Bombay High Court
Somnath T.Kuber vs Meghraj Kadadi on 7 August, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:33870
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Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5547 OF 1998
Somnath Tukaram Kuber,
Adult, Resident of Kurundwadi,
Taluka Madha,
District Solapur. ..Petitioners
Versus
1. Meghraj Medeppa Kadadi,
Deceased through legal heirs/representative
1-a Smt. Hemlata Meghraj Kadadi
Age: 70 years, Occ.: Household
1-b Sarita T.G.,
Age: 46 years, Occ.: Household,
Both residing at Ganga Niwas,
Opposite Kaliapur Maruti Mandir,
Railway Lines, Solapur.
2. Dharmraj Annaraj Kadadi
Age.: 56 years, Occ.: Business,
ARUN
RAMCHANDRA
SANKPAL
Res.: 147, Railway Line, Ganga Niwas,
Digitally signed by
Solapur. ...Respondents
ARUN
RAMCHANDRA
SANKPAL
Date: 2025.08.07
19:45:38 +0530
Mr. Satish B. Borulkar, for the Petitioner.
Mr. Ajit V Alange, for the Respondent.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 24th JULY 2025
PRONOUNCED ON : 7th AUGUST 2025
JUDGMENT:
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1. This Petition under Article 227 of the Constitution of India, calls
in question the legality, propriety and correctness of a judgment and
order dated 21st September 1998 passed by the learned District Judge ,
Solapur, in Civil Appeal No. 489 of 1994, whereby while dismissing the
Appeal preferred by the Petitioner against a decree of eviction passed in
RCS No. 204 of 1989 by the learned Civil Judge, Madha, Solapur, on
the ground of default in payment of rent, the learned District Judge also
passed the decree of eviction on the grounds of unauthorized erection
of permanent structure, non-user of Suit premises for the purpose for
which it was let and nuisance.
2. The background facts can be summarised as under:
2.1 The deceased Respondent No.1 had constructed a chawl
"Kadadi Chawl" bearing Municipal House No.1, Kurduwadi,
Madha. The Petitioner-Defendant was a tenant of Unit No. 56,
comprising of two rooms. The tenancy was monthly. Rent was
Rs. 7/- per month. The tenant was liable to pay Rs.3/- per month
towards the permitted increase.
2.2 Asserting that the Defendant committed default in
payment of rent and permitted increase, the Plaintiff addressed a
statutory notice on 4th March 1989 and, thereby, professed to
terminate the tenancy of the Defendant.
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2.3 In the Plaint, it was asserted, inter alia, that the Suit
premises was let for residential purpose. However, the Defendant
had changed the user of the Suit premises by running a hotel
therein. The Defendant had erected permanent structure in the
front and rear portion of the Suit premises. On account of the
hotel business, especially the furnace installed by the Defendant
and the waste, the user of the premises was causing nuisance
and annoyance to the neighbouring occupiers.
2.3 The Defendant resisted the Suit by filing Written
Statement.
2.4 The jural relationship was not put in contest. It was,
however, denied that the Defendant was in arrears of rent.
According to the Defendant, agreed rent was Rs.10/- and the
Defendant had been regularly paying the agreed rent. It was
denied that the Defendant had changed the user of the premises,
erected permanent structure and the use of the premises was
causing nuisance or annoyance to the adjoining occupants.
2.5 The learned Civil Judge settled the issues. At the trial, Mr.
G.S. Patil, (PW-1), the constituted attorney of the Plaintiff
entered into witness-box. In the rebuttal the Defendant
examined himself and a witness-D.R. Raut (DW2). The parties
also tendered the documents for the perusal of the Court.
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2.6 After appraisal of the evidence and the material on record,
the learned Civil Judge was persuaded to hold that the
Defendant incurred the forfeiture of tenancy on account of
default in payment of rent as the Defendant failed to establish
that, within one month from the date of service of notice, the
Defendant had tendered rent and permitted increase to the
Plaintiff, and the tender of the amount by the Money order after
the institution of the Suit and the first date of hearing was of no
avail to the Defendant. Moreover, no effort was made by the
Defendant to deposit the rent and permitted increase along with
interest and costs before the Trial Court prior to the first date of
hearing. Resultantly, the Defendant was not entitled to relief
against forfeiture.
2.7 The learned Civil Judge, however, held that though there
was material to show that permanent structures existed in the
front and rear portion of the Suit premises, yet, the Plaintiff
failed to establish as to when the said permanent structures were
erected by the Defendant and also failed to establish that the
Suit premises was let for the purpose of residence and the
Defendant changed the user of the premises. The ground of
nuisance was also answered in the negative.
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2.8 Being aggrieved by the decree of eviction on the ground of
default in payment of rent, the Defendant filed Appeal before the
District Court, Solapur.
2.9 The learned District Judge, Solapur, found no fault with
the findings recorded by the Trial Court on the count of default
in payment of rent and the consequential forfeiture of tenancy.
However, the learned District Judge was of the view that despite
sufficient evidence to demonstrate that the Defendant had
erected permanent structure without the written consent of the
landlord and was carrying on the business of hotel in the Suit
premises and thereby changed the user thereof, and, resultantly,
caused nuisance to the adjoining occupants, the Trial Court
committed an error in declining to pass the decree on the said
grounds as well. Thus, the District Judge passed decree of
eviction on rest of the grounds also.
3. Being aggrieved, the Defendant invoked the writ jurisdiction.
4. By an order dated 2nd February 1999, this Court issued Rule,
stayed the execution and operation of the decree upon the condition of
payment of rent and usual undertaking.
5. I have heard Mr. Satish Borulkar, the learned Counsel for the
Petitioner, and Mr. Ajit V Alange, learned Counsel for the Respondent, at
some length. With the assistance of the learned Counsel for the parties,
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I have perused the material on record including the pleadings and the
depositions of witnesses.
6. Mr. Borulkar, the learned Counsel for the Petitioner, advanced a
two-fold submission. Firstly, According to Mr. Borulkar, the Trial Court
was clearly in error in returning a finding that the Defendant committed
default in payment of rent and permitted increase and thereby incurred
forfeiture of tenancy. Emphasis was sought to be laid on the fact that
the Defendant had tendered the outstanding rent and permitted
increase by money order and the same was not accepted by the
landlord. During the pendency of the Suit before the Trial Court, the
Defendant had regularly deposited the rent as it had fallen due. The
Trial Court thus could not have passed a decree of eviction on the
ground of default in payment of rent for the reason that there was some
delay in depositing the rent before the Trial Court during the pendency
of the Suit.
7. Under no circumstances, could it be urged that the Defendant
was not ready and willing to pay the rent. Consequently the case would
be covered by Section 12(1) of the Bombay Rents, Hotel and Lodging
House Rates (Control) Act, 1947 ("the Bombay Rent Act 1947").
submitted Mr. Borulkar.
8. Secondly, Mr. Borulkar would submit that, the District Court
committed a manifest error in law in setting aside the findings of the
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Trial Court on the other grounds of eviction without a cross-objection
having been filed on behalf of the Plaintiff-landlord. In the
circumstances of the case, where the Trial Court had returned negative
findings on the other grounds, it was not open for the Appellate Court
to reverse those findings without cross-objections.
9. Mr. Borulkar further submitted that, even otherwise, the findings
recorded by the District Court on the grounds of erection of permanent
structure, change of user of the Suit premises and nuisance are not
borne out by the evidence on record. Mr. G.S. Patil, (PW-1) had no
knowledge about the erection of the permanent structure and the
alleged change of user. In the absence thereof, the findings recorded by
the learned District Judge were clearly sans evidence. Thus, the
impugned judgment and decree deserves to be quashed and set aside.
10. In contrast to this, Mr. Alange, the learned Counsel for the
Respondent, would submit that, indisputably, the Defendant neither
paid the amount within the statutory period, after service of notice, nor
deposited the rent along with interest and costs before the first date of
hearing. Nor the Defendant had filed any proceeding for fixing the
standard rent. Consequently, the default on the part of the Defendant to
comply with the conditions stipulated under Section 12(3) of the Act
1947, so as to avoid forfeiture of tenancy, was writ large. Therefore,
there is no escape from the consequences that entailed the failure to
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comply with the statutory requirements by the tenant, submitted Mr.
Alange.
11. Mr. Alange further submitted that, the learned District Judge was
well within his rights in granting a decree for eviction on other grounds,
which were duly proved. It is not the requirement of law that the
Respondent must file Cross Objection when the decree is wholly in
favour of the Respondent. Even without filing the Cross Objection, the
Respondent can urge that the finding on particular issues ought to have
been rendered in favour of the Respondents.
12. Taking the Court through the provisions contained in Order 41
Rule 22 of the Code, Mr. Alange submitted that the Respondent-Plaintiff
was entitled in law to assail the correctness of the findings of the trial
Court on rest of the grounds without filing Cross Objection. To buttress
this submission, Mr. Alange placed reliance on a judgment of the
Supreme Court in the case of Saurav Jain and Anr. V/s. A.B.P. Design
and Anr.1
13. As regards the merits of the findings in the impugned order, Mr.
Alange would urge, there was ample evidence to return findings on the
erection of permanent construction without the permission of the
landlord, change of user of the suit premises and the resultant nuisance
caused to the adjoining inhabitants. The Trial Court despite finding that
the suit premises was being put to the use of running a hotel and
1 (2022) 18 SCC 633
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permanent structures did exist in the front and rear portion of the suit
premises, dithered from passing the decree on the said grounds. Thus,
the learned District Judge was justified in correcting the error
committed by the trial Court. Therefore, in any view of the matter, no
interference is warranted in the impugned order, submitted Mr. Alange.
14. The aforesaid submissions now fall for consideration.
15. To begin with, the ground of default in payment of rent; on which
the finding of the trial Court was affirmed by the learned District Judge.
Few facts, in this context, appear incontrovertible. Statutory notice was
addressed on 4 March 1989. It was served on the Defendant on 6
March 1989. The Defendant had tendered the amount towards the due
rent, in the contemplation of the Defendant, on 16 February 1990. The
suit was instituted much prior thereto.
16. It is, thus, abundantly clear that the Defendant had not tendered
the rent and increased taxes demanded by the Plaintiff within one
month of the service of the due notice. Neither the Defendant contested
the standard rent by filing an application for fixation of standard rent
and permitted increases of the suit premises within one month of the
service of the said notice. Nor the record indicated that the Defendant
had deposited the rent and permitted increases along with the interest
and costs, as envisaged by sub-Section (3) of Section 12 of the Rent Act,
1947, before the first date of hearing. Evidently, the issues were settled
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on 27 November 1990. A belated effort was made by the Defendant to
avail relief against the forfeiture by filing an application on 27 January
1994.
17. In the backdrop of the aforesaid uncontroverted facts, the trial
Court and the learned District Judge were wholly justified in returning a
finding that the default in payment of rent, coupled with the non-
compliance of the provisions contained in Section 12 of the Act, 1947,
entailed the consequence of forfeiture of the tenancy. In the light of the
aforesaid objective and hard facts, which emerged from the material on
record, no other inference is plausible.
18. Mr. Borulkar, learned Counsel for the Petitioner, attempted to
salvage the position by canvassing a submission that the refusal to
accept the Money Order sent by the Defendant and the regularity with
which the Defendant had deposited the rent before the trial Court,
underscore the fact that the Defendant was ready and willing to pay the
amount of standard rate and permitted increases, and, therefore, the
case would fall within the ambit of sub-section (1) of Section 12 of the
Rent Act, 1947.
19. I find it rather difficult to accede to this submission. As noted
above, no dispute about the standard rent and permitted increases was
raised by the Defendant in the manner envisaged by Section 12 of the
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Act, 1947. Nor the rent was tendered within one month of the service
of the demand notice.
20. So far as the default in payment of rent during the pendency of
the Suit, the learned Civil Judge was of the view that the Defendant was
irregular in payment of rent, as there was often delay of a couple of
months in the deposit of the rent of a particular month, and, therefore,
the Defendant was not entitled to seek relief against forfeiture. It could
be urged that, the tenant is not expected to deposit the rent, as it falls
due, with mathematical precision. However, this aspect of the matter,
pales in significance as the decree for eviction can be sustained on
account of the non-compliance of the other statutory requirements.
Therefore, I am impelled to hold that the learned Civil Judge as well as
the learned District Judge were justified in passing a decree for eviction
on account of the clear default in payment of rent and compliance with
the conditions to avail the relief against the forfeiture.
21. This leads me to the second limb of the submission of Mr.
Borulkar that the learned District Judge, could not have reversed the
negative findings of the Trial Court on the rest of the grounds of
eviction in the absence of cross-objections. This submission deserves to
be appreciated in the light of the legislative change brought about by
the Civil Procedure Code Amendment (Act 104 of 1976). Under the
said Amendment Act, Rule 22 of Order 41 of the Code, suffered a
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significant amendment. The expression, "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" came to be substituted for
the expression, "may not only support the decree on any of the grounds
decided against him in the Court below, but take any cross-objection to
the decree".
22. The portion which is emphasised above ( in italics) marks a
significant departure from the unamended provision, in two ways.
Firstly, the scope of filing of a cross-objection stood enlarged to include
objections against, "finding of the lower Court". Secondly, it permitted
the Respondent to assail the findings of the lower Court without filing a
cross-objection, by employing the phrase, "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". The two parts of the expression introduced by
the amendment are required to be construed disjunctively as they are
supported by a semi colon.
23. In the case of Banarsi And Ors Vs Ram Phal,2 the Supreme Court
considered the import of the 1976 Amendment and postulated the three
situations which may arise where the Respondent professes to assail the
finding and decree of the Court of the first instance. The observations of
2 AIR 2003 SC 1989.
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the Supreme Court in paragraphs 10 and 11 are instructive and hence
extracted below.
"10. CPC Amendment of 1976 has not materially or
substantially altered the law except for a marginal
difference. Even under the amended Order 41 Rule 22
sub-rule (1) a party in whose favour the decree stands
in its entirety is neither entitled nor obliged to prefer
any cross objection. However, the insertion made in the
text of sub-rule (1) makes it permissible to file a cross
objection against a finding. The difference which has
resulted we will shortly state. A respondent may defend
himself without filing any cross objection to the extent
to which decree is in his favour; however, if he proposes
to attack any part of the decree he must take cross
objection. The amendment inserted by 1976
amendment is clarificatory and also enabling and this
may be made precise by analysing the provision. There
may be three situations:
(i) The impugned decree is partly in favour of the
appellant and partly in favour of the respondent;
(ii) The decree is entirely in favour of the respondent
though an issue has been decided against the
respondent;
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(iii) The decree is entirely in favour of the respondent
and all the issues have also been answered in favour of
the respondent but there is a finding in the judgment
which goes against the respondent.
11. In the type of case (i) it was necessary for the
respondent to file an appeal or take cross objection
against that part of the decree which is against him if
he seeks to get rid of the same though that part of the
decree which is in his favour he is entitled to support
without taking any cross objection. The law remains so
post amendment too. In the type of cases (ii) and (iii)
pre-amendment CPC did not entitle nor permit the
respondent to take any cross objection as he was not
the person aggrieved by the decree. Under the amended
CPC, read in the light of the explanation, though it is
still not necessary for the respondent to take any cross
objection laying challenge to any finding adverse to him
as the decree is entirely in his favour and he may
support the decree without cross objection; the
amendment made in the text of sub-rule (1), read with
the explanation newly inserted, gives him a right to
take cross objection to & finding recorded against him
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either while answering an issue or while dealing with
an issue.
24. The precise submission, sought to be forcefully canvassed by Mr.
Borulkar that, without filing cross-objections, the Respondent cannot
challenge a particular finding rendered by the Trial Court against him,
when the decree is in his favour, was repelled by the Supreme Court in
the case of S. Nazeer Ahmed Vs State Bank of Mysore & Ors 3 in the
following words:
"7. The High Court, in our view, was clearly in error in
holding that the appellant not having filed a memorandum
of cross-objections in terms of Order XLI Rule 22 of the
Code, could not challenge the finding of the trial court that
the suit was not barred by Order 2 Rule 2 of the Code. The
respondent in an appeal is entitled to support the decree of
the trial court even by challenging any of the findings that
might have been rendered by the trial court against himself.
For supporting the decree passed by the trial court, it is not
necessary for a respondent in the appeal, to file a
memorandum of cross- objections challenging a particular
finding that is rendered by the trial court against him when
the ultimate decree itself is in his favour. A memorandum of
cross-objections is needed only if the respondent claims any
relief which had been negatived to him by the trial court and
in addition to what he has already been given by the decree
under challenge. We have therefore no hesitation in
accepting the submission of the learned counsel for the
3 AIR 2007 SC 989.
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appellant that the High Court was in error in proceeding on
the basis that the appellant not having filed a memorandum
of cross-objections, was not entitled to canvass the
correctness of the finding on the bar of Order 2 Rule 2
rendered by the trial court." (emphasis supplied)
25. Following the aforesaid pronouncements, in the case of Saurav
Jain and Anr (Supra), on which reliance was placed by Mr. Alange, it
was enunciated that only when a part of the decree was assailed by the
Respondent, should a memorandum of cross-objection be filed.
Otherwise, it is sufficient to raise a challenge to an adverse finding of
Court of first instance before the Appellate Court without a cross-
objection.
26. In the light of the aforesaid well-recognized position in law, the
submission of Mr. Borulkar that the learned District Judge transgressed
the jurisdictional limits in reversing the negative findings on the rest of
the grounds of eviction of the Trial Court, does not carry any conviction.
The learned District Judge was justified in entertaining the submissions
on behalf of the Respondent-Plaintiff that the findings on those issues
against the Plaintiff, rendered by Trial Court, ought to have been in
favour of the Plaintiff.
27. To appraise whether the findings of the learned District Judge are
sustainable, a brief recourse to the evidence is necessary.
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28. The Defendant categorically deposed that he has been running a
hotel in the Suit premises. It generates brisk business. In the front
portion of the Suit premises a tin-shed has been erected on fixed iron
angles. The said structure has been in existence since long.
29. On the basis of the aforesaid evidence and the report of the Court
Commissioner, the Trial Court as well as the learned District Judge
recorded concurrent findings of fact that the permanent structure was
in existence in the front and rear portion of Suit premises.
30. In the face of aforesaid irresistible inference regarding existence
of permanent structures, it would be relevant to note the circumstances
which obtained when the tenancy commenced. Dagadu R Raut (DW2),
conceded in the cross-examination that Pandharinath was the grand-
father of the Defendant. Pandharinath was in the employment of the
Plaintiff, and was a tenant in the Suit premises. Pandharinath was using
the Suit premises for the purpose of residence. Hotel business was being
run in the Suit premises since prior to 15 to 20 years.
31. The aforesaid evidence clearly demonstrates that the premises
was initially let for the purpose of residence and was also being used for
the purpose of residence. The learned Civil Judge despite recording a
finding that permanent structure was erected and hotel was being run
in the Suit premises negatived the claim of the Plaintiff on those
grounds on the premise that the Plaintiff held himself back and did not
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disclose the time from which the user of the suit premises was changed,
and when the permanent structure was erected. In this view of the
matter, the learned District Judge was justified in holding that it was for
the Defendant to show that the change of user was with the written
consent of the landlord and when the permanent structure was erected.
In the absence thereof, the learned District Judge was fully justified in
holding that the grounds of change of user of the Suit premises and
erection of permanent structure were also duly proved.
32. On the aspect of nuisance also, in the very nature of the things,
when the adjoining tenements were being used for residential purpose,
the running of the hotel with a furnace on the rear side and the
resultant waste and din the brisk hotel business generated, caused
annoyance to the ordinary comfort and enjoyment of the neighbouring
premises by the occupants thereof. No fault could this be found with the
finding of the learned District Judge on the ground of nuisance as well.
33. Resultantly, this Court does not find such infirmity in the
impugned order as to interfere with the same in exercise of the
supervisory jurisdiction.
34. Resultantly, the Petition deserves to be dismissed.
35. Hence the following order.
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:ORDER:
(i) The Petition stands dismissed with costs.
(ii) Rule discharged.
[N. J. JAMADAR, J.]
