dissenting:
I do not agree with the majority of the court. In my opinion the trial court was in error in its holding that the defense of retaliation is inappropriate in this forcible entry and detainer action. The final order issued by the trial court granting plaintiff’s motion for summary judgment states matters germane to the distinctive purpose of the proceedings are not raised. Although my colleagues address. their attention initially to the question of whether there is a basis for the defendants’ defense of retaliation, the basis for the defense does not become an issue until a determination is made as to whether the defense is procedurally appropriate.
According to section 5 of the Forcible Entry and Detainer Act (IU. Rev. Stat. 1971, ch. 57, par. 5), matters not germane to the distinctive purpose of the proceeding shaH not be introduced. The purpose of this summary statutory proceeding is to adjudicate rights to possession and the proceeding should not be impeded by collateral matters not directly connected with the question of possession. (Bleck v. Cosgrove, 32 Ill. App.2d 267, 177 N.E.2d 647.) Matters which are germane to the question of the litigants right to possession may be raised in these proceedings. (Rosewood Corp. v. Fisher, 46 Ill.2d 249, 263 N.E.2d 833.) In Rosewood, defendants raised defenses going to the validity and enforceability of the contracts upon which plaintiffs based their claim of right to possession. The court held these defenses were germane to the distinctive purpose of a forcible entry and detainer action. In Marine Park Associates v. Johnson, 1 Ill.App.3d 464, 274 N.E.2d 645, the court in a forcible entry and detainer action brought by the lessor, aUowed the lessee to raise a defense based on the Civil Rights Act of 1968 after the lessor refused to renew a lease on the apartment because of racial reasons.
In recent cases where a landlord has sought possession through a forcible entry and detainer action based on failure of a tenant to pay rent, the Illinois Supreme Court has held the tenant may raise issues pertaining to the question of whether the tenant owes rent which is due and unpaid. (Jack Spring, Inc. v. Little, 50 Ill.2d 351, 280 N.E.2d 208, and Peoria Housing Authority v. Sanders, 54 Ill,2d 478, 298 N.E.2d 173.) The defenses raised were based on allegations of breach of express covenant to repair, breach of implied warranty of habitability and an unconstitutional rental policy. The question of whether rent is owed is germane to the question of who has the right to possession. Since plaintiff does not base his right to possession on faUure to receive rent from defendants, the defense raised in the present case is different from those in the above cases. Nonetheless, I believe it should be considered germane since it relates to who has the superior right to possession.
Defendants claim the notice to vacate sent to them by plaintiff was in violation of section 16 — 118 of the Housing Code of the City of Peoria. That section reads:
“Sec. 16 — 118 Retaliatory Eviction by Owner
No owner or lessor shall evict or cause to evict or terminate the tenancy of a renter or lessee solely as retahation because that renter or lessee complains to the City of Peoria or the Circuit Court of Peoria County against the owner charging the owner with violation of this Code or with violation of any warranty of habitability accruing to the rentor or lessee from the owner.
The fact that the rent or lease consideration of the renter or lessee is not more than thirty (30) days delinquent at the time the owner gives notice of eviction or termination of lease or rental and the fact that, within six (6) months prior to the notice of eviction or termination of the lease or rental, the renter or lessee has not been convicted of creating a nuisance at the dwelling or dwelling unit from which eviction is sought and the renter or lessee has not been convicted of violation of sections 16 — 116 and 16 — 117 of this Code, shall be prima facie evidence that the eviction or termination of lease or rental by the owner is solely retaliatory because that renter or lessee has complained against the owner charging him with violation of this Code;
Any person convicted of violating this section shall be fined not less than two hundred dollars ($200.00) nor more than five hundred dollars ($500.00).”
Section 71 of the Landlord and Tenant Act (Ill. Rev. Stat. 1971, ch. 80, par. 71) recognizes a similar right of a tenant to be free from retaliatory actions by a landlord. This section reads:
“It is declared to be against the public policy of the State for a landlord to terminate or refuse to renew a lease or tenancy of property used as a residence on the ground that the tenant has complained to any governmental authority of a bona fide violation of any applicable building code, health ordinance, or similar regulation. Any provision in any lease, or any agreement or understanding, purporting to permit the landlord to terminate or refuse to renew a lease or tenancy for such reason is void.”
The historical note following this section in the Illinois Annotated Statutes (S.H.A. ch. 80, par. 71) states that the Act is “to protect the right of tenants to complain of violations of governmental regulations.” When a defense raised is based on rights set forth in a statute or code section which limit a landlord’s right to terminate a lease and regain possession, this is surely related to a landlord’s possessory rights. Although there is an absence of Illinois cases based on similar fact, there is other judicial authority relating to the problem facing the court under similar eviction statutes in other states. In Edwards v. Habib (1968), 397 F.2d 687, cert, denied (1969), 393 U.S. 1016, the court held landlords could not use eviction statutes to retaliate against tenants invoking their rights under housing and sanitation codes of the District of Columbia. The landlord had given the tenant who rented on a month to month basis, a notice to vacate after the tenant complained to the District of Columbia housing officials of violations of the code which the landlord refused to repair. The court said the code impliedly effected a change in the rights of landlords and tenants so that retaliation constituted a defense in an action of eviction. The Supreme Court of California in Schweiger v. Superior Court of Alameda County, 3 Cal.3d 507, 90 Cal. Rptr. 729, 476 P.2d 97, found a tenant could defend an unlawful detainer action on grounds that the landlord increased rent and commenced an action for eviction in retaliation for a tenant’s demand that certain repairs be made. The court stated, “If wé deny tenants a defense against retaliatory eviction in unlawful detainer actions, we lend the exercise of judicial process to aid landlords in punishing those tenants with the audacity to exercise their statutory rights.”
It is in the public interest to require a landlord to maintain leased premises in a habitable condition and tenants have the right to complain of code violations. The effect on this statutory right would be to treat it as a nullity if landlords were allowed to invoke a forcible entry and detainer action whenever a tenant complains of code violations. It is hard to imagine how a defense aUeging that the landlord terminated a lease and is seeking possession in retaliation and in violation of a statute, can be said to be collateral to the distinctive purpose of a forcible entry and detainer action. The defendants are merely seeking to assert their paramount right to possession by stating facts upon which they base their right. It is maintained by my colleagues that to permit such defense would be an extension of the holding in Jack Spring Inc. v. Little, 50 Ill.2d 351, 280 N.E.2d 208, since plaintiff’s claim to possession is not based upon failure to pay rent. The statute does not require possession to be based upon rent before a germane matter can be introduced by defendants. Also, in cases such as Rosewood, supra, and Marine Park, supra, possession is claimed with no question of rent being involved. Furthermore, I do not believe the Illinois Supreme Court in Spring set forth an admonishment against application of the law allowing germane defenses in different factual situations, rather, it merely stated the court was not adjudicating issues other than the precise issue before it. In fact, it seems to me that Spring requires the defenses raised in this case be permitted in a forcible entry and detainer action. Otherwise the landlord’s duties and obligations may be easily and simply evaded, thereby nullifying the holding in Spring. In this connection it should also be observed the plan contemplated by Peoria’s ordinance for payment of rent to the housing administration obviates some of the problems and objections raised in the dissenting opinions in the Spring case. The tenant is required to make the rental payment agreed upon during the continuance of the controversy and cannot arbitrarily decline to make payments to anybody on the excuse the property is in poor condition.
Both the trial court and the majority determined retaliation was an inappropriate defense, nevertheless both ruled there were no facts relating to retaliation presented in the pleadings and affidavits. Having found the defense not germane, it is difficult to understand how either could consider the sufficiency of facts constituting retaliation. The conclusion reached by the majority which proclaims an absence of facts showing plaintiff was aware of the defendants’ complaints of his violation of the Peoria Building Code is contrary to my belief. The defendants started making rental payments to the Director of the Department of Environmental Development pursuant to section 16 — 113.5 on June 13, 1972. However, the plaintiff did not give defendants notice to vacate until a month later on July 13, 1972. It is stated in the affidavit of Frank E. Naven, Director of the Department of Environmental Development of the City of Peoria, that he notified plaintiff on June 13, 1972, the future rental payments on defendants’ apartment would be held in escrow until all violations had been corrected. In an affidavit by defendant, Kent Clore, he states in June, 1972, Mr. Harry Fredman stated more than once that no repairs would be made until defendants moved out. There is no denial by plaintiff of these facts nor does he at any time state he was not aware of the complaints made by defendants. In fact, he states in his affidavit notice was not initiated for retaliatory reasons but in preparation to upgrade the condition of the premises. No facts are stated in the affidavit and therefore, there is no basis to determine what his intention was for such plans for upgrading. The affidavit falls short of the requirements for an affidavit set forth in the Illinois Supreme Court Rules (Ill. Rev. Stat. 1971, eh. 110A, sec. 191), and therefore, could not in any event form a basis for summary judgment. Also, plaintiff’s affidavit by attempting to negate an inference of retaliation is an indication that plaintiff knew of defendants’ complaints of building code violations. Section 16— 118 of the Peoria Housing Code cited above, sets the requirements for establishing prima facie evidence of retaliation. Applying those requirements to this case; first, the defendants are not more than 30 days delinquent in rent at the time the owner gave notice of termination, and second, the defendants have not been convicted of creating a nuisance at the dwelling nor convicted of section 16 — 116 (Reckless Criminal Damage by Occupant) nor 16 — 117 (Wilful Criminal Damage by Occupant). Defendants have alleged these facts in tire pleadings and affidavits and it therefore seems to me a question of fact on the issue of retaliation is raised. Due to the fact it is not clear whether the trial judge ruled on the question of whether there were sufficient facts to constitute the defense of retaliatory eviction, I would reverse and remand directing the court to consider the defense.
FinaUy, I believe the trial court erred in denying defendants’ motion to consolidate this action with the prior action initiated by the defendants. The majority bases its affirmance of the denial on section 48, Subsection 1 (c) of the Civil Practice Act (Ill. Rev. Stat., ch. 110, par. 48, subpar. 1 (c)). Only a motion to dismiss is governed by this section. A different section of the Civil Practice Act, section 51 (Ill. Rev. Stat., ch. 110, par. 51), governs a motion to consolidate. It provides, * ° actions pending in the same court may be consolidated, as an aid to convenience, wherever it can be done without prejudice to a substantial right.” Under the Civil Practice Act, consolidation has been effected where parties are not the same and where the plaintiff in one action is the defendant in the other. (See, 3 Nichols Illinois Civil Practice, sec. 2530, at 144.) It is apparent the subject matter of the suits and the rights of plaintiff and defendants are the same in both actions. Since the two actions contained common questions of law and fact, it would be most convenient for the court to hear and determine the cases at the same time. Prejudice to a substantial right of a party is not likely to occur. If retaliation is an inappropriate defense as considered by the majority of the court, the necessity of consolidating the actions becomes even more apparent. Although consolidation is in essence discretionary with the court, I believe the court should have granted the motion to consolidate. However, standing alone, I do not consider such denial as reversible error.