Kunwar Krishna vs Prescribed Authority, Orai and Others

Murlidhar, J.

This is a tenant''s petition under Article 226 of the Constitution arising out of proceedings under Section 21 Act No. XIII of 1972.

The house in question consits of sixteen rooms big and small including latrine and bath on the groundfloor along with three verandahs and. courtyard and a verandah and three rooms on the first floor. The Prescribed Authority found the bona fide requirement of the landlord established. On a consideration of the comparative hardship he allowed the application partly and released two verandahs and two rooms of the lower storey and entire upper storey in favour of the landlord. As regards the two verandahs and rooms of the lower storey, he directed that these "should be of one side or as agreed upon between the parties according to convenience." The tenant appealed. In this appeal, the landlord filed a crossobjection. He also filed a crossappeal. This appeal was later rejected as time barred The crossobjection was, however, considered. The III Additional District Judge as the appellate authority confirmed the finding regarding bonafide requirement, held that the crossobjection could be considered and dealt with it the same way as a crossobjection under Order, 41 Rule 22 Civil Procedure Code and recorded the finding that the tenant''s wife having acquired two houses bearing four municipal numbers in her name prior to the commencement of this Act, a deemed vacancy under Section 12 (3) of the Act had occurred and the tenant had no right left to occupy the house. The appellate authority further observed that after comparing the hardship of the parties he was of the opinion that the test operated in favour of the landlord. The appellate authority in these circumstances dismissed the tenant''s appeal and allowing the crossobjection released the whole house in favour of the landlord with the rider that the tenant was permitted to stay for a period of six months in three rooms specified by him. This is the order challenged by this petition.

It was contended that the appellate authority erred in varying the order of the Prescribed Authority to the prejudice of the appellant by making use of the powers conferred by Order 41, Rule 22 Civil Procedure Code, in case of appeals under the Civil Procedure Code because this provision is not applicable to appeals under the Act. There is substance in the contention. Under Section 34, The Prescribed Authority and the appellate authority has for the purpose of hearing any appeal the powers of a Civil Court specified under Clauses (a) to (g) and no other powers. The phrase ''the same powers as are vested in the Civil Court under the Code of Civil Procedure when trying a suit in respect of the following matters namely (a) to (g)'' cannot be read as equating the powers of the appellate authority to the powers of the appellate Court under Civil Procedure Code. Same powers as are vested in the Civil Court, is qualified by the phrase'' in respect of the following matters.'' Filing of crossobjection is not covered by any of these clauses nor by Rule 21 which rrescribes certa n other matters in which the same powers as conferred by the Civil Procedure Code may be exercised. Reference was also made to the order 41, Rule 33 Civil Procedure Code and it was contended that such a general power to vary the degree even with regard to the respondents who have not filed any appeal must be available to the appellate Court as part of the appellate jurisdiction on general principles or under the power under Rule 22F of Section 151 Civil Procedure Code to make any orders for the ends of justice. Earn if the power to make a variation in the degree in favour of parties who have not filed any appeal or objection is taken to exist this must be limited to the extent of the requirement of the case and usually be available to make such variations as are necessary to grant relief to the appellant. There can on general principles or under Section 151 Civil Procedure Code be no question of any general power to entertain a crossobjection by a respondent who has not himself filed any appeal and then decide the same as if it was an appeal in the manner provided by Order 41, Rule 22 Civil Procedure Code. Thus the order of the appellate authority in entertaining and allowing a crossobjection is clearly illegal and must be quashed.

There remains the question of confirmation of the order of the Prescribed Authority. This too is unsustainable because the appellate authority''s own judgment shows that the plea of the appellant was that the groundfloor partition directed by the Prescribed Authority was vague and not executable. This is obvious from the terms of the order. The appellate authority has merely stated that it has made a siteplan and mentioned rooms and verandahs thereon and that now two rooms with two verandahs can be effectively released in favour of the applicant. It has, however, not cared to specify the particular rooms or verandahs nor is there any indication that there are not more than one way of demarcating two rooms and verandahs or that there cannot be any controversy on this question. In these circumstances, the appeal has to be decided afresh for dealing with the petitioner''s argument of vagueness and nonfeasibility of the demarcation on the ground floor and for demarcating and specifying the portion to be released. The finding about bona fide requirement and comparative hardship with regard to the portion to be released will not be reopened.

In the result, the petition is allowed. The order, dated 5101979 of the Additional District Judge is quashed and the District Judge or any other officer anther than the III Additional District Judge to whom he may choose to assign the case shall decide the appeal afresh expeditiously in accordance with law and the observations made in this order.