Andhra HC (Pre-Telangana)
Pokuri Venkata Subba Rao vs Vinnakota Peda Nageswara Rao on 2 February, 2000
Equivalent citations: 2000(2)ALD249, 2000(2)ALT73, AIR 2000 ANDHRA PRADESH 235, (2000) 1 RENCR 446, (2000) 1 RENCJ 484, (2000) 2 ANDHLD 249, (2000) 2 ANDH LT 73
Author: C.V.N. Sastri
Bench: C.V.N. Sastri
JUDGMENT
1. This Civil Revision Petition is directed against the order dated 25-3-1998 passed by the Rent Controller, Vijayawada, dismissing an application filed by the petitioner herein to recall the warrant for delivery of the property issued on 2-3-1998 in EP No.7 of 1998 in RCC No.2 of 1997. For proper appreciation of the question involved, the facts leading to the CRP may be briefly stated.
2. The petitioner is the landlord and the respondent is the tenant in respect of a non-residential premises situate in Vijayawada town. The petitioner filed RCC 491 of 1996 on the file of the Rent Controller, Vijayawada under Section 12 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter referred to as 'the Act') seeking an order for recovery of possession of the demised premises on the ground that it is bona fide required for the purpose of demolition and reconstruction of a new premises. By an order passed by the appellate authority under the Rent Control Act, the said RCC was transferred to the file of the Rent Controller, Nandigama on 12-3-1997 and renumbered as RCC No.2 of 1997. On 14-3-1997 a decree was passed in terms of a compromise arrived at between the parties according to which the tenant should vacate the premises within one week, the landlord should complete the construction of the new building within eight months from the date of delivery and provide a shop to the tenant on the south-east corner of the newly constructed building on a monthly rent of Rs. 1375-00. The respondent-tenant, however, failed to vacate the premises within the time stipulated. On 31-3-1997, the landlord filed an execution petition before the Rent Controller, Nandigama, for executing the said decree, who relumed the same on the ground that he did not have jurisdiction to entertain the same. The execution petition was, however, represented by the landlord stating that the Rent Controller, Nandigama, has jurisdiction to execute the decree passed by him. While so, on 5-4-1997 the tenant vacated the schedule premises and delivered possession of the same to the landlord on an undertaking by the landlord to re-deliver the premises of the same plinth area i.e., 93 sq.feet on the south-east corner facing on the Shivalayam street within eight months to the tenant as per the terms of the compromise decree. A joint memo dated 5-4-1997 to that effect duly signed by both parties and their Counsel was filed into Court.
3. On 17-12-1997 the tenant gave a notice to the landlord stating that even though the construction of the new building was completed, the landlord has not offered the room promised to be delivered to him and calling upon the landlord to give the said room to him as per the joint memo dated 5-4-1997. The landlord sent a contentious reply dated 21-12-1997 refusing to deliver the said room to the tenant. On the contrary, the landlord filed OS No.201 of 1998 on the file of the II Additional Junior Civil Judge, Vijayawada, for a permanent injunction and obtained an interim order in IA No.98 of 1998 to maintain the status quo.
4. On 21-2-1998 the tenant in his turn filed EP No.45 of 1998 in RCC 491 of 1996 before the Rent Controller, Nandigama, for delivery of the room to him as per the joint memo dated 5-4-1997. It appears that on the same date, the Rent Controller, Nandigama, passed an order thereon transferring the decree for execution to the Court of the Rent Controller, Vijayawada, as the property is within the jurisdiction of the Rent Controller, Vijayawada. Pursuant to the said order, the tenant filed EP No.7 of 1998 in the Court of the Rent Controller, Vijayawada for delivery. The Rent Controller, Vijayawada, ordered delivery on 2-3-1998 without issuing any notice to the landlord. On 5-3-1998 when the bailiff went to effect delivery, the landlord obstructed and the plaintiff could not execute the warrant. On the same date the landlord filed the instant application EA No.26 of 1998 in EP No.7 of 1998 praying to recall the delivery warrant and to dismiss the EP on the ground that it is not maintainable. By the impugned order dated 25-3-1998 the Rent Controller, Vijayawada, overruling the objections raised by the landlord, dismissed EA No.26 of 1998. Hence this CRP by the petitioner-landlord.
5. Sri S. Salyanarayana Prasad, the learned senior Counsel appearing for the petitioner-landlord has raised the following contentions:
(1) Transfer of the decree for execution by the Rent Controller, Nandigama to the Rent Controller, Vijayawada, is illegal and without jurisdiction. Consequently the order of delivery dated 2-3-1998 passed by the Rent Controller, Vijayawada is also illegal and without jurisdiction.
(2) Both the said orders are illegal and violative of principles of natural justice as they were passed without giving any notice or opportunity to the petitioner.
(3) The respondent-tenant is not entitled to seek redelivery of the premises in execution of the decree as he failed to vacate the premises within the time stipulated in the decree.
(4) The decree, which is now sought to be executed by the respondents is not the original decree dated 14-3-1997 passed in RCC No.2 of 1997 but the fresh agreement evidenced by the joint memo dated 5-4-1997 which has not been recorded or certified by the Court and as such the executing Court cannot take cognizance of the same.
And (5) In view of the status quo order granted by the civil Court in OS No.201 of 1998, the order directing delivery is illegal and void.
6. On the other hand, Sri M.V.S. Suresh Kumar, the learned Counsel appearing for the respondent-tenant contended that EA No.26 of 1998 was filed by the petitioner on the sole ground that the respondent is not entitled to execute the decree as he failed to hand over the schedule premises to the petitioner within the time stipulated in the compromise decree dated 14-3-1997 and the same was rightly negatived by the lower Court. The petitioner cannot be permitted to raise any other question for the first time in the CRP. He also contended that the impugned order is perfectly valid, just and unexceptionable and there are no valid grounds whatsoever for interference in revision.
7. It is a fact that in the lower Court EA No.26 of 1998 was filed by the petitioner on the sole ground that as the respondent failed to hand over the schedule premises to him within the time stipulated in the compromise decree dated 14-3-1997 the respondent is not entitled to the benefit of the said decree and is not entitled to execute the same. The other questions raised by the learned Counsel for the petitioner herein are not raised in the lower Court. However, since the said questions are purely questions of law which arise on the admitted facts of the case and they are jurisdictional questions, I do not find any valid reasons for not permitting the same to be raised. The preliminary objection raised by the learned Counsel for the respondent is, therefore, rejected.
8. 1 shall now deal with the several questions raised by the learned Counsel for the petitioner on merits in serial order.
Point No. 1:
It is not in dispute that the petition for eviction was initially filed before the Rent Controller, Vijayawada, as RCC No.491 of 1996 and the same was transferred to the Rent Controller, Nandigama, by an order passed by the appellate authority under the Act. Rule 9 of the A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961, which were framed in exercise of the power conferred by Section 30 of the Act, provides that the appellate authority may transfer a case from the file of one controller to another controller within his jurisdiction. Though the schedule property is situate within the jurisdiction of the Rent Controller, Vijayawada, by virtue of the said order of transfer, the Rent Controller, Nandigama, has got the same jurisdiction over the subject matter as the former Court. Section 15 of the Act, which deals with the execution of orders, provides that every order made under Section 10, Section 12 and Section 13 and Section 14, 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. Rule 23(1) provides that every application for execution of orders passed under the Act shall be filed before the Controller within six months from the date of the order. The Controller is, however, empowered to admit an application filed after the specified period if the applicant satisfies the Controller that he has sufficient cause for not preferring the application within such period. Rule 23(5) provides that an order of eviction passed under Sections 10, 12 and 13 shall be executed by evicting the persons against whom the order was passed or any other person bound by the said order and by delivering the vacant possession of the building in regard to which the order was passed either to person in whose favour the order was passed or to such person he may appoint to take delivery on his behalf.
In Narayanamma v. Bhaskar Reddy, (1972) 2 An.WR 189, it is held that the Rent Control Act is a self-contained Act and the power to transfer a case is vested only in the appellate authority by virtue of Rule 9 and as such the District Judge cannot transfer a case from one Controller to another under Section 24 of CPC. It is further held that such an order of transfer made by the District Judge under Section 24 CPC is without jurisdiction and a nullity and neither consent nor waiver can cure the defect of inherent lack of jurisdiction. In S. Mohd. Ali v. V. Madhava Rao, , it is held that Rent Controller is not a Court under Section 24 of CPC and that the power to transfer a case from one controller to another vests in the appellate Court which is a creature of the Act and similarly the power to transfer a case from one appellate authority to another vests in the Government. In both these cases, it is held that there being a special provision under the Rent Control Rules, Section 24 CPC is excluded. The question for our consideration, however, is whether Rule 9 applies to the case of transfer of a decree for execution from one Rent Controller to another. A plain reading of the Rule 9 and also the context in which the said rule appears makes it clear that the said rule applies only to the transfer of a main case from one Controller to another and it has no application to execution petitions. Rule 23, which deals with the execution of orders passed under the Act, does not contain any provision for the transfer of a decree from one Rent Controller to another for execution. There is no specific provision either in the Act or in the Rules regarding the transfer of a decree. In the absence of any such provision in the Act or the Rules, there is no reason why the general provisions in the CPC in this behalf cannot be resorted to. In G. Satyanarayana v. S. Satyanarayana Murthy, (1967) 2 An.WR 479, it is held that in all cases where there is no conflict between the Rent Control Act and the Rules made thereunder and the Civil Procedure Code or wherever the Act or the Rules made thereunder are silent on matters relating to procedure, relevant provisions of the Civil Procedure Code can certainly be relied upon. In B. Vinod Kumar v. D. Ravinder Nath, 1984 (2) ALT 390, a Division Bench of this Court held that a District Munsif, acting as a Rent Controller, acts as a Court but not as a persona designata. It, therefore, follows that the general provisions in the CPC relating to the execution of decrees can be applied to the extent that there is no inconsistency between the same and the provisions of the Act and the Rules. Section 38 of CPC provides that a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. Section 39 deals with transfer of decree by one Court to another for execution. As a general rule, the territorial jurisdiction is a condition precedent to a Court executing a decree and neither the Court which passed the decree nor the Court to which it is sent for execution can execute it in respect of the property lying outside its territorial jurisdiction. Section 39 of the Code of Civil Procedure clearly envisages that if the decree directs the sale or delivery of immoveable property outside the local limits of the jurisdiction of the Court which passed it, the Court may send it for execution to the Court where that property is situated. The word 'may' used in this Section does not mean that in such a case, it is the discretion of the Court which passed the decree either to execute the decree by itself or transfer it to another Court. (See AIR 1929 Cal. 818, AIR Delhi 27 at page 29 and AIR 1981 Delhi 114). In the instant case as the property to be delivered was situate within the jurisdiction of the Rent Controller, Vijayawada, the Rent Controller, Nandigama, rightly passed an order transferring the decree for execution of the Rent Controller, Vijayawada.
9. The learned Counsel for the petitioner, however, contended that even assuming that the Rent Controller has all the powers of an executing Court under the CPC, the Rent Controller, Nandigama, while ordering the transfer of the decree for execution to the Rent Controller, Vijayawada, has not followed the procedure prescribed under Order 21, Rule 6 of CPC and as such the order of delivery passed by the latter is illegal and without jurisdiction.
Rule 6 of Order 21 prescribes the procedure where the Court desires that its own decree shall be executed by another Court. It provides that the Court sending a decree for execution shall send--(a) a copy of the decree; (b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed, or, where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remain unsatisfied; and (c) a copy of any order for the execution of the decree, or if no such order has made, a certificate to that effect.
The burden is undoubtedly on the petitioner to prove that the above procedure has not been followed in the instant case, as there is a presumption that all official acts have been rightly and duly performed, the maxim applicable being omnia praesumuntur rite esse acta. That apart, the omission to send a copy of the decree as per clause (a) or the certificate as per clause (b) of the said Rule is held to be a mere irregularity curable under Section 99 CPC and it does not affect the jurisdiction of the Court to which the decree is transferred for execution to entertain the application for execution. (See ).
For all the aforesaid reasons, I do not find any illegality either in the order transferring the decree for execution to the Rent Controller, Vijayawada or in the order of delivery passed by the said Court. The Point No.1 is, therefore, held against the petitioner.
Point No. 2:
10. So far as the question relating to the absence of prior notice to the petitioner and violation of principles of natural justice is concerned, it may be mentioned that Rule 23 of the A.P. Buildings (Lease, Rent and Eviction) Control Rules, which prescribes the procedure for the execution of the orders passed under the Act, does not require any notice to be issued to the opposite party except in a case where the application for execution is made by or against the legal representative of a party to the order. Only in such a case Rule 23(4) contemplates a notice to the person or persons concerned directing him to show cause as to why the application should not be complied with. In A.P. Transport Company v. Ghansyamdas Tosnival, 1982 (2) ALT 175, it was held that in the case of an execution petition filed beyond the period of six months prescribed in Rule 23 of the said Rules or even beyond the period of two years provided in Order 21, Rule 22 CPC, no notice need be given to the judgment-debtor before the execution is ordered. In Mohd. Azem v. Smt. Gusta Bai and Ors., , another learned Judge of this Court, while affirming the view that no notice is required to be given if the execution petition is filed within the period of six months prescribed under Rule 23, observed whether even in a case where the application is filed beyond six months notice need not be given and whether the view taken in A.P. Transport Company v, Ghansyamdas Tosnival, (supra), requires reconsideration is not a matter which calls for examination in that case. It is thus the settled legal position that where the execution petition is filed within the period of six months as provided under Rule 23, no notice is required to be given to the judgment-debtor before the execution is ordered.
In Khaja Mohiuddin v. Gayatri Iron Company, (1994) 1 An.WR 157, a Division Bench of this Court held that the expression 'from the date of the order' in Rule 23 means 'from the date when the order becomes executable'. In that case, an order was passed under Section 12 of the Rent Control Act on 4-10-1985 directing the landlord to offer premises to the tenant after reconstruction within six months. The construction of the building was completed on 20th August, 1987. It was held that the order becomes executable only on completion of construction and could be executed within six months from that date. Accordingly it was held that the execution petition, which was filed on 8-4-1987, was not barred by limitation. In the instant case indisputably the execution petition was filed within six months from the date of the completion of the construction of the building as per the decree and, in fact, no question of limitation arises at all. As such in view of the decisions referred to above, it must be held that the petitioner was not entitled to any prior notice before ordering delivery. Point No.2 also is accordingly held against the petitioner.
Point No. 3:
11. In support of the contention that the tenant is not entitled to seek delivery of the newly constructed room in execution of the decree as he failed to vacate the premises within the time stipulated in the decree, the learned Counsel for the petitioner strongly placed reliance on the decision of the Supreme Court in Ram Nath v. M/s. Ram Nath Chhittar Mal, . In that case which arose under the provisions of the Delhi and Ajmir Rent Control Act (38 of 1952), a compromise decree in terms of Section 15 was passed according to which the tenants were to vacate the premises and the landladies were to redeliver possession of the mulgis after reconstruction to the tenants within six months from 4-3-1953. The tenants, however, actually delivered possession to the landladies between March 7th and 15th, 1953. The High Court held that time was not of the essence of the compromise and consequently inspite of the possession of the premises having been given by the tenants after the dates specified in the decree, the tenants were entitled to enforce the decree by execution and apply for possession being restored to them; at any rate they could apply for restitution under the inherent powers of the Court. The Supreme Court, however, disagreed with the High Court and held that as the tenants did not deliver possession to the landladies on or before the dates specified in the decree, the tenants were not entitled to be put into possession as prayed by them. It was argued by the tenants in that case that as the landladies had taken possession of the premises after the specified date without protest and had even accepted rent up to then, they were estopped from raising that defence. The Supreme Court, however, thought it unnecessary to express any opinion on that point in the view they have taken. In Mohd. Mukarram Ali v. Khusro Begum, (1974) 2 An.WR 95, this Court had to deal with a similar case arising under the provisions of the Act. In that case also the tenant failed to vacate the premises within the time stipulated in the decree. Inspite of it, after completion of the reconstruction, the landladies gave a notice to the tenant offering the newly constructed mulgi to the tenant on a monthly rent of Rs.296/- while the original rent per month was only Rs.25/-per month. The tenant replied refusing to pay the rent demanded and requiring the landladies to deliver possession of the mulgi but the landladies refused to deliver possession. The tenant, therefore, filed an application on the original side before the Rent Controller for re-delivery of the possession of the mulgi in compliance with the undertaking given by the landladies. The landladies opposed the petition contending that as the tenant failed to deliver possession within the time stipulated, he was not entitled for re-delivery of possession. The Rent Controller dismissed the application for re-delivery holding that the application filed on the original side was not maintainable and that the tenant was not entitled for re-delivery of the newly constructed mulgi since he failed to deliver vacant possession of the mulgi to the landladies within the time stipulated in the decree. The said order was challenged in a revision filed before the High Court. The High Court, while upholding the view of the Rent Controller that the application filed on the original side was not maintainable and the proper remedy for the tenant was to file an execution petition for re-delivery under Section 15 of the Act and applying the equitable doctrine of waiver, held that the landladies had waived their right which had accrued to them by the failure of the tenant to vacate the premises within the stipulated time, by the offer made by them to the tenant for the re-occupation of the premises and the tenant can, therefore, in any appropriate proeeeding, enforce the undertaking given by the landladies. It may be mentioned that in this decision the decision of the Supreme Court in Ram Nath v. M/s. Ram Nath Chittar Mal, (supra) and also the decision of the Full Bench of this Court in Adapa Abbayi v. Sri Reddi Pantulu Choultry, (1974) 1 An.WR 154, were considered and followed. In the instant case it is not disputed that the petitioner accepted delivery of possession made by the tenant on 5-4-1997 and gave an undertaking in the joint memo dated 5-4-1997 to redelivcry the premises of the same plinth area i.e., 93 sq.feet on the south-east corner facing on the Sivalayam street within 8 months from that date to the tenant as per the terms of the compromise decree. The petitioner must be, therefore, deemed to have waived the right which accrued to him on the failure of the respondent to vacate the premises within the time stipulated in the compromise decree dated 14-3-1997 and it will be clearly unjust to permit him to blow hot and cold. Point No.3 also is accordingly held against the petitioner.
Point No.4:
12. In view of my finding on Point No.3, I do not find any substance in the contention of the learned Counsel for the petitioner that the decree, which is now sought to be executed by the respondent, is not the original decree dated 14-3-1997 but the fresh agreement evidenced by the joint memo dated 5-4-1997 and that the executing Court cannot execute the same. The undertaking given by the petitioner in the joint memo dated 5-4-1997 is only to re-deliver the newly constructed shop as per the terms of the compromise decree dated 14-3-1997 and there is no alteration whatsoever of the decree. There is also no question of any adjustment of the decree as contemplated in Order 2, Rule 2 CPC for it is nobody's case that there has been any adjustment or satisfaction of the decree directing the petitioner to re-deliver the newly constructed room to the respondent after completion of the reconstruction. On the contrary, the specific undertaking given by the petitioner in the joint memo dated 5-4-1997 belies the said contention. As such the question of recording or certifying any adjustment as contemplated under Order 2, Rule 2 CPC does not arise. The learned Counsel for the petitioner sought to contend that it is specifically mentioned in the joint memo dated 5-4-1997 that the said undertaking given by the petitioner is without prejudice to the rights of the petitioner and as such the petitioner is not precluded from contending that the respondent is not entitled for re-delivery notwithstanding the said undertaking. I do not, however, find any force in this submission. When once it is found that the petitioner has waived the right which accrued to him by accepting the belated delivery of possession by the respondent and by the undertaking given by him to re-deliver possession of the newly constructed mulgi to the respondent as per the terms of the compromise decree, the addition of the words "without prejudice to the rights of the petitioner" in the joint memo is meaningless and superfluous and it has no effect. I, therefore, reject this contention.
Point No. 5:
13. It is finally contended by the learned Counsel for the petitioner that in view of the status quo order passed in IA No.98 of 1998 in OS No.201 of 1998 on the file of the Court of the II Additional Junior Civil Judge, Vijayawada, the order of delivery passed by the Rent Controller contrary to the said order of the civil Court is illegal and void. It is, however, pointed out by the learned Counsel for the respondent that the suit itself was dismissed on 15-9-1999 and the status quo order granted earlier is not longer subsisting. In reply to the same, an affidavit sworn to by the pelitioner's son has been filed on behalf of the petitioner stating that the said suit was dismissed for default on 15-9-1999 and an application to set aside the said order of dismissal and to restore the suit to file has been filed on 22-12-1999 and the same is still pending. It cannot be predicted at this stage as to what will be the outcome of the said application for restoration of the suit. Prima facie, the said application appears to have been filed beyond time. It is not known whether any separate application for condonation of delay has been filed or not. The fact, however, remains lhat the suit was dismissed and consequently the status quo order granted earlier lapsed and it is no longer subsisting. I do not, therefore, find any force in the last submission made by the learned Counsel for the petitioner as well. More than two years have already elapsed after the passing of the compromise decree. Under the compromise decree, the respondent-tenant is required to pay a rent of Rs.1350-00 per month as against the original rent of Rs.75-00 per month. The petitioner, having obtained possession of the premises by virtue of the compromise decree and having given a solemn undertaking to re-deliver the premises to the respondent after completion of the new construction, I see no justification or bona fides in the conduct of the petitioner in stalling the execution proceedings by raising some technical pleas which arc found to be without any merit.
14. The CRP is, therefore, dismissed with costs and the interim stay stands vacated.