Santha vs First Additional District judge and Others

T.L. Viswanatha Iyer, J.—The landlady of a building in the occupation of Respondents 4 to 9 is the Petitioner in this petition under Article 227 of the Constitution of India. The building had been leased out to one Subramaniam, the predecessor of these Respondents on January 1, 1963 under a lease deed Ext. P-1 for the purpose of conducting a tea shop. After the death of Subramaniam the Respondents are in possession and Respondents 6 and 8 are admittedly carrying on tea shop business in the premises. This building is part of a line building in another portion of which the Petitioner''s husband is carrying on a ration shop Petitioner filed application for eviction of Respondents 4 to 9 (hereinafter referred to as the tenants) from the building, on the ground that she needed it bona fide for the residence of her eldest son Sooraj Babu and his family, a ground of eviction falling u/s 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act, for purpose of brevity). Another ground raised that the tenants were using the building in such a way as to impair its value and utility materially and permanently does not survive for consideration now as it was not pursued after the Rent Control Court held against the landlady on this point. We are therefore concerned only with the first ground of eviction, namely bona fide need.

The tenants disputed the need set up by the landlady, besides claiming protection under the second proviso to Section 11(3), namely that they were depending for their livelihood mainly on the income derived from the trade carried on in the building, and no other suitable building was available in the locality for them to carry on their trade. The Rent Control Court found the need to be bona fide. She also held that the tenants were not entitled to the protection under the second proviso to Section 11(3). Eviction was thus ordered. The tenants appealed. The appellate authority confirmed the finding regarding the landlady''s bona fide need, but upheld the tenants claim for the benefit of the second proviso to Section 11(3). He found that the tenants were depending mainly on the income from the trade carried on in the building for the livelihood and that no other suitable building was available in the locality in which they could carry on the said trade. The rent control petition was accordingly dismissed. The landlady challenged this order in revision before the District Court u/s 20 of the Act. The tenants did not file any revision petition of their own, but while supporting the appellate order on the point found in their favour, namely that under the second proviso to Section 11(3) they sought to question the finding of the first two authorities regarding the bona fide need of the landlady. The landlady however objected to their right to question this finding on bona fide need, without themselves filing a revision petition, The revisional Court overruled her objection and considered the question. He held against the landlady and found that the need set up by her was not bona fide, reversing the findings entered by the Rent Control Court and the appellate authority. The revisional Court concurred with the appellate authority in upholding the tenants'' claim for protection under the second proviso to'' Section 11(3). The revision petition was accordingly dismissed. The landlady challenges the order in this petition.

Apart from the challenge to the finding of the revisional Court on the question of the landlady''s bona fide need Counsel for the Petitioner Smt. Suseela Bhat has very vehemently raised a question of jurisdiction, namely that this question was not open for consideration by the revisional Court when it had not been challenged by the tenants by filing any revision petition. She submits that the tenants cannot challenge the appellate authority''s finding on this point in defence to a revision petition filed by the landlady. It is contended that neither the Act nor the rules contain any provision analogous to Order 41 Rule 22 of the CPC and in that situation, the tenants cannot be permitted to support the order of the appellate authority on any ground decided against them by that authority. Reliance is placed on the decision of a learned Single Judge in Prabodhini v. Rajammal 1991 (1) KLT 113 where it was field that the provisions of Order 41 Rule 2.2 of the CPC are not applicable to revision petitions u/s 20 of the Act, that the revision jurisdiction is not co-extensive with appellate power, though the power u/s 20 of the Act is wider than the jurisdiction u/s 115 of the CPC and therefore a party cannot challenge any finding rendered by the appellate authority except by filing a revision petition himself.

In Prabhodini''s case 1991 (1) KLT 113, the landlord had applied for eviction of the tenant on two grounds u/s 11(3) and 11(4)(ii). The appellate authority allowed eviction u/s 11(4)(ii), but not u/s 11(3), namely bona fide need for occupation by the landlord. Both the tenant and the landlord filed separate revisions against that part of the order which was against them. The landlord''s revision petition was considerably belated and was dismissed as such. The tenants revision petition was unsuccessful on the merits Both parties therefore approached this Court with petitions under Article 227 of the Constitution and one of the contentions Raised by the landlord was that even if his revision petition could not be entertained on account of the delay in filing it, he was entitled to raise his plea u/s 11(3) in answer to the tenant''s revision petition, while supporting the order of eviction passed by the appellate authority. The contention was that since the said authority had passed an order of eviction u/s 11(4)(ii), the order was ultimately one in favour of the landlord and therefore he could challenge the findings adverse to him without filing a separate revision himself. The learned Judge held that if the landlord desired to get eviction on the disallowed ground as well, namely that u/s 11(3), he has to challenge the appellate order by filing a revision petition himself. He cannot obtain that relief in a revision petition filed by the tenant. The reasoning of the learned Judge in paragraphs 7 and 8 of his judgment is succinctly brought out in the first head note which we shall extract:

The revisional jurisdiction is not co-extensive with appellate power. It is well settled that revisional power u/s 20 of the Act is wider than the jurisdiction u/s 115 of the Code of Civil Procedure. Even that power cannot be treated as akin tattle appellate jurisdiction. In this view the provisions of Order 41 Rule 22 of the Code cannot be applied in the exercise of power u/s 20 of the Act. The landlord has separate and distinct rights under the various clauses of Section 11 to get the tenanted premises recovered. If the landlord applies for recovery on two or more grounds and recovery is ordered only on one ground, the landlord if wants to get Recovery on the ground which is declined he has to challenge the order in that regard before the revisional Court The tenant who has been directed to put the landlord in possession of the premises on one of the grounds if challenges the same in revision, the landlord will not be having the right to sustain the order of eviction on another ground, without preferring a separate revision.

Kalliath, J. before whom this Original Petition came up for hearing had some reservations about the correctness of this decision and accordingly referred it for consideration by a Division Bench.

Section 20 of the Act vests the Court empowered (namely the District Court in this case), with the power to call for and examine the records relating to any order or proceedings taken under the Act by the appellate authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceeding and pass such order in reference thereto as it deems fit. The Supreme Court has in Mathai v. Sub Judge, Kottayarh 1969 KLT 348 held that this power is wider than that u/s 115 CPC and is not limited to a mere question of jurisdiction. It has also been held by a Full Bench of this Court in Vareed v. Mary 1968 KLT 583 that the Court exercising functions u/s 20 of the Act acts as a Court and not as a mere persona designata. This part of the judgment in Vareed''s case 1969 KLT 348 has not been doubted or overruled by the Supreme Court in Aundal Ammal Sadastivan Pillai 1987 (1) KLT 53. We shall deal with the question posed for decision in this background of the law.

Counsel for the Petitioner relies on the decision in Prabodhini''s case 1991 (1) KLT 113 as also on the decision of a learned Single Judge of the High Court of Karnataka in Annappa Nanjappa Gudigar v. Amaranath Vishwanath Dhakappa 1986 (2) R.C.J. 177. In that case also it was held that a revisional Court functioning u/s 50 of the Karnataka Rent Control Act, 1961 (the reference to M.P. Accommodation Control Act, 1961 in the catchwords of the head note being evidently a mistake) had no power to entertain cross objection in a revision petition, A diametrically opposite view was however taken by another learned Judge of the same High Court in Srinivasa Trading Corporation v. Mrs. Lilly Rajachar 1992 (2) R.C.J. 225 when he held that in a revision u/s 50 of the Karnataka Act, filed by the tenant, the landlord could canvass the grounds of eviction disallowed by the trial Court while supporting the ground held in his favour. Needless to say, this decision was rendered without reference to the earlier decision in Gudigar''s case 1986 (2) R.C.J. 177 rendered in 1985.

Reference was also made to a decision of the Supreme Court in Firm Sagarmal Vishnu Bhagwan Vs. Gauri Shankar and Others, the observations in paragraph 12 of which were stated to strike at the entertainability of cross objections in rent control revision petitions. We shall deal with this decision later.

Order 41 Rule 22 of the CPC entitles the Respondent not only to support the decree appealed against but also to state that the finding against him in the Court below in respect of any issue ought to have been in his favour, besides taking cross objection to the decree which he could have taken by way of appeal. Thus if any part of the decree of the Court below is adverse to the Respondent, he has to challenge it by filing a memorandum of cross objection; but if the ultimate decree of the Court below is in his favour, he can invoke his, rights under Rule 22 and support the decree on points found in his favour or against, without formally filing a memorandum of cross objection. We do not see why the same principle shall not apply to rent control proceedings or to a revision petition filed u/s 20 of the Act. It is no doubt true that Order 41 Rule 22 is not specifically applicable to appeals u/s 18 or to revisions u/s 20 of the Act. An appellate power is the power of entering into an appellate Court for a review de novo of the decision of the Court below, subject to limitations, if any, on the scope of the appellate power imposed by the provision conferring the right of appeal, as in Section 100 Code of Civil Procedure. Under the procedural law of India, an appeal is a continuation of the suit, and the hearing of an appeal is in the nature of a rehearing. AIR 1941 5 (Federal Court) . The revisional power is only one of the modes of exercising the appellate jurisdiction. It is part of the general appellate jurisdiction, though the scope of exercise of the power is limited by the provision conferring the revisional power Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat, . The difference usually noted between appellate and revisional powers is that is the case of an appellate power, the jurisdiction is wider, extending to examination of questions of fact and of law, and some times of questions of law only, while in the case of the revisional power, it is usually a limited and discretionary one, subject to exercise within limits vide State of Kerala Vs. K.M. Charia Abdullah and Co., . Either way, it is the general appellate jurisdiction that is exercised by the revisional Court and we do not find any reason why the principles of Order 41 Rule 22 should not be attracted to proceedings under the Act whether appellate or revisional, If Order 41 Rule 22 is taboo so far as proceedings under the Act are concerned, any erroneous finding by the Rent Control Court or the appellate authority may become final, without the person affected having a right to challenge it in appeal or revision, if the decision of the Rent Control Court or the appellate authority is eventually one in his favour on other points. This is so because an appeal or a revision lies u/s 18 or 20 only at the instance of an aggrieved party, and a person who has an order in his favour cannot be stated to be aggrieved by that order. If we accept the view propounded by Counsel for the Petitioner, and accepted by the learned Single Judge in Prabodhini''s case 1991 (1) KLT 113 the consequence wall be that the findings of the lower authority on a particular point will become final without the aggrieved party having any remedy to challenge it at all in appeal or revision. The instant case is one in point. The appellate authority found the landlady''s need to be bona fide, but dismissed her application giving the benefit of the second proviso to Section 11(3) to the tenants. The ultimate decision was therefore in favour of the tenants, and they could not therefore challenge the order in revision as they were, not persons aggrieved by the order in appeal. Nevertheless, and going by the contentions of the Petitioner, they will be faced with finality of the appellate authority''s finding on the question of bona fides, without having any opportunity to challenge it, however erroneous or perverse it may be in law or on the facts. The law does not contemplate such situations. The justice of the matter requires that the Respondent should be permitted to support the judgment of the lower authority not merely on the grounds found in his favour but also on the grounds which have been held against him by that authority, on the principle of Order 41 Rule 22.

In Prabodhini''s case 1991 (1) KLT 113 the learned Single Judge was weighed down by the attenuated nature of the revisional jurisdiction, which according to us, is not material in the context, as it is but part of the general appellate jurisdiction as referred to earlier. The other reason which weighed with the learned Judge was that the landlord has distinct and separate Rights u/s 11 to seek eviction of a tenant, and if he gets defeated in any one of the several grounds urged by him, he has to challenge it in an appeal or revision filed by him. We must note here that despite being distinct grounds, the landlord is permitted may, even required to urge all the grounds available to him in a single consolidated petition. If that be so, we fail to understand why he should not be permitted to urge the grounds disallowed in defence to an appeal or revision by the tenant, and be driven to file a separate appeal or revision himself. It is a matter of procedure in the ultimate analysis, and procedure must be subservient to and be in aid of justice.

We cannot therefore accept the view of the learned Single Judge in Prabodhini''s case 1991 (1) KLT 113 about, the necessity for a separate revision by the successful party before the appellate authority, challenging the finding against him. Order 41, Rule 22 lays down an equitable and salutary principle intended to avoid multiplicity of proceedings and at the same time, rendering justice to the litigant.

This view of ours is supported by the decision of the High Court of Karnataka in Srinivas Trading Corporation v. Mrs. Lilly Rajachar 1992 (2) R.C.J. 225, already referred to. But that is not the solitary case on the point, nor are we treading a virgin path. We are in good company with a catena of high authority on the point. John Mathew, J. in Sukumaran v. Susy Isaac 1985 KLT 1128, ruled that the provisions of Order 41 Rule 22, or, in any case, the principles contained therein are applicable to proceedings before the appellate authority under the Act. This decision of John Mathew, J. does not appear to have been brought to the notice of the learned Judge who decided Prabodhini''s case 1991 (1) KLT 113. A similar question came up before the High Court of Madhya Pradesh in Seetaram and Others Vs. Smt. Ramabai and Another, , where Hidayatullah, C.J. dealt with the case, for himself and Tare, J. The landlord sought eviction of the building on three ground, namely wilful default in payment of rent, necessity for reconstruction and unauthorised subletting, constituting separate grounds of eviction under the C.P. and Berar Letting of Houses and Rent Control Order, 1949. The Rent Controller disallowed eviction on the first two grounds, but ordered it on the third ground. The tenant appealed and succeeded in getting the finding, on the third point reversed. The appellate authority held that the landlord could not urge the first two grounds before him as he had not challenged that part of the Kent Controller''s order by filing an appeal. The Rent Control petition was accordingly dismissed. In a petition under Article 226 of the Constitution, the question arose whether the landlord could have urged the first two grounds of eviction before the appellate authority without his having filed an appeal himself. After referring to the oft quoted definition of a "person aggrieved" by Lord Esher in In re Reed Rowen and Co. (1887) 19 Q.B.D. 174 as "a man against whom a decision has been pronounced which has wrongfully refused him something which he has a right to demand", the learned Chief Justice observed with characteristic felicity:

In this Sense, it cannot be gainsaid that the landlords were persons aggrieved, because they had been refused permission to serve a notice of eviction on the ground that the tenant was a habitual defaulter and also that the house needed repair and reconstruction. But the clause to which we have referred does not say that any person aggrieved may appeal to the Deputy Commissioner. It says that any person aggrieved ''by an order'' of the Controller may prefer an appeal. When the order was in favour of the landlords they were not aggrieved by the order. To borrow the language of their Lordships of the Privy Council in (1931) LXI MLJ 367 (Privy Council) at p. 239) (C), there was no reason why the landlords should appeal from the order which the Rent Controllor had made; there was every reason why they should be satisfied therewith.

A right of appeal is conferred to get an order set aside or out of the way. Even if a person has a grievance against a finding he cannot come by way of appeal unless he challenges the order itself and wants to get it interfered with. Unless we hold this way, even if the order is entirely in favour of a party he would be required to file an appeal against a finding if the other side were to appeal against the order as it is. In our opinion, the landlords here had every reason to be satisfied with the order, and they need not have appealed.

...The learned Counsel for the Petitioners sought the analogy of Order 41, Rule 22 of the CPC and wanted to apply it on the strength of Section 141 of the Code. In our opinion, without having to decide whether Order 41, Rule 22 of the CPC applies or not to rent control proceedings and appeals arising there from, we are quite satisfied that on general principles a party who has an order in its favour is entitled to show that the order is justified on some ground which was decided against it in the Court below.

We are in agreement with this view, which according to us applies squarely to appeals filed u/s 18 of the Act and revisions filed u/s 20.

Precisely the same logic was applied by Sathiadev and Bellie, J.J. of the Madras High Court in Durgai Ammal v. R.T. Mani 1989 (2) R.C.J. 357, to uphold the right of the Respondent in a (Rent Control) revision petition-to claim an order in his favour on grounds held against him by the appellate authority.

This line of thought appealed to Chinnappa Reddy, J. of the Andhra Pradesh High Court as well when he held in Bhagavatula Pullayya v. Anandan Chetti AIR 1972 A.P. 66 that in a landlord''s appeal against rejection of an eviction petition, the tenant was entitled to sustain the rejection on the grounds decided against him. He put it not only on general principles but also on Order 41, Rule 22, observing that the latter provision was not in any way inconsistent with the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act and was therefore applicable to appellate proceedings under the Act.

Ratnam, J. of the High Court of Madras had occasion to deal with the same question in K. Venkataramani Vs. S. Aravamuthan and Others, a case arising under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The learned Judge upheld the right of the landlord to claim that the order of eviction could be rested on a ground decided against him by the appellate authority, in a revision filed by the tenant, without himself filing a revision petition. Inter alia, the learned Judge based his view on the principle that the exercise of revisional powers is not restricted to the particular ground on which the decision is rested but extended to the correctness, legality or propriety of any decision or order passed in the proceeding, and this would include the power to examine the correctness or otherwise of a finding adverse to the Respondent (landlord, in that case) (vide paragraphs 14 and 15).

We are therefore of the view that the tenants in this case were entitled to question the correctness of the appellate authority''s finding regarding the bona fide need of the landlady, while contesting the revision petition filed by her, though they had not filed a separate revision petition of their own. We may also mention here incidentally that so far as this case is concerned, the claim of bona fide need u/s 11(3) and the protection under the second proviso thereto are intertwined and are but different facets arising for consideration out of the same ground of eviction, and therefore irrespective of the question whether Order 41, Rule 22 or the principles thereof applied or not, the tenants were entitled to challenge the finding of the appellate authority regarding the bona fides of the landlady in defence to the landlady''s revision petition.

It is now for us to deal with the decision of the , Supreme Court in Firm Sagarmal Vishnu Bhagwan Vs. Gauri Shankar and Others, . The reliance is on the observations in paragraph 12 of the judgment, which apart from being obiter, did not expressly deal with the question with which we are faced. The landlord in that case applied for eviction on a number of distinct grounds, none of which found favour with the trial Court, resulting in dismissal of the petition for eviction. The first appellate Court concurred with the trial Court in respect of all grounds except one, namely default in payment of rent, pursuant to which it struck off the tenant''s defence. The High Court in second appeal, disagreed with the appellate Court on this last finding; and then went on to reappraise the evidence on the other grounds concurrently found against the landlord by both the lower Courts, upheld the landlord''s claim on those points and dismissed the tenant''s appeal. The Supreme Court condemned the exercise undertaken by the High Court, of reappraising the evidence, as beyond its jurisdiction- whether appellate or revisional. Having stated so, the Court made some observations in paragraph 12, in the alternative, that since the landlord had sought eviction on several distinct causes of action, and those grounds had been rejected by the first two Courts and eviction was ordered only one of the grounds, the landlord could not seek to sustain the first appellate Court''s decree on disallowed grounds which had nothing to do with the default in payment of rent. As we mentioned'' earlier, the Court was not specifically dealing with the question now confronting us; besides the observations were only incidental as the Court''s conclusions in paragraph 11 were sufficient to allow the tenant''s appeal and set aside the order of the High Court. We are therefore of the view that this decision does not have the effect which Counsel for the Petitioner seeks to put on it.

We must hasten to add a word of caution at this stage. Our reference to the observations of Hidayatullah, J. about the meaning of the expression "person aggrieved" in the context of any order of the Rent Controller or the appellate authority and the consequent disability of a party to challenge an order which is ultimately in his favour on some points, does not imply that a landlord is always precluded from filing an appeal or revision merely because eviction is ordered on one or more of the many grounds urged by him. Cases can be postulated where the landlord could still maintain an appeal or revision though the ultimate order is one of eviction. This is because some of the grounds available under the Act do not give the landlord an absolute right of eviction or are subject to defeasance as in the case of an order of eviction on the ground of wilful default in payment of rent. Cases where an absolute order of eviction is not granted but only one which is liable to defeasance, or subject to restrictions or conditions under the Act will not preclude the landlord from challenging the order in appeal or revision claiming eviction on the other grounds. To illustrate, where eviction is sought on the grounds of arrears of rent, bona fide need and need for reconstruction, and it is allowed on the grounds of arrears of rent and need for reconstruction rejecting the case of bona fide need, an appeal or revision will lie at the instance of the landlord claiming eviction on the ground of bona fide need as well. We say so because while an order of eviction on the ground of bona fide need gives him an absolute right to possession, eviction on the other two grounds is not absolute. The order on the ground of arrears of rent is liable, to be vacated on the tenant depositing the arrears within the time stipulated or the extended time granted by the Court. An order passed on the ground of need for reconstruction is again not an" absolute one, as the landlord is bound to put the tenant in possession of the building after reconstruction. Other such instances may be visualised. In all such cases, where the landlord is granted relief lesser in nature or quality than the one bargained for, he will have to be deemed a person aggrieved by the order, entitled to file an appeal or revision in so far as the order is against him.

This is only to clarify the position so far as the landlord''s right to maintain an appeal or revision is concerned, but our other conclusion remains that it is unnecessary for the landlord to file an appeal or revision himself in such cases and that he can take up his pleas regarding the disallowed grounds in any appeal or revision which the tenant may file, on the principles of Order 41, Rule 22.

We shall now come to the merits of the case. The revisional Court has held that the need of the landlady was not bona fide. Essentially this, finding is a question of fact which is based on the evidence in the case. The decisions of the Bent Control Court and the appellate authority were made without advertence to certain crucial aspects which were noted by the revisional Court to interfere with their findings. The revisional Court has not therefore transgressed its jurisdiction u/s 20 in interfering with the finding of the appellate authority on this point. After hearing parties and on a consideration of the facts and materials on record, we are satisfied that the decision of the revisional Court on this point was perfectly justified. The building in question is part of a line building, a row of shop buildings in which the landlady''s husband is himself carrying on a ration shop. It is in a commercial locality. It was leased out soon after its construction, for the first time to Subramaniam, the predecessor of the tenant''s for the purpose of carrying on a tea shop. The building does not contain the requisite facilities for residence and as rightly noted by the revisional Court, there is no plea of carrying out necessary modifications to make it a residential one. It had been used only as a shop building for the past over thirty years. We are not satisfied that the evidence in the case is such as to hold that the need of the landlady is bona fide. We are also satisfied that the tenants are entitled to the protection under the second proviso to Section 11(3). Two of the five brothers are not employed and they are running the tea shop, and depending mainly on the income from it for livelihood. Their mother, the fourth Respondent is also unemployed. The Ors. are employed in some petty jobs. There is no evidence that their income is such as will be sufficient for the maintenance of all the members of the family. Evidently the tenants are depending mainly on the income from the tea shop for their livelihood. There is also no evidence that any other building is available in the locality for the tenants to carry on the tea shop. The finding of the revisional Court on these points is therefore correct and has only to be upheld.

We do not therefore find any merit in the Original Petition. It is accordingly dismissed, without however any order as to costs.