Madanlal Kothari vs Bank of Maharashtra

S.P. Bhargava, J.—This is defendant''s second appeal arising out of 3 suit for ejectment and recovery of damages for use and occupation and future mesne profits. The appellant was impleaded as second defended in the suit.

The suit was originally instituted by the Bank of Nagpur, Ltd. It was substituted by the Bank of Maharashtra, Durg Branch. Durg, as plaintiff as a result of the amalgamation of the original plaintiff with the Bank of Maharashtra, Ltd.

The first defendant in the suit was a partnership firm ''Chunnilal Champalal Kothari Durg''. The original partners of this firm were two brothers, Champalal and Manaklal. On the death of Manaklal,the firm was reconstituted. Thereafter, the partners of the firm were Champalal and Jawaharlal son of Manaklal.

Admittedly, the suit house belonged to and Devi Prasad who was the owner of the shop Chandmal Balaram. The defendant No. 1 was the tenant of the whole house consisting of the ground floor and the upper storey up to the end of July 1955. The plaintiff alleged that form 1st August 1955, the defendant no.1 continued in occupation of the ground floor only having vacated the first floor; At that time the first defendant agreed to pay Rs. 50/- per month as rent to the plaintiff for the ground floor in its occupation and the plaintiff look the entire premises on a monthly rent of Rs. 125 from owner. The second defendant was impleaded on the allegation that the first defendant had sub-let a portion of the ground floor to him where he was maintaining his office. The first defendant denied that it was a tenant of the plaintiff of the ground floor of the suit premises and asserted that it continued to remain the tenant of the whole house and the plaintiff came in occupation as a sub-tenant of the first defendant.

The case set up by the second defendant was that he was not a sub-tenant and remained in occupation as a member of the joint family of Champalal Kothari who was one of the partners of the first defendant-firm.

Both the Courts below found that by virtue of the agreement which was made in 1955, the plaintiff became the tenant of the whole building and the first defendant occupied the position of a sub-tenant of the plaintiff in respect of the suit premises. They further held that the first defendant by denying the title of the plaintiff as its landlord before suit had forfeited its tenancy and had made itself liable for eviction under the provisions of section 4 (1)(f) of the Madhya Pradesh Accommodation Control Act, 1955, (hereinafter called the ''Act''). Both the lower Courts also found that the second defendant had no independent status of his own to be in occupation of the premises, he having been inducted on the property by his father Champalal.

Shri R.S. Dabir, learned counsel for the plaintiff (respondent No. 1) his raised a preliminary objection to the effect that it is not within the competence of Madanlal (appellant) whose status at best is that of a subtenant or licensee to prefer an appeal from an order of eviction passed against the first defendant and himself even though the first defendant has not preferred any appeal therefrom In my opinion, though the present appellant could file an appeal being a party against whom a decree of ejectment was passed, he had no locus standi to dial large the correctness of the decision of the appellate Court when the tenant has not appealed against that decision. It is obvious that the first defendant or any of his partners not having appealed to this Court, the decree of ejectment has clearly become final against them. The appellant derived his right to be in possession of the property merely as licensee of Champalal. A best, his status could be that of a sub-tenant as alleged by the plaintiff. In my opinion, it is plain that when the decree of the lower Court became final against the tenant, he could not claim any right to remain in occupation of the premises in his possession. The appellant cannot contest the appeal successfully when (sic) very (sic)ce from which he claim the right to be in possession of the property has vanished. I am fortified in my view by the following decisions: Seshayyar vs. Pappuvarad yyangar ILR 6 Mad. 185 Shanker Rao Naik vs. Kishanlal AIR I950 M.B. 19. Bhagwat Prasad vs. Nandbai ILR 1955, M. B. 335 and Dr. Prem Nath vs. Pt. Manmohan Nath Dar, ILR (195(sic)) 1 Punj 539. In the last ruling, it has clearly been held that if the original tenancy is determined by efflux of time or by forfeiture or by operation of law, the sub-tenancy also cases to exit. It has further been held:

The sub-tenant bring a party to the suit for ejectment was at liberty to prefer an appeal from the order which was passed by the trial Court and to attack the judgment directly and collaterally. This attack could be of little avail in the present case as the original tenant bad not thought fit to lodge an appeal and the order of ejectment passed against him had thereby become final and conclusive. Broadly speaking when a landlord brings a suit for ejectment against his tenant and impleads the sub-tenant as a defendant, the sub-tenant has a right, in his capacity, as a party to the litigation, to prefer an appeal from the judgment which has been rendered in the case. if, however, the judgment has become final and conclusive against the tenant, the right of appeal conferred upon the sub-tenant becomes illusory as he is bound by the decree passed against the landlord.

Thus it is clear that there was no privity of contract between the appellant and the plaintiff-respondent.

Shri A.P. Sen, learned counsel for the defendant appellant tried to meet the preliminary objection by urging that Champalal who permitted the appellant to occupy the portion of the ground floor of the house was on record as a party respondent and, therefore, Champalal could urge all the points in his favour to get the decree of the lower Court set aside. I am unable to agree with this submission. Under the provisions of Order 41 Rule 22 of the Code of Civil Procedure, a respondent who has not preferred an appeal or a cross objection is only entitled to support the decree on any of the grounds decided against him, but he cannot challenge the decree itself without filing an appeal or a cross-objection. A party in whose favour a decree has been passed has a substantive right of a valuable kind which should not be lightly interfered with. [See, Chockalingam vs. Seethal Ache, AIR 1927 PC 252. As a general rule, the right of respondent to urge cross-objection should be limited to his urging them against the appellant and it is only by way of exception to this general rule that one respondent may urge cross objection as against the other respondents; the exception holds good particularly in those cases in which the appeal opens out questions which cannot be disposed of completely without matters bring a1lowed to be opened up as between the co-respondents. [See Jan Mohammad vs. Razdon, AIR 1944 Lab.433, Mohd. Hasan vs. Mohd. Hamid AIR 1946 All. 395, and Chandi Prasad vs. Pt. Jugalkishore, ILR 1948 Nag 340DB] In my opinion, the present case does not fall within the exception to the ordinary rule because, it is a clear principle of law that a subtenant cannot be allowed to challenge the decree once, it has become final against the tenant and, In my view, the same principle would apply to the case when a decree has become final against a licensor. In such a situation his licensee could not be allowed to challenge the decree when it has become final.

In connection with the aforesaid preliminary objection, it was lastly urged by the learned counsel for the appellant that the defence raised by the appellant Madanlal and the Bank of Maharashtra (respondent No. 1) was a common one and as the decree appealed from proceeded on grounds which were common to all, the defendants or any of them could appeal from the whole decree and thereupon the appellate Court could reverse or vary it in their or his favour. He referred to the provisions of Order 41 Rule 4 of the Code of Civil Procedure. In my opinion, the defence raised by defendant No. 2 had nothing to do with the defence of the first defendant. In fact defendant No. 2 was impleaded because he was sought to be bound by the decree on the ground that he was a sub-tenant of the first defendant He asserted his possession to be in the capacity of number of the joint family of Champalal and was unable to plead any independent right of his own to oppose the demand of ejectment against the first defendant. In fact, he could not do so when be admitted that he was brought in occupation of the properly by Champalal In my opinion, Order 41 Rule 4 of the CPC has no application to a case where the ejectment decree has become final against a lessee and a person deriving possession from him only seeks to challenge the decree by appealing against it but the lessee has not appealed Thus, in my view, the preliminary objection raised on behalf of the plaintiff-respondent has substance, in it and, therefore, on this ground alone, the appeal has to be dismissed as being infructuous.

The case was argued at great length on merits also but as the contentions of the appellant do not survive on the view I have taken, it is not necessary to consider them.

For the reasons aforesaid, this appeal is dismissed with costs. Counsels fee Rs. 50/-, if certified.

Leave to file Letters Patent appeal refused.