1985 Supreme(MP) 68

J.S. Varma, J.
Santosh v. Ku Kunti Devi
S. A. No. 426 of 1982 (J); Decided on 24-1-1985.

Headnote:Civil P. C., 1908-O. 41, R. 22-adverse finding-can be assailed without filing cross objection or cross appeal.

       This is plaintiffs second appeal. The suit was filed for eviction of the defendant from the suit accommodation the grounds contained in clauses (b) and (n of sub-section (1) of section 12 of the M. P. Accommodation Control Act, 1961 Both. these grounds of sub-letting 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 date 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 Courts 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

       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.

       Held: 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 CPC 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 v. Purshottam. AIR 1981 M. P. 55; Hiralal v. Om Prakash, 1981 (1) MPWN 236 and Is-mail Khan v. Shankarlal, 1984 JLJ 609] No decision to the contrary has been cited at the Bar. Following there 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, CPC.

       In view of the above conclusion, the proper course to adopt would be to require a fresh decision on the first appeal, without going into the eorrectness of the aforesaid first question, since the first appeal is required to be decided afresh on all the points involved therein. AIR 1981 MP 55, 1981 (1) MPWN 236 and 1984 JLJ 609 relied on. Appeal allowed.