Andhra HC (Pre-Telangana)
K. Meghamala vs Devulapalli Indira And Ors. on 24 March, 2006
Equivalent citations: 2006(3)ALT785
ORDER P.S. Narayana, J.
1. Smt. Anasuya, wife of K. Narasing Rao, 10th respondent in E.P.No. 7 of 2005 in RC.No. 170 of 1994, had preferred CRP. No. 6990 of 2005 as against the order made by the Principal Rent Controller at Secunderabad in the aforesaid E.P., dated 16-12-2005. Likewise 12th respondent-Venkateswar Rao, one of the sons of the said Narsing Rao, filed CRP.No. 6978 of 2005 questioning the selfsame order. Smt. Meghamala, daughter of Narsing Rao filed yet other CRP., viz, CRP.6930 of 2005 questioning the self-same order. All these three CRPs are being disposed of by a common order since these CRPs are preferred by certain legal representatives of the deceased-Narsing Rao as against the self-same order and also in view of the fact that the objections raised and the contentions advanced on behalf of these revision petitioners in these CRPs being common.
2. Sri Vedula Venkata Ramana and Sri Mohd. Osman Shaheed and Sri Chandrasekhar Reddy representing the revision petitioners in this batch of revisions made the following submissions;
3. Contentions of Sri Vedula Venkataramana Sri Vedula Venkata Ramana, learned Counsel would maintain that the original tenant died during the pendency of the proceedings and however, one of his legal representatives no doubt in a different capacity had been on record and though the original tenant-Narsing Rao died, the legal representatives of the said Narsing Rao were not brought on record at the stage of CRP and the same was carried even to the Apex Court by Srisailam and the said Srisailam is sailing with the landlady and hence the said proceedings are collusive and at any rate not binding on the other legal representatives of Narsing Rao, who were not brought on record. Inasmuch as their rights would be seriously prejudiced, they raised objections relating to the executability of the eviction order which is said to have been obtained by the landlady and further it is said to have attained finality at the hands of the Apex Court. The counsel would submit that if the eviction order is put into execution as against those parties only, absolutely these parties have no objection, but in the light of a Memo said to have been filed by the legal representatives by invoking Order 6 Rule 17 of the Code of Civil Procedure, such parties cannot be brought on record in the execution petition filed by the decree holder-landlady and the said decree cannot be executed as against these legal representatives. The learned Counsel also would submit that this is a non-residential premises and hence there cannot be any severability of the action as between these legal representatives. The learned Counsel also would maintain that whenever the provisions of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 and the Rules framed thereunder are silent, the provisions of Code of Civil Procedure are made applicable and hence it may have to be taken the proceedings so far as these legal representatives and the original tenant-Narsing Rao are concerned, to be deemed to have been abated and have no effect in the eye of law and to be treated as nonest. The learned Counsel also had drawn attention of this Court to the Rent Control Rules and placed reliance on the decisions in V.D. Modi v. R.A. Rehman , Mohd. Safdar Shareef (died) per L.Rs and Ors. v. Mohammed All (died) per L.R. and G. Satyanarayana v. S. Satyanarayana Murthy 1967 (2) An.W.R. 479. The learned Counsel also would maintain that when the legal representatives were not brought on record, an execution petition will not lie against such non-parties who were not brought on record and as against such parties, the execution cannot be proceeded with and these parties cannot be placed in a worse position when compared to that of strangers. The learned Counsel also made certain submissions on the aspect of jurisdiction of the Court, the nullity of a decree and the effect of non-bringing of the legal representatives on record.
4. Contentions of Sri Mohd. Qsman Shaheed Sri Mohd. Osman Shaheed while substantially adopting the submissions made by the learned Counsel referred to supra had also traced the historical background of the litigation and would maintain that the landlady made unsuccessful attempts by filing two Rent Control cases Re. Nos. 341/1988 and 54/1989 respectively on the ground of wilful default. The counsel also would maintain that the said Narsing Rao entered into partnership with Kanchi Saree House and the ground is one of sub-tenancy. The learned Counsel also would maintain that Srisailam was just brought on record as one of the partners of the said firm. In all fairness the learned Counsel would maintain that the other factual details relating to the rent control proceedings cannot be gone into since the order of eviction made, had attained finality at the hands of the Apex Court, but, the counsel would maintain that the objections raised by the legal representatives are limited to the extent of the executability of the order of eviction as against the non-parties to the proceedings. The learned Counsel placed strong reliance on the decisions in State of Delhi v. MCD 2005 SCC (Criminal) 1322, Rizwan and Ors. v. Allemunnisa Begum 2000 (1) An.W.R. 284 : 2000 (1) ALD 625 and Arya Peddakka and Ors. v. Jangiti Bala Thimmaiah and Anr. .
5. Contentions of Sri Chandrasekhar Reddy:--
Sri Chandrasekhara Reddy, the learned Counsel representing the petitioner in C.R.P.No. 6930/2005 would maintain that inasmuch as the original tenant died during the pendency of C.R.P. and in view of the fact that without bringing the legal representatives on record, the C.R.P. was dismissed on 22-2-2005 by virtue of doctrine of merger inasmuch as the legal representatives of the original tenant were not brought on record, the said order is a nullity. The mere fact that the matter was carried further would not alter the situation in any way. The learned Counsel placed strong reliance on the decision in Kunhayammed v. State of Kerala AIR 2000 SC 2587. The Counsel also pointed out to several other factual details and would maintain that inasmuch as this is a question touching the very jurisdiction of the executing Court to execute an order of eviction, the legal representatives are entitled to raise objection and hence the findings recorded by the learned Judge cannot be sustained and the C.R.P. to be allowed.
6. Per contra, Sri Sham Sunder Rao, learned Counsel representing the landlady would maintain that the ground taken by the landlady is one of subletting and the stand taken by the tenant that they are also partners was held to be sham defence and the same had been negatived. The learned Counsel also would maintain that the landlady had no knowledge about the death of the original tenant-Narsing Rao, and Srisailam, one of the sons had been on record and in fact Srisailam had alone carried the matter to the Apex Court and was ultimately unsuccessful. The learned Counsel also would submit that it appears t hat an application in the pending CRP at the relevant point of time was filed to bring on record the legal representatives, but the same was not bought to the notice of the landlady nor any notice as such had been served on her, but the same was not taken to its logical end for the reasons best known to Srisailam. The counsel also would maintain that in a litigation of this nature, which is being seriously contested by the parties, to say that Srisailam is sailing with the landlady is something peculiar and prima facie cannot be believed at all. Even otherwise the learned Counsel would submit that the ground of subletting was established and even on facts it is Kanchi Saree House, a partnership firm, which is actually in possession of the property by virtue of subletting and which at present is running the business, When that being so, in the light of the positive findings which had been recorded up to the Apex Court on the ground of subletting, the present legal representatives, the left over legal representatives cannot contend that their alleged rights as heirs of Narsing Rao to succeed to the tenancy rights had been lost or prejudiced, cannot be accepted for he reason that Narsing Rao himself parted with possession long back and that is the ground on which an order of eviction was made as against Kanchi Saree House and it is needless to say that Kanchi Saree House alone will be the real, affected and aggrieved party in the event of the landlady putting the eviction order into execution. Incidentally the learned Counsel also would comment that a CRP in rent control proceedings cannot be equated with a regular appeal. Even otherwise no prejudice is caused to the other legal representatives inasmuch as one of the legal representatives of Narsing Rao, Srisailam who had been already on record, had effectively represented the interest of the group pf legal representatives. Even in this view of the matter the objections, if any, raised by these legal representatives are bound to fail. At any rate the counsel would conclude that these technical aspects, especially in the summary proceedings, like rent control proceedings, should not come in the way of doing substantial justice to the parties.
7. Heard the counsel.
8. The facts in these CRPs appear to be a bit peculiar. The CRPs are preferred as against a common order made in EP.No,7 of 2005 in RC.No. 170 of 1994 under Section 22 of A.P. Buildings (Lease, Rent and Eviction Control) Act, 1960, hereinafter in short referred to as Act for the purpose of convenience. The, main grievance ventilated by the revision petitioners is that they were not brought on record when the husband and the father of these parties, Narsing Rao-the original tenant, died during the pendency of the CRP. It is not serious controversy that one of the legal representatives Srisailam alredy had been on record. No doubt there appears to be some controversy relating to the fact that he was on record in a different capacity as one of the partners of the said firm or otherwise. This question need not detain this Court any further for the following reasons recorded infra.
9. In Upper India Cable Co. v. Bal Kishan the Apex Court while dealing with Order 30, Rule 4; Order 22, Rules 1, 4 and 9 and Order 1 Rules 3 and 9 of the Code of Civil Procedure held that where the suit was instituted against a firm and persons claiming to be or being liable as partners of the firm impleaded as proper or formal parties but no relief claimed against them, death of those partners taking place during pandency of second appeal before High Court, but neither the heirs and legal representatives of the deceased partners joining the firm nor they are entitled to be taken in the firm as partners in place of the deceased, the appeal would not abate in absence of substitution of the heirs and legal representatives and the death of those proper parties would not have any impact on the suit. The principle which was laid down by the Apex Court in this decision in relation to a partnership firm may have to be borne-in mind. A Division Bench of Allahabad High Court in Thakur Prasad v. Kanhya Lal AIR 1931 Allahabad 746 while dealing with the matter held that non-compliance with procedure as to bringing legal representatives on record within three months is mere irregularity so long as decree passed in suit is as between living persons and the Executing Court cannot refuse to execute the decree on the ground of such irregularity. It may be proper to have a look at the view expressed by the Division Bench of the Madras High Court in Manickam v. Ramanathan AIR (36) 1949 Madras 435, wherein the applicability of Order 22 Rules 3 and 4 of the Code of Civil Procedure to the revision petitioners had been dealt with. It was held by the Division Bench that there can be no question of abatement but for the combined application of the provisions of Order 22 Rules 3 and 4 and the material articles of the Limitation Act. As neither Order 22 of the Code of Civil Procedure nor the Limitation Act applies to civil revision petitions, there can be no question of abatement of such petitions. It is needless to say that the Rent Control proceedings are summary proceedings. It may be that these CRPs are being filed under Section 22 of the Act aforesaid and not under the provisions of the Code of Civil Procedure. In a slightly different context, the Madras High Court while dealing with the provisions of Tamilnadu Buildings (Lease and Rent Control) Act, 1960, in Mrs. Kunhane v. Rent Controller 1984(2) MLJ 185 held as hereunder.
Protection to a tenant, under the Act being personal, during the pendency of the proceedings, on the death of a tenant only the prescribed categories of persons are allowed to secure the benefits, which the tenant could have got, if the tenant had survived the proceedings. On his death, during the pendency of the execution proceedings, the property may be in the hands of his lawful heirs, who could not have claimed tenancy rights which had subsisted in the deceased tenant, To get possession from them, when the order is being executed as a decree of a civil Court, naturally, such of those persons who can be brought on record within the folds of the executing Court are allowed to be brought on record as legal representatives, by invoking the provisions of the Civil Procedure Code. Adeeming provision having been made statutorily, all the incidents and consequences which follow in an executing Court in enforcing a decree of a Civil Court would be available to the parties to the proceedings. Such an enlargement of rights having been conferred by the statute, restrictive applicability existing during the pendency of the proceedings cannot be applied after an execution petition is filed. Hence all the lawful heirs of the deceased tenant are to be brought on record as his legal representatives.
10. Strong reliance was placed on the decision of this Court in Kotha Srinivasa Rao v. Ganta Nagaratnam and Anr. , wherein this Court held that impleading new party in execution proceedings under the Act is not permissible and the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure are not applicable at the stage of execution. Strong reliance was placed on the decision in Amba Bai v. Gopal ., wherein it was held that, A Second Appeal was preferred in the High Court against the decree granting specific performance. It is admitted by the parties that while the Second Appeal was pending the appellant died and this fact was not brought to the notice of the Court and the appeal was dismissed. The legal heirs of the deceased appellant did not take any steps to have the judgment in the Second Appeal set aside. As the judgment in the Second Appeal was passed without the knowledge that the appellant had died, the same being a judgment passed against the dead person is a nullity and as legal representatives did not take steps to get themselves impleaded in the Second Appeal proceedings, the Second Appeal should be taken to have abated by operation of law. And when there was abatement of the Second Appeal, there can be no merger of the same with the decree passed by the First Appellate Court. As the appellant died during the pendency of the appeal, and in the absence of his legal heirs having taken any steps to prosecute the Second Appeal, the decree passed by the first appellate Court decreeing suit for special performance must be deemed to have become final. The decree of first appellate Court under execution is not a nullity in the eye of law, and the execution proceedings are not liable to be dismissed.
Further strong reliance was placed on the decision of a Division Bench of this Court in Mohd. Sardar Shareef (supra 2), wherein it was held that an appeal will abate as a whole if the case is of such nature that the appeal cannot proceed in the absence of the legal representatives of the deceased appellant and the basis of this rule is that to decide an appeal without bringing the legal representatives on record in a case of that nature, will produce two inconsistent and contradictory decrees in the same litigation with respect to the same subject matter. There cannot be any serious quarrel relating to these propositions referred to supra.
11. Several of the facts appear to be not in serious controversy between the parties. The fact that Narsing Rao died during the pendency of a CRP filed under Section 22 of the Act is not in serious controversy, but the landlady was not apprised of the same. Though it appears that an attempt was made to bring on record the legal representatives by moving an application, the said application had fallen into darkness for the reason that the landlady was not put on notice at all in relation thereto. That is not the end of the matter. The unsuccessful Srisailam, the legal representative of the deceased-Narsing Rao in whatever capacity he might have been there on record, aggrieved by the order of eviction made in the CRP confirming the order of the Courts below had further preferred Special Leave before the Apex Court and had been unsuccessful there also. No doubt the present revision petitioners-objectors, the wife and another son and daughter of the deceased-Narsing Rao, intend to put forth a plea now stating that there was some collusion between the said Srisailam and the landlady. On a careful scrutiny of the whole material available on record, this Court is thoroughly satisfied that this objection is totally an unsustainable one. The only objection that may have to be considered is whether in the peculiar facts and circumstances the order of eviction obtained by the landlady as against Kanchi Saree House, the partnership firm, be executed as it is and whether it suffers from any serious legal infirmity touching the very jurisdiction of the executing Court to further proceed with the execution of such order for eviction for the reason that the other legal representatives of the deceased-Narsing Rao were not brought on record. In the considered opinion of this Court, this is a case where Srisailam, Kanchi Saree House, the sub-tenant and the present legal representatives, the objectors, intend to lake shelter on such a ground having been unsuccessful in relation to the self-same ground, the ground of subletting which was specifically pleaded by the landlady. In the considered opinion of this Court these objections raised by the legal representatives are not with a view to ventilate the real gievance of these parties that any prejudice a, such had been caused to them relating to the tenancy rights, but to give protective umbrella to the sub-tenant, the Kanchi Saree House which would be the real, aggrieved and affected party in case the order of eviction is further executed. Hence, taking into consideration the nature of the proceedings, the Rent Control proceedings being summary, and also taking into consideration the limited applicability of the provisions of Order 22 of the Code of Civil Procedure and also taking into consideration the principle of Doctrine of Representation, which is clearly applicable since the tenancy rights of Narsing Rao was effectively represented by the legal representative Srisailam, who had already been on record, mere bringing or non-bringing on record the other legal representatives, that too just due to the fault committed by them, cannot be taken advantage of at this distant point of time especially having been unsuccessful even at the hands of the Apex Court. This Court is thoroughly satisfied that this narrow split technical objection is being raised only with a view to postpone the evil day. It is needless to say that always technicalities in law should not prevail over than doing substantial justice to the parties. Here is an unfortunate landlady, who fought the litigation upto the Apex Court on the ground of subletting and at the stage of execution these objections are forthcoming.
12. It is not in serious controversy that one of the legal representatives - Sreesailam already had been on record. Be that as it may, there is some controversy in what capacity he had been on record. There is no doubt, some other controversy also that the said Sreesailam is sailing with the landlady. Be that as it may, this Court expressed an opinion relating to the same referred to supra. The other factual aspects already had been dealt with in elaboration. On the aspect of doctrine of merger, the Apex Court in Kunhayammed's case (referred 7 supra) at paras 12 and 43 held as hereunder.-
The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When decree or order passed by inferior Court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior Court has disposed of the Us before it either way -whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior Court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the Court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view.
We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage.
To sum up our conclusions are:
(i) Where an appeal or revision is provided against an order passed by a Court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal.
(iii) Doctrine of merger is not a doctrine of universal or unlimited application, It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability or merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.
(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substitutec in place of the order under challenje. All that it means is that the Court was not inclined to exercise its discreion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, otherthan the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the Court, tribunal or authority in any proceedings subsequent there to by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the Court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a review petition is lost there after as provided by Sub-rule (1)of Rule (1) of Order 47 of the C.P.C.
The facts of the case as already observed above are a bit novel and peculiar. Here is case where the real aggrieved parties who are in actual possession of the property as on today is the Kanchi Silk Saree House and not these legal representatives said to be representing the interest of deceased Narsing Rao. In the light of the doctrine of representation which is made applicable to the facts of the case and in the light of the findings recorded supra the decision relied upon by the learned Counsel Kunhayammed's case (referred 7 supra) is distinguishable on facts for the reason that it is not a case where a decree had been obtained as against a dead person or in favour of a dead person and such person was not being represented at all. Here is a case where the other parties - the sub-tenant -partnership firm and another son of the original tenant, Sreesailam had already been on record and matter was carried up to the level of the Apex Court and ultimately the landlady was successful. Hence the question of inherent lack of jurisdiction for want of bringing the legal representatives on record may not be applicable to the facts of the case. The doctrine of merger and the resultant consequences of the conflicting decrees emerging therefrom also may not be applicable in view of the peculiar facts of the case.
13. Certain submissions no doubt were made that such parties who were not parties to the proceedings cannot be brought on record. When the tenancy rights of Narsing Rao are being represented by Srisailam, this Court is of the considered opinion that to avoid further complications, the executing Court most probably exercising inherent jurisdiction thought of allowing these parties to be on record especially in the light of the Memo filed by the self-same legal representatives. The said approach adopted by the Court below also cannot be found fault with inasmuch as this objection also appears to be just a technical objection. Viewed from any angle, the landlady is bound to succeed and the landlady is at liberty to further proceed with the execution and take possession of the property in question in accordance with law. Hence, the impugned order questioned in the CRPs does not suffer from any illegality whatsoever and accordingly the same is hereby confirmed.
14. Accordingly, all these three C.R.Ps., shall stand dismissed with costs.