R. Babu (died) by LRs. vs P. Jai Raj

The appellant is the plaintiff in OS 93/81. He has preferred the appeal being aggrieved by the judgment and decree passed by the learned sub-Judge, Asifabad, in AS 8/85 dated 30-10-1987. The appellate Court set aside the judgment and decree passed by the District Munsif, Sirpur in OS 93/81 dated 18-2-1985, and dismissed the plaintiffs suit in its entirety.

Learned Counsel for the appellant contended that the appellate Court is in an error in dismissing the plaintiffs suit on the basis of the notification issued by the Government of Andhra Pradesh in G.O. Ms. No.412, dated 21-5-1983, in view of the fact that the said notification would not applyto the suit filed in the year 1981. The said notification also did not alter the jurisdiction of the existing Court. Therefore, the suit tiled prior to the said notification has got to be disposed of as per the law as on the date of filing of the suit and on the date of the filing of the suit in the year 1981, the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 was not applicable to Kagaznagar area, where the premises is situated. Therefore, the appellate Court misdirected itself in dismissing the plaintiffs suit relying upon the said notification.

Learned Counsel appearing for the respondents ostensibly supported the judgment and decree of the appellate Court.

In order to appreciate the rival contentions, I have to note the facts of this case briefly. I refer to the parties as per the ranking assigned in the trial Court as plaintiff and defendant. The plaintiff filed a suit for eviction and arrears of rent regarding the suit premises in question against the. defendant contending that the premises is boua ftdely required by him and that the defendant was defaulter in payment of the rent. The defendant, by filing the written statement, admitted that he was the lessee and further contended that the plaintiff himself has refused to receive the rents etc. The trial Court, on appreciation of the evidence, held that the plaintiff was entitled to recovery of possession, and regarding arrears of rent, it held that the plaintiff has received the same subsequently without there being a protest. Thus, there were no arrears of rent. However, it granted a decree for damages for Rs,70/- p.m. from 10-11-1981 till the date of delivery of possession with costs on payment of requisite Court fees on such damages, within one week, and in case of default of payment of such Court fees for damages from 10-11-1981, the suit would stand dismissed. Being aggrieved by this judgment and decree, the tenant preferred an appeal before the Sub-Judge at Asifabad in AS 8/85. From tlie last sentence in paragraph No.8 of the appellate Court judgment, I, find that no other argument was addressed except stating that the civil Court had no jurisdiction in view of the Government of Andhra Pradesh Notification in G.O. Ms. No.412 dated 21-5-1983 (published in A.P. Gazette Extraordinary No.202, dated 3-6-1983). The appellate Court, upholding the contention of the tenant, allowed the appeal and held that the suit was not maintainable and consequently dismissed the suit itt its entirety. It is in (liese circumstances, the plaintiff has preferred this Second Appeal before this Court.

As I have stated above, the only point that was urged by the tenant was regarding the maintainability of the suit in view of the Government notification in G.O. Ms. No.412, dated 21-5-83, and 1 have to see whether the reasoning assigned by the Courts below are sustainable and consequently whether the present suit filed by the plaintiff is maintainable or not.

The contention of the learned Counsel for the appellant is that the said notification in G.O. Ms. No.412 dated 21-5-83, by which the A.P. Rent Control Act is made applicable by implication to the premises in question was subsequent toihe filing of this suit, and the suit was filed in the year 1981. Such a notification making the A.P. Rent Control Act applicable would necessarily be prospective and it would not apply to the suit. There is substance in the argument of the Counsel for the appellant.

It is not disputed nor it can be disputed that the suit was filed in the year 1981. By notification dated 21-5-83 (published in A.P. Gazette Extraordinary No.202, dated 3-6-83), the Governmenl, by exercising its power u/s 389-A of the A.P. Municipalises Act, 1965, declared Kagaznagar area where (he suit property is-siluated as ''notified local area'' for the purpose of applications of the provisions of the A.P. Municipalities Acl, 1965. Clause 4 of the said section further provided that for the purpose of any provisions of the Municipalities Act, the committee appointed in the notified area shall be deemed to be a Municipal Council for the purpose of Municipalities Act, and the area shall be deemed lobe a Municipality. Section 1(2X) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, made the sa$ Act applicable to the cities of Hyderabad and Secunderabad and (o all the Municipalities in (he State of Andhra Pradesh. Thus, by virtue of the notification in G.O. Ms. No.412, dated 21-5-83, Kagaznagar area is notified as local area for the purpose of the Municipalities Act, and accordingly the committee appointed Municipal Council and the area was considered to be deemed Municipality. Thus, the A.P. Rent Control Act was made applicable to the Kagaznagar area. Regarding the applicability of the Rent Control Act on the basis of the notification, this Court in SA 715/88 dated 22-4-1999 (rendered by me) held regarding these suits filed subsequent to Ihe notification, that the Kagaznagar area is deemed Municipality, and therefore, the A.P. Rent Control Act applies. That was also the suit between the same parties. The said judgment has been followed in other cases i.e., in SA 708/88. And that was also the suit between the same parties. Those two suits were filed by the plaintiff after the notification dated 21-5-83. But, the present suit regarding some other premises has been filed prior to the said notification dated 21-5-83. As I have already stated above, it is the suit of the year 1981. In this view of the matter, the short question would be whether the said notification would apply to the suits which were already instituted prior to the notification.

A Full Bench of the High Court of Madras reported in Periathambi Goundan Vs. The District Revenue Officer, Coimbatore and Others, , was dealing with a similar situation. In Tamil Nadu Agricultural Land Record of Tenancy Rights Act, by Section 16-A, the jurisdiction of civil Courts was expressly excluded, to determine whether a particular person is a cultivating tenant or not. Therefore, the question before the Full Bench was whether the bar imposed by Section 16-A applies to the suits instituted prior to the coining in!o force of that section. By overruling its earlier decision reported in AIR 1976 Mad. 287, the Full Bench of the High Court of Madras, ruled as under :

"With the conclusion of the Bench that the civil Court''s jurisdiction is expressly excluded in respect of the question whether a particular person is a cultivating tenant or not we agree and we shall indicate our reasons further in the course of this judgment. However, the actual conclusion of the Bench is not correct. We have already referred to the fact that the suit in that case was OS 547/71, that is, a suit instituted before the coming into force of Section 16-A of the Act, which came into force only on 27-11 -72. Before the introduction of Section 16-A, there was no provision in the Act excluding the jurisdiction of the civil Court on any matter. Consequently, the suit OS No.547 of 1971, which involved the determination of the question whether a particular person was a cultivating tenant or not was competently instituted in a civil Court and the civil Court had jurisdiction to decide that controversy. The language of Section 16-A neither expressly nor by necessary implication takes away that jurisdiction. If the intention of the Legislature was that Section 16-A should apply even to suits instituted before its introduction, it would have provided for as to what should happen to those suits. Once a suit is competently instituted in a civil Court, that suit must terminate in one of the methods known to law, namely, either it is dismissed or it is decreed, and cannot be left in the air. If it was the intention of the Legislature that the moment Section 16-A came into force, even pending suits in respect of matters covered by Section 16-A should not be proceeded with, the Legislature would have provided for the abatement of those suits or the dismissal of those suits or transfer of the matter covered by those suits to the appropriate authority under the Act. The Legislature not having made any such provision, it is indisputably clear that Section 16-A was not intended to and could not affect any suit instituted prior to its introduction, even when the suit was in respect of a matter covered by Section 16-A."

From the above judgment of the Full Bench of the Madras High Court, it is clear that unless the intention of the Legislature was to apply the Act even to the pending suits in respect of the matters covered by Section 16-A, the subsequent Act would not apply to the pending suits. They held that though Section 16-A provided-exclusive jurisdiction with the authority under Tamil Nadu Agricultural Land Record of Tenancy Act, but the Act did not make any provision regarding the suits which were already instituted prior to the commencement of Section 16-A of the Act. It held that in the absence of any such provision, the new Act would not affect the existing suits. In fact, the Full Bench in substance followed the judgment of the Supreme Court reported in Dewaji Vs. Ganpatlal, . In this judgment, the Hon''ble Supreme Court has held that Bcrar Regulations of Agricultural Lease Amendment Act of 1953, was not made applicable to the pending appeals, and consequently held that Sections 16 and 16-A of 1953 Act do not bar the jurisdiction of the civil Courts, regarding the appeal that was pending as on the date of the commencement of the amendment Act.

From this law declared by the Supreme Court also, it is clear that unless the intention of the subsequent Act or notification was to make such act or notification applicable to the pending proceedings, the pending proceedings would not be affected.

A similar question also arose before the Division Bench of this Court''reported in K.S. Shafeeq Vs. Mohammadi Begum, . The A.P. Rent Control Act (15 of 1960) repealed the Hyderabad Houses (Rent, Eviction and Lease Control Act (20 of 1954) and as on the date of commencement of A.P. Rent Control Act, I960, the proceedings under the old Act were pending. But, the question was raised in the proceedings by the tenant that the premises in question was exempted under the new Act from the provisions oftlie A.P. Rent Control Act. Negating this contention, the Division Bench of this 1 ligh Court observed as under:

"When the 1960 Act is not applicable to the pending cases including Section 10(4), the Notification issued under that section automatically becomes inapplicable. The Notification does not mention that the Notification is also issued tinder Section 15(4) of the 1954 Act In the absence of any such notification under the repealed Act, the pending cases will have to be disposed of in accordance with the law as it stood on the date when the proceedings had started"

From the above judgment of this Court regarding the A.P. Rent Control Act, 1960, which is in force now, it is clear that the proceedings instituted prior to the commencement of the Act have got to be disposed of according to the oid Act. From this judgment, it is clear that notwithstanding the fact that the Rent Control Act commenced in the notified area as per G.O. Ms. No.4!2, dated 21-5-83, the proceedings instituted prior to that notification shall have to be disposed of in accordance with law existing as on the date of the institution or starting of the proceedings. In view of the consistent law of Madras High Court, this High Court, as well as the Supreme Court, the only conclusion possible is that the proceedings that were instituted and started prior to (he commencement of the notification dated 21-5-83, have got to be disposed of according to the law as existed as on the date of the suit.

In the instant case, the suit was filed in the year 1981 and as on the date, there was no bar for the civil Courts to order for eviction of the tenant. But, the appellate Court misdirected itself in not noticing the commencement of the civil suit in the year 1981 itself, whereas the notification declaring Kagaznagar as Municipality consequently making the A.P. Rent Control Act applicable, was only w.e.f. 21-5-83 and if that is so to the present suit, the A.P. Rent Control Act of 1960 would not be applicable, and the present suit would not be barred. In this view of the mailer, the judgment of the appellate Court holding that the provisions of the A.P. Rent Control Act would be applicable to the suit in question cannot be sustained.

Accordingly, the impugned judgment and decree of the appellate Court is liable to be set aside. Hence, the judgment and decree passed by the Sub-Judge, Asifabad in AS 8/85, dated 30-10-1987 is hereby set aside by restoring the judgment and decree of the District Munsif, Sirpur passed in OS 93/81 dated 18-2-85. But, having regard to the facts and circumstances of this case, I think it appropriate to grant six months time from today to the tenant-respondent to vacate and deliver the premises in question to the appellant, subject to the payment of agreed rent of Rs.70/- p.m. including arrears for all these years, if not already paid, within a period of two months from today, and in case of default, the decree becomes excculable forthwith notwithstanding the six months time granted .Jo the tenant-respondent for vacating the premises.

In the result, the Second Appeal is allowed. In the circumstances of the case, the parties shall bear their own costs.