Kamal Kumar vs Smt. Imarti Bai and Others

Subhash Samvatsar, J.—This appeal is filed by the Defendant-tenant, against whom a decree for ejectment is passed by two Courts below.

This appeal is admitted by this Court by order dated 17.1.2001 on following substantial questions of law :

(i) whether, the Ist appellate Court without any cross-objection or cross appeal can decree the suit for eviction on different grounds envisaged u/s 12(1)(e) of M.P. Accommodation Control Act ?

The facts of the case are that the plaintiffs/Respondents filed a suit for ejectment on the ground of Sections 12(1)(a) and 12(1)(e) of the M.P. Accommodation Control Act (hereinafter, referred to as the ''Act''). This suit was numbered as Civil Original Suit No. 107A/92 in the Court of Second Civil Judge Class I, Guna. The trial Court passed the decree in favour of Respondents/plaintiffs on the ground of Section 12(1)(a) of the Act while the trial Court negatived the claim of the. plaintffs on the ground of Section 12(1)(e) of the Act, The present Appellant being aggrieved by the said judgment preferred an appeal before the District Judge, Guna, which was numbered as Appeal No. 4A/94. The said appeal was disposed of by the impugned judgment and decree. The Ist appellate Court, after hearing arguments of the parties, set aside the decree on the ground of Section 12(1)(a) and granted a decree on the ground of Section 12(1)(e) of the Act, by holding that the plaintiffs genuinely require the suit accommodation for their residence and that of family members. This judgment and decree is under challenge in this second appeal.

Shri R.A. Roman, learned Counsel for the Appellant vehemently argued that in absence of cross-objection on behalf of the Respondents, it was not open for the Court to pass a decree on the ground of Section 12(1)(e). The appellate Court has come to the conclusion that the ground u/s 12(1)(a) is not available and has dismissed the suit on that ground. His submission, therefore, was that in absence of cross-objection, the Court should not have passed the decree in favour of the plaintiffs. He submitted that the Ist appellate Court has erroneously invoked the provisions of Order XLI Rule 33 of the Code of Civil procedure, in granting the decree in favour of the plaintiffs without there being any cross-objection.

After considering the arguments, I find that the arguments advanced by the learned Counsel are devoid of any merit. The language of Order XLI Rule 22 of the CPC is quite clear on this point. Order XLI Rule 22 reads as under :

Order XLI Rule 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 cross-objection in respect of the decree in so far as it is based on that fiding, 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.).

(2) Form of objection and provisions applicable thereto - such cross-objection shall be in the form of a memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.

(3) Unless the Respondent files with the objection a written acknowledgment from the party who may be affected by such . objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent.

(4) Where, in any case in which any Respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.

(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule." 6. As per the said rule, the Respondents have right to support the decree on any other ground. Both the Courts in the present case have passed a decree for ejectment. Merely substitution of ground amounts to supporting the decree on other ground which did not find favour with the trial Court and the said provision gives right to the Respondents to support the decree on another ground without filing cross-objection. This view is supported by the series of judgments of this Court in the cases of Tej Kumar Jain Vs. Purshottam and Another, ; Santosh Kumar v. Kunti Devi ( 1985 MPWN - Note 145); Hiralal v. Omprakash (1981 (I) MPWN - Note 236); and, Ismile Khan v. Shankarlal Chaurasia (1984 JLJ 609). In all these cases, this Court has taken a consistent view that for supporting the decree for ejectment on other ground in Section 12(1)(e) it is not necessary for the plaintiff to file cross-objection under Order XLI Rule 22, Code of Civil Procedure. Learned counsel for the Appellant could not bring any decision contrary to it to my notice.

In view of the fact, the question framed while admitting the appeal deserves to be answered against the Appellant and judgment and decree passed by Ist Appellate Court is confirmed.

Thus, this appeal has no force and deserves to be dismissed with no order as to costs.