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Madhya Pradesh High Court
S. M. N. RAINA,M. L. MALIK
Satyabhamadevi Choubey - Appellant
Versus
Ramkishore Pandey - Respondent
Decided On : 07/11/1974
The question of filing a cross objections arises only where the respondent wants to have the decree varied in his favour; but a cross-objection can be entertained only where the respondent could have taken such objection to the decree by way of appeal. It is thus clear under sub-rule (1) of rule 22 of Order 41 of the Code that a cross-objection can be entertained only where the respondent has a right of appeal against the decree. The right of the respondent to support the decree in his favour on any of the grounds decided against him stands on a different footing. It is a procedural right which accrues to him by virtue of rule 22 of Order 41 of the Code. [Para 13
(2) Letters Patent (Nag.) - Cl. 10 - Civil P.C., 1908 - O. 41. R. 22 - right to file cross- objections - is available in Letters Patent Appeal - no cross-objections can be filed with out leave of the single Judge where such leave necessary to file the appeal.
Rule 22 of Order 41 is applicable to an appeal under clause 10 of the Letters Patent. AIR 1962 All 509 & AIR 1920 Cal. 776 dissented from. AIR 1921 PC 80 relied on. [Paras 9 & 10
A cross-objection is tenable where the respondent has obtained the leave of the Judge to file an appeal under clause 10 of the Letters Patent. [Para 10
Where a decree is partly in favour of one party and partly in favour of the other party grant of leave to one cannot be construed as grant of leave to the other party as well. It is thus clear that where a party wants to prefer an appeal against any part of the decree against him, he must obtain leave of the single Judge; and where he fails to do so, he cannot claim the right to prefer such appeal by way of cross objection merely because the other party has preferred an appeal after obtaining the necessary leave. 1968 JLJ 755, 1963 JLJ 905 and 1961 JLJ 522 referred to. [Paras 16 and 18
(3) Civil P.C., 1908 - S. 100 - question whether a transaction is Benami - is a question of fact - no interference in second appeal. [Para 23
(4) Benamidar - may transfer good title to the purchaser.
A benamidar by transfer may pass good title to the purchaser 6 MPLC 363, 17 MPLC 83 & AIR 1957 SC 49 referred to. Question not finally decided. [Para 24
(5) Accommodation Control Act, 1961 (MP) - S. 12 (1) (b) - possession - meaning of.
(6) Words & Phrases - possession - meaning of.
Ordinarily possession implies the co-existence of two important factors: (i) animus, that is the intention to hold and enjoy property; and (ii) corpus, that is, physical control over the property. [Para 27
(7) Accommodation Control Act, 1961 (MP) - S. 12 (1) (b) - parting with possession - what is - guest or licensee - nature of possession.
It is, no doubt, true that absence of physical possession does not necessarily amount to parting with possession Parting with possession implies abandonment of possession and this may be either express or implied by the conduct of the tenant himself. [Para 33
A licensee or a guest may be inducted into the accommodation in two ways: either as a concurrent or limited user of the accommodation without there being any parting with the possession by the tenant or as an exclusive user for indefinite period coupled with parting with the possession by the tenant. In cases of the former type, clauses (b) of sub-section (1) of section 12 of the Act would not be attracted because there is no parting with possession; but in cases of the latter type, the position would be different. [Para 34
It may be pointed out that under clause (b) of sub section (1) of section 12 of the Act it is not necessary that the parting with possession must be in respect of the whole of the accommodation. [Para 36
(8) Accommodation Control Act, 1961 (MP) - S. 43(3) - anomaly in drafting pointed out.
Sub-section (3) of section 43 wrongly assumes that section 12 (1) (b) itself prohibits sub-letting, assignment and parting with possession. The prohibition is really contained in section 14; but it is restricted to sub-letting and transfer or assignment or rights in the tenancy. It does not expressly cover parting with possession in any other manner. [Para 41
(9) Interpretation of statutes - error or omission in drafting - purpose of statute clear -effect should be given to the purpose.
It is, no doubt, true that, as a rule, a Court of law is not authorised to supply a casus omissus or to alter the language of a statute for the purpose of supplying a meaning if the language used in the statute is not capable of one; but where the meaning and purpose of the statute are clear, the Court need not feel helpless in giving effect to them merely because there is an error or omission here or there. AIR 1961 SC 1170 & 1963 SC 394 relied on. [Para 45
(10) Accommodation Control Act, 1961 (MP) - S. 12(1)(b) - 'unlawful' parting with possession - interpretation of "unlawful' - without written consent of the landlord is unlawful - Ss. 14 & 43.
It is, no doubt true that section 12 does not prohibit sub-letting, assignment or otherwise parting with possession; but it uses the word 'unlawful' and it must be read with section 14 so far as sub-letting and assignment are concerned. Section 14 makes a sub-lease or assignment unlawful where it is without the consent of the landlord. Thus, in the context of sub-lease or assignment, the expression 'in contravention of the provisions of clause (b) of sub-section (1) of S. 12' occurring in sub section (3) of S. 43 must be read as meaning "without the consent of the land lord"; and if this expression is to be construed in this manner in relation to sub-letting and assignment, it would be proper to assign the same meaning to it in relation to "otherwise parting with possession". It would, therefore, appear that sub section (3) of section 43 makes it punishable for a tenant to sub-let, assign or otherwise part with possession of the whole or any part of the accommodation without the consent of the landlord. From the language of this sub-section it is clear that it treats all the three acts of the tenant, viz., sub-letting, assignment, and otherwise parting with possession, alike. Therefore, on a proper construction thereof, when read with clause (b) of sub-section (1) of section 12 and section 14, it would appear that all these three acts are unlawful when committed without the previous consent in writing of the landlord. [Para 52
(11) Accommodation Control Act, 1961 (MP) - S. 12 (1)(b) - word 'otherwise' - connotation of.
It appears from the language of clause (b) of section (1) of section 12 that even if the word 'otherwise' is widely construed, it would merely cover all other cases of parting with possession which are not under a sub-lease or assignment. The question whether the parting with possession in particular case is unlawful or not must be determined independently. [Para 54
(12) Accommodation Control Act, 1961 (MP) - Ss. 13 (5) & 12 (3) - accommodation sold on 13-6-1972 tenant need not deposit rent upto end of May, 1972 - rent for June payable on 1st July - could not be split up - on demand of transferee landlord tenant not depositing rent of June cannot avail of protection under section 12 (3) or section 13 (5).
The accommodation was sold to the plaintiff landlord on 13-6-1972. Rent for the month of June being payable on 1st of July could not be split up by treating the rent for the period from 1st of June to 13th June as arrears due to the vendor and the rent for the period from 14th June, 1972 to 30th June, 1972 as arrears due to the plaintiff Rent for the entire month must be treated as arrears due to the plaintiff within the meaning of clause (a) of sub section (1) of section 12 of the Act and the defendant was bound to deposit the same under sub-section (1) of section 13 of the Act. He having failed to do so it must be held that he failed to comply with the requirements of sub-section (1) of section 13 of the Act and is as such not entitled to the benefit of sub-section (3) of section 12 or sub-section (5) of section 13 of the Act. The defendant is, therefore, liable to be evicted on the ground specified in clause (a) of sub-section (1) of section 12 of the Act, 1968 JLJ 337 referred to. [Para 58
RAINA, J. : - This is a Letters Patent Appeal against the decision of the learned Single Judge (G. P. Singh, J.) in Second Appeal No. 1015 of 1973 arising out of a suit for ejectment, arrears of rent and mesne profits.
2. This case has evoked considerable interest since senior Advocates of this Court are arrayed on either side. The plaintiff-appellant is the wife of Shri A. R. Choubey, a senior Advocate of this Court, while the defendant Shri R. K. Pandey is also an equally senior Advocate of this Court. In order to avoid bitterness and to promote good relations between the two, the learned Single Judge made a sincere effort to settle the dispute amicably; but his efforts bore no fruit. This Bench too made a suggestion in this connection; but it gained no ground.
3. The material facts of this case, which give rise to this appeal, are as follows :
4. The defendant has been occupying the house in suit bearing No. 1716, Napier Town, Jabalpur, as a tenant since 1959 on a monthly rent of Rs. 156. The plaintiff purchased the said house on 14-6-1972 and, after determining the tenancy of the defendant by a quit notice, instituted the suit, out of which this appeal arises, on 18-1-1973 for ejectment, arrears of rent and mesne profits. Ejectment was claimed on the grounds specified in clauses (a), (b) and (i) of sub-section (1) of Section 12 of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as 'the Act'). The trial Court decreed the suit for ejectment on the grounds specified in clauses (b) and (i) of sub-section (1) of Section 12 of the Act. The claim for arrears of rent from 1st February, 1972 to 13th June, 1972 was dismissed and as rent due from 14th June, 1972 was duly deposited in Court under Section 13 (1) of the Act, the plaintiff was held to be not entitled to seek eviction on the ground specified in clause (a). In appeal, the first appellate Court affirmed the decree for ejectment only on the ground mentioned in clause (b). It negatived the claim on the ground under clause (i) but allowed the cross-objection and decreed the arrears of rent from 1st February, 1972 to 13th June, 1973.
5. In second appeal, the learned Single Judge held that the plaintiff had failed to make out any ground under sub-section (1) of Section 12 of the Act and, therefore, the claim for ejectment was dismissed. The decree for the arrears of rent passed by the first appellate Court was, however, affirmed. Against this decision of the learned Single Judge, the plaintiff has preferred this appeal under clause (10) of the Letters Patent after obtaining leave from him.
6. The respondent Shri R. K. Pandey has filed a cross-objection under Rule 22 of Order 41, Code of Civil Procedure (hereinafter referred to as 'the Code'), praying that the plaintiffs claim be dismissed in toto.
7. We propose to deal with the cross-objection first because it concerns some of the basic issues which it would be proper to decide before dealing with the appeal itself. A preliminary objection has been raised by Shri R. S. Dabir, learned counsel for the appellant, that the cross-objection is not tenable, since it is in the nature of a cross-appeal and, therefore, cannot be entertained without the leave of the learned Single Judge as required by clause 10 of the Letters Patent.
8. From the language of clause 10 of the Letters Patent it is clear that an appeal against the decision of a Single Judge of this Court in second appeal is maintainable only where he certifies the case as a fit one for appeal. The question, however, is whether, where an appeal has been filed by one party with the leave of the Judge under the said clause, the other party is entitled as of right to file a cross-objection under Rule 22 of Order 41 of the Code without obtaining such leave.
9. Shri R. P. Tiwari, learned counsel for the respondent relied on the decision of this Court in Ghasnin v. Kaushalya, 1961 MPLJ 733 in support of his contention that the cross-objection can be en
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