Andhra HC (Pre-Telangana)
Morisetti Mohan Rao vs Tata Subbaiah And Ors. on 9 December, 1991
Equivalent citations: 1992(1)ALT484
JUDGMENT N.D. Patnaik, J.
1. The question that is involved in this Second Appeal is whether the Civil Court has got jurisdiction to entertain the suit.
2. This appeal is filed by the 4th defendant in O.S. No. 75 of 1982 in the Court of the Subordinate Judge, Kothagudem. Respondents 1 and 2 filed a suit O.S. No. 11/77 in the Court of the District Munsiff, Kothagudem against the 1st defendant for eviction from the suit premises and for arrears of rent. Subsequently, the 2nd defendant was impleaded as a party. As the 1st defendant died during the pendency of the suit, his legal representatives were added as defendants 3 to 8. The suit was transferred to the Court of the Subordinate Judge, Kothagudem and is numbered as O.S.No. 75/82.
3. The suit premises consists of a shop. One of the contentions raised by the defendants is that the Civil Court has no jurisdiction because it is governed by the Rent Control Act. The trial court accepted the contention of the defendants and held that the building is constructed in the year 1965 and the period of 10 years granted by the Government was over even by the date of filing of the suit. The suit house is not exempted from the Rent Control Act and as such, the Civil Court has no jurisdiction to entertain the suit.
4. The plaintiff preferred an appeal against the said judgment in A.S.No. 19/86 in the Court of the Additional District Judge, Khammam. The learned Additional District Judge, held that no notification extending the Rent Control Act to the Kothagudem which is a notified area was given and therefore, the provisions of the Rent Control Act are not applicable in respect of the premises in question and so the suit can be maintained in a Civil Court. He has negatived the other contention of the defendants that the notice under Section 106 of T.P. Act is not proper and ordered eviction of defendants within 3 months and also directed them to pay an amount of Rs.419-24ps. towards the arrears of rent from 1-1-1976 to 31-12-1976. The 4th respondent preferred the second appeal against the said judgment.
5. The plaintiffs i.e., respondents 1 and 2 have also filed cross-objections aggrieved by the judgment of the lower appellate court granting only Rs. 419-24 ps. towards arrears of rent.
6. The main question which arises for consideration in this appeal is whether the Rent Control Act is applicable to the building in question.
7. The trial court went on the basis that the period of 10 years of exemption granted by the Government under Section 26 of the Act has expired by the time of the filing of the suit. The lower appellate court took the view that there is no notification extending the Rent Control Act to Kothagudem notified area, in Kamalakar Rao v. Abida Begum, 1984 (1) ALT 218, it was held that Kothagudem area, prior to the Rent Control Act, 1960, was governed by the provisions of Hyderabad Act, 20 of 1954. By notification No. 15, dated 3-6-1955, the area included within the limits of Kothagudem was notified under Hyderabad Act 20 of 1954. The Rent Control Act continues to apply to that part of Kothagudem which is covered by the notification referred to above. Therefore, the learned counsel for the plaintiffs-respondents 1 and 2 had taken a different contention that under Section 32(b) of the Rent Control Act, buildings constructed on or after 26th August, 1957 are exempted from the operation of the said Act and since the building in this case was constructed in the year 1965, it was not covered by the Rent Control Act by. the time the suit was filed in the District Munsiff's Court, Kothagudem in the year 1977 and therefore, the suit is maintainable in the Civil Court.
8. The Supreme Court had struck down Section 32(b) of the Rent Control Act as unconstitutional in the decision reported in Motor General Traders v. State of A.P., AIR 1984 S.C. 121 In the decision reported in S.A. Hakim Saheb v. P.V.K. Setty, 1989 (2) ALT 28, a learned single Judge of this Court, Lakshman Rao J., held that "In the instant case, the suit was filed at the time when Clause (b) of Section 32 was in force. On the date of filing of the suit, the Civil Court had the jurisdiction to entertain and dispose of the suit. It means that the right of the party to file a suit for eviction of the tenant has crystalised on the date of the institution of the suit. Such right in my view, is not affected by the quashing of Clause (b) of Section 32 subsequent to the filing of the suit. Apart from that, once a right to file a suit which is vested in a party has been exercised, that party cannot be divested of that right except by express statutory provision or by necessary implication. No provision is, brought to my notice which can be said to have taken away the right of the respondent to continue the suit. Therefore, I am unable to accept the contention of the learned counsel for the appellant that the Civil Court had no jurisdiction to try the suit after Clause (b) of Section 32 was quashed as unconstitutional."
9. The learned counsel for the appellants has canvassed that the correctness of the view taken by Lakshman Rao J., requires reconsideration and urged that the matter may be referred to a Division Bench.
10. In the decision reported in S.A. Hakim Saheb v. P.V.K. Setty (3 supra), Lakshman Rao J., has follow a decision of the Supreme Court in Atma Ram v. Iswar Singh, AIR 1988 S.C. 218 wherein it was observed:
"In our opinion, bearing in mind the well-settled principles that the rights of the parties crystalise on the date of the institution of the suit as enunciated by this Court in Om Prakash Gupta v. Dig Vijendrapal Gupta , the meaningful construction must be that the exemption would apply fora period of 10 years and will continue to be available until suit is disposed of or adjudicated. Such suit or proceeding must be instituted within the stipulated period of 10 years. Once rights crystalise the adjudication must be in accordance with law."
11. In the decision reported in R.K. Gupta v. Sartaj Karan, 1989 (1) APLJ 218, a Division Bench of this Court, held that the parties are governed by the rights which accrued to them on the date of the institution of the suit. The learned Judges were dealing with a case where the suit was filed when the 10 years exemption granted by the Government under Section 26 was in force, but had come to an end during the pendency of this litigation. They held that the meaningful construction would, therefore, be that exemption would apply for a period of 10 years and will continue to be available until the suit is disposed of or adjudicated finally and the decree passed in such a suit is free from the fetters of Section 10. They have referred to the decision of the Supreme Court in Nand Kishore v. Samundri Devi, in which the Supreme Court pointed out "It is well settled that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit." Relying on these decisions, the learned counsel for the plaintiffs contended that on the date of the filing of the suit, since Section 32(b) was not struck down, this building was exempted from the operation of the Rent Control Act and so, only a civil suit could have been filed and since the suit was filed in the year 1977, the rights of the parties have crystalised according to the law then in force and so, that right cannot be taken away, subsequently when Section 32(b) was struck down by the Supreme Court. He has also referred to a Full Bench decision of the Andhra Pradesh High Court in P. Neelakanteswara Raju v. J. Mangamma, in which it was held:
"A jurisdiction once vested cannot be divested unless the legislature has expressly or by necessary intendment directed otherwise. The object of Section 56 is to prescribe an authority to settle a dispute of the kind referred to therein; and a dispute that is not already seized by some authority cannot be said to 'arise' and will arise only when steps are taken for having it adjudicated........
Section 56 of the Act cannot have retrospective operation and a civil court cannot be divested of its jurisdiction when it is already seized of jurisdiction to decide matters contemplated by Section 56 of the Act. Where the plaintiff sues for recovery of possession and profits even after abolition of an estate, the civil court has jurisdiction to entertain a suit for such reliefs which cannot be given by the Settlement Officer under Section 56 of the Act and the questions contemplated by Section 56 of the Act can be incidentally decided by the Civil Court."
12. On the other hand, the learned counsel for the appellant sought to make a distinction between a law which has been struck down as unconstitutional and cases where the exemption granted from the purview of the Act have come to an end during the pendency of the litigation. His contention is that under Article 13 of the Constitution, any law which is inconsistent with the provisions of the Constitution shall be void and since the Supreme Court had struck down Section 32(b) on the ground that it contravenes Article 14 of the Constitution, the effect is that such a provision is void or non-existing. He has referred to the decision of the Supreme Court in Behram Khurshid v. Bombay State, in which it is stated at page 146 (para 53) that once a statute is declared void under Article 13(1) or 13(2) by the Supreme Court, that declaration has the force of a law, and the statute so declared void is no longer law qua persons whose fundamental rights are thus infringed. He has also referred to the decision of the Kerala High Court in Lakshmi v. Narayanaswami, in which it is held that "Once a statute is declared void under Article 13(1) or 13(2), that declaration has the force of law and the statute so declared void is no longer law qua persons whose fundamental rights are thus infringed." Thus, the post-Constitution laws which are inconsistent with the provisions of the Constitution must be considered to have never come to life but were still-born as it were." He has, therefore, contended that when once the Supreme Court has declared Section 32(b) of the Rent Control Act as unconstitutional, the effect is that, that law or provision was never in existence. So, his contention is that even though the suit was filed in the year 1977 when that provision was in force, the plaintiffs cannot rely upon it after that provision has been struck down by the Supreme Court.
13. The learned counsel for the plaintiffs i.e., respondents 1 and 2 has argued that in this case, a vested right has been created in favour of the plaintiffs when they filed the suit in the year 1977, to have their case adjudicated in accordance with law in force at that time and that right cannot be taken away even if the provision of Section 32(b) is struck down subsequently. Lakshman Rao J., who has rendered the decision in S. A. Hakim v. P.V.K. Setty (3 supra) has also stated that "Apart from that, once a right to file a suit which is vested in a party has been exercised, that party cannot be divested of that right except by express statutory provision or by necessary implication."
14. The learned counsel for the plaintiffs has also referred to the Full Bench decision of the Hyderabad High Court in Munwar Khan v. Hyderabad State, AIR 1956 Hyderabad 22 in which it is held that pending proceedings should be completed according to the law applicable at the time when the rights and liabilities accrued and the proceedings commenced following a decision of the Supreme Court in Ramjilal v. I.T.Officer, Mohindargarh, .
15. The decisions which are referred to above have uniformly laid down the principle that when once the proceedings are instituted under the law which was in force, the rights of the parties are crystalised according to the law in force and the suit should be disposed of in accordance with the law which was in force as on the date of the filing of the suit. Though Section 32(b) of the Rent Control Act was subsequently struck down as unconstitutional by the Supreme Court, since the plaintiff had already filed a suit in the year 1977, when the exemption granted under Section 32(b) was in operation, the rights of the parties have been crystalised as on the date of the filing of the suit. Therefore, I am not able to agree with the contention of the learned counsel for the appellant that the decision rendered by Lakshman Rao, J., in S.A. Hakim Saheb v. P.V.K. Setty (3 supra) requires reconsideration by the Division Bench. I agree with the reasoning given by the learned Judge that since the suit is filed when Section 32 (b) was in force, the suit is maintainable. Therefore, I am unable to accept the contention of the learned counsel for the appellant that the suit is not maintainable in the Civil Court.
16. Another contention that is taken is that the notice under Section 106 of T.P. Act is not proper. As pointed out by the lower appellate court, the lease commenced on 1-11-1970 and ended after the expiry of 2 years and thereafter the tenant continued and in the absence of contract to the contrary, the tenancy is a monthly tenancy. Ex.A-12 is the notice issued terminating the tenancy. Therefore, as it is month to month and as the tenant was called upon to quit and hand-over the premises within 15 days from the date of the receipt of the notice on the expiration of the tenancy on 31-12-1976, the notice issued under Section 106 T.P. Act is valid.
17. The plaintiff has filed cross-objections regarding a portion of the arrears of rent disallowed by the lower appellate court in paragraph 12. The lower appellate court considered about the arrears of rent and the deductions which have to be made and ultimately arrived at the figure Rs. 419-24 ps. to which the plaintiffs are entitled. This being purely a finding of fact, cannot be interfered with in the second appeal. Therefore, both the appeal and Cross Objections are dismissed. No costs. The appellant, however, is granted two months time in order to enable them to vacate the premises.