APPEAL from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Peoria County;
the Hon. JOHN A. WHITNEY, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
This action under the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1969, ch. 57, par. 1 et seq.) was brought by the plaintiff, Peoria Housing Authority, to recover possession of an apartment which it had leased to the defendant, Norma Sanders. The statutory five-day notice, dated June 8, 1970, recited that there was due from the defendant to the plaintiff the sum of $50, made up of $47, the unpaid balance of the June rent, and a $3 penalty for late payment. The notice stated that unless payment was made within five days the defendant's lease would be terminated.
The defendant's answer denied that the plaintiff was entitled to possession and also denied that she was "in default of any contractual agreement." As an affirmative defense the answer alleged that the defendant's income had been reduced; that the authorized agent of the plaintiff had offered to relieve her of the penalty for late payment of rent if she paid part of the rent before the sixth day of each month and the balance before the end of the month; that she had paid $30 on account of the June rent on June 4, and tendered the balance, $47, on June 15, but the tender was refused with a statement that "Plaintiff would not accept anything less than $50.00 representing the $3.00 additional late charge." The answer prayed that the complaint be dismissed; that plaintiff be estopped from denying the modification of the rental agreement; that a specified provision of the plaintiff's "statement of rental policy" be declared unconstitutional and violative of the governing statute and that the court recompute the rent charged to the defendant and grant damages to the defendant for any overcharge.
The plaintiff moved to strike the affirmative defense because "the prayer demands affirmative relief in the form of damages and a construction of the plaintiff's lease agreement and therefore must be filed as a counterclaim and not as an affirmative defense pursuant to the provisions of Section 38 of the Illinois Civil Practice Act." The motion was granted and the affirmative defense was stricken.
An amended answer was filed which repeated the identical affirmative defense set forth in the original answer. As a counterclaim, it also alleged facts concerning the defendant's reduction in earnings, and stated in detail the grounds upon which she asserted that the plaintiff's regulation concerning the adjustment of rent in the event of a change in income was not authorized by statute and was unconstitutional. The counterclaim prayed that defendant's rent be recomputed and that she be allowed as damages any overcharge that might have been made.
The plaintiff filed a motion to strike the counterclaim, and an order was entered striking both the counterclaim and the affirmative defense. The defendant moved to set the order aside or to amend it, because it "granted relief not requested." Thereafter, an order was entered which recited that the defendant had orally moved to withdraw her answer and affirmative defense. In that order the court found that the defendant's motion should be allowed, and then ordered the answer and affirmative defense dismissed "with prejudice and in Bar of Action." On the same day an order was entered which found that the counterclaim was "not germane to the Distinctive purpose of this proceeding," ordered the counterclaim dismissed and entered judgment awarding possession to the plaintiff. Execution of the judgment was stayed pending appeal. The appellate court affirmed, one judge dissenting (2 Ill. App.3d 610 (1972)), and we allowed leave to appeal.
The opinions in the appellate court dealt only with the procedural question of the propriety of the counterclaim, and a majority of that court held that regardless of its substantive merit the counterclaim was properly dismissed because the issues it raised "are not germane to the plaintiff's action in forcible entry and detainer." It is this procedural question which has been argued in this court and which we now decide.
Section 5 of the Forcible Entry and Detainer Act, which governs this case, provides:
"On complaint in writing by the party or parties entitled to the possession of such premises being filed in the circuit court for the county where such premises are situated, stating that such party is entitled to the possession of such premises (describing the same with reasonable certainty), and that the defendant (naming him) unlawfully withholds the possession thereof from him or them, the clerk of such court shall issue a summons.
The defendant may under a general denial of the allegations of the complaint give in evidence any matter in defense of the action. No matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise: Provided, however, that a claim for rent may be joined in the complaint, and judgment obtained for the amount of rent found due." (Ill. Rev. Stat. 1971, ch. 57, par. 5.) (The underscored portion was added by amendment in 1935; the italicized portion was added by amendment in 1937.)
The effect of these provisions was discussed in Jack Spring, Inc. v. Little (1972), 50 Ill.2d 351, 358, which was decided by this court after the appellate court had decided the present case:
"At the time of the enactment of the 1935 amendment the sole remedy available under the Act, and therefore the `distinctive purpose' of any proceeding based thereon, was recovery of the premises. Upon enactment of the 1937 amendment with its provision for recovery of rent, the proceeding, to some extent, lost its distinctive purpose. To hold that a landlord, at his option, may expand the issues in a proceeding brought under the statute and the tenant may not is violative of common sense and accepted rules of statutory interpretation.
* * * It is apparent, therefore, that even though the plaintiffs do not seek to recover rent in these actions, the question of whether rent is due and owing is not only germane, but in these cases where the right to possession is asserted solely by reason of nonpayment, is the crucial and decisive issue for determination.
It is established law that liability for rent continues so long as the tenant is in possession and equally well established that a tenant may bring an action against his landlord for breach of a covenant or may recoup for damages in an action brought to recover rent. ...