Andhra HC (Pre-Telangana)
Kantamsetti Bennayya vs Pandi Saraswathi on 16 December, 1993
Equivalent citations: 1994(1)ALT285
JUDGMENT S.V. Maruthi, J.
1. The only question that arises for consideration in the. Second Appeal is whether the Civil Court has jurisdiction to evict the appellant. The facts in brief are as follows:
The plaintiff-respondent filed the suit for eviction of defendant-appellant from the suit 'B' schedule property and to deliver the vacant possession of the same to her and for future damages for use and occupation at Rs. 50/- per month from 1-7-1981 till the date of delivery of the property. The case of the respondent-plaintiff is that she purchased the house site measuring 705/9 Sq. Yards with a thatched house described in the plaint 'A' schedule property from one Srikakulapu Mutyalu and his wife Srikakulapu Ammalu for valuable consideration of Rs. l3,000/- under a registered sale deed Ex.A-1 dt.9-3-1981. In the said site, there is a thatched house on the western side and eastern side portion is the vacant site. The said thatched house portion was let out to the appellant by the vendor of the plaintiff on a monthly rent of Rs. 20/-. On 8-3-1981, the respondent obtained physical possession of vacant portion and constructive possession of thatched house which is under the tenancy of the appellant. The appellant also attorned to the respondent and agree to pay the rent to the respondent promising to vacate the portion whenever plaintiff requires. The appellant filed suit against the respondent for injunction on the ground that he purchased plaint 'A' schedule property under an oral agreement from the respondent vendors. She also filed another suit on the file of the VI Additional District Munsif Court, Visakhapatnam. Therefore, the respondent issued a notice dated 27-5-1981 to quit through her Counsel asking the defendant to vacate the plaint 'B' schedule thatched house portion and deliver possession of the same.
2. The appellant filed written statement denying the allegations in the plaint. According to the appellant, he took on lease the suit premises on rent of Rs. 5/- per month for the first ten years and thereafter it was increased to Rs. 10/-. Since five years, she was paying rent at the rate of Rs. 20/- per month. It is further the case of appellant that there was an oral agreement of sare between the original owner, namely, Srikakulapu Mutyalu and Srikakulapu Ammalu, pursuant to which, he kept Rs. 4,000/- ready with him so that he can buy the property. He also stated that he is entitled to the protection of Rent Control Act as the house was constructed prior to 26-8-1957 as provided under Section 32(b) of the Andhra Pradesh Rent Control Act. It was also contended before the lower appellate Court that in view of the judgment of the Supreme Court striking down Section 32(b) of Andhra Pradesh Rent Control Act and also in view of G.O. Ms. No. 636 dated 29-12-1983, it is the Rent Control Court which has jurisdiction to deal with the case and the Civil Court has no jurisdiction. The Munsif Court decreed the suit holding that there was no oral agreement of sale and that the appellant is not entitled to the protection of G.O.Ms. No. 636 dated 29-12-1983 as there is no evidence that the building was constructed ten years prior to the issuance of the said G.O. It also held that the Civil Court jurisdiction is not ousted and therefore, the Civil Court is competent to issue eviction proceedings. On appeal, the II Additional District Judge dismissed the same holding that there is no evidence that the house was constructed prior to the relevant date, namely, 26-8-1957. He also held that since the respondent instituted the proceedings under law when Section 32(b) of the Rent Control Act was in force, subsequent striking down of the same as unconstitutional by the Supreme Court does not affect the continuation of the proceedings in the Civil Court as their rights were crystallised on the date of filing of the suit. Holding as above, the appeal was dismissed against which the present second appeal is filed.
3. The main contention of the learned Counsel for the appellant is that in view of the judgment of the Supreme Court striking down Section 32(b) of the Rent Control Act, the Civil Court has no jurisdiction to deal with the matter. The learned Counsel further submitted that in view of the judgment of the Supreme Court in East India Corporation Limited v. Shree Meenakshi Mills Limited, the Civil Court has no jurisdiction. By virtue of the declaration made by the Supreme Court declaring Section 32(b) of the Rent Control Act as unconstitutional, the Civil Court has become coram non judice and thus the proceedings resulted in the decree being a nullity. According to the learned Counsel, the judgments of the learned single Judges in S.A. Hakim Saheb v. P.V.K. Setty, 1989 (2) ALT 28 and in M. Mohan Rao v. T. Subbaiah, are not relevant to the issue in question, or at any rate, the learned Counsel submits that they require reconsideration as the Supreme Court judgment in East India Corporation Limited v. Shree Meenakshi Mills Limited (1 supra) was not brought to the notice of the learned judges.
4. The respondent submitted that it is the consistent view of the High Court and also of the Supreme Court that the right to file the suitarose when Section 32(b) of the Rent Control Act was in force and the proceedings were actually instituted when the said provision was in force. The rights of parties are crystallised according to law in force on the date of filing of the suit, and therefore, the suit should be disposed of in accordance with law which was in force as on the date of filing of the suit. The subsequent striking down by the supreme Court of Section 32(b) of the Rent Control Act does not affect the suit already filed prior to the striking down of the same by the Supreme Court. Therefore, the proceedings should be continued.
5. The question, therefore, is whether the Civil Court has jurisdiction to continue the eviction proceedings, which were instituted at the time when Section 32(b) of the Rent Control Act was in force, after declaration by the Supreme Court that the said section is void under Article 14 of Constitution of India. In this context, the observation made by the Supreme Court in East India Corporation limited v. Shree Meenakshi Mills Limited (1 supra) is relevant. Before referring to the observation, the facts in brief are as follows: East India Corporation Limited was the tenant in respect of the premises belonging to Shree Meenakshi Mills Limited. Shree Meenakshi Mills Limited filed a suit for recovery of possession against East India Corporation Limited on various grounds. The suit was decreed which was affirmed on appeal by the first appellate Court as well as by the High Court. A special leave was filed in the Supreme Court. At the time of institution of suit or grant of leave by the Supreme Court, the building in question did not come within the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as it fell outside the limit prescribed under Section 30(ii) of the Act. It provided for exemption of residential buidlings for a period of five years provided the rent is more than four hundred rupees. Section 30(ii) was struck down by the Supreme Court in Rattan Arya v. State of Tamil Nadu, . The Supreme Court held that the said provision is violative of Article 14 of Constitution of India. The argument that was advanced was that as a result of declaration of constitutional invalidity of Section 30(ii), the Act in question has to be read as if Clause (ii) of Section 30 was never brought into force, and consequently all residential buildings, which are older than five years and let out for whatever rent, came within the ambit of the Act. Accordingly, although the suit was properly instituted in the Civil Court without regard to the special provisions of the Act, it is contended that as a result of the declaration by the Supreme Court of the constitutional invalidity of Clause (ii) of Section 30, which excluded from the purview of the Act any building or part thereof let out on a monthly rent of Rs. 400/- the decree of the Civil Court, whatever be the respective contentions of the parties, has become null and void and of no effect whatever. It was held as follows:
".....at the time of the institution of the suit, the building in question did not come within the ambit of the Act, owing to the exclusionary provision contained in Clause (ii) of Section 30, but after leave to appeal was granted by the Supreme Court the applicability of the Act was extended to the building by reason of the decision of the Supreme Court in Rattan Arya v. State of Tamil Nadu declaring the invalidity of Clause (ii) of Section 30 on account of its inconsistency with Article 14 of the Constitution. Whatever be the consequence of that declaration -whether it has rendered the statutory provision null and void and of no effect (See Behram Khurshed Pesikaka v. State of Bombay and Saghir Ahmad v. State of U.P. , or merely inoperative, unenforceable and dormant to be revitalised on subsequent removal of the constitutional ban (See Bhikaji Narain Dhakras v. State of Madhya Pradesh and M.P. V. Sundararamier & Co. v. State of Andhra Pradesh in either event, the Civil Court acting without the aid of the exclusionary provision in Clause (ii) of Section 30, during the period of invalidity, has become coram non judice and its proceedings resulting in the decree a nullity (See Kiran Singh v. Chaman Paswan )."
6. The facts of the present case are exactly on all fours with the decision referred to above. In the instant case by virtue of exclusionary clause under Section 32(b) the Civil Court has jurisdiction to try the suit. The subsequent declaration by the Supreme Court during the pendency of the second appeal that Section 32(b) of Rent Control Act is violative of Article 14 of the Constitution of India makes the decree a nullity.
7. The judgment in S.A. Hakim Saheb v. P.V.K. Setty (2 supra) was decided prior to the decision of the Supreme Court in East India Corporation Ltd., v. Shree Meenakshi Mills Limited (1 supra). Further, the judgment of the Supreme Court in East India Corporation Ltd. (1 supra), was not brought to the notice of the learned Single Judge in M. Mohan Rao v. T. Subbaiah (3 supra) of this Court. Further in view of the judgment in East India Corporation Ltd. (1 supra), the judgment in S.A. Hakim Saheb's case (2 supra) is not correctly decided. The judgment in Mohan Rao's case (3 supra) was also not correctly decided as the learned judge followed the judgment in S. A. Hakim Saheb's case (2 supra). Further, those were the cases where proceedings were initiated before the Civil Court during the operation of the G.O. exempting the building from the provisions of the Rent Control Act from the date of construction. The question that arose for consideration in those two cases was whether after the expiry of the period of ten years provided under the G.O. the proceedings initiated in the Civil Court will get automatically terminated or whether the proceedings have to be continued notwithstanding the expiry of the G.O. Under those circumstances, it was held that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit. It was also held that" the rights of the parties crystalised on the date of the institution of the suit and the adjudication must proceed in accordance with that law. In other words, the expiry of the period of ten years exempting the building from the provisions of the Rent Control Act does not automatically terminate the proceedings initiated in a Civil Court during the operation of the G.O. A distinction is to be drawn between the cases where proceedings were initiated during the operation of a valid provision of law and cases where proceedings were initiated under a provision which was subsequently declared as unconstitutional and violative of Article 14 of the Constitution of India. In the case where proceedings initiated under a provision, which was subsequently declared as unconstitutional and violative of Article 14 of the Constitution, the provision is deemed to be non est from its inception and consequently the proceedings initiated and the decree passed by the authority under an unconstitutional provision shall be declared as a nullity, unless the proceedings have become final and decrees are executed. From the facts of the instant case, it is clear that proceedings have not yet become final and the decree had not yet been executed. Therefore, the decree passed by the Civil Court for execution is a nullity.
8. The Second Appeal is, therefore, allowed and the decree of the lower Court is set aside. There will be no order as to costs.