Fatimabai vs Jenuddin

V.S. Kokje, J.

This is a tenant''s second appeal in an ejectment suit. The suit was initially based on the ground of genuine requirement of the landlord for residence u/s 12(1)(e) of the M. P. Accommodation Control Act (for short ''the Act''). By an ammendment, later on the ground u/s 12(1)(h) was also added. The trial Court decreed the suit for ejectment only on the ground u/s 12(1)(h) of the Act. In the first appeal, filed by the tenant, the Respondent/landlord did not file any cross-objection, but supported the decree of the trial Court even on the ground u/s 12(1)(e) of the Act. The first appellate Court granted decree on both the grounds, Aggrieved by the judgment, the tenant has come up in this second appeal in this Court.

On 22-1-1990, this Court has admitted this appeal for final hearing on the following substantial questions of law:

Whether the lower appellate Court erred in law in reversing the finding of non-requirement of residence of the Respondent in absence of any cross-objection filed in appeal under Order 41 Rule 22 C. P. C. by the Respondent and doing so under Order 41 Rule 33 C. P. C. ?

Whether the finding of the lower appellate Court on the bona fide requirement of the Respondent for his residence in the suit accommodation is based on misreading of the evidence on record ?

Whether the Courts below were wrong in the law permitting the amendment in plaint to introduce additional ground of reconstruction of the suit house u/s 12(1)(h) of the Accommodation Control Act ?

What procedure should have the trial Court followed in calling upon the Defendant Appellant to exercise his election u/s 18 of the M. P. Accommodation Control Act, 1961 ?

Later on an application for formulating additional substantial questions of law was also made, which was registered as I. A. No. 4464/90. Following two questions were suggested in the application:

(i) Whether on the facts and in the circumstances of the case, the non-election application moved by Appellant''s counsel in the trial Court u/s 18 of the M. P. Accommodation Control Act, 1961, is vitiated in law and not binding on the Appellant in view of her application dated 9-1-90 before this Court, challenging the factum of declaration and authority of the said counsel in that behalf and if so, its effect ?

(ii) Whether on the facts and in the circumstances of the case, the decree of eviction passed by the trial Court u/s 12(1)(h) of the M. P. Accommodation Control Act, 1961 is citiated in law as being not in compliance with Sub-Section 7 of Section 12 of the said Act ?

Arguments were heard on this application also, at the time of final hearing of the case. Since the two questions suggested are off-shoots of the questions No. 3 and 4 already framed, following two additional substantial questions of law are formulated:

Whether option u/s 18 of the M.P. Accommodation Control Act, 1961 once exercised through the lawyer, can be withdrawn by the tenant and that too at the appellate stage ?

Whether the decree passed by the lower Courts on the ground u/s 12(1)(h) of the M. P. Accommodation Control Act is vitiated by non-compliance of provision of Sub-section 7 of Section 12 of the Act ?

Arguments were heard on the aforesaid substantial questions of law also.

On the first substantial question of law enumerated above, it was contended on behalf of the Appellant that the decree was passed by the trial Court only on the ground u/s 12(1)(h) of the Act and on the ground u/s 12(1)(e) of the Act the trial Court had dismissed the suit. It was, therefore, incumbent on the Plaintiff/landlord to have submitted cross objections against the decision on the ground u/s 12(1)(e) of the Act. According to the Appellant it was not a case covered by order 41 Rule 33 of the Code of CPC and the first appellate Court''s decree on the ground u/s 12(1)(e) is, therefore, clearly without jurisdiction. On the other hand it was contended on behalf of the Respondent that since the decree of ejectment was passed in favour of the Plaintiff, he could not have filed an appeal against the decree and since an appeal could not have been filed, cross-objection also could not have been filed in the appeal preferred by the tenant. Reliance was placed on the decision of this Court reported in Balwant v. Mainabai 1990 JLJ 51 . Vriddhachalam Pillai Vs. Chaldean Syrian Bank Ltd., and Another, . Tej Kumar Jain Vs. Purshottam and Another, The arguments, advanced on behalf of the Appellant on the basis of amendment of the Code of CPC in 1976 had been convcingly repealed by the Division Bench of this Court in Tej Kumar Jain Vs. Purshottam and Another, It was argued in that case also that without filing cross-objection, Appellant cannot assail the decision of the trial Court on a ground of eviction decided against him. It was submitted that earlier to the amendment of the Code of CPC in 1976, the Respondent could support the decree of the Court below by assailing that the matter decided against him should have been decided in his favour without filing any cross-objection, but after the amendment of order 41 Rule 22, even to support the decree by the successful party on the questions decided against him, filing of cross-objection was impreative. Hon''ble Bachawat, J. has laid down the law in that case that it was not necessary for the Plaintiff to file cross-objection to assail the finding of the Courts below regarding the ground u/s 12(1)(e) of the Act and he could assert without filing cross-objection that the finding regarding that ground should have been given in his favour while supporting the impugned decree. I agree with the above view and accordingly hold that in this case also the Plaintiff had a right to support the decree on the ground u/s 12(1)(e) of the Act before the first appellate Court. The view taken by the first appellate Court in this regard cannot be said to be against law.

The next question is as to whether the finding of the first appellate court on the ground u/s 12(1)(e) of the Act was vitiated by misreading the evidence on record. It was contended on behalf of the Appellant on this ground that it was not open to the appellate Court to allow the ground u/s 12(1)(e) of the Act to be regitated. Tracing the history of the litigation, the learned Counsel for the Appellant submitted that the suit was initially decided by the judgment dated 25-7-81 by Shri Shakye, Addl. Distt. Judge, who had held on the point of genuine need against the Plaintiff On an appeal, by his judgment dated 22-12-81, Shri P. S. Keralkar, Addl. District Judge Badwani in Appeal No. 23/81 remanded the case. According to the learned Counsel for the Appellant a persual of the judgment of Shri P. B. Keralkar would show that he has only decided the cross-objection and not the appeal and, therefore, the decree of the trial Court on the ground u/s 12(1)(e) of the Act against the Plaintiff remained intact. It is for this reason that the Appellant now says that the finding on the ground u/s 12(1)(e) of the Act is not open to challenge. A Plain reading of para 9 of the judgment of Shri Keralkar, Addl. Distt. Judge in First Appeal No. 23/81 would show that though the cross-objections were allowed it was categorically stated that the judgment and decree passed by the trial Court was set-aside, and the case was remanded for disposal in accordance with law after taking further evidence. It cannot, therefore, be said that the finding of the trial Court on the ground u/s 12(1)(e) of the Act had become final. It was further contended that while agriving at the finding about the requirement of the Plaintiff, the Court had ignored relevant evidence. It was contended that the evidence about genuine need is not supported by any independent evidence but only highly interested witnesses have been examined. It was further contended that the Plaintiff and his mother have not been examined and in absence of their statements the evidence produced could not be relied upon. The first appellate Court in para 19 of the judgment has considered all these aspects and given finding that the need was based on two counts, of which one was that the Plaintiff wanted to come and live in his own house and the other was that his wife and his mother were not able to pull on together After assessment of evidence the first appellate Court has taken the view that the need has been amply proved. It is essentially a finding of fact, which cannot be interferred with lightly in this second appeal. Actually the question framed was on the first appellate Court''s judgment being vitiated by misreading of evidence. The learned Counsel for the Appellant was not able to point out any specific misreading of evidence which have affected the judgment of the first appellate Court. The finding of the first appellate Court that the Plaintiff bonafide and genuinly required the suit premises for his residence cannot, therefore, be interferred with.

The next question is as to whether the Courts below were wrong in permitting amendment of plaint for institution/introduction of additional ground of reconstruction of the house u/s 12(1)(h) of the Act. It was argued on behalf of the Appellant that each ground of eviction u/s 12(1) supplies a separate cause of action. According to the Appellant if the ground existed at the time of filing of the suit but was not taken initially, it cannot be allowed to be introduced later on. Such a ground can be added to the plaint only if it is based on a subsequent cause of action. Reliance was placed on the full Bench decision of this Court reported in Chhotelal Vs. Akbarali and Another, perusal of that judgment shows that the question for consideration there was, whether a ground based on a cause of action, which has accrued subsequently to the filing of the suit could be allowed to be taken by way of amendment of the plaint. The law on this point has now been settled. But the judgment is not an authority for the proposition that ground based on a cause of action which has existed at the time of the filing of the suit but was not taken in the plaint initially cannot be allowed to be taken subsequently. The prusal of the Full Bench decision it self shows that all though it was preserved that an amendment raising a new ground based on a cause of action which was available at the lime of filing of the suit could be allowed. I am, therefore, of the opinion that the Courts below did not commit any error in allowing the additional ground u/s 12(1)(h) to be raised by way of amendment.

It would be convenient to deal with the substantial question of law No. 6 at this stage. This Court in a judgment reported in Sushila Devi Vs. Maharaj Singh Devi Singh, has decided that when a Landlord pleads that after reconstruction he would occupy the house himself, the case would be governed by Section 12(1)(e) of the Act. As it has already been held in favour of the Respondent that he is entitled to a decree u/s 12(1)(e) of the Act, the non-compliance with the provisions of Section 12(7) of the Act would have no effect. Even so in para 13 of its judgment the first appellate Court has discussed in detail the evidence on the point and in para 14 has given a finding that the Plaintiff had complied with the requirement of Section 12(7) of the Act also. The observation by the Court that to show that the plans have been properly prepared, it was not necessary to show that the plans were sanctioned by the Municipality would not show that it had not applied its mind properly to the provisions of Section 12(7) of the Act. There is, therefore, no reason to interfere with the finding of the first appellate Court on the ground u/s 12(1)(h) of the Act also.

The next question i. e. substantial question of law No. 4 is what procedure should have been adopted by the trial Court in calling upon the Defendant/Appellant u/s 18 of the Act and whether the option exercised through the lawyer could be revoked or withdrawn. It so happened that on 10-8-88, the trial Court before delivering its judgment gave an opportunity to the Defendant to exercise option u/s 18 of the Act in the judgment itself it was recorded that the counsel for the Defendant filed an application stating that she would not like to exercise her right of re-entry u/s 18 of the Act. This application is also signed by the lawyer of the Defendant, is on record. In the first appellate Court also no grievance was made on behalf of the Appellant that the Defendant had not given an option not to exercise the right of re-entry. Even in this Court the memorandum of appeal did not make any grievance about Defendant''s counsel not exercising the right of re-entry and making an application that the Defendant did not want to opt-for reentry in the house. The learned Counsel for the Appellant submits that the Appellant is an illiterate lady and the option was exercised by her lawyer without any consultation with her and without instructions from her. She has filed an application disowing the exercise or right of re-entry by her counsel in the trial Court and also has sought permission to withdrawn the same. Since the decree in this case has been confirmed on the ground u/s 12(1)(e) of the Act also the question as tore-entry becomes irreleyent. Even so once the option has been exercised by the counsel it can not be presumed that was done without proper instructions from the client. The law does not require that the option should be exercised by the tenant personally. In the circumstances of the case the option exercised by the counsel is being challenged at very late stage. I would, therefore, hold that in the circumstances of the case the option once exercised by the lawyer cannot be allowed to be withdrawn.

In the result the appeal fails and is hereby dismissed with no orders as to costs. The Appellant is given two months time to vacate the suit premises.