ORDER
S.V. Maruthi, J.
1. These three revision petitions are disposed of by a common judgment as they arise out of a common judgment of the Principal Subordinate Judge, Guntur dismissing the R.C.As.26, 27 and 28 of 1985 and thereby confirming the common judgment of the learned Rent Controller (Principal Munsif Magistrate), Guntur dismissing R.C.C.Nos. 15, 16 and 73 of 1983 filed by the petitioner.
2. The tenant is the petitioner in these revisions. He filed three R.C.Cs. viz., R.C.C.Nos. 15, 16 and 73 of 1983 on the file of Rent Controller Guntur, out of which, the present three revisions arose, in respect of the premises which he took on lease from the respondent in Guntur about 18 years back on a monthly rent of Rs. 325/- which was subsequently enhanced to Rs. 1000/- and Rs. 1300/- per month.
3. R.C.C.16 of 1983 was filed on 4-2-83 under Section 4 of the Rent Controller Act for fixation of rent at Rs. 100/- per month. R.C.C.15 of 1983 was filed seeking a direction to permit him to deposit the monthly rent and R.C.C.73 of 1983 was filed on 12-8-1983 to prevent the respondent from causing any inconvenience or damage to the scheduled premises.
4. During the pendency of the above petitions before the Rent Controller, Government issued G.O.Ms.No. 636, General Administration Dept. dated 29-12-83. Under the said G.O, Government exempted all buildings for a period of ten years from the date of construction from the provisions of the Andhra Pradesh Buildings ( Lease, Rent and Eviction) Control Act, 1960.
5. Before the Rent Controller, the landlord raised on objection that in view of the G.O. issued by the Government, the Rent Controller has no jurisdiction to proceed with the petitions. The Rent Controller upheld the contention raised by the respondents and held that the Rent Controller has no jurisdiction to entertain the petitions filed by the petitioner and, therefore, the R.C.Cs. filed by the petitioner are not maintainable. He also observed that the petitioner is at liberty to approach the correct forum for the appropriate reliefs. Agrrieved by the same, the petitioner filed appeals before the Principal Subordinate Judge, Guntur, who confirm the orders of the Rent Controller and dismissed the appeals filed by the petitioners, against which, the present revisions are filed.
6. The main contention of Sri. Venugopala Reddy on behalf of the petitioner is that the petitions were filed before the Rent Controller at Guntur on 4-2-1983 and 12-8-93 i.e., prior to the date of issue of G.O.Ms.No. 636 G.A.D. dt.29-12-83 and therefore the proceedings initiated under the Rent Controller Act will continue in view of the Judgment of the Supreme Court in Atmaram v. Eswar Singh, and the judgment of this Court in R.K. Gupta v. Sitraj Karan, 1989 (1) ALT 551 (D.B.). According to the learned counsel, the jurisdiction of the Rent Controller is not ousted by virtue of the G.O. referred to above.
7. The contention of the learned counsel for the respondent is that the petitioner filed W.P.No. 8081 of 1986 before this Court questioning the validity of the said G.O. impleading the Rent Controller and the Principal Subordinate Judge, Guntur as parties to the said petition. The Writ Petition was dismissed and the Writ Appeal No. 1482 of 88 preferred against the order in the W.P. was also dismissed. Against the judgment in the W.A.No. 1482 of 1988, S.L.P.No. 1047 of 1989 was filed before the Supreme Court which was also dismissed. The effect of the dismissal of the writ petition, Writ Appeal and the Special Leave petition is that the Rent Controller has no jurisdiction . Therefore, the judgment of the High Court as confirmed by the Supreme Court in the S.L.P. operates as res judicata. The petitioner is precluded from raising the objection to the jurisdiction of Civil Court. Therefore, the orders passed by the Rent Controller as well as the Principal Subordinate Judge holding that the Rent Controller has no jurisdiction, in view of G.O.Ms.No. 636 dated 29-12-1983 is correct, In support of his contention, Sri. Trivikrama Rao relied on a number of decisions. According to the learned counsel, the principle of res judicata still remains apart from the limited provisions of the Code. In other words though Section 11 of the Civil Procedure Code as such is not applicable the principle which prevents the same case being twice litigated is of general application and, therefore, the petitioner is precluded from re-agitating the matter once again before the Rent Controller.
8. Sri. Venugopal Reddy submitted that he is not disputing the applicability of the general principle which prevents the same case being twice litigated, is of general application and is not limited to the specific provisions of Section 11 of the C.P.C. but, in view of the subsequent declaration of law by the Supreme Court in Nand Kishore v. Samundri Devi, which was followed in R.K. Gupta v. Sitraj Karan, holding that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit and therefore the principles analogous to res judicata are not applicable. Therefore, both the Rent Controller and the Principal Subordinate Judge have failed to exercise jurisdiction which is vested in law in them while dismissing the petitions.
9. The question that arises for consideration is (1) Whether the Rent Controller has jurisdiction to deal with the petitions filed by the petitioner.
10. Admittedly, G.O.Ms.No. 636 G.A.D. was issued on 19-12-1983, while the petitions were filed on 4-2-83 and 12-8-1983 i.e., prior to the issuance of the above G.O. It is not in dispute that the petitioner filed Writ Petition before this Court challenging the vires of the said G.O. and the writ petition was dismissed. The Writ Appeal filed against the judgment in the writ petition was also dismissed. The S.L.P. filed in the Supreme Court was also dismissed. Therefore, the validity of G.O.Ms.636 was upheld.
11. I may now refer to the judgment of the Supreme Court in Nand Kishore v. Samundri Devi (3 supra) in which the decision in Vineet Kumar v. Mangal Sain, was discussed and explained by the Supreme Court. The facts in the said case are that the disputed property was let out on June 25, 1976. The U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is not made applicable to the buildings for a period of 10 years from 1st October, 1976. A suit was filed for eviction in the Civil Court. The trial Court decreed the plaintiff’s suit for ejectment of the appellant-tenant. The accommodation was for the first time assessed for house tax from October 1st 1976. The tenant carried the matter in appeal to the High Court. The main contention before the High Court was whether the provisions of the Act, 1972 will be applicable to the proceedings in view of the fact that although the premises were let out in June, 1976, but as the assessment was made on 1st October, 1976, the provisions of the Act will not apply for a period of ten years for 1st October, 1976. The High Court held that the period of ten years commenced from the date of assessment i.e., 1st October, 1976 and therefore decreed the suit. The matter was carried to the Supreme Court. The Supreme Court accepted the contention of the landlord that the rights of the parties will be governed on the basis of the date on which the suit was filed and that if on the date on which the suit was filed by the landlord the provisions of the Act were not applicable, then merely because the proceedings were pending for a number of years, it could not be contended that as now ten years have elapsed, the decree could not be passed. This decision was followed by this Court in R.K. Gupta’s case referred to in (2 supra). The facts briefly in the said case are as follows. The plaintiff-landlord filed a suit on 4-10-1975 for eviction of the tenant. The tenant disputed the tenancy. The suit was decreed for possession and mesne profits on 27-6-81. The defendant preferred an appeal. During the pendency of the appeal, the Supreme Court struck down Section 32 (b) of the A.P. Buildings (Lease, Rent Control and Eviction) Control Act, 1960 by which all buildings constructed on and after 26-8-1957 were exempted from the operation of the Rent Control Act, as violative of Article 14 of the Constitution of India in Motor General Traders v. State of A P., 1984 (1) SCC 22 = 1983 (2) SCALE 513. Pursuant to the said decision, the Government of Andhra Pradesh issued G.O.Ms.No. 636 dated 29-12-83, exempting all buildings from the operation of the Rent Act for a period of ten years from the date of construction. The contention before the Court was since ten years period expired during the pendency of the suit, the suit lapses after the expiry of the exemption period and the provisions of the Rent Control Act would be attracted. Whereas the landlord contended that since the suit was filed during the period of exemption, any decree obtained in such suit is free from the fetters of Section 10 and the parties are governed by the law as existing on the date of the institution of the suit. It was held that parties are governed by the rights which accrued to them on the date of the institution of the suit. If the suit is filed within the period of exemption, any decree passed in that suit would be a valid decree. The appeal is a continuation of the suit and if the immunity from the operation of the Act is made dependent upon the ultimate disposal of the case within a period of ten years, it will be an impossibility in reality. The meaningful construction would therefore be that the exemption would apply for a period of ten 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.
12. In other words, if the suit is instituted during the period of exemption and the said period expires during the pendency of the suit, then jurisdiction of the Civil Court does not automatically come to an end after the expiry of ten years period as the rights of the parties will be determined on the basis of the rights available to them as on the date of the institution of the suit.
13. On the facts of this case according to the learned counsel that the proceedings were initiated before the Rent Controller during the exemption provided under G.O.Ms.No. 636. (Under G.O.Ms.No. 636 the buildings are exempted for a period of ten years from the date of construction). The said G.O. was issued subsequent to the initiation of the proceedings before the Rent Controller. However, in view of the retrospective effect of the G.O. in the sense that G.O.Ms.No. 636 is applicable for a period of 10 years from the date of construction the G.O.Ms.No. 636 is applicable to the building; thereby ousting the jurisdiction of the Rent Controller. However, the proceedings were initiated prior to the issue of the G.O. The question, therefore, is whether the proceed ings already initiated can be continued or do they terminate automatically. The Supreme Court held that the parties are governed by the rights which accrued to them on the date of the institution of the proceedings; the parties are governed by the law as existing on the date of the institution of the proceedings. Therefore, I am of the view that on the date when the petitions were filed, the Rent Controller had jurisdiction, as the G.O.Ms.No. 636 was not in existence on that date and was subsequently issued.
14. The next question is whether the proceedings already initiated prior to the issue of G.O.Ms.No. 636 can be continued even after the expiry of the period of exemption. The Supreme Court answered the question in the affirmative, holding that the proceedings should be continued notwithstanding the expiry of the period of exemption. Therefore, the fact that the ten years period expired during the pendency of the proceedings before the Rent Controller does not take away the jurisdiction of the Rent Controller and the Rent Controller will continue to have jurisdiction over the matter.
15. But the contention of Sri. Trivikrama Rao, learned counsel for the respondent is that the effect of the dismissal of the Writ Petition filed challenging the validity of G.O.Ms.No. 636 and the dismissal of the Special Leave Petition by the Supreme Court is that the Rent Controller has no jurisdiction and therefore the same will operate as res judicata. The learned counsel relied upon a number of judgments in support of his contention. The earliest of which is the decision of the Privy Council in Hook v. Administrator General of Bengal, AIR 1921 P.C. 11. The facts in the said case are that the Administrator General of Bengal instituted a suit for the discharge of a will executed by one Dr. Henry Wilkin Jones, under which, the survivor Miss Eliza Humpreys was the ultimate beneficiary. Miss Eliza Humpreys died on 10-4-1917. The Administrator General once again presented a petition for further construction of the will and codicils. The respondents representing the next of kin contended that the reservation in the decree enabled them to re-raise all the questions that had formerly been discussed. It was held that the mere fact that the earlier decision was given in an administration suit does not affects its finality. While holding as above, the leaded Judges observed that the plea of res judicata still remains apart from the limited provisions of the Code.
16. The next decision relied upon by the learned counsels the decision of the Privy Council in T.B. Ramachandra v. A.N.S. Ramachandra, AIR 1922 P.C. 80, wherein it was held that the principle which prevents the same case being twice litigated is of general application and is not limited by the specific words of the Code in this respect. In Kalipada De v. Dwiljapada Das, AIR 1930 P.C. 22 it was held that the decision in a probate proceedings as to the relationship of parties operates as res judicata in a subsequent suit between the same parties. In Gulabchand v. State of Gujarat, AIR 1965 SC 1158, the Supreme Court held that the decision in earlier writ petition merits – subsequent suit involving same questions and for same reliefs is barred upon general principles of res judicata.
17. The learned counsel for the respondent has also referred to the following decisions of the Supreme Court:
1. (Raj Lakshmi Dasi v. Banamlai Sen)
2. A.I.R 1960 S.C. 1186 (M. Sm. Sharma v. Shree Krishna Sinha).
3. A.I.R 1961 S.C. 1457 (Daryao v. State of U.P.).
it is not necessary to refer to all these decisions, as the learned counsel Sri Venugopal Reddy is not disputing the proposition that the decision in a writ petition operates as res judicata and the applicability of general principles of res judicata to the proceedings in dispute.
18. The argument of Sri Venugopal Reddy is that in view of the decision of the Supreme Court in Nand Kishore’s case (3 supra) and the decision of this Court in R.K. Gupta’s case (2 supra), the proceedings initiated in the rent control case during the ten years period of exemption will not automatically come to an end after the expiry of the period of exemption, and the proceedings will continue notwithstanding the expiry of the period of exemption prescribed under the G.O, if the proceedings are still pending. Therefore, since the proceedings before the Rent Controller were initiated within the period of ten years exemption provided under the G.O. and since the proceedings have not been terminated after the expiry of the period of ten years. The Rent Controller will have jurisdiction. Therefore the principle of res judicata is not applicable. In support of his contention he relied on the following decisions of the Supreme Court.
(1) (Agra Electric Supply Co., v. Alladin).
(2) (Sushil Kumar Mehta v. Gobind Ram Bohar).
(3) (Mathura Prasad v. Dossibai)
(4) (Jai Singh Jayaram Tyagi v. Maman Chand Ratilal Agarwal).
19. Before dealing with the respective contentions raised by both sides, I may refer to the statement made in the affidavit filed in W.P.No. 8081 of 1986 which reads as follows:
“I submit that I took the premises belonging to the 1st respondent situate at Bandla Bazar, Guntur about 14 years ago on a monthly rent of Rs. 325/- which was subsequently enhanced to Rs. 1,000/- per month about nine years ago. Again it was enhanced to Rs. 1300 / – per month about seven years ago…..The premises in question was constructed more than 30 years ago………..”
20. This affidavit was filed in 1986. The landlord has not chosen to adduce any evidence to establish that the building was not constructed 30 years ago. In the said affidavit it is stated by the tenant that he has taken on lease the premises about 14 years ago. If the building is constructed 30 years ago and since G.O.Ms.No. 636/83 is retrospective in operation, it is applicable and the ten years period prescribed thereunder expired long time ago. Therefore, G.O.Ms.No. 636 is not applicable at all to the building and the only Court which has jurisdiction is the Rent Control Court.
21. Even in the affidavit filed in 1986, it is mentioned that the petitioner took on lease the premises 14 years back which dates back to 1972. Even taking 1972 as the date of construction of the buildings, the period of ten years expired in 1982 i.e., one year well before the issue of G.O.Ms.No. 636/83. Both the Courts below held that the G.O. is applicable without taking into account the date on which the building was constructed. In any view of the matter, the G.O. is not applicable to the case of the petitioner as the period prescribed under the said G.O. expired prior to the issue of the G.O. and the Rent Controller has therefore jurisdiction to entertain the petition and no other Court has jurisdiction. Therefore, the decisions relied on by Sri. Venugopal Reddy are not relevant.
22. However, though it is not necessary to consider the arguments advanced by Sri. Venugopal Reddy, in view of the above factual position, I am dealing with them in view of the arguments advanced at length.
23. I am not referring to the decisions relied upon by Sri. Trivikrama Rao in ex tenso as Sri. Venugopal Reddy did not oppose the principle that the decision in a W.P. will operate as res judicata in subsequent proceedings. The argument of Sri Venugopal Reddy is that in view of the subsequent declaration of law by the Supreme Court in Nand Kishore’s case (3 supra) and Atmaram’s case (1 supra), which was followed by this Court in R.K. Gupta’s case (2 supra), the principle of res judicata is not applicable to the situation under consideration. According to the learned counsel, if the decision in the previous proceedings, namely, in the writ petition were to be regarded as res judicata, it would assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the law de-declared by the Supreme Court. I may now refer to the judgments relied on by the learned counsel. In Agra Electric Supply Co. v. Alladin, , three workmen retired under the Standing Orders at the age of 55 years. The workmen contended that in a previous reference between the appellant-company and its workmen there was a decree of the Labour Court holding that the standing orders did not apply to workmen previously appointed and which decision has become final and no special leave was granted against the said decision and therefore the order became final and the principles analogous to the principle of res judicata, would apply. It was held that the previous award was made on the basis of a judgment in Guest, Keen, Williams Private Limited v. P.J. Sterling, which laid down the principle that standing orders would not bind workmen previously employed and that was not so was clarified in the case of Salem Erode Electricity Distribution Co. Ltd., . The reference out of which the present case arose was made subsequent to the decision in Salem Erode Electricity Distribution Co. Ltd. v. Salem Erode Electricity Distribution Co. Ltd. Employees Union, and both the references and award were made in circumstances different from those which prevailed when reference 91 of 1964 was made and disposed of, a factor making it doubtful the application of principle of res judicata. It was also held that the consequence of holding that the company is barred by principles analogous to res judicata would be that there would be two sets of conditions of service, one for those previously employed and the other for those employed after the standing orders were certified, a consequence wholly incompatible with the object and policy of the Act.
24. The proposition referred to above squarely applies to the facts of this case. (I am proceeding on the assumption that the period of exemption provided under G.O.Ms.No. 636 is available). The fact that the writ petition was dismissed by this Court upholding the validity of G.O.Ms.No. 636 and therefore the Rent Controller has no jurisdiction to entertain the petitions, is inconsistent with the proposition laid down by the Supreme Court in Nand Kishore’s case (3 supra) and the decision of this Court in R.K. Gupta’s case (2 supra). To extend the principle analogous to res judicata would amount to holding that the petitioner will be governed by one set of principles whereas others are governed by the decision in R.K. Gupta’s case (2 supra).
25. In Mathura Prasad v. Dossibai, also the Supreme Court dealt with the aspect of res judicata. The fact in the said case are, the appellant who had a lease of an open land for construction of buildings had applied for determination of standard rent under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The application was rejected on the ground that the Act did not apply to open land for construction. The view was confirmed by the High Court. Later in another case, the view taken by the High Court was over-ruled by the Supreme Court and it was held that the Act applied to open land let out for construction. The appellant once again filed an application for determination of the standard rent. The trial Court and High Court held that the previous decision between the parties operated as res judicata. It was held by the Supreme Court that the earlier decision that the Civil Judge has no jurisdiction to entertain the application for determination of standard rent was wrong in view of the judgment of the Supreme Court. If the decision in the previous proceeding be regarded as conclusive it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the Supreme Court.
26. The above decision was followed in Jaisingh Jairam Tyagi v. M.R. Agarwal, . The facts in brief are that the landlord filed a civil suit against the tenant for recovery of possession and arrears of rent under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The suit was decreed. The appeal by the tenant resulted in a compromise decree dated July 12th 1967, by which some time was given to the tenant to vacate the premises. However, the tenant failed to vacate the premises within the time given to him and therefore the landlords were compelled to take out execution. On April 29, 1967 in the case of Indu Bhusan Bose v. Rama Sundari Devi, the Supreme Court held that Parliament alone had and the State Legislature did not have the necessary competence to make a law in regard to the “regulation of house accommodation in cantonment areas”. To get over the situation created by the decision in Indu Bhushan Bose case, , the Central Government issued a notification under Section 3 of the cantonments (Extension of Rent Control Laws) Act, 1957, extending the provisions of the Bombay Act, 1947 to the Kirkee and other cantonment areas. On June 2,1972, the Parliament also enacted Act 22 of 1972 amending the Cantonments Act, 1957, purporting to enable the Central Government to make the rent control laws in the several States applicable to cantonment areas from the dates anterior to the date of notification and further purporting the validate certain pre-existing decrees. Taking advantage of the decision in Indu Bhusan Bose case, , the tenant in Jaisingh Jai Ram Tyagi’s case, filed a miscellaneous petition for a declaration that the decree obtained against him was a nullity incapable of being executed. That application was allowed by the Court on November 19, 1971. However, after the enactment of Act 22 of 1972, in 1978, the landlords filed Darkhast No. 104 of 1973 to execute the decree in their favour. The tenant raised various objections. One of the objections was that the decision in the miscellaneous petition holding that the decree to be a nullity operates as res judicata between the parties.
27. The matter went upto the Supreme Court. It was held by the Supreme Court, following the decision in Mathura Prasad case (13 supra), that if the earlier decision in the miscellaneous application is to be regarded as res judicata it would assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the court in derogation of the law declared by the Legislature.
28. The above case arose out of a subsequent legislation nullifying the law declared by the Supreme Court.
29. The next decision relied on by Sri Venugopal Reddy is in Sushil Kumar Mehta v. Gobind Ram Bohra, According to this decision, defect of jurisdiction cannot be cured by consent or waiver.
30. In Life Insurance Corporation of India v. India Automobiles and Co., , it was held that the decision of Rent Controller on question of title is not final and conclusive and will not operate as res judicata.
31. On the facts of the present case, the petitioner challenged the G.O.Ms.No. 636/83 ousting the jurisdiction of the Rent Controller for a period of ten years from the date of completion of the construction of the building. This Court upheld the validity of G.O.Ms.No. 636 and consequently the jurisdiction of the Rent Controller is ousted for a period of ten years from the date of completion of the building. Therefore, during the period of ten years, the Rent Controller has no jurisdiction to deal with the matters. However, this Court, following the judgments of the Supreme Court in Nand Kishore’s case (3 supra) and Atmarao’s case (1 supra) held in R.K. Gupta v. Sitraj Karan (2 supra) that the rights of the parties will be determined on the basis of the rights available to them on the date of the institution of the suit. The effect of the decision in R.K. Gupta’s case (2 supra) is that during the period of exemption if proceedings are already initiated, the proceedings are governed by the rights of the parties as available to them on the date of the institution of the proceedings. (I am proceeding on the assumption that the period of ten years exemption provided under G.O.Ms.No. 636/83 is available). In other words, the Rent Controller will have jurisdiction as the rights of the parties are governed by the rights which accrued to them on the date of the institution of the proceedings i.e., if the petition before the Rent Controller is filed within the period of exemption, the Rent Controller continues to have jurisdiction and the proceedings do not automatically get terminated on the issuance of G.O.Ms.No. 636/83. The decision of the Supreme Court in Atmaram v. Eswar Singh (1 supra) is the declaration of law as to the applicability of the exemption to the pending cases. In view of the subsequent declaration of law by the Supreme Court, the principle analogous to res judicata is not applicable, otherwise it would assume the status of a special rule of jurisdiction applicable to the parties in derogation of law laid down by the Supreme Court.
32. In view of the above, I am of the view that the Rent Controller has failed to exercise jurisdiction which is vested in him in law.
33. The Revision Petitions are accordingly allowed. There will be no order as to costs. The Rent Controller is directed to dispose of the R.C.Cs. within a period of three months from the date of the receipt of this order. Records may be dispatched immediately.