Andhra HC (Pre-Telangana)
B.R. Andewar vs Lingari Narsimha on 14 February, 1992
Equivalent citations: 1992(1)ALT575
ORDER V. Neeladri Rao, J.
1. This is a tenant's revision petition. The respondent herein filed the eviction petition in regard to the premises bearing Municipal No. 11-4-554 situated at Chilkalguda, Secunderabad on the grounds of wilful default in payment of rent from April to September 1985, and additional accommodation. The learned Rent Controller held against the respondent landlord on both the grounds while the Appellate Court held in favour of the landlord on both the grounds.
2. The landlord pleaded that there are number of portions in the house belonging to him and he is residing with his wife and five children in the portion bearing municipal No. 11-4-553 and the revision petitioner (for short 'the tenant) is residing in the adjoining portion bearing municipal No. 11-4-554.
3. Portion bearing Municipal No. 11-4-550 belonging to this landlord was let out on a monthly rent of Rs. 40/- to this tenant. He shifted into the portion bearing municipal No. 11-4-551 on 1-9-1977 in the same house. In 1982 he shifted into the portion bearing municipal No. 11-4-554. The Appellate Court held that the portions bearing municipal Nos. 11-4-550, 11-4-551, 11-4-554, 114-553 and some other portions form part of the same house. The said finding was not challenged during the arguments in this revision petition and hence it need not be adverted to for disposal of this revision petition.
4. The points in controversy in regard to the ground of wilful default are as to whether the rent is Rs. 50/- per month from 1-9-1977 as claimed by the landlord or it continued to be Rs. 40/- per month throughout as pleaded by the tenant; and whether the rent from April to September 1985 was not paid as stated by the landlord or whether it was paid as contended for the tenant.
5. There is admittedly no documentary evidence in regard to the rate of rent from 1-9-1971. After filing this eviction petition on 19-11-1985, the landlord filed S.C.No. 46 of 1985 on 21-11-1985 for recovery of arrears of rent from the tenant herein in regard to this premises for the period of six months i.e. from April 1985 to the end of September, 1985 at the rate of Rs. 50/- per month. The said suit was decreed on 30-6-1987 (vide Exs.P.2 and P.3 certified copies of the judgment and decree therein). C.R.P.No. 1992/87 filed against the said judgment was dismissed. The Appellate Court held on appreciation of the evidence that the monthly rent was Rs. 50/-, and in view of the judgment in S.C.No. 46 of 1985, the default was held as proved, and the same was considered as wilful default in payment of rent from April to September, 1985.
6. It was urged for the tenant as under: The landlord can file a petition under Section 11 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short 'Rent Control Act'), if there are arrears of rent and there is a bar of civil suit for recovery of the rent after the eviction petition is filed. It is the forums constituted under the Rent Control Act to determine and decide as to whether there is wilful default in payment of rent, and hence the finding of the Civil Court in small Cause suit does not operate as res judicata. But both the above two contentions are not tenable. Admittedly there is no express provision in the Rent Control Act barring the Civil Court from entertaining a suit for recovery of rent after a petition for eviction was filed. Even by implication it cannot be stated that such a suit is barred. Section 11 of the Rent Control Act merely provides that no tenant against whom an application for eviction has been filed by a landlord under Section 10 shall not be entitled to contest the application or the appeal under Section 20 unless he pays to the landlord or deposits with the controller or the Appellate authority, as the case may be, all arrears of rent due in respect of the building up to the date of payment or deposit and to continue to pay any rent or deposit which may subsequently become due in respect of the building. It is merely a bar for contesting the eviction petition. One may visualise a case where the petition filed under Section 11 may be adjourned from time to time and the tenant may fail to deposit the arrears even after the order under Section 11 is passed; then he may face eviction and there is no provision whereby a decree can be passed by the Rent Controller or the Appellate authority as against the tenant for payment of arrears of rent. If it can be held that there is an implied bar for filing a suit for recovery of rent during the pendency of the eviction petition the claim for part of the arrears may be barred by the time the order under Section 11 is passed. It cannot be stated that the Legislature contemplated such a situation.
7. East India Corporation Ltd., v. Shree Meenakshi Mills Ltd., was referred to in this context. While referring to Tamil Nadu rent Control Act, it was held therein that though there is no express bar for filing a suit for eviction yet except for the limited extent provided, the jurisdiction of Civil Court is impliedly barred for claiming the relief of eviction. It was cited as an authority for the principle that even if there is no express bar for filing a suit, still by implication the filing of such a suit can be held as a bar. But as a decree cannot be passed by the Rent Controller or the Appellate Authority in regard to arrears of rent, and as only possession can be obtained from the tenant in pursuance of the order under Section 11 if the arrears of rent as per that order were not paid within the time stipulated or the time extented from time to time, and as such an order cannot be executed as a money decree, it cannot be inferred even by implication that a suit for recovery of rent is barred during the pendency of the eviction petition.
8. Section 11 C.P.C. is not applicable as this is not a suit. But the plea of res judicata on general principles can be successfully taken before the Courts having exclusive jurisdiction. When the plea of res judicata is founded on general principles of law, all that is necessary to establish is that the Court that heard and disposed the former case was a Court of competent jurisdiction. It is not necessary to further prove that, that court has jurisdiction to hear the latter suit. Whether the finding of the Small Causes Court that there is relationship of landlord and tenant in a suit for rent operates as res judicata as between the same parties in a suit in Civil Court for recovery of rent for the same premises operates as res judicata had come up for consideration before the Supreme Court in the judgment delivered in Shyam Behari Lal v. Lalla Jageshwar Prasad, 1970 (3) S.C.C 591. While adverting to the said question it was held that if the plea is raised under Section 11 C.P.C. one of the essential conditions to be satisfied is regarding the competency of the former court to try the subsequent suit, and it is not necessary to prove the same when the plea of res judicata is founded on general principles of law, and in such a case it is merely necessary to establish that the Court that had decided the former case was a Court of competent jurisdiction. It is now well established that the plea of res judicata founded on general principles of law can be raised even in quasi-judicial proceedings. As such, the plea of res judicata bounded on general principles can be raised even before the Rent Controller.
9. Admittedly, the Small Causes Court is competent to decide the quantum of rent for each month, and whether there are arrears in a suit for recovery of rent before the said Court. In S.C.46/85 the two findings that were given are (1) the rate of rent was Rs. 50/- per month and (2) the rent was not paid by the tenant herein from April to September 1985. The same points arise for consideration in this rent control proceedings also in order to consider whether there was wilful default in payment of rent from April to September 1985. If there is no default, the question of wilful default does not arise. Hence, when the landlord pleaded that there was wilful default in payment of rent, he has to establish the rate of rent for each month or any other period agreed upon. There was default in payment of rent for the period referred to and that default is wilful. But in a suit for recovery of rent, it is not necessary to prove whether the default is wilful or not. But it is essential to prove the vote of rent, and the default. Whether the finding of the Rent Controller about the default in payment of rent operates as res judicata in a suit for recovery of rent had come up for consideration in Puvvada Hanumantha Rao v. Thiwari Murahari Singh, 1987 (2) ALT 609 and it was held therein that it operates as res judicata in view of the Explanation VIII to Section 11 CPC introduced by Amendment Act, 1976. But, as the proceedings before the Rent Controller cannot be treated as suit, even that Explanation is not attracted. But as the plea of res judicata on general principles is applicable to the proceedings before the Rent Controller, the findings of the Court in S.C.No. 46 of 1985 that the rent is Rs. 50/- per month and that there was default in payment of rent from April to September, 1985 operate as res judicata in this rent control proceedings. When there is default in payment of rent for six months referred to, and when the tenant has come up with a false plea that he paid the rent, the default has to be held as wilful and as such the finding of the Appellate Court in regard to the same has to be confirmed.
10. Admittedly the landlord herein is residing with his wife and five children in the portion having only two rooms, and one of them is used as kitchen. He is having grown up children and the eldest daughter was studying B.Com. by the date of eviction petition, it was pleaded that he requires additional accommodation for the studies of his children and for the rest and the portion in occupation of this tenant adjoins the portion in which the revision petitioner is residing.
11. When eviction is claimed by way of additional accommodation under Section 10(3)(c) of the Rent Control Act, it is merely necessary to establish that the landlord bonafide requires additional accommodation for residential purpose or for the purpose of business which he is carrying on as the case may be. The landlord herein pleaded to that effect. Of course, the landlord has not pleaded that he has no other suitable accommodation. Section 10(3)(c) of the Rent Control Act does not enjoin upon the landlord to establish that he has no other suitable accommodation. Abdul Hamid and Anr. v. Nur Mohammed, relied upon for the tenant is merely to the effect that the landlord must urge all statutory conditions to get an eviction. Of course, in view of Section 14(1)(e) of the Delhi Rent Control Act, it is necessary to aver that he has no other suitable residential accommodation to claim eviction. But as already observed, Section 10(3)(c) of the Rent Control Act does not lay down that while claiming eviction of the tenant from the part of the building when it is required by way of additional accommodation, it is necessary to plead that he has no other suitable accommodation.
12. The learned counsel for the tenant has not urged that the hardship to be caused to the tenant by granting eviction outweighs the advantage to the landlord and hence the eviction has to be rejected. As such, this point does not arise for consideration of this revision petition.
13. Abdul Samad Makhadum Baksh Sheikh and etc., Sau. Sudha Anant Parakhe, a case of the Bombay High Court was referred to contend that the decree of eviction on the basis of the case not made out in suit could not be sustained. That question does not arise in this case. It is established that the landlord herein is in need of additional accommodation as the two rooms which are in his occupation are not sufficient for his family consisting of his wife and five children, and some of them are grown up and the portion in occupation of the tenant also consists of only two rooms and it cannot be said that such family does not reasonably require four rooms.
14. The tenant herein is working in Railways and the railway service is notified by the Andhra Pradesh Government as an essential service for the purpose of Section 10(4) of the Rent Control Act. The tenant herein contends that as he is engaged in employment in the essential service notified by the State Government under Section 10(4), the eviction cannot be ordered even if it can be held that the landlord herein bonafide requires this portion by way of additional accommodation. But it is stated for the landlord that he is also working in the railways and hence the tenant herein cannot invoke Section 10(4)(1) of the Rent Control Act to desentitle him (the landlord) from claiming eviction on the basis of bona fide requirement.
15. The landlord did not plead that he is working in railways. But in recording his deposition, his occupation was referred to as "service in railways' in the preamble of that deposition. It was submitted in this Court by the learned counsel for the landlord, that when the matter has come up before the Appellate Court, even the tenant herein was present, and when the learned Appellate Judge enquired as to whether the landlord is working in railways as pleaded by him, the learned counsel after having instructions from the tenant submitted that the landlord herein is also working in the railways. The learned Appellate judge might have so enquired in order to assure himself as to whether the occupation of the landlord herein as noted in the preamble of the deposition is correct or not. Anyhow even before this Court, the tenant revision-petitioner has not filed any document from the railway administration at Secunderabad to establish that the landlord herein is not working in the railways. As such the contention of the landlord herein that he is also working in the railways can be believed. Hence, the tenant herein cannot rely upon Section 10(4)(1) of the Rent Control Act to urge that the eviction cannot be ordered even if the landlord bonafidely requires the same for his personal occupation.
16. But the learned counsel for the tenant urged that as the landlord has not averred that he is also working in the railways, he cannot be permitted to adduce any evidence in regard to the same and even if material is placed in regard to the same, it has to be ignored. Nirod Baran Banerjee v. Commissioner of Hazaribagh, is cited for the principle that no evidence can be looked into by the Court for which there is no foundation in the pleadings.
17. It may be noted that both the landlord and the tenant herein are working in the same railway administration. Hence the landlord might have felt that the tenant may not raise the plea under Section 10(4) of the Rent Control Act. But the tenant has chosen to aver to that effect knowing full-well that he is not entitled to invoke Section 10(4)(1) of the Rent Control Act as the landlord is also working in the railways. There is no provision for filing a rejoinder. In such a case, the landlord herein cannot be precluded from relying upon the material on record that he is also an employee in the railway administration.
18. In view of the above discussion, the finding of the learned Appellate Judge even in regard to the bonafide requirement of the additional accommodation has to be confirmed.
19. There are no merits in the revision petition. Accordingly, it is dismissed. No costs.
20. The revision petitioner- tenant is given three months time from today for vacating the premises subject to payment of rent at Rs. 50/- p.m.