SANTOSH KUMAR AND OTHERS Vs. KR. KUNTI DEVI

JUDGEMENT

(1.) This is plaintiffs' second appeal. The suit was filed for eviction of the defendant from the suit accommodation on the grounds contained in clauses (b) and (f) of subsection (1) of section 12 of the M.P. Accommodation Control Act, 1961. Both these grounds of subletting and bona fide need of the plaintiffs were denied by the defendant. The trial Court held that the ground of sub-letting contained in clause (b) was proved, while the ground of the plaintiffs' bona fide need contained in clause (f) was not proved. Accordingly a decree for eviction was passed only on the ground contained in clause (b). The defendant appealed to the District Court against the decree for eviction. In that appeal, the plaintiffs were respondents and they filed an application dated 5-3-1982 under order 41, Rule 22, C.P.C. giving notice that the decree for eviction passed by the trial court would be supported by them also on the ground of bona fide need under clause (f), by challenging the trial Court's adverse finding on that point. However, in spite of this advance notice given by the plaintiffs as respondents in the first appeal, counsel for the plaintiffs was not permitted to urge that point and assail the adverse finding on the question of bona fide need only because the plaintiffs had not filed any cross-objection to challenge the adverse finding. This has been clearly stated in para 9 of the impugned judgment of the first appellate Court. The first appellate Court considered only the ground of sub-letting and reversed the finding of the trial Court on that point and, consequently, the decree for eviction. Hence this appeal by the plaintiffs.

(2.) This appeal has been admitted for hearing on two questions, namely, (1) legality of the finding on the question of sub-letting, and (2) legality of refusal to permit the plaintiffs to assail the adverse finding on the question of bona fide need, without filing a cross-objection in the first appellate Court.

(3.) In my opinion, the aforesaid second question has to be answered in favour of the plaintiffs-appellants and as a consequence of that conclusion, the first appeal will have to be decided afresh by the first appellate Court. The right of the respondent to assail an adverse finding in order to support the decree under appeal cannot be doubted in the face of the clear provision contained in order 41, Rule 22, C.P.C. In a case like the present, where a decree for eviction has been passed in plaintiffs' favour on one or a few of the grounds contained in sub-section (1) of section 12 of the Act, and the appeal has been preferred by the defendant, it is permissible for the plaintiffs as respondents in that appeal to support the decree under appeal by assailing the correctness of the adverse findings in respect of the other ground or grounds. This is also the settled view of this Court. See Tej Kumar Vs. Purshottam, AIR 1981 Madhya Pradesh 55 ., Hiralal Vs. Om Prakash, 1981 MP LJ Note 52 . and Ismail Khan Vs. Shankarlal, AIR 1984 Madhya Pradesh 139 .' No decision to the contrary has been cited at the Bar. Following these decisions, the aforesaid second question must be answered in favour of the present appellants and it must be held that the first appellate Court acted contrary to law in refusing to consider the correctness of the finding of the trial Court on the question of the plaintiffs' bona fide need, in spite of a prayer made on behalf of the plaintiffs (respondents in the first appeal) under order 41, Rule 22, C.P.C.