JUDGMENT
B.N. Agrawal, J.
1. This appeal by the plaintiff arises out of the judgment of reversal passed in a suit for eviction and arrear of rent. It was filed on the grounds of personal necessity, default in making payment of rent and material deterioration in the condition of building.
2. The defendant entered appearance in the suit and filed written statement denying all the three grounds for eviction. The trial Court recorded all the three findings against the plaintiff, but decreed the suit on the ground that Buildings Control Act was not in force at the time when the suit was filed and the decree was passed by the trial Court. As such, the plaintiff who had served notice Under Section 106 of the Transfer of Property Act was entitled to get a decree for eviction and it was not necessary for him to prove any of the grounds because proving of these grounds was protection to a tenant under the Buildings Control Act.
3. Against the judgment and decree passed by the trial Court, the defendant preferred an appeal and the lower appellate Court allowed the appeal, set aside the judgment and decree passed by the trial Court and dismissed the suit for eviction holding that the Buildings Control Act has come into force with retrospective effect. Therefore, the protection of Buildings Control Act as available to the tenant-defendant and consequently the trial Court committed an error of law in decreeing the suit.
4. Before the lower appellate Court on behalf of the plaintiff who was respondent there all the three findings recorded by the trial Court against him were challenged, but the appeal late Court was of the view that since the plaintiff had not preferred any cross-appeal against the findings recorded by the trial Court against him, he cannot be permitted to agitate correctness thereof in the appeal filed by the defendant-tenant.
5. Against the judgment and decree passed by the court of appeal below, the plaintiff has preferred this second appeal and the learned Counsel appearing in support of the appeal contended that no appeal or cross-appeal was maintainable against the findings recorded by the trial Court since the ultimate decision of this suit was in his favour and the trial Court decree was not based upon the findings recorded against the plaintiff on the three grounds for eviction. In support of that learned Counsel placed before me the provisions of Order 41, Rule 22 of the Code of Civil Procedure. The Explanation to Order 41, Rule 22 of the Code of Civil Procedure which was brought in the statute book by amending Rule 22 by Central Act 104 of 1976 came into force from 1st February, 1977 and reads as follows:
A respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reasons of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.
6. Upon reading of the aforesaid explanation, it becomes clear that no cross-appeal was maintainable in the case in hand against the three findings recorded by the trial Court as the decree of the trial Court was not based upon any of the findings but the decree was passed upon completely independent ground, namely, that buildings Control Act was not in force, therefore, the protection to the tenant therein was not available. The tenancy was determined by serving a notice Under Section 106 of the Transfer of Property Act and the plaintiff was entitled to get a decree for eviction no sooner the tenancy was determined.
7. learned Counsel appearing on behalf of the respondent contended that the appeal was maintainable against the findings of the trial Court. Therefore, the lower appellate Court was justified in law in observing that the plaintiff cannot challenge the correctness of any of the three findings recorded by the trial Court against him. He further contended that on the question of default, the lower appellate Court has given fact finding in agreement with that of the trial Court. I find sufficient force in the contention of the learned Counsel and hold that appeal was maintainable against any of the three findings recorded by the trial Court as the decree of the trial Court was not based upon any of the findings which is a pre-requisite condition under the Explanation. In support of my view learned Counsel for the appellant has placed reliance upon the case in Shiv Shankar Pd. v. Union of India 1984 P. L. J. R. 744, in which a learned single Judge of this Court has considered the effect of insertion of Explanation in Rule 22 of Order 41 of the Code of Civil Procedure and held that in such circumstances no appeal or cross-objection is maintainable.
8. I have gone through the judgment of the lower appellate Court and I find that even on the question of default, there is no clear finding. So far as the other two grounds for eviction are concerned, the Court of appeal below has neither considered nor recorded any finding thereon.
9. fn this view of the matter, I have no option but to remand the case the lower appellate Court. Accordingly, this appeal is allowed, the judgment and decree passed by the court of appeal below are modified and the case is remanded to it for considering all the three grounds for eviction and recording its own finding in the light of the observations made in this judgment. I may make it clear that the court of appeal below was right in holding that the Buildings Control Act has come into force with retrospective effect and the landlord in the present suit was required to prove grounds for eviction. That portion of the judgment is not interfered with. Cost shall abide result of the appeal in the lower appellate Court.