Gujarat High Court
Bhopalbhai Madhavlal Pandya vs Jadavben Wd/O Bhudabhai Chhaganbhai ... on 20 September, 2018
Author: J.B. Pardiwala
Bench: J.B.Pardiwala
C/SA/305/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 305 of 2017
With
CIVIL APPLICATION NO. 1 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ? NO
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order made
NO
thereunder ?
CIRCULATE THIS JUDGEMENT IN THE SUBORDINATE
JUDICIARY.
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BHOPALBHAI MADHAVLAL PANDYA.... Petitioner
Versus
JADAVBEN WD/O BHUDABHAI CHHAGANBHAI PADHIYAR... Respondent
==========================================================
Appearance:
MR. BK. RAJ(3794) for the PETITIONER(s) No. 1
MR SP MAJMUDAR(3456) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 20/09/2018
ORAL JUDGMENT
1 This Second Appeal under Section 100 of the Code of Civil Page 1 of 26 C/SA/305/2017 JUDGMENT Procedure, 1908 is at the instance of the original defendant and is directed against the judgment and order dated 13th June 2017 passed by the 12th Additional District Judge, Vadodara in the Regular Civil Appeal No.4 of 2004 arising from the judgment and decree dated 13th March 2002 passed by the 5th Joint Civil Judge (S.D.), Vadodara in Regular Civil Suit No.165 of 1985 filed by the respondent herein - original plaintiff for possession of the suit property.
2 For the sake of convenience, the appellant herein shall be referred to as the 'original defendant' and the respondent herein shall be referred to as the 'original plaintiff'.
3 It appears from the materials on record that the plaintiff is the lawful owner of the suit premises. The suit premises is a small house consisting of one room. The house in question was given on rent by the erstwhile owner to one Bai Sharda. Bai Sharda passed away on 4th February 1979. It is the case of the plaintiff that at the time of demise of the tenant namely Shardaben, no one was residing with her. After the demise of Shardaben, the house was kept locked. According to the plaintiff, the defendant illegally trespassed into the suit premises and started occupying the same. In such circumstances, a legal notice in writing was issued to the defendant dated 2nd February 1982 to handover the vacant and peaceful possession of the house in question.
4 The defendant appeared before the Trial Court and contested the suit by filing her written statement. The defendant took the stance that her possession of the suit property is lawful and the same is in her capacity as the lawful tenant of the suit premises. According to the defendant, she happens to be the daughter of the original tenant and was residing with the original tenant at the time of her demise. It is also Page 2 of 26 C/SA/305/2017 JUDGMENT the case of the defendant that the plaintiff purchased the suit property from the original owner vide sale deed dated 30th April 1980. Bai Sharda i.e. the mother of the defendant passed away on 4th February 1979. It is also the case of the defendant that after the demise of Shardaben, the defendant, in her capacity as the daughter, used to pay the rent amount by way of money order and this fact has been admitted by the original owner of the suit premises namely Harishbhai Dadubhai. The defendant took shelter of the provisions of Section 5(11)(c) of the Bombay Rent Act. According to the defendant, she cannot be termed as a rank trespasser in the suit premises. The defendant also took up the plea that the suit is not maintainable because the same has not been filed in the rent Court under the provisions of the Bombay Rent Act, more particularly, Section 28 of the Act.
5 Having regard to the pleadings of the parties, the Trial Court framed the following issues vide Exhibit : 86:
"(1) Whether plaintiffs proves that he is the owner of suit property? (2) Whether plaintiff proves that deffts. has no right in suit property? (3) Whether plaintiff has a right to file a present suit? (4) Whether suit is maintenance?
(5) Whether this Court has jurisdiction?
(6) Whether set proves that she is the tenant in suit premise? (7) Whether plaintiff is entitled to set the vacant possession as claimed? (8) What order and decree?"
6 The issued framed by the Trial Court came to be answered is as under:
"(1) Affirmative.Page 3 of 26
C/SA/305/2017 JUDGMENT
(2) Negative.
(3) Affirmative.
(4) Affirmative.
(5) Affirmative.
(6) Affirmative.
(7) Negative as per final order.
(8) As per final order."
7 The Trial Court, upon overall appreciation of the oral as well as
the documentary evidence on record, came to be conclusion that the defendant could be said to be the tenant in the suit premises by virtue of Section 5(11)(c) of the Bombay Rent Act. The Trial Court took the view that the defendant cannot be said to be a trespasser, as asserted and pleaded by the plaintiff.
8 The Trial Court, however, took the view that although the suit had not been filed under the Bombay Rent Act, yet the same was maintainable as the jurisdiction of the Court should be determined on the strength of the averments made in the plaint and not on the basis of the defence of the defendant. Ultimately, the suit filed by the plaintiff came to be dismissed.
9 The original plaintiff, being dissatisfied with the judgment and decree passed by the Trial Court dismissing the suit, preferred the Regular Civil Appeal No.4 of 2004 in the Court of the 12th Additional District Judge, Vadodara. The lower Appellate Court, upon reappreciation of the oral as well as the documentary evidence on record, allowed the appeal and thereby quashed and set aside the judgment and decree passed by the Trial Court. The lower Appellate Court allowed the suit filed by the plaintiff and passed a decree of Page 4 of 26 C/SA/305/2017 JUDGMENT eviction against the defendant.
10 The defendant, being dissatisfied with the judgment and decree passed by the lower Appellate Court, has come up before this Court with this Second Appeal under Section 100 of the C.P.C.
11 The following questions have been formulated as the substantial questions of law in the memorandum of the Second Appeal:
"(5.1) Whether the suit is barred by the Section 28 of the Bombay Rent Act?
(5.2) Whether the judgment of the first appellate court and trial court are contrary of the principle of the law laid down by judgment of Banubibi Ibrahim reported as 2014 (2) GLR 1583? The relevant portion of this judgment is reproduced hereunder.
(5.3) Whether the trial court and the first appellate court committed an error by deciding the issue under section 5(11)C of the Bombay Rent Act?
(5.4) Whether the dispute is related to the landlord and tenant covered by Bombay Rent Act?
(5.5) Whether the first appellate court had jurisdiction to decide the appeal on merits despite the finding of the trial court that the defendant is the tenant as per section 5(11)C of the Bombay Rent Act?
(5.6) Whether the judgment of the first appellate court and trial court suffer from jurisdictional error?
(5.7) Whether the plaintiff committed an error by not filing the suit under Page 5 of 26 C/SA/305/2017 JUDGMENT the Bombay Rent Act?
(5.8) Whether the defendant is tenant as per section 5(11)C of the Bombay Rent Act?
(5.9) Whether the judgment and decree of the first appellate court and trial court are nullity on a ground of jurisdictional error (5.10) Whether the first appellate court has committed an error by not framing a point for determination regarding the maintainability of the suit and the jurisdiction of the civil court?
(5.11) Whether the trial court committed an error while deciding the issue of the jurisdiction in its judgement?"
12 Mr. B.K. Raj, the learned counsel appearing for the appellant / defendant vehemently submitted that the lower Appellate Court committed a serious error in allowing the suit of the plaintiff. The suit was not maintainable as the same was filed in the regular Civil Court, whereas the same should have been filed under the Bombay Rent Act. According to the learned counsel, although the issue with regard to the jurisdiction of the Court came to be answered in the affirmative, yet the lower Appellate Court should have dismissed the appeal only on the count of the jurisdiction of the Trial Court to adjudicate the suit. In such circumstances, the learned counsel prays that there being merit in this Second Appeal, the same be allowed and the judgment and decree passed by the Trial Court be affirmed.
13 On the other hand, this Second Appeal has been vehemently opposed by Mr. S.P. Majmudar, the learned counsel appearing for the respondent - original plaintiff. Mr. Majmudar submits that no error, not Page 6 of 26 C/SA/305/2017 JUDGMENT to speak of any error of law could be said to have been committed by the lower Appellate Court in allowing the appeal and thereby allowing the suit filed by the plaintiff. Mr. Majmudar submits that the Trial Court has recorded a clear finding that it had the jurisdiction to try the suit and the suit was not hit by Section 28 of the Bombay Rent Act. Although the plaintiff succeeded on the other issues, yet the issue with regard to jurisdiction came to be answered in favour of the plaintiff. The defendant thought fit to not to file any cross appeal or objections as regards the finding of the Trial Court with respect to the jurisdiction of the Court. Having accepted the finding of the Trial Court with regard to the jurisdiction, the issue now cannot be raised by the defendant in this Second Appeal. According to Mr. Majmudar, this Second Appeal does not involve any substantial question of law. The learned counsel would submit that after the demise of the original tenant namely Bai Sharda, one find day the defendant surreptitiously entered the premises and tried to establish her possession as a tenant by invoking the provisions of Section 5(11)(c) of the Bombay Rent Act. According to Mr. Majmudar, the case of the plaintiff is very clear. The plaintiff does not accept the defendant as her tenant. The learned counsel would submit that the defendant is a rank trespasser, and therefore, has no right to hold the possession on the strength of the tenancy rights of her mother which got extinguished on her demise in the year 1979. The defendant is a married lady and settled in Mumbai.
14 In such circumstances referred to above, Mr. Majmudar the learned counsel prays that there being no merit in this Second Appeal, the same be dismissed.
15 Mr. B.K. Raj, the learned counsel appearing for the appellant in rejoinder submitted that although his client did not file any cross appeal Page 7 of 26 C/SA/305/2017 JUDGMENT or cross objection with regard to the finding of the Trial Court as regards the jurisdiction of the Court, yet it is always open for him to raise this issue in this Second Appeal to get the eviction decree quashed. In other words, according to Mr. Raj, although his client succeeded in getting the suit dismissed not on the point of jurisdiction of the Court to try the suit, but on the other issues, yet the contention with regard to the jurisdiction of the Trial Court to try the suit was taken up before the lower Appellate Court.
16 According to Mr. Raj, the issue is covered by a decision of this Court in the case of Banubibi Ibrahim vs. A.R. Shaikh reported in (2014) 2 GLR 1583. The argument of Mr. Raj proceeds on the footing that it could be said that subtenancy or subletting comes into existence when a third party stranger is inducted in the tenanted premises and the possession is parted with in favour of such party exclusively. According to Mr. Raj, it is the well settled principles of law that once exclusive possession of the third party to the premises is proved, the case would have been under the provisions of the Bombay Rent Act. In such circumstances, according to Mr. Raj, the suit should have been filed before the Rent Court under the provisions of the Bombay Rent Act and not before the regular Civil Court.
17 In such circumstances, according to Mr. Raj, the issue of jurisdiction of the Trial Court with regard to the subject matter can be looked into by this Court in this Second Appeal.
18 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether any question of law is involved in this Second Appeal.
Page 8 of 26C/SA/305/2017 JUDGMENT 19 I take notice of the fact that all the questions of law formulated in
the memorandum of the Second Appeal are one relating to the jurisdiction of the Trial Court to adjudicate the suit.
20 Mr. Majmudar, the learned counsel appearing for the decree holder - original plaintiff, in response to the submissions of Mr. Raj, as referred to above, contended that the jurisdiction of the Court cannot be determined on the basis of the case put up by the defendant. The jurisdiction of the Court is determined on the basis of the averments made in the plaint.
21 Mr. Majmudar relied on the decision of a Division Bench of this Court in Nanikram Sobhraj Mills (Pvt) Ltd. vs. Kirtidev Chinubhai 20 G.L.R. 469. In that case, the Division held that it is well settled that the jurisdiction of the Court to entertain and try such a suit depends upon the averments made in the plaint and the suit cannot be ousted by the averments made in the written statement. The Court further observed that the question of returning the plaint to proper court would not arise because the special court constituted under Section 28 of the Act will have no jurisdiction to entertain the suit based on a plaint in which the plaintiff seeks the relief of possession of immovable property on the strength of his title. At page 472 of the report, M.K. Shah J. speaking for the Division Bench, observed:
"The expression any suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises to which any of the provisions of this Part apply in our opinion, would not cover the premises which are not let out but are trespassed upon by the defendant, according to the case of the plaintiff."Page 9 of 26
C/SA/305/2017 JUDGMENT 22 It is settled position of law that the question of exclusive
jurisdiction under Section 28(1) of the Bombay Rent Act does not depend upon the plea raised by the defendant but on the averments made in the plaint. It is also a settled law that mere form of relief claimed is not conclusive of the real disputes and that has to be gathered from the reading of the plaint as a whole. It is a nature of the dispute raised in the plaint that determines the question of jurisdiction and not in the defence.
23 The pivotal question that falls for consideration in this Second Appeal is whether the party, who has succeeded in the Trial Court, can support the judgment and decree passed in its favour without filing a crossobjection only as regards the findings, which are recorded against him by the Court.
24 The aforesaid question has something to do with the provisions of Order 41 Rule 22 of the Civil Procedure Code.
25 Order 41 Rule 22 of the C.P.C. provides as under:
"22. Upon hearing respondent may object to decree as if he had preferred separate 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, 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 crossobjection in respect of the decree in so far as it is based on Page 10 of 26 C/SA/305/2017 JUDGMENT that footing, 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.) The bracketed portions were introduced into the provision by the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976) which came into force w.e.f. 1277. The bracketed portion in main provision is in substitution of the following part of sentence which read as follows :
"on any of the grounds decided against him in the Court below but takes any crossobjections."
26 The comparative reading of the present text of the provision with the repealed one indicates that the scope of the provision has been widened by making it more liberal. Earlier it could have been argued that right of the respondent without filing a crossobjection extended only to the extent of canvassing a 'ground' decided against him for supporting the decision of issue in his favour. Now the respondent without filing a crossobjection has the liberty of stating that "any finding against him" in the court below "in respect of any issue" ought to have been in his favour.
27 The Explanation has used the word "may" therein suggests, is permissive and not prohibitive in nature. A respondent may in the situation mentioned in the Explanation choose to file crossobjection but that does not mean that his right to support the decree without filing a crossobjection as provided in the main provision is taken away.
28 The abovesaid principle is founded on the rule of necessity. The respondent is expected and rather would only be entitled to file a cross appeal or crossobjection when there is some decree passed by the trial Judge against him. If the suit has been decreed in spite of one or more Page 11 of 26 C/SA/305/2017 JUDGMENT findings having been recorded or one or more issues having been decided against him, he will not have a right of appeal as there would be nothing to be appealed against. That is why Order 41, Rule 22 of the C.P.C., statutorily incorporated the rule of season and fair play that the respondent should be allowed to support in the Appellate Court the decree passed by the trial Judge on any of the grounds decided against him.
29 The following extract from Sarkar on Code of Civil Procedure, th 10 Edition, Reprint 2004, Volume - 1 would make the picture very clear with regard to Order 41 Rule 22 of the C.P.C . :
"1976 Amendment. R 22 gives two distinct rights to the respondent in the appeal. The first is the right of upholding the decree of the court of first instance on any of the grounds on which that court decided against hi:
and the second right is that of taking crossobjection to the decree which the respondent might have taken by way of appeal. In the first case he supports the decree and in the second case he attacks the decree.
(i) In subr(1) the words "on any of the grounds decided against him in the Court below, but take any crossobjection not being very happy because a person cannot support a decree on a ground decided against him, the italicised words have been substituted for making it clear what is meant.
(ii) In subr (1) an Explanation has also been added expressly empowering the respondent to file crossobjection in respect of a finding adverse to him notwithstanding that the ultimate decision is wholly or partly in his favour."
Under existing position of law the situation are well settled, namely, (1) if the decree is wholly in favour of respondent he can support the decree in his favour passed by the trial court on any of the grounds or issues decided against him without filing any crossobjection, and (2) if some decree is passed against a respondent, he cannot challenge it in appeal without filing any crossobjection in respect of the adverse decision on which that decree is based. It thus appears that the express provision empowering the respondent to file crossobjection in respect of any finding adverse to him, as has been conferred by Explanation in question, has not effected any material change in law except that in the first situation, as adverted to above, respondent may now file a crossobjection also and in that event to the express crossobjection will survive the appeal, as has been laid down Page 12 of 26 C/SA/305/2017 JUDGMENT in subr (4), he will be entitled to adjudication on the crosobjection on the merit.
There are two limbs of the rule which give two remedies to the respondent:
(1) The respondent supports the decree and (2) he attacks the decree by taking crossobjection. The use of the words "support" makes it plain that the right given is limited to the sustaining of the decree in so far as it is in his favour, and does not extend beyond so as to enable him to obtain an alteration giving him a further advantage. This he can secure only by an appeal or crossobjection. Where a suit is wholly dismissed or wholly decreed, it is open to the respondent to support the decision by reagitating ground negatived by the lower court. Where the suit is decreed in part and dismissed as to the test the party who features as the respondent has a decree in his favour which he is allowed to support on any of the grounds decided against him. When he does this and no more he is only supporting and not attacking the decree [Venkata vs. Satyanarayanamurthy, A 1943 M 698 FB].
It is also open to a respondent who had not filed crossobjection with respect to the portion of the decree which had gone against him to urge in opposition to the appeal against the decree in his favour, a contention which if accepted by the trial court would have necessitated the total dismissal of the suit but that the decree so far as it was against him would stand. For, the respondent can support the decree in his favour on any of the grounds decided against him by the court and when the respondent does this, he is only supporting and not attacking that decree [Chandra P J Temple v. Harikrishna, A 1973 SC 2565 approving Venkata vs. Satyanarayanamurthy, sup though this question was left undecided in Itakhoolie Tea Estate v. Workmen, A 1960 SC 1349].
30 The Apex Court in the case of Banarasi and others vs. Ramphal reported in (2003) 9 SCC 606 has considered the scope of Order 41, Rule 22(1) explanation and (4) and Rule 33. The Apex Court has held that it is not necessary to file written objections to the adverse finding; the respondent in a given case can challenge or support a decree or adverse finding without lodging or filing memorandum of cross objection as envisaged under Order 41, Rule 22. The facts before the Apex Court were that a suit for the specific performance of an agreement of sale was filed by Banarsi against Ram Phal. The agreement of sale was Page 13 of 26 C/SA/305/2017 JUDGMENT for consideration of Rs. 2,90,000/ out of which an amount of Rs. 2,40,000/ was acknowledged by the vendor to have been received, leaving a balance of Rs. 50,000/ to be received at the time of execution and registration of the sale deed. The vendor also filed a suit for cancellation of the agreement of sale on the ground that the nature of transaction between the parties was of loan and that the amount of loan taken by Banarsi the appellant before the Apex Court was only Rs. 60,000/ but the respondents therein have added advanced interest and capitalised the same although the amount of loan with interest was returned yet the respondents have failed to deliver back as fully discharged agreement. The suits were consolidated and tried together by the learned Civil Judge who, by the judgment and decree dated 20th May, 1994 disposed of both the suits. The Trial Court held that looking to the real nature of the transaction entered between the parties and the evidence adduced would indicate that the actual amount which passed from the respondent to the appellant was just and proper and that the appellant returned the amount of Rs. 2,40,000/ with interest calculated at the rate of 1% per month with effect from 30th November, 1988 and on Rs. 1,80,000/ with effect from 15th July, 1991 on Rs. 60,000/. The Trial Court recorded a finding that the appellants were cultivating the land that the land in dispute was very necessary for the maintenance of their family and if the execution of sale was directed, they would suffer too much hardship. Accordingly, the suit came to be disposed of. The aggrieved party filed two appeals before the High Court. The High Court noticing that during pendency of the appeal, the pecuniary jurisdiction of District Court was enhanced, the appeals came to be transferred to the District Court and decided accordingly by the learned District Judge who by his judgment dated 21st September, 1999 dismissed the appeal. The respondents did not prefer any appeal on his own nor filed any cross objection while holding the appeals preferred by the appellant were Page 14 of 26 C/SA/305/2017 JUDGMENT liable to be dismissed. The Appellate Court modified the decree passed by the Trial Court and granted the specific performance. Feeling aggrieved by the orders passed by the District Court, the two second appeals were filed before the High Court. During the pendency of the two Second Appeals, some interim orders were passed. The High Court dismissed both the appeals raising no substantial question of law. 0n the plea advanced on behalf of the appellants before the High Court that the first Appellate Court could not have in purported exercise of the powers under Rule 41, Rule 33 C.P.C. reversed the decree in respect of refund and directed the suit for specific performance to be decreed in favour of the respondents without there being any appeal or cross objection preferred by the respondent, the High Court opined that it was open for the respondents not to file any appeal against the Trial Court's decree on the belief that he would either get his money back within the short time provided under the decree or the performance of the contract. However, on account of the stay order obtained by the appellant, the payment of decretal amount was not made by the appellant to the respondents as per the terms of decree and the High Court then held that in such circumstances, the first Appellate Court committed error of law in exercising the powers under Order 41, Rule 22 of the C.P.C. in passing the decree for specific performance. That gave the party a cause to approach the Apex Court. Before the Apex Court, the question raised was whether without cross appeal or cross objection by the respondent under Order 41, Rule 22 of the C.P.C. could the Appellate Court have set aside the decree passed by the Trial Court and instead granted straight away a decree for specific performance of contract interfere with the Trial Court. The Apex Court therein noticed the changes made in Order 41, Rule 22 as amended by Act No. 104 of 1976 with effect from 1 st February 1977 with preamendment. After noticing the change the Apex Court ruled as follows :
Page 15 of 26C/SA/305/2017 JUDGMENT "9. Any respondent though he may not have filed an appeal from any part of the decree may still support the decree to the extent to which it, is already in his favour by laying challenge to a finding recorded in the impugned judgment against him. Where a plaintiff seeks a decree against the defendant on grounds (A) and (B), any one of the two grounds being enough to entitle the plaintiff to a decree and the Court has passed a decree on ground (A) deciding it for the plaintiff while ground (B) has been decided against the plaintiff, in an appeal preferred by the defendant, inspite of the finding on ground (A) being reversed the plaintiff as a respondent can still seek to support the decree by challenging the finding on ground (B) and persuade the Appellate Court to form an opinion that in spite of the finding on ground (A) being reversed to the benefit of the defendant appellant the decree could still be sustained by reversing the finding on ground (B) though the plaintiff respondent has neither preferred an appeal of his own nor taken any cross objection. A right to file cross objection is the exercise of right to appeal though in a different form. It was observed in Sahadu Gangaram Bhagade v. Special Dy. Collector, Ahmednagar that the right given to a respondent in an appeal to file cross objection is a right given to the same extent as is a right of appeal to lay challenge to the impugned decree if he can be said to be aggrieved thereby. Taking any cross objection is the exercise of the right of appeal arid takes the place of cross appeal though the form differs. Thus it is clear that just as an appeal is preferred by a person aggrieved by the decree so also a cross objection is preferred by one who can be said to be aggrieved by the decree. A party who has fully succeeded in the suit can and needs to neither prefer an appeal nor take any cross objection though certain finding may be against him. Appeal and cross objection both are filed against the decree and not against judgment and certainly not against any finding recorded in a judgment. This was the wellsettled position of law under the unamended C.P.C.
10. The C.P.C. amendment of 1976 has not materially or substantially altered the law except, for a marginal difference. Even under the amended Order 4 1, Rule 22 Subrule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross objection. However, the insertion made in the text of Subrule (1) makes it permissible to file a cross objection against a finding. The difference which has resulted we will shortly state. A respondent may defend himself without filing any cross objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross objection. The amendment inserted by the 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations :
(i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent.
(ii) The decree is entirely in favour of the respondent though an Page 16 of 26 C/SA/305/2017 JUDGMENT issue has been decided against, the respondent.
(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.
11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross objection. The law remains so postamendment too. In the type of cases (ii) and (iii) preamendment C.P.C. did not entitle nor permit, the respondent, to take any cross objection as he was not the person aggrieved by the decree. Under the amended C.P.C., read In the light of the explanation, though it is still not necessary for the respondent to take any crossobjection paying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross objection; the amendment made in the text of Subrule (1), read with the explanation newly inserted, gives him a right to take cross objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross objection is spelled out by Subrule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended C.P.C. In the preamendment era. the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent."
31 Thus, in view of the above, the defendant can certainly attack the adverse finding without filing a crossobjection. Therefore, in my judgment, the objection raised by Mr. Majmudar that without filing a crossobjection, the defendant cannot assail the adverse finding as regards the jurisdiction of the Court to try the suit, has to be rejected and it is permissible for the defendant to challenge the adverse finding without filing an objection strictly in compliance with Order 41 Rule 22. It is to be noted that the right to file appeal or crossobjection is a creation of the Statute and the right has to be exercised in the manner provided under the Statute. No doubt, Order 41, Rule 22 gives a right to the party to file cross objections to the adverse finding in the manner as Page 17 of 26 C/SA/305/2017 JUDGMENT provided under that rule but considering the law declared by the Apex Court in Banarsi and others v. Ram Phal reported in 2003 (9) SCC 606, the aggrieved party has right to object or assail the adverse finding without filing written objection.
32 I shall now consider whether there is any substance in the issue raised by the appellant herein as regards the jurisdiction of the Trial Court.
33 It will be necessary to refer to the provision of Section 28(1) of the Bombay Rent Act. Section 28(1) of the Bombay Rent Act reads as under:
"28. Jurisdiction of Courts.
[(1) Not withstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction, [(a) in the city of Ahmedabad, the Court of Small Causes of Ahmedabad,] [* * *] [(aa) in any area for which a Court of Small Causes is established under Provincial Small Causes Court Act, 1887 (IX of 1887), such court and]
(b) elsewhere, the court of the Civil Judge (Junior Division) having jurisdiction in the area in which the premises are situate or, if there is no such Civil Judge, the Court of the Civil Judge (Senior Division) having ordinary jurisdiction.
Shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises to which any of the provisions of this part apply and to decide any application made under this Act and to deal with claim or question arising out of this Act or any of its provisions and [subject to the provisions of subsection (2),] no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question."
Page 18 of 26C/SA/305/2017 JUDGMENT "Subsection (1) can be divided into two parts - First part confers exclusive jurisdiction on specified Courts by nonobtante clause. Second part excludes jurisdiction of all other Courts than the one specified. The logical effect of this section is to deprive certain Courts of their original jurisdiction, which they possessed before the coming into operation of Rent Act. So far as specified Rent Courts, its original jurisdiction has been expanded in subject matter, value of the subject matter and in some matter even territorial. To clarify Small Cause Court can now deal with suit for possession of immovable property. The Rent Courts now are entitled to deal with for possession of immovable property. The Rent Courts now are entitled to deal with claim for unlimited amount. All incidental and ancillary questions to the main issue can also be dealt with by Rent Court. So, question whether a charge for arrears of rent on the property outside the jurisdiction of the Court in question can also be decided by the Court having jurisdiction."
"The clause below subclause (b) of subsection (1) of section 28 can conveniently be divided into 3 limbs. Firstly, suit for proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this part (part II) apply. Secondly, any application made under this Act. Thirdly, deal with any claim or question arising out of this Act or any of its provisions.
I. The first requirement is that part II of the Act must apply to the premises in question, for which a suit, application or proceeding relates. The second requirement is that the dispute must be in between a landlord and a tenant. This would include a determination of such relationship, namely, a landlord of the tenant and vice versa In other words the relationship may be admitted or disputed but still the Rent Court will have jurisdiction. Thirdly, the dispute must relate to the recovery or rent or possession or rent and possession both.
II. The applications under the Act are also within the competence of Rent Courts. They are applications under order 9 rule 9 or order 9 rule 13 of C.P.C. arising out of suits mentioned above in I, applications under section 16(3), section 17(1), section 17A(1), section 17C(1), applications for fixation of standard rent and permitted increases under section 11, applications for restoration of essential supply under section 24(2), applications under section 13A. (Guj.), applications under section 23A(2) (Mah.) and execution applications and orders and decrees passed under this Act, etc. III. Any claim of question arising out of the Act or its provisions. Even if Page 19 of 26 C/SA/305/2017 JUDGMENT there is no relationship of landlord and tenant but a claim or question raises under the Act, e.g. an application or suit under section 18(3). The third limb "any claim or question arising out of this Act or any of its provisions" was sufficient, as in England by section 17(2) of 1920, Act, but Bom. Legislature out of abundant caution, made explicit what was implicit, by first two limbs. Thus, now third limb becomes residuary.
There are certain suits which are not covered by the provisions of Rent Act and hence such suits can be entertained and tried by ordinary Civil Court, City Civil Court or High Court. To illustrate (i) a suit under section 9 (now section 6) of Specific Relief Act for possession of property from which the plff. was dispossessed without due course of law (ii) a suit purely based on contract for exchange of flats, after the premises are remodelled and the suit is for specific performance of such contract, (iii) a suit for damages based on contract or tort (iv) a suit where there is no such relationship of landlord and tenant and (v) a suit dehors the Rent Act. These illustrations will be dealt with each separately below."
34 Thus, for the applicability of Section 28(1), the following conditions must be satisfied before taking the view that the jurisdiction of regular Competent Civil Court like the City Civil Court is ousted:
"(i) It must be a suit or proceedings between a landlord and a tenant;
(ii) Such suit of proceedings must relate to the recovery of rent or possession of any premises to which any of the provisions of the Bombay Rent Act would apply."
35 Assuming for the moment that at the time of the institution of the suit by the respondent against the appellant, the relationship between them was that of landlord and tenant, though the same has been seriously disputed that too the other conditions or requirements to bring the case within the ambit of Section 28 are admittedly not fulfilled, the suit was not for recovery of the rent nor for possession of the premises to which the provisions of the Bombay Rent Act would apply.
36 The real question to be determined in each case is whether the
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plaintiff who has come to the Court, in substance, wants his relief, whereby the claim between the parties, as landlord and tenant, as such, is required to be adjudicated. If the reply is in the affirmative, Section 28 comes into play. But, if the plaintiff wants an adjudication of his rights under a contract, express or imply, and claims declaration or injunction or both or damages, which has nothing to do with its rights either as landlord or tenant, then ordinarily the Civil Courts have the jurisdiction.
37 It is evident from the nature of the suit, which was instituted by the respondent as a plaintiff, that the respondent - plaintiff wanted the Court to pass a decree of eviction as the plaintiff had trespassed into the suit premises without any right, title or interest therein.
38 In my view, the most important and essential ingredient for the applicability of Section 28 of the Bombay Rent Act to the effect that the claim or question should have been arisen under the Act is found missing.
39 It would also be appropriate to refer to ruling of the Supreme Court in the case of Topandas Vs. Gorakhram reported in AIR 1964 SC 1348. The principle explained is that the jurisdiction of the ordinary Civil Court is not lost simply because the defendant raises a plea of tenancy governed by the Rent Act. The Supreme Court held as under:
"Section 28, no doubt, gives exclusive jurisdiction to the Court of Small Causes to entertain and try a suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises to which any of the provisions of any premises to which any of the provisions of Part II apply; it also gives exclusive jurisdiction to decide any application under the Act and any claim or question arising out of the Act or any of its provisions - all this notwithstanding anything contained in any other law. But the section does not say or intend to say that the plea of the defendant will determine or change the forum. It proceeds on the basis that exclusive Page 21 of 26 C/SA/305/2017 JUDGMENT jurisdiction is conferred or certain courts to decide all questions or claims under the Act as to parties, between whom there is or was a relationship of landlord and tenant. It does not invest those Courts with exclusive power to try questions of title, such as questions as between the rightful owner and a trespasser or a licensee, for such questions do not arise under the Act. If, therefore, the plaintiff in his plaint does not admit a relation which would attract any of the provisions of the Act on which the exclusive jurisdiction given under Section 28 depends, the defendant by his plea cannot force the plaintiff to go to a forum where on his averments he cannot go. (Emphasis supplied.)"
40 I may also refer to and rely upon a decision of the Supreme Court in the case of Laxmidas Morarji vs. Behrose Darab Madan reported in (2009) 10 SCC 425. The facts of the said case were somewhat as under:
"Mr. Salehbhai Alibhai Rangwala was the owner of a building then known as Mohamedali Mansion, situated at 241, Princess Street, Bombay. The Flat No. 2B on the second floor of the building, (hereinafter referred to as `the suit premises') had been let out to one Dosabai, the brother of Ms. Dhanbai Batliwala, (hereinafter referred to as the `deceasedtenant'), on a monthly rent of Rs. 104.10 paisa.
Dhanbai was staying with her brother in the suit premises. After the death of her brother in the year 1953, Dhanbhai became the tenant of the suit premises by virtue of Section 5(11)(c)(i) of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 (`the Act' for short). She expired on 17.12.1963. It appears that the deceased tenant in her last will dated 24th April, 1959 had appointed the trustees and executors of her will.
Sometime in the early part of the year 1965, the original owner had sent notice to the trustees and executors of the will of the deceased tenant to hand over the vacant possession of the suit premises and also to pay the arrears of rent alleged to be due from 01.11.1964. Since the trustees and executors of the will failed to vacate the suit premises, the original owner filed Suit No.310 of 1967 before the Court of Small Causes at Bombay, against the trustees and the respondent in this appeal, interalia seeking recovery of possession of the suit premises and for payment of Rs.3018.90 paisa, being the arrears of rent for the period from 01.11.1964 to 31.03.1967. In the suit filed, it was specifically stated, that, the defendant No. 5 (respondent) is not the tenant and has no legal and valid claim over the suit premises and therefore no notice was required to be given to her, however, she is arrayed as a party in the suit by way of caution and to avoid any technical objection in future. It was also mentioned in the suit, Page 22 of 26 C/SA/305/2017 JUDGMENT that, the defendants 1 to 4 (trustees and executors of the will) have parted with the possession of the suit premises to defendant No.5, respondent in this appeal.
In the written statement filed, respondent apart from others, had stated that the court of small causes at Bombay has no jurisdiction to entertain the petition, since the landlord of the premises has not accepted her as a tenant of the suit premises; she has been adopted as a daughter by the deceased tenant; deceased tenant has by her last will, bequeathed the tenancy rights of the suit premises; she is the daughter of sister of the deceased tenant and was residing with the deceased tenant and, therefore, would fit in to the definition of a tenant as envisaged under Section 5(11)
(c)(i) of the Act and, therefore, entitled to an eviction notice.
The Small Causes Court, while dismissing the suit by its order dated 02.07.1977, held that, the law of adoption is unknown to the Parsis and the defendant No.5 (respondent) has proved the fact that she was residing with the deceased tenant as a member of her family and as such she is entitled to claim tenancy rights under the provisions of Section 5(11)(c)(i) of the Act.
The original owner along with the predecessor of the present petitioners, being aggrieved by the judgment of the court of Small Causes at Bombay preferred an appeal before the court of Small Causes at Bombay in Appeal No.74 of 1978. The appellate court, on consideration of oral and documentary evidence held that, there was no landlord and tenant relationship between executors of will and the petitioners and therefore the suit itself was not maintainable. The respondent retains the tenancy rights as she was the adopted daughter of the deceased tenant under her will dated 2nd April, 1959 and was a member of her family residing with her at the time of her death. It was also observed that bequeath of the tenancy rights either of the residential premises or of shop premises cannot be given effect to, unless the concerned person satisfies the requirement of Section 5(11)(c)(i) of the Act and lastly the defendants 1 to 4 have not produced any evidence to show that the adoption is unknown to Parsis. In view of the above findings the appellate court had dismissed the appeal."
41 The preliminary issue before the Supreme Court was whether the suit filed by the third owner of the suit premises was maintainable before the Small Cause Court, Bombay. The relevant observations of the Supreme Court, while dismissing the appeal, are as under:
Page 23 of 26C/SA/305/2017 JUDGMENT "13. The specific case of the plaintiff in the suit filed was that the respondent is not a tenant and has no legal and valid claim over the suit premises and therefore no notice was required to be given to her. However, she is arrayed as a party in the suit by way of caution and to avoid any technical objection in future. It was also mentioned in the suit that the defendants 1 to 4 (trustees and executors of the will) have parted with the possession of the suit premises to defendant No.5 (respondent in this appeal). It was also mentioned that the suit is for recovery of the suit premises to which the provisions of Bombay Rent Control Act would apply.
18. Section 28 of the Act begins with a nonobstante clause. By Section 28 of the Act, the legislature has designated certain courts to entertain and try any suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises to which any of the provisions of this part apply and to decide any application made under Bombay Rent Act and to deal with any claim or question arising out of Bombay Rent Act or any of its provisions. The designated courts are, the Court of Small Causes in Greater Bombay, a Court of Small Causes established under the Provincial Small Causes Courts Act, 1887, in any area where such court is established and in other areas, the court of Civil Judge (Junior Division) having jurisdiction in the area in which the premises are situated or if there is no such Civil Judge, the court of Civil Judge (Senior Division) having ordinary jurisdiction.
19. This Court in the case of Khem Chand Dayalji and Co. Vs. Mohammed Bhaichand (1969) 1 SCC 884, while discussing the provision prescribing the jurisdiction to the Small Causes Court, has noticed, that "5.....By Section 28 of the Act certain courts were designated as courts of exclusive jurisdiction to entertain and try suits and proceedings between a landlord and tenant relating to recovery of rent or possession to which the provisions of the Act applied and also decide claims or questions arising under the Act."
20. The Rent Control Act is a special enactment conferring certain special rights and imposing certain special obligations upon landlords and tenants. The Rent Control Act imposes restrictions on the right of landlord to evict his tenants on the grounds other than what is specified in the Statute. This court in the case of Om Prakash Gupta Vs. Rattan Singh and Page 24 of 26 C/SA/305/2017 JUDGMENT Ors. (1964) 1 SCR 259, has observed, that, "ordinarily, it is for the civil courts to determine whether and if so, what jural relationship exists between the litigating parties." The Tribunals under the Act being creatures of the Statute have limited jurisdiction and have to function within the limits of the Statute creating them. But within the provisions of the Act, they are Tribunals of exclusive jurisdiction and their orders are final and not liable to be questioned in collateral proceedings, like a separate application in execution proceedings.
21. The Court has further observed, that, therefore, there is no substance in the contention that as soon as the appellant denies the relationship of landlord and tenant, the jurisdiction of the authorities under the Act is completely ousted. A landlord must be very illadvised to start proceedings under the Act, if there is no relationship of landlord and tenant. If a person in possession of the premises is not a tenant, the owner of the premises would be entitled to institute a suit for ejectment in the civil courts, untrammeled by the provisions of the Act. It is only when he happens to be the tenant of the premises in an urban area, the provisions of the Act are attracted. Mere denial of relationship of landlord and tenant cannot oust the jurisdiction unless it is specifically provided in the Statute. If the Rent Controller finds that the opposite party is not a tenant of the landlord, he must dismiss the landlord's application for eviction, but if he finds that such a plea by the opposite party is not true and that the opposite party is a tenant of the landlord, then, if the ground of eviction is proved, he must order eviction of the tenant.
22. Section 28 of the Bombay Rent Act deals with the jurisdiction of the Courts, to decide on issues arising out of the Act. In a suit relating to possession of the premises where the relationship of landlord and tenant admittedly subsists between the parties, jurisdiction to entertain and try such a suit is in the courts specified in Section 28. All applications made under the Act are also to be entertained and disposed of by the courts specified in Section 28 and no other. In all such suits or proceedings the courts specified in Section 28 also have the jurisdiction to decide all claims of questions arising out of the Act or any of its provisions.
23. In the instant case, the suit premises is situate within the jurisdiction of Greater Bombay. In view of Section 28 of the Act, the Court of Small Causes, Bombay, will have jurisdiction. The appellants have filed a suit for eviction. The suit is maintainable provided that a landlordtenant relationship is established. However, it is clear from the pleadings of the appellants that they do not consider respondent No.5 as a tenant. In furtherance of this Page 25 of 26 C/SA/305/2017 JUDGMENT stand, the appellants have gone on to adduce evidence to prove that respondent does not qualify the conditions to be deemed as tenant under the Bombay Rent Act. In the light of the principles stated by this Court in Om Prakash Gupta's case (1964) 1 SCC 259, the inevitable conclusion is that Small Causes Court at Bombay had no jurisdiction to entertain the suit filed by the owners of the suit premises."
42 The ratio, as propounded in the aforesaid decision of the Supreme Court, is the direct answer to the submissions of the learned counsel appearing for the appellant herein.
43 This Court in Banubibi (supra), on which strong reliance is placed by the learned counsel appearing for the appellant, has referred and discussed Laxmi Morarji (supra).
44 The lower Appellate Court being the final Court of facts has thought fit to allow the suit filed by the plaintiff for possession of the suit premises. The lower Appellate Court has recorded a pure finding of fact that the defendant has no legal right to remain in possession of the suit premises. The findings recorded by the lower Appellate Court cannot be termed, in my view, as erroneous or perverse warranting any interference in this Second Appeal.
45 In the result, this Second Appeal fails and is hereby dismissed. As the Second Appeal has been dismissed, the connected civil application would not survive and the same is disposed of.
(J.B. PARDIWALA, J.) CHANDRESH Page 26 of 26