Kosuri Venkata Subba Rao vs Kota Sarojini and Others

P. Ramakrishnam Raju, J.—This revision petition is filed by the petitioner-tenant in RCC No. 19/87 on the file of the Rent Controller, Tenali questioning the order made in LA. No. 1682/91 filed by him u/s 10 C.P.C. for stay of proceedings in the said RCC pending disposal of O.S. No. 124/83 on the file of the Additional Subordinate Judge''s Court, Tenali filed by him for specific performance of a contract for sale dated 8-8-1985.

The respondents filed RCC No. 19/87 under Sections 10(2) (i) (vi), 3(1)(b) and 3 (c) of the Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960 (hereinafter called as ''the Act'') against the petitioner for eviction on the ground that Kota Kasiviswanadham, Husband of the first respondent, purchased the premises in question from Alapati Mallikharjuna Rao, A. Janakamma, A. Ramachandra Rao and P. Lakshmirajyam and though they wanted the premises for their personal occupation the petitioner did not vacate the same and hence, they were constrained to file the said petition for eviction.

The petitioner is contesting the said petition. He has also deposited the rents in pursuance of an order passed by the learned Rent Controller u/s 11 (4) of the Act and is continuing to deposit. While so, the petitioner has also filed O.S. No. 124/88 on the file of the Subordinate Judge''s court, Tenali against the respondents herein, who are the alleged owners (whose names are stated above) and against some others viz., Sanka Venkateswarlu, A. Venkayya, Vemuri Subba Rao and Kommuru Ullaki for specific performance of an oral agreement of sale alleged to have been entered into between himself and the owners and the said suit is pending. The petitioner, now filed an application in I.A. No. 1618 of 1991 in RCC. No. 19/87 for stay of trial of the said RCC pending disposal of the suit in O.S.No. 124/88 alleging that the respondents have no valid title to the schedule property and as the question of title is in dispute in view of the oral contract of sale dated 8-8-1985 in his favour and as he filed the suit for specific performance, the trial of RCC should be stayed. I may observe that this petition does not even contain the grounds for stay, except stating that as the title to the property is in dispute stay of trial of RCC should be granted, pending disposal of the suit. The learned Rent Controller has dismissed the said application relying on a decision reported in M. Subbaratnayya v. Narasimha Swamy 1972(1) An.W.R. 105 that the Rent Controller is not a court and the proceeding before him is not suit so as to attract the application of Section 10 C.P.C. Aggrieved by the said order, the above revision petition if filed.

Sri. K. Srinivasa Murthy, the learned counsel for the petitioner contended before me relying upon a decision reported in Podugu Jayalakshmi v. Sahajadi Begum, CRP No. 2895/87, dt.23-7-1986 (of the learned single Judge) that the provisions of Section 10 C.P.C. have application to the Rent Control proceedings and therefore, theorder of the Rent Controller is unsustainable.

Mr. Naram Bhaskar Rao, the learned counsel for the respondents submitted that no exception can be taken to the view taken by the learned Rent Controller in view of the decision reported in Amrutlal v. Principal Rent Controller 1978 (2) ALT 102. So in view of the rival contentions the question that falls for consideration in this revision is whether Section 10 C.P.C. is applicable for a proceeding pending before the Rent Controller under the Rent Control Act. 6. Section 10 C.P.C. nay be usefully extracted here:-

"Section 10:-

Stay of suit:-No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in India having jurisdication to grant the relief claimed, or in any court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.

Explanation:- The pendency of a suit in a foreign court does not preclude the Courts in India from trying a suit founded on the same cause of action."

reading of this Section makes it clear that if the subject matter is the same in a previously instituted suit, the trial of subsequent suit can be stayed provided certain conditions are fulfilled.

In this case RCC 19/87 was filed in the year 1987, while O.S. No. 124/88 was filed on 20-7-1983. Since, O.S. No. 124/88 was not a suit previously instituted, this section has no application. On this ground alone, the Civil Revision petition can be disposed of. But however, both the counsel have argued about the applicability of Section 10 C.P.C to the proceeding filed under the Rent Control Act. Therefore, I propose to deal with the same in this Civil Revision petition.

Sri. K. Srinivasa Murthy, learned counsel for the petitioner contended that the provisions of the Section 10 C.P.C. are applicable to the proceeding under the Rent Control Act, relying upon a decision reported in (2) supra, wherein the learned single Judge relying upon a decision of the Supreme Court reported in P.V. Shetty Vs. B.S. Giridhar, observed as follows:-

"In these circumstances, when the title of the respondent is under cloud and the petitioner is claiming still to be the owner of the property then the appropriate forum to decide the dispute is the civil court considering from this perspective the Rent Controller can, in given circumstances, stay the proceedings till the suit is disposed."

In the case before the Supreme Court, the landlord filed a suit for eviction on the ground that the tenancy is determined. Prior to the institution of the said suit, the tenant filed an application before the Rent Controller for fixation of fair rent. In these circumstances, the Supreme Court observed. "Now it is an admitted position that the application for fixation of fair rent preceded the filing of the suit. Obviously, therefore, the just and proper approach balancing the equities would be to stay further hearing of the suit till the application for fixation of fair rent is decided". This decision does not lay down that a proceeding under the Rent Control Act can be stayed u/s 10 C.P.C. On the other hand, what is stayed is a civil suit filed for eviction, pending disposal of the proceeding before the Rent Controller for fixation of fair rent. Considering the facts and circumstances of that case, the Supreme Court adopted a just and fair course in the interests of justice by staying the civil suit. Therefore, it cannot be said that the applicability of Section 10 C.P.C to a proceeding before the Rent Controller under the Rent Control Act has been accepted by the Supreme Court.

Mr. N. Bhaskara Rao, the learned counsel for the respondents relied upon a decision reported in (3 supra) where in a Division Bench of this court considered this very question and relying upon a decision reported in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, held as follows:-

"Section 10 C.P.C cannot be availed of by the Rent Controller to stay the proceeding pending before him. The Rent Controller is not a Civil Court, though he performs the functions similar to a civil court and belongs to a judicial cadre. Therefore, it is not open to him to follow the procedure laid down in the CPC bypassing the procedure laid down in the Rent Control Act or the rules made thereunder except to the extent indicated in the proviso to Rule 22 of Andhra Pradesh Buildings (LR & E) Control Rules,1961. He is bound by the procedure prescribed by the Act and the Rules made thereunder."

In this decision the application of Section 151 C.P.C. the inherent powers of the court, to such a situation was also considered. In view of the binding authority of this bench decision, I am of the view that the provisions of Section 10 C.P.C. cannot be invoked to stay the proceeding pending before the Rent Controller under the Rent Control Act.

As already stated, the suit filed by the petitioner is based on an oral agreement of sale. He is seeking for a decree for specific performance of a contract, directing the defendants to execute and register the sale deed. Section 53-A of the Transfer of Property Act applies only to contracts in writing and signed by the party agreeing to transfer but not to oral contracts. In view of the said infirmity and also taking into consideration the fact that the petitioner has to still establish the truth and validity of the alleged oral contract, I am of the view that it would not be a just and proper course to stay the proceedings before the Rent Controller for eviction. It is always open to the Rent Controller to go into the question, whether there is denial of title of the landlord or not before disposing of the application for eviction.

For the fore-going discussion, the view taken by the learned Rent Controller is unassailable. This Revision petition is devoid of merits and is accordingly dismissed. No costs.