LALJI RAMNATH PANDE Vs. HAWABI ABDULLA SHAIKH

JUDGEMENT

(1.) BY this petition, the petitioner tenant challenges the judgement and decree passed by the Vth additional District Judge, Thane on 8th December 1787 in Civil Appeal No. 269 of 1787 confirming a decree for possession passed by the Civil Judge, Jr. Division, vasai.

(2.) THE respondent landlord filed a suit for possession against the petitioner tenant on the ground of default and permanent construction. The trial court negatived the ground of default in payment of the rent but decreed the suit on the ground that petitioner had made a pot mala without the permission of the respondent and that amounted to making of a permanent construction in the suit premises. On appeal, the appellate Court confirmed the decree on the ground of permanent additions and alterations in the suit premises and also held that the respondent was entitled to a decree for possession on the ground of default in payment of the rent by the petitioner.

(3.) THE learned counsel for the petitioner submits that the respondent had not filed any appeal or cross-objections challenging the finding that the petitioner was not a defaulter and therefore, the appellate Court erred in reversing the finding of default in payment of the rent and passing a decree on that ground. The contention is fallacious. Sub rule (l) of Rule 22 of Order 41 of the Code of Civil procedure reads as under:-22. (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 bay 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 findings 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. Under sub rule (1) the respondent, though he might not have appealed from any part of the decree! the respondent is entitled not only to 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 given in his favour. For doing so, he is not required to file any cross objections. This is clear from the wording of sub rule (1) of Rule 22. A landlord in whose favour a decree has been passed on one or more of the several grounds, may not only support the decree for possession on the grounds on which it has been passed, but may also contend that the finding on the issues decided against him ought to have been given in his favour. In other words, he can support the decree not only on the ground on which the decree was passed but also on the other grounds which have been decided against him by the trial Court. Therefore, there is no merit in the contention that in the absence of cross objections the appellate Court could not have passed a decree on the ground of default.