or the rules formulated thereunder. But, therein, it was not urged that the respondent-landlord in such an appeal can challenge the findings adverse to him for supporting the order of eviction even without filing cross-objections. Hence the said question was not adverted to therein. But as already observed, on general principles and also under 0.41, R.22(l), C.P.C., the respondent-landlord can canvass the correctness of the findings adverse to him for supporting the order of eviction. It was so held by the Madras High Court also in M. M. Chetti v. C. CoomarasWamy Naidu, AIR 1980 Mad 212. Hence, the appellate Court herein was justified in considering the plea in regard to sub-letting, even when the landlord had noi filed any cross appeal or objections against the said finding, which is against him.
POINT No. 2(1):
14. The eviction petitioner alleged that he issued notice as per Ex. A4 and R-l received it as per Ex. A-5 acknowledgement dt. 15-3-1978. As the receipt of the notice as per Ex. A4 was not specifically denied and as even R1 had not come into the witness-box to deny the signature .on Ex. A5, the issuer of the said notice was rightly believed by the Courts below. It was stated in the said notice that out of the rent due at the rate of Rs. 120/- per month from November, 1976 to 15-3-1978, only an amount of Rs. 840/ - was paid and the rent of Rs. I,080/-i.e., the rent for 9 months, was still due and in spite of repeated demands, the rents were not paid. After receipt of the said notice, Rs. 240/- was paid on 19-4-1978 and Rs.800/- was paid on 22-6-1978. The eviction petition was filed on 15-1-1979. An amount of Rs. 240/- was paid on 7-2-1979. It was pleaded for the tenant that the rent was being paid once in two months and the eviction petitioner used to receive the same without any demur and hence on the basis of the conduct, it can be inferred that the rent has to be paid once in two months or it could be paid in lump sum. S. P. Deshmukh v. Shah Niharchand, and Rashik Lal v. Shah Gokuldas, were relied upon in support of the said contention.
15. But whatever can be stated for the delay in payment of rent prior to the receipt of notice as per Ex. A4 on 15-3-1978, no explanation was both coming for the delay in payment of (he rent even after the receipt of the said notice. It is true that so long as the landlord acquiesces in the delay in payment of rent and made the tenant to believe that the rent need not be paid regularly and it can be paid periodically, the default cannot be held as wilful. But, the same thing cannot be stated even after notice is given by the landlord complaining about the dalay. If the tenant commits delay in payment of rents even after receipt of such notice and if there is no satisfactory explanation for the delay, the default can be held as due to supine indifference if not callous negligence. Thus when on the basis of the material on record, both the Courts held that it is a case of wilful default, there is neither illegality nor irregularity nor impropriety in corning to the said conclusion, and I find accordingly.
POINT No. 2(2):
16. After the premises were taken on lease, Ramesh Cloth Stores in the name of Rf was run in these premises. In 1978, the name of the shop was altered to Dhanalakshmi Cloth Stores in the name of R2. Rl is the father-in-law of R2. Even by then Rl was aged 60 years and he was having cataract. Rl had only one daughter and his daughter and his son-in-law(R2) were living with him. It was stated R2 and RW1 that Rl had taken this premises on lease for his (R2's) business. It was further stated that in view of the indebtedness, the name of the shop was changed. In view of the said facts, it is just and proper to hold that there was no sub-letting from R1 and R2, for it is a mere case where the cloth business was run by the family comprising R1 and his son-in-law(R2) and the name was merely changed from that of Rl to R2. When a new partner was taken into the partnership, and the firm as a tenant was carrying on a business in the rented premises, it was held in D. Appa Rao v. M. Hanu-mayamrna, (1980) 1 APLJ (HC) 168 that subletting does not arise in such a case. The object and intendment of S. 2(a) of the Rent Control Act is to see that without the written consent of the landlord, there should not be any change in the tenant, for in cases of transfer of right of the tenant or sub-letting, a stranger without the consent of the landlord can claim right of possession. But, when the father-in-law and son-in-law are living together and when the business was carried on by the son- in-taw in the name of Rl, even though it is not a case of Hindu Family, still on the basis of the facts, it had to be inferred that the family comprising the father-in-law and son-in-law, is tenant and it is immaterial whether the business of the said family in such a case was carried on in the name of father-in-law or son-in-law or both. Thus, on the basis of the material on record, it can be stated that it is not a case of transfer of tfie right under the lease by Rl to R2 but it is a case of lease in favour of both Rl and R2. Thus, this point is held against the landlord.
17. In the result, the revision petition is dismissed. No costs.
18. Three months time from today is granted for vacating the premises.
19. Revision Petition dismissed.