RAMAYYAN Vs. RAJAGOPAL

JUDGEMENT

(1.) Tenant is the revision petitioner. Eviction was sought for under S.11(3), 11(4)(i), 11(4)(ii), 11(4)(v) and 11(8) of Act 2 of 1965. Rent Control Court allowed eviction under S.11(4)(ii) of the Act and the rest of the grounds were rejected. Tenant took up the matter in appeal against the finding under S.11(4)(ii) by filing RCA. 64 of 1994. Landlord did not file an appeal initially, but later filed a cross appeal on 28-08-2002 challenging the findings under S.11(3), 11(8) and 11(4)(i) of Act 2 of 1965. Cross appeal was filed with a petition for condonation of delay of 7 years, 7 months and 18 days. Objection was filed by the tenant against the petition for condonation of delay. Delay was condoned and cross appeal was entertained and appeal and cross appeal were heard together by the Appellate Authority. Appellate Authority confirmed the findings of the Rent Control Court under S.11(4)(ii) of the Act. Appellate Authority also allowed the cross appeal to the extent of allowing claim under S.11(8) of the Act. In short, Appellate Authority has ordered eviction under S.11(4)(ii) and 11(8) of the Act. Aggrieved by the same this revision petition has been preferred.

(2.) Counsel appearing for the revision petitioner Sri. G. S. Reghunath raised a preliminary objection stating that the cross appeal filed by the landlord should not have been entertained. Counsel submitted if at all the landlord has got any grievance against the findings of the Rent Control Court he should have filed an appeal under S.18 of the Act and not a cross appeal. Counsel submitted the grounds under S.11(8), 11(4)(ii) etc. are independent grounds and therefore cross appeal is not liable to be entertained. Counsel submitted S.23 of the Rent Control Act also would not confer any power on the Appellate Authority to entertain a cross appeal. Counsel also took us through the oral and documentary evidence and contended that the finding of the Appellate Authority under S.11(4)(ii) and 11(8) cannot be sustained. Counsel also submitted the court below has not properly evaluated the comparative hardship and the advantage vis a vis the tenant and the landlord and reached a wrong conclusion.

(3.) Counsel appearing for the respondent Sri. K. Jaju Babu contended that the landlord had entrusted the files to an advocate for filing the appeal, but the same was not filed in time. Counsel submitted though his client wanted to file an affidavit sworn to by the advocate to that effect the same could not be filed due to various reasons. Counsel submitted in any view, the appeal filed by the tenant was pending consideration before the Appellate Authority, hence no prejudice was caused to the tenant by examining the legality of the rest of the findings. Counsel also placed reliance on the decision of this court in Santha v. 1st Addl. District Judge. 1994 (1) KLT 516 and contended that the principles laid down under O.41 R.22 is applicable to the rent control proceedings also and consequently Appellate Authority has rightly entertained the cross appeal.