Bombay High Court
Shri Baban Sitaram Pande vs Smt. Saraswatibai Keshavrao Bhoirkar on 30 January, 1997
Equivalent citations: (1997)99BOMLR242
JUDGMENT D.K. Deshmukh, J.
1. This is a tenant's petition challenging the judgment dated 10.7.1990 passed by the 11th Additional District Judge, Pune, in Civil Appeal No. 865 of 1989 filed by the petitioner. The petitioner had filed the Appeal against the decree passed against him for his eviction from the suit premises, dated 4.7.1989 passed by the 7th Additional Judge, Small Causes Court, Pune.
2. The respondent-landlords had filed Rent Act Suit No. 1967/1985 claiming a decree of possession against the petitioner on two grounds, namely, that the tenant has secured alternate accommodation that the tenant has changed the user of the suit premises from residence to business. The trial Court found that the landlords had not proved that the tenant has secured alternate accommodation. However, it found that the landlords had proved that the tenant has changed the user of the suit premises. In the appeal, the Appellate Court held that because the tenant has set up a shop in the passage between the door and the suit premises, it does not amount to change of user but it amounts to nuisance and annoyance to the landlords and the Appellate Court reversed the finding of the trial Court on the question of the tenant securing alternate accommodation.
3. Taking the first ground of the tenant securing alternate accommodation, learned Counsel for the petitioner urged before me that as this ground has been found in favour of the tenant by the trial Court, in the absence of any cross-objection or cross-appeal being filed by the landlords, the finding could not have been reversed by the Appellate Court. He relied on a judgment of this Court in Padmadevi v. Kabalsing . Learned Counsel appearing for the respondent landlords, Shri Mandlik, relying on a judgment of this Court in Punamchand D. Nanawati v. Ramanlal Balubhai 1988 Mah. RCJ 58 submitted that the Appellate Court could have reversed the finding without there being any cross-objection filed by the respondent-landlords.
4. Perusal of the judgment of this Court in Punamchand Nanavati's case shows that the judgment is by a learned single Judge of this Court where it is held that even after the amendment of Rule 22 of Order 41 of the Civil Procedure Code, even in the absence of a cross-objection, a finding recorded in favour of the appellant by the trial Court can be disturbed by the Appellate Court. Perusal of the judgment of this Court in Padmavati's case shows that it is a judgment of a Division Bench of this Court where this Court has observed thus:-
7. So tar as the question as to whether the opponents can challenge the finding qua negligence of the opponent No. 1 Kabalsing is concerned, in our view, it is not open to the opponents to challenge the said finding in the absence of filing of an independent appeal or a cross-objection. It is not disputed that in an appeal filed under the provisions of the Motor Vehicles Act, it is open to the opposite party to file cross-objections, since the provisions of Order 41, Rule 22 will aptly apply to such an appeal. This position is not disputed even by Shri Trivedi and in our opinion, rightly. As held by the various High Courts, including Karnataka, Allahabad, Gujarat and Andhra Pradesh, in , K. Chandrashekhara Naik v. Narayana U.P. State Road Transport Corporation v. Smt. Janki Devi; National Insurance Co. Baroda v. Diwaliben and AIR 1983 Andh Pra 297 Srisailam Devastanam v. Bhavani Prammilama, the provisions of the Civil Procedure Code will be applicable to an appeal filed under Section 110-D of the Motor Vehicles Act. As a necessary corollary of this, cross-objections could he filed in such an appeal, In our view, this position is placed beyond doubt by the amendment to the provisions of Order 41, Rule 22 of the Code of Civil Procedure. The Explanation to Order 41, Rule 22 clearly provides that 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. In the present case, admittedly the ultimate award for compensation passed by the Tribunal is based on the finding on the issue of negligence. Unless it was held that the truck driver was negligent in driving the truck and the accident took place because of his negligence, the award for compensation against the opponents cannot follow. Even if it is held that it was the case of contributory negligence on the part of the truck driver as well as the deceased, then also unless a finding in that behalf is recorded, an award for compensation cannot be passed in favour of the claimants. Therefore, the finding on the question or issue of negligence is not only germane, but is the foundation for awarding compensation, Hence a cross-objection could have been filed by the opponents challenging the said award based on the said finding. This has not been admittedly done. Therefore, in our view, unless a cross-objection is filed, it will not be open to the opponents to challenge the finding in that behalf. We are fortified in this view by the latest decision of the Supreme Court in Choudhary Sahu (dead) by Lrs. v. State of Bihar .
Considering that the judgment of this Court in Padmadevi's case is a judgment of the Division Bench, I am bound by it. I further find that this Court in Punamchand Nanawati's case has considered the judgment of the Division Bench in Padmadevi's case and has distinguished it on the ground that in Padmadevi's case, there was an award passed against the respondent which they could have challenged only by filing a cross-objection. Though I have some doubts about the ground on which the judgment in padmadevi's case has been distinguished, I need not, in the present case, go deeper into that aspect because, in my opinion, even if it is assumed that the Appellate Court could have reversed the finding of the trial "Court on the ground that the tenant had secured alternate accommodation, I find that there was no reason to revers that finding. It is to be seen that the petitioner is a barber by occupation. It is his case that he was using the demised premises for his residence and business though some members of his family had shifted to the village Akurdi which is far off from Pune city. The trial Court has held that from the business point of view, the premises at Akurdi were not suitable for the business. The finding of the trial Court, therefore, could have been disturbed by the Appellate Court only after reaching the conclusion that the premises at Akurdi were suitable for business also. I do not find any such finding being recorded by the Appellate Court. It is obvious that the premises which are situated in village Akurdi cannot be alternate to a shop in Pune city. Therefore, there was no material before the Appellate Court to reverse the finding of the trial Court in that regard.
5. So far as the next ground is concerned, it is to be seen that it was not the case of the landlords that the petitioner had started a shop in the tenanted premises. It was their case that the shop had been started in the passage adjoining the rented premises. Therefore, it could never have been a case of change of user of the demised premises. The Appellate Court has found that starting a shop in the passage by the tenant amounted to nuisance. Learned Counsel for the petitioner, therefore, submitted that this is a finding recorded by the Courts below without there being necessary pleadings. I have gone through the plaint. I do not find any allegations in the plaint of nuisance in relation to the use of the passage by the tenant for a shop. Perusal of the judgment of the Appellate Court also shows that it has also found that there arc no pleadings in that regard in the plaint. However, it has held that because an issue has been framed on that aspect, he can render the finding. Perusal of the plaint and the issues shows that the allegations of nuisance were not in relation to the shop in the passage but because of the police complaint made by the tenant against the landlords. Thus, so far as the issue of nuisance is concerned, it has been decided by the Courts below without there being pleadings. Therefore, in my opinion, the findings recorded by both the Courts below are vitiated and are liable to quashed and set aside.
6. In the result, the petition succeeds. Rule is made absolute in terms of prayer Clause (a) with no order as to costs.