Andhra HC (Pre-Telangana)
Vallabhaneni Sarala Devi vs Rachapudi Subba Rao on 26 October, 1990
Equivalent citations: 1991(1)ALT297
ORDER Iyyapu Panduranga Rao, J.
1. These revision petitions are directed against the common order dated December 31, 1985 of the I Additional District Judge, Krishna at Machilipatnam by which E.P. Nos. 37 to 39 of 1984 on his file were dismissed and allowed E.A. Nos. 392 to 394 of 1984. Aggrieved by the dismissal of E.P. Nos. 37 1o 39 of 1984, the petitioner filed C.R.Ps. 640 to 642 of 1986 respectively and similarly aggrieved by allowing E.As. 392, 393, and 394 of 1984 the petitioner filed C.R.P. Nos. 2497, 2498 and 2499 of 1987 respectively. CRP No. 641/86 was dismissed by this Court as per orders dated 11-6-87. Since all these petitions are directed against a common order dated 31-12-1985 of the learned I Additional District Judge at Machilipatam, all these matters are heard together and they will be disposed of by a common order.
2. The common point that arises for consideration in all these matters is-whether the revision petitioner is entitled to execute the decree in O.S. No. 275/72 on the file of the 1st Addl. Subordinate Judge, Vijayawada and is permitted to proceed with E.Ps. 37 of 1984 and 39 of 1984.
3. The revision petitioner is the plaintiff in O.S. No. 275 of 1972 while the respondent in all these proceedings is the sole defendant in the said suit. To obviate any probable confusion, the parties in these revision petitions are referred to as arrayed in the suit.
4. Before considering the point in dispute between the parties, the circumstances that led to the filing of these revision petitions have to be seen. The plaintiff is the absolute owner of a building situated within the limits of Municipal Corporation of Vijayawada. The said building (hereinafter referred to as 'the demised premises' in the course of the order) originally belonged to Nalam Seetharamachandra Murthy and the demised premises was let out to the defendant by the said Seetharamachandra Murthy in the year 1961. While so, the demised premises was purchased by the plaintiff on 1-3-1971. Having purchased the demised premises, the plaintiff obtained a lease deed from the defendant on 13-3-1971 for 11 months on condition that the defendant pays rental at Rs. 350/- per month. Under the said sale deed, the defendant agreed to vacate the demised premises by 12-2-1972 but has not accordingly vacated the same. Having issued a registered notice terminating the tenancy, the plaintiff filed O.S. No. 275/72 on the file of 1st Addl. Subordinate Judge, Vijayawada for eviction of the defendant and claiming future profits at Rs. 900/- per month. In turn, the defendant filed O.S. No. 613/72 on the file of the District Munsif Court, Vijayawada against the plaintiff, for permanent injunction not to evict him from the demised premises. Later O.S. No. 613/72 on the file of the District Munsif Court, Vijayawada was withdrawn and made over to the file of the 1st Additional Subordinate Judge, Vijayawada and renumbered the same as O.S. No. 101/73 on the file of the 1st Addl. Subordinate Judge, Vijayawada. O.S. No. 275/72 and O.S. No. 101/73 were disposed of by a common judgment dated October 31, 1974 whereunder O.S. No. 101/73, the suit for injunction filed by the defendant was dismissed with costs and O.S. No. 275/72 was decreed with costs as prayed for granting future profits to the plaintiff at the rate of Rs. 900/- per month.
5. Aggrieved by the judgment and decree in O.S No. 272/72 the defendant filed A.S. No. 657/74 on the file of this court. Similarly aggrieved by the dismissal of O.S. No. 101/73 the defendant filed A.S. No. 488/76 on the file of this court. A.S. No. 657/74 and A.S. No. 488/76 were dismissed for default and aggrieved by the same, the defendant preferred Civil Appeal No. 4079/82 on the file of the Supreme Court and the Supreme Court was pleased to allow the said appeal and directed the High Court to hear the appeals. Thus when A.S. Nos. 657/74 and 488/76 came up for hearing, being restored to file, the defendant filed a memo in the High Court, stating that he may be permitted to withdraw the appeals "without prejudice to his rights and contentions that he is entitled to raise during the execution proceedings." This court by the judgment dt. 4-6-1983 permitted the defendant to withdraw the appeals and dismissed the same as withdrawn with a direction that the memo filed by the defendant shall form part of the record.
6. In view of the judgment and decree in O.S.No. 275/72 which became final the plaintiff filed E.P.No. 37/84 for delivery of the demised premises ; E.P.No. 38/84 to enforce the registered security given by the Judgment-Debtor for recovery of future profits from 26-6-72 to 23-7-79 after giving credit to the payments made by the Judgment-debtor and E.P. No. 39/84 for the recovery of profits etc., and for costs. While so, the defendant filed E.A.No. 392/84 to dismiss E.P.No. 37/84; E.A.No. 393/84 to dismiss E.P. No. 38/84 and E.A. No. 394/84 to dismiss E.P. No. 39/84. The defendant has also filed number of other applications for almost the same relief asked for in E.A.Nos. 392 to 394 of 1984. When E.P.Nos. 37/84, 38/84 and 39/84 and E.As. 392 to 394/84 came up for hearing, the Supreme Court rendered judgment reported in Motor General Traders v. State of A.P., AIR 1984 S.C. page 121 holding that Section 32 (b) of the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) (hereinafter referred to as 'the Act') is violative of Article 14 of the Constitution of India in exempting buildings constructed on or after 26-8-1957 from the operation of the Act.
7. Regarding the validity of the proceedings in which decree of eviction was already passed by the civil courts the Supreme Court made the following observations :
"We, however, make it clear that this declaration would not affect the validity of any proceedings in which the decree of eviction passed by a civil court has become final and the landlord has already taken possession of the building in question pursuant therein".
Since in the case on hand, the plaintiff has not obtained possession of the demised premises the lower court observed as follows :
"The Supreme Court said that if a decree has already become final and possession was taken, its judgment striking down Section 32 (b) of the Act does not apply. But here the plaintiff has not obtained possession of the property through court. Hence, the Supreme Court decision comes into play and the plaintiff cannot execute the decree. He has to file a petition under Rent Control Act only. In view of the above finding, the three petitions E.As. 392, 393 and 394 of 1984 are allowed and it is held that the decree is not executable, as the court which passed the decree has no jurisdiction to pass the said decree. As the decree is not executable the three execution petitions are not maintainable and so they are dismissed. In view of my findings given in the above E.As. in favour of the defendant, the other E.As. and I.As. filed by him need not be considered though he argued at length about them and also cited number of decisions. So they are all dismissed as unnecessary."
So observing the lower court dismissed the three execution petitions E.As. 37 to 39 of 1984 and allowed E.As. 392 to 394 of 1984 and closed the other E.As. and I As. filed by the petitioner. Aggrieved by these orders the plaintiff filed these revision petitions. But as per the orders dt. 11-6-1987 C.R.P.No. 641/86 was dismissed.
8. On behalf of the Plaintiff it is submitted that on the date when O.S. No. 275/72 was filed the civil court has got jurisdiction and consequently the judgment in O.S.No. 275/72 is valid and is executable inspite of the decision in Motor General Traders v. State of A.P. (1 supra) and to substantiate this submission, the learned counsel for the plaintiff relies upon the decisions in Atma Ram v. Ishwar Singh, ; R.K. Gupta v. Sirtaj Karan, 1989 (1) A.L.T. page 551 and S.A. Hakim Saheb v. P.V.K. Setty, 1989 (2) A.L.T. page 28.
9. In Atma Ram v. Ishwar Singh (2 supra) the appellant-landlord on 31-5-1982 filed a suit for possession of a shop room which was let out in the year 1978 on the ground of arrears of rent. Section 1 (3) of Haryana Urban (Control of Rent and Eviction) Act 1973 provided that the Act has no application for any building constructed within 10 years from the date of construction. The respondent filed a written statement stating that the building was constructed in June 1974, 10 years period has elapsed by June 1984 and as such immunity under the Act has expired and the civil court has no jurisdiction to entertain the suit.
10. The only point that was urged before the Supreme Court is whether the premises which was not 10 years old on the date of the suit and was exempted from the operation of the law of the Rent Act, would be covered by it, if 10 years period expired during the pendency of the litigation. Having considered the matter it is observed as follows at page 2034 :
"It is well settled that no man should suffer because of the fault of the Court or delay in the procedure. Broom has stated the maxim "actus curia neminem gravibit" an act of Court shall prejudice no man. Therefore, having regard to the time normally consumed for adjudication, the 10 years exemption or holiday from the application of the Rent Act would become illusory, if the suit has to be filed within that time and be disposed of finally. It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within 10 years and even then within that time it may not be disposed of. That will make the 10 years holiday from the Rent Act illusory and provide no incentive to the landlords to build new houses to solve problem of shortages of houses. The purpose of legislation would thus be defeated. Purposive interpretation in a social amelioration legislation is an imperative irrespective of anything else.
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 for a 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 R.K. Gupta v. Sirtaj Karan (3 supra) the plaintiff being the owner of the premises, let out the same to the defendant in the year 1977 under an oral agreement on a monthly rental of Rs. 900/-. A suit for eviction of the defendant was filed alleging arrears of rent and sub-lease. The defendant resisted the suit on various grounds. It was held that the building in the suit premises was constructed in the year 1968, the exemption operates till the year 1978, the ten years period expires by 1978, the suit filed in the year 1976 that is during the period of exemption and the fact that the proceedings could not be terminated within the 10 years period is of no consequence. The Division Bench relying upon the decision in Atma Ram v. Ishwar (2 supra) observed as follows:
"The appeal is a continuation of the ' suit and if the immunity from the operation of the Act is made dependant upon the ultimate disposal of the case within a period of 10 years, it will be an impossibility in reality. The meaningful construction would therefore be that the 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. We, therefore, reject the contention of the appellant that the Civil Court has no jurisdiction to entertain the suit."
12. In S.A. Hakim Saheb v. P.V.K. Setty (4 supra) the suit was filed for ejectment and for recovery of arrears of rent. The suit was decreed and the appeal in the District Court was dismissed. In the Second Appeal it was contended that the suit for ejectment was not maintainable in view of the striking down of Clause (b) of Section 32 of the Act and a notice for ejectment under Section 106 of Transfer of Property Act was not valid. That was a case where the suit was filed in April 14, 1977 and on the date of the filing of the suit admittedly the civil court has got jurisdiction to entertain the suit. Repelling the contention raised by the appellant it is observed as follows :
"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."
13. The decision of the Supreme Court in Atma Ram v. Ishwar (2 supra) and the decisions in R.K. Gupta v. Sirtaz Karan (3 supra) and S.A. Hakim Saheb v. P.V.K. Setty (4 supra) of this court categorically shows that inspite of the fact that Clause (b) of Section 32 of the Act was struck down by the Supreme Court, since the court which passed the decree in O.S.No. 275/72 had jurisdiction to entertain the said suit the said decree is executable. Hence the judgment in O.S.No. 275/72 is executable and consequently E.Ps. 37/84 and 39/84 instituted basing on the judgment and decree passed in O.S.No. 275/72 are executable, if otherwise they are in order. What ] mean to say is, on behalf of the defendant it is submitted that E.Ps. 37/84 and 39/84 cannot be executed for various reasons mentioned in the counters filed therein. It is perfectly open to the defendant to take such objections that are available to him under law to resist the said E.Ps.
14. On behalf of the defendant it is submitted that the plaintiff filed R.C.C. 26/86 for eviction and consequently having invoked the jurisdiction of the Rent Controller, the plaintiff is not entitled to file C.R.Ps. 640 and 642 of 1986. It is true that the plaintiff filed R.C.C. 26/86 on the file of the Rent Controller, Vijayawada for the eviction of the defendant. In the said R.C.C. it is clearly mentioned as follows:-
"The petitioner filed the present application seeking eviction of the respondent from the suit premises on the grounds mentioned below, without prejudice to her contentions in the revisions to be filed by her against the decree dated 31-12-1985 passed by the Additional District Judge, Krishna at Machilipatnam dismissing E.P.No. 37/84 and allowing E.As. filed by the respondent."
The said averments clearly show that by way of abundant caution and without prejudice to her rights, the plaintiff filed revisions against the impug ned orders. So the fact that the plaintiff filed R.C.C. is no bar for the maintainability of C.R.Ps. 640 and 642 of 1986.
15. The defendant having argued the matter in person, filed written arguments raising various points and requested the court to consider the same while disposing of the matters. I have gone through the entire written arguments carefully and except the points already mentioned above there are no other legal and tenable objections raised by the defendant in the written arguments.
16. In the result, in view of my above observations, all the revision petitions are allowed. The parties shall bear their costs.