Andhra HC (Pre-Telangana)
Bibijan And Ors. vs Chintakridi Narasimham And Sons Rep. By ... on 18 March, 1997
Equivalent citations: 1997(6)ALT124
Author: V. Bhaskara Rao
Bench: V. Bhaskara Rao
ORDER V. Bhaskara Rao, J.
1. This is a revision petition arising out of R.C.A.No. 26/1991 on the file of Principal Subordinate Judge, Guntur, dated 18-1-1993 holding that the revision petitioners, who are owners of 30/72 share, are not entitled to evict the respondent/tenant who subsequently purchased 42/72 share in the demised premises till partition is effected though they are able to establish their bona fide requirement of the premises.
2. The facts and circumstances giving rise to this revision petition in brief are:-
That the demised premises originally belonged to Shaik Mohiuddin Khan Saheb. Revision Petitioner No. 1 is his wife and revision petitioners 2 to 4 are their daughters. The original landlord also left behind him two sons. On his death the demised premises was inherited by his wife, three daughters and two sons. His wife and daughters, who are revision petitioners herein, became entitled to 30/72 share in that property while the remaining 42/72 fell to the share of his sons. The premises was let out to the respondent/tenant firm during the life time of Shaik Mohiuddin Khan Saheb and the tenancy continued subsequent to his death. While so, one Chintakrindi Subba Rao, who is father of the managing partner of the firm, purchased 42/72 share from the owners (sic. sons) of the original owner while the revision petitioners herein who are jointly entitled to 30/72 share sought for eviction of the respondent/tenant on two grounds, viz., (1) wilful default in payment of rent, and (2) bona fide requirement. The respondent/tenant resisted the petition mainly on the ground that no partition was effected among the sharers and that without separating the share of the revision petitioners, the petition is not maintainable for eviction to an extent of 30/72 share. He has, however, specifically denied both the grounds set up by them for the eviction of the tenant. On the first ground it is stated that one Shaik Abdulla Saheb used to collect the rents as the petitioners are living at various places, but they failed to receive the rent since September, 1985 and hence the respondent filed RCC. No. 98/1995 for permission to deposit the rent and the same was allowed. On the second ground it is averred that a registered notice was issued on behalf of the petitioners alleging that the premises was required for joint business, but it is only a myth and concocted for the purpose of the eviction petition. It is asserted that the requirement of the petitioners is not bona fide.
3. The parties went to trial with the above pleadings. Revision petitioner No. 4 is examined as P.W. 1 and her nephew and son of revision petitioner No. 2 is examined as P.W. 2. The requirement of the premises for starting a watch shop is projected through him. Petitioner No: 3 is examined as P.W. 3. In rebuttal, the managing partner of the tenant-firm is examined as R.W. 1. Exs.A-1 to A-4 are marked on behalf of the revision petitioners and Exs.B-1 to B-3 for the respondent/ tenant. The learned Rent Controller assessed the above oral and documentary evidence and held that the revision petitioners have miserably failed to establish both the grounds and accordingly the eviction petition has been dismissed. The revision petitioners carried the matter in appeal to the Court of Principal Subordinate Judge, Guntur, who affirmed the finding on the first ground viz., wilful default and reversed the finding on the second ground and held that the requirement of the petitioners is bona fide. However, the appeal was not allowed on the ground that no partition was effected between the parties and hence, the respondent/tenant is not liable to be evicted. Aggrieved by the above order, the landladies filed this revision petition.
4. Mr. V. Parabrahma Sastry, learned Counsel for the revision petitioners strenuously contended that the finding of the appellate Court as to the bona fide requirement of the revision petitioners has become final and hence they are entitled for the relief of eviction insofar as their share of 30/72 is concerned. He assailed the order of the appellate Court that the respondent/ tenant cannot be evicted until partition is effected between the parties is not correct as the law envisages the relief of joint possession too and hence the lower Court should have directed that the revision petitioners would be inducted into joint possession to the extent of 30/72 share. He further contended that the Rent Control Act is a self-contained legislation and the Rent Controller is a Court possessing all the attributes of a Court; that Section 10 of the Act excludes the jurisdiction of the civil Courts except to an extent of two contingencies contemplated by the proviso to sub-section (1) thereof and hence the revision petitioners have a remedy to evict the respondent/tenant only before the Rent Controller and that Section 15 of the Act confers all powers of execution upon a Rent Controller and that includes the power to effect partition by metes and bounds. He relied on a catena of decisions in support of his contentions and I shall examine them one by one.
5. First and foremost the salient features of A.P. Buildings (Lease, Rent and Eviction Control) Act, 1960, may be seen.
6. The Andhra Pradesh Buildings(Lease, Rent and Eviction Control) Act, 1960, for short the 'Act', is the culmination of the reorganisation of States. The erstwhile Princely State of Hyderabad, which was a part 'B' State, was divided into three parts, one part comprising of nine Districts known as Telangana Area was merged with Andhra State, which was carved out from erstwhile part 'A' State of Madras. (1) In Andhra area Madras House Rent Control Order, 1941; (2) Madras Godown Rent Control Order, 1943; (3) Madras Houses Rent Control Order, 1945; (4) Madras Non-residential Buildings Rent Control Order, 1945; (5) Madras Buildings (Lease and Rent Control) Act (XV), 1946; and (6) Madras Buildings (Lease and Rent Control) Act XXV, 1949 were in force while in Telangana area, the Hyderabad Rent Control Order, 1353 Fasli and Hyderabad Houses (Rent, Lease and Eviction Control) Act XX of 1954 were in force. The preamble of the Act shows that this Act is intended to consolidate and amend the law relating to the regulation of leasing of buildings, the control of rent thereof and the prevention of unreasonable eviction of tenants therefrom in the State of Andhra Pradesh. This is a step in the direction of securing uniformity in the administration of law on the subject. Not only the provisions of different Acts operating in different areas have been enacted, but new provisions are introduced so as to overcome certain difficulties. Thus, this Act is intended to be a complete Code intended to provide for the remedies in disputes between landlords and tenants. Section 2 provides for definitions. 'Building' has been defined as any house or hut or part thereof, let or to let separately for residential or non-residential purposes and includes (a) gardens, grounds, garages and out-houses if any appurtenant to such house etc; and (b) any furniture supplied or any fittings affixed by the landlord for use in such house etc. A room in a hotel or boarding house is, however, excluded from the above definition. Section 3 enjoins upon every landlord to notify the vacancy in writing to the Authorised Officer within ten days of the building falling vacant and it contains nine sub-sections, several clauses touching upon various aspects. In other words, the duties of landlord to the Authorised Officer are set out in this Section. Section 4 empowers the Controller to determine fair rent subject to the limitations in Sections 5, 6 and 7. Section 8 confers a right on the tenant to obtain a receipt for the rent paid by him from the landlord or his authorised agent and if the landlord refuses to accept or evade the receipt of rent, he may seek, by notice, information of a Bank into which the rent may be deposited. The other modes of payment of rent including deposit before the Rent Controller are also covered in this Section. In case of bona fide doubt or dispute as to the person who is entitled to receive the rent, Section 9 provides for deposit of rent with the Rent Controller. Then Section 10, which is an important provision in the Act- provides for eviction of tenants under various circumstances. There is also provision to deposit rents during pendency of the proceedings for eviction under Section 11. In the case of the landlord requiring the premises for repairs, alteration or for reconstruction, Section 12 provides for the remedy from private tenants and Section 13 is in respect of buildings in occupation of Government. With a view to provide protection to the tenants from unscrupulous landlords, Section 14 enjoins that the landlord shall not interfere with the amenities enjoyed by the tenant. Section 15 is another important provision which provides for execution of all orders passed by the Rent Controller. Section 18 lays down that no residential building shall be converted into a non-residential building except with the permission in writing of the Controller. Section 20 provides for appeals from the orders of the Rent Controller. The appellate authority is the Chief Judge, Small Causes Court in the cities of Hyderabad and Secunderabad and the Subordinate Judge in other places and if there are more than one Subordinate Judge, the Principal Subordinate Judge having original jurisdiction over the area. Section 22 confers revisional jurisdiction upon the High Court in respect of any order passed or proceeding taken by the Controller in execution under Section 15 or any appellate authority on appeal under Section 20. The Act also provides for continuation of proceedings by or against the legal representatives in the event of death of either party. Section 30 confers rule making power on the State Government. The rules called the Andhra Pradesh Buildings (Lease, Rent and Eviction Control) Rules, 1961 have been framed so as to supplement the provisions of the Act. Thus, the Act and Rules are a complete Code operating in the field of adjudication of disputes between the landlords and tenants.
7. For the benefit of understanding the contentions raised by Mr. Parabrahma Sastry, it is necessary to extract Sections 10 (1) and 15 of the Act.
"10. Eviction of tenants:
(1) A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or Sections 12 and 13.
Provided that where the tenant, denies the title of the land-lord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fiae and if he records a finding to that effect, the land-lord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in the said section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded."
"15. Execution of orders:
Every order made under Section 10, Section 12, Section 13 or Section 14 and every order passed on appeal under Section 20 or on revision under Section 22 and every order as to costs under Section 21 shall be executed by the Controller:
Provided that an order passed in execution under this section shall not be subject to an appeal, but shall be subject to revision under Section 22".
8. Turning to the factual side, it is true that the revision petitioners-landlords (sic. landladies) are held to be entitled to an undivided share of 30/72 in the demised premises while the respondent/tenant is held to be entitled for the remaining 42/72 share. That is insofar as ownership rights of landlords are concerned. It may be borne-in-mind that the respondent/tenant was in occupation of the entire premises as a tenant and subsequently he became owner of 42/72 share. Nevertheless, he continues to be in occupation of the entire premises. Hence, it may be noted that he is in occupation of 42/72 share as co-owner or landlord and 30/72 thereof as tenant. The revision petitioners- landladies are seeking to evict the tenant from out of 30/72 share on the ground of bona fide requirement. It is no doubt true that the ground of bona fide requirement has been made out before the appellate authority. However it has dismissed the appeal on the ground that no partition was effected between the parties, although he recorded a finding that the land-lords (sic. landladies) were able to establish the bona fide requirement. The question is as to how the partition is to be effected.
9. It is firstly contended by Mr. Parabrahma Sastry that the Rent Controller is a Court having all the attributes of the Court and hence partition can be effected by the Rent Controller in exercise of its power of execution under Section 15 of the Act. In this context he has argued that Section 10 (1) of the Act excludes jurisdiction of the Civil Courts in the matter of eviction of a tenant by the landlord. It is true that Section 10 (1) is worded in such a manner that the only forum which is conferred with jurisdiction to pass an eviction order under Section 10 or Section 12 or Section 13 is the Rent Controller. In other words, the jurisdiction of the Civil Courts is barred. The proviso to sub- section (1) provides for an exception namely, that if the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Controller shall decide whether such denial or claim is bona fide and in the event of a finding being recorded to that effect, the landlord shall be entitled to sue for eviction in a Civil Court, A combined reading of sub-section (1) and proviso would go to show that the Civil Court shall have jurisdiction only in cases where the tenant denies the title of the landlord or claims right of permanent tenancy and in the event of the Controller deciding that such denial or claim is bona fide. Obviously in all other cases it is the Rent Controller and Rent Controller alone who will have jurisdiction. Mr. Sastry has, therefore, rightly contended . that if he decides to file a partition suit in a Civil Court by virtue of the order of the appellate authority, Section 10 (1) of the Act will come in his way and ultimately he may be made to run from pillar to post. It is, therefore, necessary that Section 15 of the Act may be closely examined in order to see whether any relief can be granted in this proceeding itself. ;
10. Driving home the point that the Rent Controller has all attributes of a Court including the power to direct partition, Mr. Sastry relied on a judgment in Gedda Durga Malleswara Rao v. Ranga Panaiah and Bros., . T. Venkatesam v. A. Krishnaiah, 1996 (2) An.W.R. 245. and Chalapati Rao v. B.N. Reddy., 1969 (1) An.W.R, 227.
11. In the judgment cited supra (1), the landlord's eviction petition was ' ordered ex parte on 19-7-1972 and possession was taken over by evicting the tenant on 9-9-1972. The tenant filed a petition under Section 5 of the Limitation Act on 15-9-1982 for condoning the delay in filing application for setting aside the ex parte order of eviction. The Rent Controller condoned the delay and , allowed the petition subject to payment of costs of Rs. 10/-. The landlord carried the matter in appeal to the Subordinate Judge, who dismissed the appeal and confirmed the order of the Rent controller. In Revision before a learned single Judge of this Court it was contended that the Rent Controller is not a Court and therefore, Section 5 of the Limitation Act is not applicable to the case. On a consideration of the judgment in K. Chalapathi Rao v. B.N. Reddy, 1968 (2) An.W.R. 587. Jugal Kishore v. Sitamarshi Central Co-op Bank, AIR 1968 SC 1494. and Vidya Devi v. Firm Madanlal, AIR 1971 P & H 150. it has been held that the Rent Controller is a Court for the purpose of Section 5 of the Limitation Act. Among the decisions referred to in judgment cited supra (4) is a Division Bench decision. It was held that the Rent Controller is a Court subordinate to High Court within the terms of Section 3 of the Contempt of Courts Act. It is noteworthy that the learned Judges referred to several provisions of the Rent Control Act and Rules made thereunder and several rulings of the Supreme Court and held that the Rent Controller possesses all the attributes of a Court. Another decision is cited supra (5) where it is held that the Assistant Registrar functioning under Bihar and Orissa Co-operative Societies Act is a Court "subordinate to High Court for the purposes of Section 3 of Contempt of Courts Act". A Full Bench decision of Punjab and Haryana High Court reported in supra (6) examined the position of the Rent Controller and the appellate authority under Punjab Rent Restriction Act and held that they are Courts for the purposes of Sections 195 (1) (b), 476 and 479-A of the (sic) of Criminal Procedure.
12. In the judgment cited supra (2), it is held, "The respondent land-lord filed a petition for eviction of the petitioner under Section 10 of the Andhra Pradesh Buildings (Lease, Rent and Eviction Control) Act, 1960. The Rent Controller passed an order of eviction against the petitioner under Section 11 (4) of the Act. The same was confirmed in appeal. When the petitioner refused to vacate the premises, the respondent filed an execution petition before the Rent Controller to put him in possession of the premises. The petitioner resisted the same on the ground that the order passed under Section 11 (4) is not executable unlike orders made under Sections 10, 1.2 and 13. The contention of the petitioner was negatived by both the Rent Controller and the appellate authority on appeal. The tenant-petitioner preferred a revision to the High Court.
Held, an order passed under Section 11 (4) can be enforced in the same way as any other order passed under the Act is enforced. Neither Section 10 nor the omission in Section 15 makes an order passed under Section 11 (4) incapable of being executed by the Rent Controller. It is an order passed validly under Section 11 (4) and the power to pass such an order carries with it the necessary and incidental power to execute it. The Rent Controller, therefore, was competent and had jurisdiction to execute that order in the manner in which orders of eviction passed under Sections 10, 12 and 13 are executed".
13. It is pertinent to mention that Section 15 contemplates that orders have to be passed under Sections 10, 12 and 13 but conspicuously Section 11 (4) is omitted therein, Despite the omission of Section 11 (4) it has been held in the Judgment cited supra (2) that an order under Section 11 (4) also can be enforced in the same way as in other orders and this power will have to be traced to Section 15 of the Act. It is the golden principle of interpretation of the Statute that any rule or law will have to be construed in a harmonious manner and the provisions will have to be interpreted in harmony with such other but not in conflict. From that point of view the scope of Section 15 of the Act is held to cover the case of Section 11(4) also.
14 One more incidence which often fails for consideration of the Courts is whether in cases of composite leases where part of the premises can be let out for residential purpose and the: remaining for non-residential purpose, the Rent Controller has jurisdiction or not. A bare reading of Section 10 shows that there is no specific provision for eviction of a tenant occupying any premises of a composite lease. The question whether the Rent Controller can exercise jurisdiction in such cases or not has come up for consideration in several cases, the latest being Kurminayaka Mothilal v. Mohd. Jahiruddin (Died) and Ors., 1999 (1) ALT 427 dealing with a case of composite lease and faced with a similar question, whether the Rent Controller can pass eviction order in cases of composite lease, under Section 10 (3) (a) (i), a learned single Judge of this Court Justice S. Dasaradharama Reddy considered a catena of decisions on this subject and held that an eviction petition is maintainable before the Rent Controller. At the cost of repetition, it may be said that there is no specific provision for eviction from a premises let out for composite lease, but, even then the trend is to harmoniously interpret the provisions. Another rationale is that the rules of procedure are meant to aid in the administration of justice.
15. Turning to the case on hand, it is rightly argued by Sri V. Parabrahma Sastry, the learned Counsel for the petitioners that the finding as to bona fide requirement of the revision-petitioners has become final and they have been held to be entitled for an order of eviction of 30/72 share in the demised property. But the Rent Controller as well as the appellate Court, have held that they have to seek partition elsewhere. Having considered catena of decisions cited above and having regard to the golden principles of interpretation of statutes, I am inclined to hold that Section 15 of the Act is comprehensive enough to execute orders of all kinds passed by the Rent Controller including division by metes and bounds. I have also gone through the provisions of the Partition Act, in order to see whether there is any impediment for the Rent Controller to execute such an order but, I am unable to find any such impediment.
16. As the eviction order is to separate the undivided 30/72 share of the revision petitioners, this order has to be treated as a preliminary decree. I do not for a moment mean that a preliminary decree can be passed by the Rent Controller, but, by legal fiction this order has to be considered as a preliminary decree and it follows that the revision petitioners will have to file a petition invoking Section 15 of the Act, seeking final decree and appointment of Advocate-Commissioner and he shall suggest to the Court as to how the properties are to be divided by metes and bounds. When once that is done, a final order will ensure how the revision petitioners will have to be put in exclusive possession of the demised property as may be suggested by the Advocate Commissioner. I have once again applied my careful consideration to this aspect, to see whether the revision petitioners will have to be driven to a civil Court for the purpose of seeking division by metes and bounds instead of adopting the remedy indicated above under Section 15 of the Act. In my considered view, the remedy indicated by me above will be best suited to the facts and circumstances of the case and it can also be achieved in a speedy manner.
17. For the above reasons, I hold that the revision petition is merited and the same is fit to be allowed. In the result, the revision petition is allowed and it is declared that the revision petitioners are entitled to 30/72 share in the demised property and they are entitled for evicting the respondent-tenant therefrom. The revision petitioners are directed to file a separate application for appointment of Advocate-Commissioner and to seek a final order in terms of the report of the Commissioner. The lower Court is directed to put the revision petitioners in separate possession of their 30/72 share in the demised property, basing on the report of the Advocate-Commissioner. There shall be no order as to costs.