V. Murali Krishna vs Servel Traders and Others

P. Venkatarama Reddy, J.—This C.R.P. u/s 22 of the A.P.Buildings (Lease, Rent and Eviction) Control Act (hereinafter referred to as ''the Act'') is filed by the landlord of a building bearing No. 1-2-333/B situate at Gagan Mahal Road, Hyderabad. The original owner of the building was one V.S. Ganapathiram who is the father-inlaw of the 2nd respondent herein. The 2nd respondent in his capacity as proprietor of M/ s Servel Traders (1st respondent) took the building on lease on a monthly rental of Rs. 500/- on 26-4-1974. Alleging that there was default in payment of rent and on certain other grounds which it is not necessary to refer to, Sri Ganapathiram filed an eviction petition u/s 10 of the Act which was numbered as R.C.No. 408/85. The filing of this Rent Control case was preceded by two suits filed by Sri Ganapathiram for possession and recovery '' of arrears of rent. The suits were dismissed so far as the relief of possession was concerned. Thereafter, the present Rent Case was filed. During the pendency of the eviction petition, the landlord filed LA.1617/85 u/s 11 of the Act praying the Rent Controller to direct the respondent-tenant to pay a sum of Rs. 62,192/- towards arrears of rent and till then not to permit the tenant to contest the eviction petition. That application was dismissed by the Rent Controller. After the dismissal of the said LA., the landlord Sri Ganapathiram died on 15-7-1988. The petitioner herein who is the son of late Ganapathiram came on record as his legal representative claiming .exclusive right over the build ing under a registered will executed by his father. Against the order of the Rent Controller dismissing the application u/s 11, the petitioner herein filed an appeal - R. A.No. 357/88. During the pendency of the appeal, the 3rd respondent herein who is the daughter of Sri Ganapathiram and the wife of the 2nd respondent and one Sri V. Aditya the second son of late Ganapathiram were brought on record as respondents 3 and 4. It may be noted here that Sri. Aditya did not put forward any claim over the demised property. The Appellate Authority (Chief Judge, City Small Causes Court) by an order dated 21-3-1990 set aside the order of the Rent Controller and remanded the matter to the Rent Controller directing him to enquire into and dispose of the main eviction petition itself. Aggrieved by the said order, the petitioner preferred revision in C.R.P. No. 2077/90. This Court by an order dated 26-6-1991, allowed the C.R.P. on the short ground that the Appellate Authority should not have remanded the matter in view of an earlier decision of this Court and set aside the order of the Appellate Authority who was directed to dispose of the appeal on merits. Thereafter, evidence-both oral and documentary, was allowed to be adduced by the appellate authority. The petitioner who was examined as P.W. 1 before the Rent Controller was recalled and cross-examined. Respondent No. 2 (tenant) and Respondent No. 3 (tenant''s wife) were also examined as R.Ws 2 and 3. In the counter filed in reply to Section 11 application, the 2nd respondent took the stand that the Civil suits filed by the landlord for arrears of rent and mesne profits were pending and therefore the application was not maintainable. Another and more important point of defence taken was that there was a settlement between the petitioner''s father and 3rd respondent (wife of tenant) at the instance of common friends and pursuant to that settlement, the 3rd respondent has a vested right to the suit property apart from his own rights in law.

On the basis of the pleadings, the following point was framed for consideration by the Appellate Authority : Whether the denial of title of the petitioner for the demised premises by respondents 1 to 3 is bona fide; If so, whether LA. 1617/85 is liable to be dismissed ? On a discussion of the oral and documentary evidence and the probabilities, the Appellate Authority in his order dated 2-2-1993 answered the above points in the negative. He held that R.Ws 1 and 2 could not even make out a prima facie case about the existence of family settlement and the plea itself was a belated one. It was also held that there were no bona fides on the part of R.Ws 1 and 2 (Respondents 2 and 3 herein) in denying title of the landlord. The appeal was therefore allowed and the tenant was directed to deposit the arrears of rent uptodate after giving credit to payments, if any, made by him, within 15 days failing which it was stated that the order u/s 11 (4) of the Act would follow.

Respondents 1 to 3 filed a revision against mis order in C.R.P.No. 735/93. This Court by its judgment dated 12-4-93 dismissed the C.R.P. and granted fifteen days'' time to the revision petitioners to comply with the directions as to deposit of rent failing which it was directed that an order u/s 11 (4) shall follow. This Court negatived the contention of the revision petitioners that what was conducted by the appellate court was only a summary enquiry and that due opportunity was not given to the petitioner herein to substantiate the plea of family settlement. This Court further held that "the Appellate Judge is perfectly correct in coming to the conclusion that the denial of title by the revision petitioners herein is not bona fide". It was also held that the Appellate Authority was well justified in directing the deposit of arrears of rent. Thereafter, the matter was carried in SLP to the Supreme Court. While dismissing the S.L.P., the Supreme Court directed the tenant to deposit a sum of Rs. 1 lakh in the Court of the Rent Controller on or before 5th July, 1993 failing which, it was directed, that the order u/s 11 (4) should follow. It appeas that the tenant has deposited the said sum.

Thereafter, the main eviction petition - R.C. 408/85 was taken up for hearing by the Rent Controller. Before the Rent Controller, the learned advocate for the petitioner submitted that in view of the findings given by the Appellate Authority in R.A. 357/88, he did not want to adduce any evidence on behalf of the petitioner-landlord. The tenant''s advocate also represented that there was no need to examine any witness on his behalf as the petitioner did not choose to adduce any evidence. When the matter was posted for arguments, Respondent No. 3 (wife of the tenant) filed a petition to permit her to adduce evidence with regard to the alleged bom fide requirement of the landlord. The learned Rent Controller having dismissed that application holding that it was unnecessary, proceeded to hear the arguments in the R.C. and allowed the petition directing Respondents 1 and 2 to put the petitioner in possession of the demised premises within three months. The learned Rent Controller considered the findings given by the Appellate Authority in Section 11 petition which was affirmed by the High Court as binding on him and held that the tenant was liable for eviction on the ground of denial of landlord''s title without bona fides. On appeal by the tenants (Respondents 1 and 2 herein), the Addl. Chief Judge, City Small Causes Court allowed the appeal. I shall now refer to the judgment of the Appellate Court-the approach of the learned Judge and the conclusions recorded by him. The Appellate Court having adverted to the contentions of Respondents 1 and 2 that they did not deny title of the petitioner but merely denied the relationship of landlord and tenant, extracted Paragraph 11 of the Counter filed in the R.C, it is stated in Paragraph 11:

"On account of settlement between the petitioner and his only daughter, Smt. A. Girija, Respondent-2''s wife, through the mediation of common friends and relations, the suit house was agreed to be sold to Respondent2 herein or given to his wife in lieu of her claim in O.S.No. 316/80 now pending in the Court of Additional Chief Judge, City Civil Court, Hyderabad. In part performance thereof, Smt. A. Girija is in possession of the suit house in her own right. Hence she is a necessary and proper party to the petition".

The learned Judge commented that there are no bona fides on the part of the respondents in denying the title of the Appellant". That question was not directly answered by the learned Judge. He switched over to the discussion on some other aspect. However, in Paragraph 12 of the Judgment, the Appellate Judge proceeded on the basis that the Respondents-Tenants did not specifically deny the title of the petitioner and that in the absence of pleading, the Appellate Authority while disposing of R.A. 357/88 should not have permitted the respondents to lead evidence denying landlord''s title in respect of the suit premises. It was commented that the evidence of R.Ws. 1 and 2 in R.A. 7/88 should not be looked into the absence of pleading. The Appellate Judge therefore commented that the finding given in R.A. 357/88 was contrary to law, and therefore he was not bound by the said finding, which was adopted by the Rent Controller. He then observed that it was not open for the Court to make out a new case in favour of the petitioner and order eviction on the ground of denial of title. The Appellate Judge then concluded that it was the duty of the Rent Controller to record evidence and dispose of the eviction petition and instead of exercising the jurisdiction vested in him, he was not justified in merely relying upon the findings given by the Appellate Court in R.A. 357/88. He construed the judgment in C. David & Devaiah v. Saramma 1993 (1) APLJ 133 as laying down the ratio mat the findings given by the Rent Controller in the application u/s 11 on the basis of the evidence adduced will obviate the need for further enquiry, but the Rent Controller cannot go by the findings of the Appellate Authority in an appeal filed against an order unded Section 11. After assailing the judgment of the Appellate Court in R. A. 357/88 in the above terms and treating it as of no effect in so far as Section 10 petition is concerned, referred to the observations of the Supreme Court in A.R. Antulay Vs. R.S. Nayak and Another, and arrived at the following conclusions purporting to apply the ratio of A.R. Antulay Vs. R.S. Nayak and Another, :

(i) The evidence recorded by the Appellate Authority under the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 namely the Chief Judge, City Small Causes Court, Hyderabad, in an enquiry u/s 1l of the Act and the findings given therein cannot be acted upon by the Rent Controller who is vested with original jurisdiction u/s 10 of the Act to adjudicate the dispute between the landlord and tenant in accordance with law;

(ii) Consequently, the judgment of our High Court in Saramma''s case (1993 (1) APLJ 133 has to be understood, consistently with the ratio of Supreme Court judgment in A.R. Antulay Vs. R.S. Nayak and Another, i.e., in any case the Rent Controller records the evidence and gives his finding in any enquiry u/s 11 of the Act, he can rely upon the findings given by him in dealing with Section 11 application to pass orders in the eviction petition u/s 10 of the Act without holding de novo trial or enquiry in exercise of his original jurisdiction ; otherwise, the right of appeal available to the landlord or tenant could be endered nugatory.

(iii) The Rent Controller in exercise of original jurisdiction u/s 10, should not rely on the evidence recorded on the findings given by the Appellate Authority in an enquiry u/s 11 of the Act.

I am of the view that the conclusions reached by the Appellate Authority are based on basically erroneous assumptions and in the teeth of the decisions of this Court. There is no wonder that this judgment has been subjected to severe criticism by the learned Counsel for the petitioner. Firstly it is pointed out that the assumption of the learned Judge that there was no pleading about the denial of title is not correct. Secondly it was contended that the proposition laid down by the Appellate Court that it was only the finding given by the Rent Controller in a Section 11 application that could be acted upon but not the Appellate Court''s finding in an appeal against an order u/s 11 is wholly unsustainable. It is submitted that the decision in R. A. 357/88 and the judgment of this Court in C.R.P. 735 / 93 confirming the same have been totally ignored by the learned Judge taking aid from a wholly inapplicable decisions viz., A.R. Antulay Vs. R.S. Nayak and Another, .

The learned Counsel for Respondents 1 and 2 endeavoured to support the judgment on the same grounds on which the impugned judgment rests. It is his contention that there was no denial of title but there was only denial of relationship of landlord and tenant. By setting up an agreement of sale, it is contended that no slur is cast on the title of the petitioner-landlord. It is submitted that as held by the Appellate Court, the Rent Controller should have made an independent enquiry into Section 10 petition which was based on different grounds.

Before proceeding further, the legal position laid down by the Full Bench of this Court in Changalal and Others Vs. Narsingh Pershad, regarding the effect of denial of title of landlord in a Section 11 petition needs to be recapitulated. This is what the Full Bench laid down in the concluding para:

"In the end we hold that Section 11 is applicable not only to cases where the relationship of landlord and tenant is admitted but also to cases where such relationship is denied. For the purpose of passing orders u/s 11 of the Act, when the relationship of landlord and tenant is denied, the Rent Controller must determine that question finally by making a regular enquiry and not provisionally by making a summary enquiry before assuming jurisdiction in the matter and pass orders and such a determination will be the decision in the main eviction petition itself"

Parthasaradhi J, in his separate but concurring judgment, observed as follows:

"In my opinion there can be only a single decision on the question of the legal relationship in the entire proceeding for eviction and not two decisions as conceived in the order of reference.

The proceeding u/s 11 is an integral part of the main application for eviction. The plea that the requisite jural relationship is absent and that the tribunal cannot act in the manner desired by the landlord is a controversy that the Rent Controller has the competence to decide. A decision on this question pertains to the entire proceeding and determines its future course and it is erroneous to deem the proceedings under Sections 10 and 11 as two distinct and unrelated proceedings. I am consequently of opinion that there is no warrant for the assumption that the decision u/s 11 is summary and that a further decision on the same matter u/s 10 would have to be rendered."

The next principle to be borne in mind is that in view of the decision of the Supreme Court in M. Subba Rao v. P. V.K. Krishna Rao AIR S.C. the denial of title need not be anterior to the petition filed under the Rent Control Act. If such denialcategoric it should be, is to be found in the pleadings and reiterated in the evidence, that would afford sufficient jurisdiction to order eviction u/s 10 (2) (vi) of the Act unless of course, such denial is found to be bona fide.

The first question therefore is whether the tenant in the course of the proceedings intiated under the Rent Control Act denied the title of the landlord? Of course, if what is denied is the relationship of land-lord and tenant but not the title to the demised premises, it does not per se result in an order of eviction. In Para 11 of the Counter filed in the main case (Rc.No. 408/85), it is stated by the respondent-tenant as follows :

"On account of settlement between the petitioner and his only daughter, Smt. A. Girija, Respondent-2''s wife, through the mediation of common friends and relations, the suit house was agreed to be sold 2 herein or given to his wife in lieu of her claim in OS. 316 /80 now pending in the Court of the Addl. Chief Judge, City Civil Court, Hyderabad. In part performance thereof, Smt. A. Girija is in possession of the suit house in her own right. Hence she is a necessary and proper party to the petition."

Thus, in unmistakable terms, the respondent-tenant has pleaded that pursuant to a settlement between the landlord and his daughter who is the wife of the 2nd respondent, and an agreement of sale, the 2nd Respondent''s wife-R-3 is alleged to be in possession of the suit house ''in her own right''. It is not necessary that the tenant should have claimed title in himself. It may be that a mere agreement of sale does not convey title to the building*, but we have to take into consideration the entire tenor of the assertion made in paragraph 11. On a fair reading of Paragraph 11, one cannot be left with an impression that the tenant is bent upon denying the title of the landlord, by setting up a family settlement and an agreement of sale in favour of his wife. The learned Appellate Authority having referred to this part of counter and posed the question whether it amounts to denial of title of the landlord by tenant (Para 10), did not ultimately answer that question. He digressed to some other point.

Apart from the Counter in the main eviction petition, the Counter in LA. 1617/85 which is an application u/s 11, leaves no room for doubt as regards this aspect. He stated in para 3 thus :

"I submit that the eviction petition itself is false, misconceived and filed to harass and humiliate me and my wife, since my wife has been pursuing her legal rights undeterred by the hostility of the petitioner. As a matter of fact, there was a settlement between the petitioner and my wife at the instance of common friends and well-wishers some time in the year 1978 and since then my wife has a vested right to the suit property apart from my own rights in law. As such, my wife is a necessary and proper party to the main proceeding as well as to this application."

Thus, a vested right to hold the property pursuant to a settlement between the landlord and his wife was pleaded apart from his own rights over the property. Thus, in the Appeal-R.A. 357/88, it was pleaded that the denial of title was bona fide. Reliance was placed on the family settlement. When the matter went back to the Appellate Court for disposal on merits, the 2nd respondent and his wife were examined as R.Ws. 1 and 2. In the course of their examination, they categorically asserted their own title to the exclusion of the landlord. Thus, the first assumption of the learned Judge that there was no plea denying the title of the landlord is factually incorrect. It is from this wrong assumption that the Appellate Judge went on to say that in the absence of pleading, evidence on the question of title has no impact at all on the eviction petition.

The next fundamental error committed by the learned Judge was to think that the Appellate Authority''s finding in Section 11 petition was not binding on the Rent Controller who, according to the Appellate Judge, should have made an independent enquiry vis-a-vis the denial of title before ordering eviction. To reinforce this conclusion, the Appellate Judge distinguished in his own way the judgment of this Court in C. David & Devaiah v. Saramma (1 supra) in which Neeladri Rao J., analysed and explained the Full Bench decision of this Court. In an apparent attempt to get over that decision, the lower Courtput a gloss over it by observing that the ratio of that judgment will apply only in a case where the Rent Controller records the evidence and given his findings in an enquiry u/s 1l, but not in a case where the Appellate Authority itself gives such finding in an appeal against the order u/s 11. It is diffcult to accept this strained interpretation placed on the judgment of this Court drawing support from Antulay''s case (2 supra) which has no semblance of application as explained hereinafter. Neither the judgment of the Full Bench nor the decision of Neeladri Rao, J. can be confined within the parameters defined by the learned Judge. Merely because in the judgment there was no reference to the enquiry/ findings by the Appellate Authority, it does not mean that the findings of the Appellate Authority relating to denial of landlord''s title in a Section 11 petition should be ignored by the Rent Controller.

The lower Court obviously failed to appreciate that the Appellate Authority''s powers are almost co-extensive with that of the primary authority. Sub-section (3) of Section 20 is a specific provision enabling the Appellate Authority to make such further enquiry as it thinks fit either personally or through the Rent Controller. Rule 11 (2) of the A.P. Rent Control Rules lays down that- "if the Appellate Authority decides to make further enquiry, he may take additional evidence or require such evidence to be taken by the Controller." It is in exercise of this power vested in himself, the Appellate Authority recorded the evidence obviously because both sides offered to adduce such evidence. When the High Court held that the Appellate Authority should not have remanded the matter to the Controller and the Appeal against the order u/s 11 should be disposed of on merits, the Appellate Authority had chosen to adopt the obvious course open to him by recording the evidence and deciding the matter on the basis of such evidence. Thus, the Appellate Authority had acted in exercise of his undoubted jurisdiction vested in him. If so, the finding recorded by the Appellate Authority as a result of an elaborate enquiry held by it is as much a finding that should be taken note of by the Controller as his own finding for the purpose of deciding the Petition u/s 10. In the face of the categorical finding given by the Appellate Authority that the denial of landlord''s title by the tenant was not bona fide, it is not open to the primary authority to ignore that finding or to embark upon a de nova enquiry on the very same question. In view of what was laid down by the Full Bench of this Court and reiterated in Saramma''s rase (1 supra), the Rent Conroller did the right thing in refraining from further enquiry and acting upon the finding given by the Appellate Authority and making it a basis of the order u/s 10. Such course was perfectly open to the Rent Controller.

The most difficult hurdle for the respondent-tenant is the earlier judgment of this Court in C.R.P.No. 735 of 1993. As already noticed, this Court held that the enquiry held by the Appellate Authority satisfied the requirement of a regular enquiry as per the decision of the Full Bench and it was not a summary enquiry. Then, after referring to the findings of the Appellate Authority, this Court observed :

"The learned Appellate Judge is perfectly correct in coming to the conclusion that the denial of title by the revision petitioners herein is not bona fide."

Having regard to this unequivocal decision of the High Court affirming the finding recorded by the Appellate Authority in an Appeal against the order u/s 11, it is beyond comprehension as to how die Rent Controller could proceed to make an independent inquiry of his own u/s 10 notwithstanding what the Full Bench has said. Yet, the learned Appellate Judge found a way out for the tenant, drawing support from Antulay''s case (2 supra). In effect, by the impugned order, the Appellate Authority ignored the decision of this Court in C.R.P.No. 735/93 which put the seal of approval on the order passed in R.A. 357/88. Passages in Antulay''s case (2 supra) were extensively quoted to support his view point that the findings recorded by the Appellate Authority in R.A. 357/88 have no effect whatsoever notwithstanding the fact that they were approved by this Court. According to him, the Rent Controller should have ignored that finding and made a fresh and independent enquiry with regard to denial of title before passing an order of eviction u/s 10. 14. In my view, reliance placed by the Appellate Authority on the decision of the Supreme Court in Antulay''s case (2 supra) is wholly misconceived. In Antulay''s case (2 supra), the Supreme Court held that the direction given earlier for transfer of cases filed against the former Chief Minister of the State from the Special Judge to the High Court was unwarranted and were in the teeth of the provisions of Section 7(1) read with Section 6 of the Criminal Law Amendment Act. The Supreme Court concluded that an exclusive jurisdiction was created u/s 7 (1) of the said Act read with Section 6 to try certain categories of cases-in the Court of Special Judge constituted under the Act and the power u/s 407 of the Code of Criminal Procedure could not be invoked to enable the High Court to deal with that case. The Supreme Court further held that the directions given by the same Court earlier were per incuriam and the inherent powers of the Court could be exercised to remedy the mistake. The Supreme Court invoked the principle ''Actus Curiae neminem Gravabit and without going through the formality of review application, set right the mistake by setting aside its own order to correct the infraction of Articles 21 and 14 of the Constitution. Sabyasachi Mukharji, J. who pronounced the majority judgment in that case observed at Paragraph 83 :

"We proclaim and pronounce that no man is above the law, but at the same time reiterate and declare that no man can be denied his right under the Constitution and the laws. He has a right to be dealt with in accordance with the law and not in derogation of it. This Court, in its anxiety to facilitate the parties to have a speedy trial gave directions on 16th February, 1984 as mentioned hereinbefore without conscious awareness of the exclusive jurisdiction of the Special Courts under the 1952 Act and that being the only procedure established by law, there can be no deviation from the terms of Article 21 of the Constitution of India. That is the only procedure under which it have been guided. By reason of giving the directions on 16th February, W84, this Court had also unintentionally caused the Appellant the denial of rights under Article 14 of the Constitution by denying him the equal protection of law by being singled out for a special procedure not provided for by the law. When these are brought to the notice of this Court, even if there are any technicalities this Court should not feel shackled and decline to rectify that injustice or otherwise the injustice noticed will remain forever a blot on justice. It has been said long time ago that "Actus Curiae Neminem Gravabit" an act of the Court shall prejudice no man. The maxim is founded upon justice and good sense and affords a safe and certain guide for the administration of the law."

Thus, it was a case in which jurisdiction was conferred on the High Court to try the case when such jurisdiction was not conferred by law. In such a situation, the Supreme Court stepped in to remedy the mistake and the consequent injustice done to the petitioner. Either on facts or on legal principles, that judgment has absolutely no bearing on the present case. No jurisdictional error has been committed by the Appellate Authority in recording the evidence and giving a finding that the denial of landlord''s title by the petitioner was not born fide. Nor can it be said that the Controller acted without jurisdiction in ordering eviction based on the finding of the Appellate Court recorded in the course of proceedings u/s 11. As the finding of the Appellate Authority was reached after an elaborate and long drawn enquiry, the said finding Was sufficient to direct eviction u/s 10 straightaway. Having regard to the ratio of the Full Bench in Chaganlal case (3 supra) there was no need for further enquiry u/s 10 and there is absolutely no warrant to say that the finding recorded by the Rent Controller u/s 11 on the question of denial of title can only be acted upon, but not the Appellate Authority''s finding. There is nothing in Antulay''s case (2 supra) to suggest such interpretation.

Moreover, it was not open to the Appellate Authority to ignore the effect of the judgment of this Court in C.R.P. 735/93, the details of which I have already referred to. It is significant to note that in the said C.R.P., it was never contended by the tenant that in the absence of pleadings, the Appellate Authority could not have gone into the question whether the denial of title was born fide or not; nor was it pleaded that the Appellate Authority had no Jurisdiction to record evidence and give a finding. Though the tenant could have raised both these contentions he refrained from doing so. The Appellate Authority cannot now make out a new case for the respondent little realising the fact that the Rent Controller could not have given a finding contrary to what was recorded by the High Court. Assuming that the judgment of this Court in C.R.P. 735/93 upholding the order passed by the Appellate Authority stiffens from jurisdictional or other infirmities, that mistake if at all there is one, could only be rectified by the High Court. The Appellate Judge in the instant case cannot claim any inherent power to set right the jurisdictional error, if any, committed by the High Court or by the Appellate Authority whose order has merged into the order of the High Court. Viewed from any angle, the ratio of the decision in Antulay''s case (2 supra) does not at all fit into the facts and circumstances of the present case.

I am constrained to say that the manner in which the Appellate Authority''s order in the earlier decision has been disregarded by the Appellate Judge notwithstanding its affirmance by the High Court purporting to rely on Antulay''s case (2 supra) reflects an unbalanced approach and lack of appreciation of the real crux of the case. None of the reasons given by the learned Appellate Judge can stand judicial scrutiny for a minute. They are either irrelevant or contrary to the decisions of this Court.

In the result, the C.R.P. is allowed, the order in R.A.No. 462/93 is set aside and the order of the Rent Controller is restored. But considering the facts and circumstances of the case, more especially the close relationship between the parties, I deem it fit and proper to grant six months'' time from to-day to the tenant to vacate the premises, subject to the condition that the tenant pays the rent regularly. I make no order as to costs.