Koneru Aruna Kumari vs Shaik Ali

These two revision petitions are preferred against the orders passed by the Rent Controller, Vijaywada, in E.A.No.14 of 1985 and E.A.21 of 1985 in E.P.No.4 of 1985. E.A.No.14 of 1985 was filed by a third party who claims to be the tenant, under S.151, C.P.C. read with R.23(7) of Act 15 of 1960 for restoration of possession of the petition schedule premises to him. E.A. No.21 of 1985 was filed under O.39, R.2(a), C.P.C. read with S.151, C.P.C. to order detention of the landlady in civil prison. Both the petitions were allowed by the lower Court. Aggrieved by the said orders, the landlady preferred these two revision petitions.

The Court below came to the conclusion that the tenancy is between the third party who filed the petition and the 1st respondent and the alleged tenancy that has been stated in the main Rent Control petition that the tenancy is between the landlady and K. Koteswara Rao who is the 2nd respondent is not correct and ultimately ordered redelivery of possession. In its elaborate order, after considering the written arguments submitted by both the parties, the Court below came to the conclusion that what has been placed by the third party who is the tenant is correct. Some other civil suits were also filed in connection with the same premises after filing of these applications. Now we are not concerned with those applications.

The main controversy that has to be resolved in these revision petitions is whether there is any tenancy that has been created in favour of the third party who filed the application and who is the 1st respondent in these revision petitions.

The very fact that so many documents that have been exhibited in this case, i.e., tax receipts issued by the Municipality and also the receipts issued by the State Electricity Board show that P.W.1, who is the third party, is in possession of the suit premises. Ex.B7 dated 1-4-1974 is a Rent Agreement that is said to have been relied upon by the landlady. But that agreement appears to be a brought out document and the reasons given by the lower Court in arriving at the conclusion about the genuine nature of Ex.B7 is correct. Koya Koteswara Rao, in whose favour the alleged tenancy has been created under Ex.B7 is a close relation to the husband of the petitioner-landlady who is looking after the affairs and who is also present at the time of the execution proceedings, was not examined. The non-examination of the husband of the petitioner-landlady and the non-admission of the alleged tenancy either during the pendency of the Rent Control proceedings or after these petitions have been filed clinchingly establishes that he was only set up for the purpose of getting eviction in the name of Koteswara Rao. Ex.B14 and B16 are the legal notices exchanged between the landlady and K. Koteswara Rao. But those documents appear to have been emanated from one and the same advocate who has given up his Vakalat and who has withdrawn from the case after these applications have been filed. Ex.B7 and the endorsement made at the end of Ex. B7 and the issuance of notices ExsB14 and B16 by the same Advocate who appeared for them show any amount of doubt about the bona fide nature of the claim that has been set up by the landlady in seeking eviction. It is to be noted that one of the grounds that have been taken is that the said Koteswara Rao had sub-leased the premises. No mention has been made about the name of the sub-tenant or the subtenant was not impleaded as a party. No doubt the eviction order that has been passed against the tenant can be executed against the sub-tenant but the conduct of the landlady in not impleading the sub-tenant also who was actually on the land shows that they want to obtain an order behind the back of the person who was actually in possession of the land as a tenant.

The tenancy that is said to have been entered into is between the husband of the landlady and the third-party petitioners in the E, As. and the payment is only by cash and no receipts have been passed. The evidence of P.W.1 shows that even prior to the filling of the petitions, they refused to receive the same and therefore, he sent the amount by money orders and the money orders were returned. The claiming evidence about the refusal of the money orders and the filing of the application without impleading the person who is actually in possession and impleading a person who is closely related and obtaining an ex parte decree shows that all are suspicious circumstances which will be accepted by any Court without any hesitation. The execution is said to have been taken on 11-2-1985. On that day the third party claims that he has gone to Tirupathi in connection with a marriage and he was informed about it on his return on the very same day and in that connection he produced the counterfoil of flight ticket and boarding pass. All these circumstances coupled with the electricity receipts and the Municipal tax receipts and the permission granted by the Municipality show that the third party petitioner is the tenant.

The Sower Court is perfectly justified in ordring restoration. However, it has been contended by the petitioner-landlady that there is no provision for restoration in the Act and the third party has no right to file an application. The evidence of R.W-3 who produced Exs.C-1 to C-3 is left in doubt and on a close reading of the evidence of R.Ws.1 to 3 it is clear that they are manipulated documents and the possession of the premises has not been delivered as stated by them and particularly with regard to the telephone that is available therein, there is any amount of discrepancy.

Rule 23(6) of the A.P. Building (Lease, Rent and Eviction) Control Rules, 1961 relates to delivery of property by removing any person in possession and by opening any lock or bolt or break open any door or do any other act necessary for putting any person entitled for possession in pursuance of the order of eviction. Rule 23(7) provides that if such execution as referred to in R. 23(6) is resisted and obstructed by any person other than the person against whom an order of eviction was passed, the Controller may hold a summary enquiry into the facts of the case and if it is satisfied that the resistance or obstruction was without any just cause, and that such resistance and obstruction still continues shall issue a warrant to evict the said person by force and deliver the possession of the building to the person entitled for possession in pursuance of the order of eviction.

They very fact of enquiry and disallowing the execution petition goes to show that even third parties or the tenant can file a petition under R.23(7) and it cannot be canvassed that the petition shall be filed only by the decree-holder landlord. No landlord decree-holder will file an application to get the execution disallowed. In this case, the case of the petitioner is that the eviction order has been obtained against a person who is not at all a tenant. In that connection he relied upon a decision of this Court in R. Lilavathi v. Dandu Bala Narasaiah 1978 (2) An WR 317. In that case an eviction petition was filed against a dead person and after obtaining eviction order, the same was executed against the dead person''s family members and the landlord raised a contention that he is unable to redeliver the premises and, it was let out to third parties after taking delivery. The High Court ordered eviction of the third party who is residing at the time of passing the order and ordered redelivery to the petitioner. Jeevan Reddy, J., in that case placing reliance on a decision of the Supreme Court reported in Busching Schmitz Private Limited Vs. P.T. Menghani and Another, observed that an act of the Court should not prejudice a party and that whenever it is brought to the notice of the Court, that it has been made a party to a thoroughly illegal and void order, either by misrepresentation of facts, or by playing fraud upon it, it should have the power to rectify the wrong. The Court cannot say that while it can be a party to a wrong law or wrong order, it has no power to remedy the same.

Applying the above reasoning to the present case, even assuming for a moment that R.23(7) of the Rules does not contemplate filing of such petition, still this Court finds that the Tribunal has always the power to take the aid of the inherent power or to meet the ends of justice to rectify the injustice brought out by an order that has been passed by it. In this case, on facts, the eviction order has been obtained against a person who is not the tenant. Fraud has been played on the Court in obtaining the order of eviction by showing a fictitious person and not showing the real person who is a tenant. The execution was sought to be taken place on the day when it was found that the tenant was not at Vijayawada on that day i.e., on 11-2-1985. When the Court came to the conclusion on facts that fraud has been played on the Court and consequently a wrong order was passed, it is the duty of the very same Court by setting aside the wrong order and place the parties in the same possession as they were before the passing of the order in that petition. Merely because delivery has been ordered which is very much doubtful due to the conduct of R.W-3 and with the background of punish- ment imposed while he was working as Amin, it cannot be said that the execution has been completed. On a reading of the evidence it can be said that what has been pleaded by the third party who filed the petition that he is the tenant appears to be correct. The lower Court was perfectly justified in ordering restoration of possession.

With regard to the contempt proceedings and punishment imposed on the landlady for two months, it can be said that she was ill-advised and on account of the wrong advice she took that step and she should not be sent to jail though it is a fit case to award maximum punishment as she has flouted the injunction order by demolishing the shed. Therefore, the order of punishment of simple imprisonment for two months in the civil prison imposed on the landlady i.e., petitioner herein is set aside and the order of redelivery that has been ordered has been confirmed.

Both the revision petitions are accordingly dismissed with the above modification. No costs. The landlady is at liberty to take appropriate steps if she is so advised by filing a regular application against the tenant.

Petitions dismissed.