Andhra HC (Pre-Telangana)
K. Shiva Prasad vs C. Sree Ramulu And Anr. on 7 June, 2002
Equivalent citations: 2002(4)ALD476, 2002(6)ALT406
Author: G. Rohini
Bench: G. Rohini
ORDER G. Rohini, J.
1. This civil revision petition arises out of execution proceedings in furtherance of an order of eviction passed under the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. The order of the Principal Rent Controller, Secunderabad dated 31-7-2001 rejecting an application filed under Rule 23 (7) of A.P. Buildings (Lease, Rent and Eviction) Control Rules is the subject-matter of the revision petition.
2. The facts which are not in dispute are as follows:
The 1st respondent herein filed RC No. 9 of 1995 seeking eviction of the 2nd respondent herein from the petition schedule premises on the ground of bona fide requirement for personal occupation. The said eviction petition, after contest was allowed by order dated 13-9-1995. Aggrieved by the said order, the 2nd respondent herein who is the sole respondent in RC No. 9 of 1995 preferred RA No. 644 of 1995 on the file of the Court of the Additional Chief Judge, City Civil Court, Hyderabad, but the same was dismissed by judgment dated 31-7-1997. The matter was carried to this Court by filing CRP No. 3569 of 1997, but the revision was also dismissed by order dated 2-2-2001 granting three months time to vacate the premises. However, since the judgment-debtor who is the 2nd respondent herein did not vacate the premises, the landlord i.e., the 1st respondent herein filed EP No. 15 of 2001 for execution of the order of eviction as upheld by this Court in CRP No. 3569 of 1997. The learned Rent Controller by order dated 16-7-2001 issued warrant for eviction against the judgment-debtor, but the same was returned on 19-7-2001 with an endorsement that the premises was under lock and key when the bailiff went to execute the warrant. The landlord- 1st respondent herein filed an application to break open to lock and the same was permitted by the learned Rent Controller. At that stage the revision petitioner filed a claim petition under Rule 23(7) of A.P. Building (Lease, Rent and Eviction) Control Rules (for short 'the Rules') to enquire into the facts of the case and to recalled the warrant of eviction. In the affidavit filed in support of the said petition, he contended that he is the younger son of the deceased-tenant of the petition schedule premises and that he came to know about the eviction proceedings in RC No. 9 of 1995 only on 23-7-2001 when he went to the City Civil Court, Secunderabad on some other work. He further contended that since he is one of the legal heirs of the original tenant, he is entitled to come on record and expressed his apprehension that the eviction order was obtained by the landlord without making him a party in collusion with the judgment-debtor so as to deprive his legitimate right as a co-tenant. The learned Rent Controller after consideration of the entire material on record rejected the said petition at SR stage itself holding that the said petition has been pressed into service vexatiously in order to frustrate the eviction order as confirmed by the High Court in CRP No. 3569 of 1997. Assailing the said order dated 31-10-2001 made in EA (SR) No. 2451 of 2001 the present civil revision petition has been filed.
3. Heard the learned Counsel for the petitioner Sri N. Ashok Kumar, who contends that under Rule 23(7) of the Rules, it is mandatory to conduct an enquiry before passing an order in a claim made by a party. According to the learned Counsel the order under revision, which has been passed even before numbering the petition and in the absence of counter by the landlord is erroneous and cannot be sustained. The learned Counsel vehemently contended that the claim petitioner being one of the legal heirs of the original tenant succeeded to the tenancy rights of his late father and when he filed an application under Rule 23(7) of the Rules, the learned Rent Controller ought to have considered the same after conducting due enquiry as contemplated under Rule 23(7).
4. On the other hand, the learned Counsel for the respondent No. 1 i.e., the landlord submits that the revision petitioner has never been in occupation of the petition schedule premises, and therefore, he is not a necessary party to the eviction proceedings. He submits that since the respondent No. 2 herein alone is in occupation of the petition schedule premises, the eviction petition has been rightly filed against him, and the eviction ordered on merits has been ultimately upheld by this Court. The learned Counsel contends that the claim petition purported to be under Rule 23(7) filed at the instance of the revision petitioner who has never been in occupation of the premises and who failed to raise any objection although the eviction proceedings were pending for more than six years, is not at all bona fide and the learned Rent Controller has rightly rejected to entertain the same, and therefore the order under revision does not warrant any interference by this Court.
5. For proper appreciation of the rival contentions, it is necessary to examine Rule 23(7) of the Rules carefully, which reads as under:
"If such execution is resisted and obstructed by any person other than the person against whom order of eviction was passed, the controller may hold a summary enquiry into the facts of the case and if he is satisfied that the resistance or obstruction was without any just cause and that such resistance and obstruction still continues shall issue a warrant to evict the said person by force and deliver the possession of the building to the person entitled for possession in pursuance of the order of eviction and if he is satisfied that the resistance or the obstruction was occasioned by any person other than the person against whom order of eviction was passed claiming in good faith to be in the possession of the building on his own account or on account of some person other than the person against whom order of eviction was passed, he shall make an order disallowing the execution against such person.
6. As can be seen Sub-rule (7) of Rule 23 of the Rules aims at meeting a situation where the execution of order of eviction is resisted or obstructed by a person other than the person against whom an order of eviction was passed. In such a situation two courses are contemplated under Rule 23(7). If the Rent Controller is satisfied that the resistance or obstruction was without any just cause and that such resistance or obstruction still continues the Rent Controller shall issue a warrant to evict such person by force. On the other than if the Rent Controller is satisfied that the resistance or obstruction was occasioned by a person claiming in good faith to be in possession of the building the execution shall be disallowed against such person. The specific reference to possession of the building makes it clear that the resistance or obstruction to the execution of order of eviction shall be by a person in possession of the building who is other than a person against whom the order of eviction was passed. In other words Rule 23(7) attracts to the case where a person, other than the person against whom order of eviction was passed, is in possession of the petition schedule premises and causes resistance or obstruction to the execution of the order of eviction. A person who is not in possession of the premises in question cannot maintain a petition under Rule 23 (7) merely on the ground that the landlord ought to have made him a party to the eviction petition.
7. In the instant case it is to be noted that in pursuance of the order of eviction, execution proceedings were initiated and warrant was issued on 16-7-2001 for delivery of possession. The said warrant could not be executed since the premises was under lock and key when the bailiff went to execute the warrant. Thereafter the landlord made application to break open the lock. At that stage the revision petitioner made an application purported to be under Rule 23(7) of the Rules.
8. It is interesting to note that in the affidavit filed in support of the said petition, there is absolutely no averment as to the possession or occupation of the revision petitioner in respect of the petition schedule premises. Admittedly the premises was let out for non-residential purpose and it was being used by the original tenant who was a Doctor for running his clinic. According to the landlord after the death of the original tenant his elder son who is also a Doctor by profession has been in occupation and running his clinic in the said premises. Thus the eviction petition was filed against the elder son on the ground of bona fide requirement. The elder son contested the petition and having considered the matter on merits the Rent Controller ordered eviction and the said order was ultimately affirmed by this Court. The petitioner in his application under Rule 23(7) merely contended that being the legal representative of the deceased-tenant, he is a necessary party to the eviction petition and that if the execution is allowed it would result in multiplicity of proceedings. As expressed above in the absence of pleading that he is in possession of the premises or that he succeeded to the rights of tenancy he is not entitled to invoke Rule 23(7) of the Rules.
9. So far as the contention of the petitioner that it is mandatory for the Rent Controller to hold summary enquiry while considering the application under Rule 23(7) of the Rules is concerned, it is pertinent to note that the rule itself says that the Rent Controller "may hold a summary enquiry." Keeping in view the scope and object of Rule 23(7) and having regard to its context and the intention of the Legislature, Rule 23(7) shall be interpreted that the summary enquiry contemplated thereunder is only directory, but not mandatory. In the instant case the revision petitioner has not pleaded that he is in possession of the petition schedule premises which is a non-residential premises. He filed the application purported to be "under Rule 23(7) merely on the ground that all the legal heirs of the deceased tenant must be brought on record. The other allegation made by him that the decree holder in collusion with the elder brother of the revision petitioner filed the eviction petition and obtained an order of eviction against his brother was found to be false since the eviction proceedings were contested by the elder brother throughout. The revision petitioner has not even pleaded that he was associated with his late father in running the clinic in the petition schedule premises nor that he is also in occupation of the premises along with the elder brother who is the judgment debtor. In the circumstances the learned Rent Controller after recording a finding that the petition is not bona fide and vexatious refused to entertain the same. A perusal of the order under revision shows that the learned Rent Controller has addressed to all the aspects in detail and on being satisfied that the application is frivolous and vexatious, held that there are no bona fides to number the application. The order is well reasoned and it cannot be said that the petition was rejected without application of mind. As expressed above the requirement of summary enquiry under Rule 23(7) is directory and on a perusal of the order under revision I am satisfied that there is substantial compliance with the requirement of enquiry. Therefore, it cannot be said that the order under revision is invalid on the ground of failure to conduct summary enquiry.
10. The learned Counsel for the petitioner placed reliance upon the decision of the Supreme Court in Gain Devi v. Jeevan Kumar, AIR 1985 SC 796, and contends that the eviction petition ought to have been filed making the petitioner also a party to the proceedings. In the said case the Supreme Court held that even in respect of the non-residential premises the tenancy rights devolve on the heirs of the deceased-tenant. There is absolutely no dispute about the ratio laid down by the Apex Court in the said case. As a matter of fact in the present case the original tenant died in the year 1994 itself. Thereafter the landlord filed eviction petition in the year 1995 against the 2nd respondent herein who is the son of the deceased-tenant and who is continuing the clinic in the petition schedule premises. It is also pertinent to note that the eviction was sought on the ground of bona fide requirement of the landlord and both the Rent Controller as well as the appellate authority accepted the said plea and decided the case on merits and ordered eviction. The said order was also confirmed by this Court in CRP No. 3569 of 1997. The brother of the petitioner against whom the eviction petition was filed contested the same throughout. In Gain Devi case (supra), the Supreme Court while considering the order of the High Court in which the order of eviction was upheld only on the ground that the heirs of the deceased-tenant did not have any right to remain in the tenanted premises and the merits of the case were not considered, held that the said order cannot be sustained and remanded the matter for reconsideration. The facts in the present case are entirely different, and therefore, I am of the view that the decision of the Supreme Court in Gain Devi case (supra), is of no assistance to the petitioner.
11. For the aforesaid reasons, I do not see any ground to interfere with the order under revision. The learned Rent Controller in the facts and circumstances of the case has rightly rejected the petition filed under Rule 23(7) of the Rules. Accordingly, the civil revision petition is dismissed. There shall be no order as to costs.