Mirza (Mohammad) and another vs K. Balakistaiah and others

Lakshmaiah

This is an appeal by the defendants directed against the judgment and decree of the learned V Additional Judge, City Civil Court, Hyderabad dated March 17, 1972 by which the suit instituted by the respondents herein was decreed. That suit was filed to put the respondents in vacant possession of the premises 12-5-920 to 925 including Damdam situated at Charminar Chowk Maidankhan Hyderabad evicting the appellant and to pass a decree for an amount of Rs. 2,863-25 ps. as compensation for use and occupation and for future compensation from the date of the suit till the date of delivery of possession.

The facts of the case necessary for the disposal of this appeal may briefly be stated. The plaintiffs are the owners of the premises in question. These defendant obtained from the plaintiffs father the premises in question by executing a rental deed dated 26th October, 1959 on a monthly rent of Rs. 300/- for running a hotel known as Minar Cafe. That rental deed was for a period of 11 months. Subsequent to the expiration of that period the 1st defendant continued in possession as tenant on the same terms and conditions by paying rents to the father of the plaintiffs. The father of the plaintiffs died in January, 1968 and the 1st defendant accepted the landlordship of the plaintiffs and paid rents to them only after the death of their father. Thus the plaintiff''s according to the plaint, are landlords and the 1st defendant has been the tenant of the plaintiffs for the said premises. The 1st defendant had to pay rents from December, 1968 to the end of September, 1969 and the 1st defendant paid only Rs. 2,556.76 and the balance is recoverable from the 1st defendant.

The 1st defendant, two years prior to the filling of the suit obtained a portion consisting of two rooms and the 1st floor of the said premises known as "Damdam" and agreed to pay Rs. 75/- monthly as rent for the said premises only for one month but he did not vacate the said portion after the expiration of the said month and therefore he is liable to pay rent for the said premises at the rate of Rs. 75/- p.m. The defendant-1 committed wilful default in the payment of rents due and is liable to be evicted from the suit premises and that the plaintiffs are entitled to collect the said dues from 1st defendant under law.

The Ist defendant sublet the portions of the said premises to 2nd defendant without any permission from the plaintiffs and that is contrary to the terms of the tenancy and on that ground also the defendants are liable to be evicted.

1st defendant has also obtained on rent premises belonging to one Anjayya, uncle of the plaintiffs, the premises situated by the side of the plaintiffs'' premises The 1st defendant without the permission of the plaintiffs got removed the wall in between the premises rented out by the plaintiffs to the 1st defendant and the premises belonging to Anjayya and combined both the premises. The material value and utility of the premises have thus been impaired by the 1st defendant and on this ground also the defendants are liable to vacate it, Plaintiffs issued notice u/s 106 of the Transfer of Properly Act on 24-1-1969 and got terminated the tenancy of 1st defendant and there is on relationship of landlord and tenant between the plaintiffs and 1st defendant. Therefore, the plaintiffs are entitled to get back possession of the premises from the defendants--

Paragraph 13 of the plaint is important and it reads thus :--

That the tenancy contract is dated 26-10-1959 and the premises is reconstructed again in 1958. Hence as per the decision of A.P. High Court regarding Section 3 of the Hyderabad Building (Rent, Lease, & Eviction) Control, Act, this Honourable Court is competent to try this suit.

The written statement filed by defendants 1 and 2 shows that the defendant is being continued even after the expiry of the period fixed by the registered rental deed dt. 26-10-1959 entered into between the plaintiffs'' father on the one hand and the 1st defendant on the other. They were not in arrears and that the 1st defendant did sublet the premises and there was no impairment of the utility and material value of the premises.

The avertments contained in paragraph 13 of the plaint was answered in paragraph 12 of the written statement thus:

That the suit house was purchased from H.E.H. the Nizam for Rs. 12,000 just one or two years before the commencement of the suit tenancy. It was a pucca building in a very good condition. It was never demolished nor reconstructed in 1958. The same building which was purchased by late K. Ramaswamy is standing still. Adverse allegations in this regard either on facts of law are incorrect. As the suit premises was not reconstructed after 1957, A.P. Buildings (Lease, Rent and Eviction) Control Act No. 15 of 1960 is applicable to the present suit and the Rent Controller atone is competent to try such action. As such the Honourable Court has no jurisdiction to try the present suit. On this ground alone, the suit is liable to be dismissed without going into other aspects of the suit. Hence para 13 of the plaint is false and incorrect and hereby denied. The plaintiffs are put to strict proof of the facts mentioned in para under reply.

The assertion that the trial Court has no jurisdiction was repeated in paragraph 15 of the written statement. The court below on the aforesaid pleadings framed appropriate issues and found that there were no arrears due and the building in question was not a new building and it is only a old building and that the rent for dumdama is only Rs. 25 and the suit it maintainable in a civil court, the suit was however decreed.

Learned counsel for the appellants raised the contention that the civil court has no jurisdiction to entertain this suit.

Sri B.P. Jeevan Reddi, learned counsel for the plaintiffs-respondents on the other hand contended for the position that as per the decision in the case of G. Eswariah v. Mahendrappakhani 1969 (2) A.L.T. 8 = (2) A.P.L.J. 66 the suit is maintainable. As the arguments are directed mainly against this point, I propose do deal with the same.

The point therefore that arises for consideration is whether the suit premises is the one to which the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eeviction) Control Act, 1960, (hereinafter referred to merely as ''the Act'') are applicable and whether the suit is maintainable and the civil court has no jurisdiction to entertain this suit?

Issues 1 and 2 framed by the Court below reads thus:--

Whether the suit premises was reconstructed in 1958 and as such the court is competent to entertain the suit for eviction ?

Whether the notice dated 24-1-1969 issued by the plaintiff under S. 106 T.P. Act is valid and thereby the suit tenancy is determined ?

The finding was that the civil court is competent to entertain the suit and that the notice dated 24-1-69 is valid and the tenancy has been validly terminated.

In paragraph 18 the learned Judge observed :

Admittedly, the suit premises was purchased by the plaintiffs father before August, 1957 and it was let out to 1st defendant under Ex. A-1 on 26-10-1959.

The learned Judge also upheld the contention of the learned counsel for the appellant to the effect that the suit premises was not constructed after 26-8-1957 and the question is whether the provisions of the Act are applicable to the building in question.

The building was constructed only before 26th August, 1957, as per the findings of the court below and, therefore u/s 32 of the Act, the provisions of the Act apply to the building in question. There is no other provision contained in the Act brought to my notice to show as to how the provisions of the Act are not applicable to the building in question. But the court below proceeded on the assumption that the agreement entered into between the landlord and the tenant on 26-10-1959 Ex. A-1 is hit by Sec. 23 of the Indian Contract Act and placing reliance upon the decision reported in G. Eshwariah v. Mahendrappa Kheni 1969 (2) ALT 8 1969 (2) APLJ 66 the learned Judge held that the provisions of the Act are not applicable to the building in question.

On a persual of the aforesaid judgment, there absolutely nothing to show as to how the provisions of the Act are not applicable to the building in question. The decision, there was to the effect that an agreement entered into between the landlord and the tenant contrary to the provisions of the Act is hit by Sec. 23 of the Contract Act but there was no occasion for this court to go into the question whether or not the provisions of the Act are applicable to a building like the one with which we are now for the present concerned.

The learned Judge, in paragraph 19 observed that there is no evidence to show as to who occupied the suit premises prior to the 1st defendant. There was also no evidence to show to that the plaintiff''s father issued a notice under Sec. 3 of the Hyderabad Houses (Rent, Eviction & Lease) Control, Act, 1954 intimating the vacancy to the controller before letting it out to the 1st defendant. Sub-section (1) of Sec. 3 of the Hyderabad Act was then referred Corresponding provision in the Andhra Pradesh Act also was noticed. In that connection the lower court held thus:

If the landlord failed to intimate the fact of vacancy to the Controller or the officer authorised in that behalf by the Government, the contract of lease becomes void and unenforceable. Consequently neither the landlord nor the tenant can have recourse to the provisions of the Rent Control Act. Hence the remedy open to the landlord seeking eviction of the tenant of a building constructed prior to August, 1957 is only by way of suit in a Civil Court.

Sri C. Narasimhacharya, learned counsel for the appellant submitted that the building being given on lease to the 1st defendant in contravention of Sec. 3 of the Act was never pleaded by the plaintiffs, and the court below suo motu entertained that plea and decided and, as such the 1st defendant suffered irreparable loss on account of such a point being taken without notice to the 1st defendant. On a persual of paragraph 13 contained in the plaint referred to already along with the corresponding paragraph relating thereto contained in the written statement referred to already, I am satisfied that there was no foundation laid down for the plea taken note of by the court below to the effect that the leasing out of the premises in question by the plaintiff''s father in favour of the 1st defendant is in contravention of sub-section (1) of section 3 of the Act. On that very ground, the suit is liable to be dismissed.

Nevertheless, it is proposed to deal with the tenability of the contention raised to the effect that such a lease entered into in contravention of the provisions of the Act does not any the less render the provisions of the inapplicable to the building in question. In the first place, barring section 32 (b), there is no other provision contained in the Act to the effect that whenever any building is leased out by the landlord who did not comply with sub-sec. (1) of Sec, 3 of the Act, the provisions of the Act will not apply to such a building in question. Now, we shall consider the impact of such an agreement in violation of section 3 (1) on the applicability of the Act to the building in question.

Sub-section (1) [a] of section 3 provides for giving a notice of vacancy in writing by the landlord to the officer authorised in that behalf by the Government whenever the building becomes vacant under the circumstances stated therein. Under sub-section (3) if within 15 days of the receipt by the authorised officer of a notice under sub-section (1) or subsection (2) the Government or the authorised officer does not intimate to the landlord in writing that the building is required for the purpose of the State Government or the Central Government or of any public institution under the control of any officer of such Government the landlord shall be at liberty to let the building to any tenant or to occupy it himself Subsection (5) prohibits the landlord from letting the building to a tenant and prohibits him to occupy it himself before the expiry of the period of 15 days specified in sub-section (3) unless before then, he has received intimation that the building is not required for the purpose or for occupationally any of the effects specified in that sub-section. Under sub-section (8) any officer empowered by the Government may summarily dispossess any landlord, tenant or other person occupying any building in contravention of the provisions of the section.

What is manifest from a reading of the relevant provisions of section 3 of the Act is that an obligation is cast upon the landlord to intimate the vacancy to an authorised officer and that landlord is prohibited from letting out the building or occupying it for himself before the expiration of the period of 15 days specified in sub-section (3) and the purpose of Subsection (3) is to have the building allotted for the purpose of the State Government or the Central Government or to any local authority or of any public institution under the control of any officer of such Government and if in contravention of the provisions of that section, the landlord or tenant or other person occupies such building, he is liable to be summarily dispossessed under sub-section (8) (a) of the Act. It is therefore clear that any agreement entered into between the landlord and the tenant in contravention of section 3 is not binding upon the authorities concerned. It is always open to the authorities concerned to dispossess summarily the landlord or the tenant or any person who is in occupation of the building in contravention of the provisions of that section.

I therefore find that the existence of an agreement entered into between the landlord and tenant with respect to a building occupied in contravention of section 3 of the Act will not have the effect of rendering the provisions of the Act inapplicable to such a building. Section 3 is intended for enabling the authorities concerned to have it allotted for the purposes mentioned in sub-section (3) of section 3 of the Act. It is only for the purposes of enabling them to achieve that purpose mentioned in sub-section (3) that the requirement of intimation of vacancy by the landlord is provided for under sub-section (1). It is always open to the authorities concerned to dispossess the tenant, landlord or any other person in possession of a building in contravention of section 3 of the Act.

If we bear in mind that the object of the Act is to protect the tenant mainly, the tenant should not be deprived of that protection on account of himself being told by the landlord who entered into an agreement of lease with the tenant in contravention of section 3 of the Act. Whether or not there was a contravention of section 3 (1) of the Act, is a matter which lies exclusively within the knowledge of the landlord. If such landlord enters into an agreement with the tenant, the tenant, for whose protection the Act is intended, should not be deprived of the protection under the Act. It is in this connection reliance was placed upon a decision rendered in the case of Murlidhar Aggarwal and Another Vs. State of Uttar Pradesh and Others, That was a case where an agreement was entered into between the landlord and the tenant contrary to the provisions of the Uttar Pradesh (Temporary) control of Rent and Eviction Act, 1947. A contention was raised to the effect that because of that agreement was opposed to law, the person in whose favour the landlord entered into an agreement cannot be considered to be tenant. In this connection, justice Mathew speaking for the Court said in paragraph 16 of the report thus:

''......In Udhoo Das v. Pream Prakash'' [1963 All. L.J. 406=A.I.R. 1964 All. I (FB)] a Full Bench of the Allahabad High Court took the view that a lease made in violation of the provisions of sec. (7) (2) would be valid between the parties and would create the relationship of landlord and tenant between them although it might not bind the authorities concerned. In the light of this ruling the correctness of which we see no reason to doubt we think that the respondent was a tenant. The respondent has been paying the rent to Ram Swaroop Gupta and to the applicants after the sale by him to the appellants. "Tenant" is defined under S. 2(g) of the Act as follows;

"Tenant" means the person by whom rent is, or but for a contract express or impled, would be payable for any accommodation.

It is an admitted case that in the year 1959 an agreement of lease evidenced by Ex. A-1 was entered into between the plaintiff''s father on the one hand and the 1st defendant on the other. Even subsequent to the death of the plaintiff''s father, the 1st defendant accepted the plaintiffs as his landlords and the plaintiffs accepted the 1st defendant as their tenant and subsequent to expiration of the period prescribed under Ex. A-1, the 1st defendant continued in possession paying the rent accepted by the plaintiffs. Therefore, the plaintiffs are estopped form questioning the Status of the appellant as tenant. The landlord, under those circumstances, cannot prevent persons like the appellants from being benefited out of the Act which was primarily enacted with a view to affording protection to the tenants.

Far from there being anything contained in the Act, providing for the exclusion of the applicability of the provisions of the Act to a building like the one in question. I am satisfied having regard to the object of the Act and particularly that of section 3, the provisions contained in the Act are applicable to the building in question and as such, the civil court has no jurisdiction to entertain this suit and these are all matters that shall have to be adjudicated upon before specially constituted statutory Tribunal under the Act.

I hold therefore that the civil court has no jurisdiction and the decree and judgment of the court below are liable to be set aside. The appeal is accordingly allowed with costs and decree and judgement of the court below are set aside. In view of this, it is unnecessary to go into the other questions.