Perle Venkateswarlu And Ors vs Gadamsetty Badari Narayana And … on 25 November, 1997

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94
Andhra High Court
Perle Venkateswarlu And Ors vs Gadamsetty Badari Narayana And … on 25 November, 1997
Equivalent citations: 1998 (1) ALD 705, 1998 (1) ALT 769
Bench: B Somasekhara


ORDER

1. The order of the learned Sub-Judge, Ongole in R.C.A.10 of 1992 dated 24-1-1997 dismissing it and confirming the order of the learned Rent Controller and District Munsif, Ongole in R.C.C.11/1986 dated 30-3-1992 is challenged.

2. The petitioners being the tenants of the demised premises of which the respondents are claiming to be the owners, are seeking

restoration of amenity, a passage to the demised premises which is said to have been blocked by the respondents by putting a lock to the door. The demised premises is an open verandah or a portion in front of the building belonging to the respondents which was being used by the petitioners for carrying on the business in metals. The demised premises described in portion of door No.23-1-3-37, Gandhi Nagar, Ongole. The Respondent No.2 Smt. Gadamsetti Hymavathi was the original owner of the suit properly. She sold it to Respondent No. 1. Petitioner No. 1 is said to be the original tenant ofwhom, Petitioners 2 and 3 are the legal representatives. It was pleaded that the Petitioner No.l was the tenant of Respondent No.2 in the demised premises and continued as such till the date of the petition. The petitioner alleged that on 19-1-1986 the Respondent No.l suddenly bolted the door of the scheduled properly inside and locked it outside and cut off the petitioner’s basic amenity of entrance into the scheduled property. It appears that there was a show case, a wooden bench, cash box, photos of goods eta belonging to the petitioner remained inside the demised premises and the show case conlained gold, silver articles, pearls and several other items as per the worth given in the petition amounting to about Rs. 15,000/-. Therefore, the petitioner sought for restoration of the amenity under Section 14 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ‘the Act’). It was resisted by the respondents denying the relationship of land-lord and tenant, denying the possession of the petitioners in the demised premises and finally denying that there was any amenity as such, much less it was closed by the respondents.

3. The learned Rent Controller held an enquiry into the controversies wherein both parties led oral evidence and some documentary evidence comprised in ocular testimony of PWs.l and 3 and RWs.l to 3 and the documents Exs. Al to A4 and Ex.Bl respectively. The learned Rent Controller held the question of relationship of land-lord and tenant between the parties in the negative

and also amenity in the negative and dismissed the petition. The unsuccessful petitioners took the matter in appeal before the learned Sub-Judge and after hearing both sides and with the same materials and reassessment, the learned Sub-Judge affirmed the decision of the learned Rent Controller, but, directed the petitioners/appellants to take their belongings within the demised premises within one month from the date of the order. Aggrieved by that the petition is filed.

4. Mr. Addepalli Suryanarayana, the learned advocate for the petitioners contends that the findings of the Rent Controller and the appellate authority about the relationship of land-lord and tenant and also amenity are wrong in view of the clear evidence and admissions that the petitioners were admittedly the tenants in the demised premises under Respondent No.2 although the manner in which the payment of rent was said to be daily instead of monthly and secondly, the finding relating to the amenity of passage being repugnant to the Explanation No.2 to Seclion 14 of the Act that passage is also amenity within the meaning therein. Furthermore, he also contends that the learned Sub-Judge has gone beyond the jurisdiction in passing an order in the nature of eviction in a petition for restoration of amenity under Section 14 of the Act, when admittedly the belongings of the petitioners are still found within the demised premises iteming to so many, i.e., nearly 80 items from the Commissioner’s report comprising silver and gold articles etc. to presume that rightly or wrongly, petitioners are still in possession of the property and have remedies to maintain it before the appropriate forum and therefore, such an order cannot be sustained.

5. Mr. Srinivas, the learned advocate for the respondents has contended that in the nature of the evidence the relationship of land-lord and tenant did not exist between the parties as the payment of rent was daily and the petitioners vacated the premises few days prior to the sale transaction between Respondents 1 and 2 and furthermore, when the Rent Controller and the appellate authority

have consistently held such findings against the petitioners, this Court in a revision will not do well in interfering with such findings.

6. In the nature of the serious disputes stated above, this Court had to deal with the matter in detail both in going through -the evidence.,and also through the judgments of the Rent Controller and the appellate authority.

7. A simple look into the matter discloses that both the forums below have gone beyond their jurisdiction in deciding the matter. Section 14 is the declaration of law that land-lord not to interfere with amenities enjoyed by the tenant and sub-clause (1) makes it categoric. It may be better to repeat it;

“14. Landlord not to interfere with amenities enjoyed by the tenant :–(1) No land-lord shall, without just or sufficient cause cut off, or withhold any of the amenities enjoyed by the tenant.”

The violation of such a mandate provides a right to the tenant to approach the Rent Controller for restoration of amenity which is complained to have been blocked or removed as per sub-clause (2). Sub-clause (3) enjoins a duty on the Rent Controller that where the tenant satisfies that the amenities were cut off or withheld without just and sufficient cause, an interim order may be passed directing the land-lord to restore the amenities immediately pending the enquiry under sub-clause (4). Under sub-clause (4) an enquiry is contemplated to know whether the tenant has been in enjoyment of the amenities and they were cut off or withheld by the land-lord without just and sufficient cause and after holding such an enquiry, the Rent Controller shall make an order directing the land-lord to restore such an amenity. Sub-clauses (5) and (6) may not be relevant in this case as they deal with the conduct of persons cutting off amenity by third persons and to order compensation.

8. Mr. Srinivas is right in postulating that in a petition under Section 14 of the Act,

initially there must be a finding about the relationship of land-lord and tenant or the expressions made therein are categorical, tenant, land-lord and the person who is not a land-lord etc. and both the expressions land-lord and tenant are defined under Section 2(vi) and 2(ix) of the Act and therefore, such an expression should be understood to mean the same within such definitions.

9. It is also rightly suggested by both the learned advocates that the Courts should also enquire whether there was any such amenity within the meaning of Section 14 and Explanation supra of the Act to know whether such an amenity had been cut off Thereforef to legally conclude that the jurisdictional facts to confer jurisdiction on the Rent Controller to pass an order after an enquiry under the provisions to restore the amenity alleged to have been cut off If either of such jurisdictional facts are absent, the passing of an order to restore the amenity would be without jurisdiction. When in a revision under Section 22 of the Act this Court will revise the order as to its legality, regularity or the propriety and to pass such an order as it thinks fit, it may not be strictly as in relation to the powers of the revisional Court under Section 115 of C.P.C., but, may be resembhig that in a manner as to adjudicate the jurisdiction as one of the legalities to pass such an order.

10. In the present case, the first question was a serious one. The factum of possession of the petitioners in the demised premises carrying on the business in metals including gold and silver was conceded under Respondent No.2, the land-lady till she sold the property to Respondent No. 1 under Ex.Bl dated 30-12-1985. The defence in clear terms was that the principal person or the petitioner before the learned Rent Controller was paying the rent daily and it was pursued further subsequently that he was only licensee and not only that it ended few days prior to Ex.Bl when he is said to have vacated the premises except leaving certain items in the premises as pleaded in the petition and disclosed from

the Commissioner’s report. But the Respondent No.2 in her testimony as RW3 called the payment as rent. The payment was also called in Telugu language as ‘Baduga’ (to be translated as rent only). However, with the evidence on record, both the forums did not believe that there was relationship of landlord and tenant. Incidentally, the relationship is held to be that of the owner and licensee and not that of land-lord and tenant. Although it must be said to the credit of learned Rent Controller and also learned Subordinate Judge in dealing with the matter elaborately and also it must be said to the credit of Mr, Srinivas, the learned advocate who dealt with the matter in meticulous detail to draw the distinction between lease and licence. In such circumstances, this Court feels that it was beyond the scope of the petition under Section 14 of the Acl to enquire into such a factum both in law and facts in such meticulous detail and to give a finding affirmatively. On the face of it, Section 14 of the Act is intended to give immediate relief to the tenant when the amenities are cut off by the land-lord. Secondly, in the nature of the provision the enquiry is summary in the nature as to stoppage or blockade of an amenity complained of cannot be kept in suspended animation till all the serious controversies between the parties are disposed of in detail-The distinction of lease and licence is a serious mixed question of law and facts which require full evidence, detailed discussion and categoric finding consuming sufficient lime, volume of evidence and mental exercise which may be inconsistent with the import of the very provision. If we observe the distinction between the Sections 10 and 14 of the Acl, the scope of the enquiry can be understood. The defiance clause Section 14 operating absolute bar against eviction of any tenant as certain exceptions which require serious investigation by the Rent Controller-vide P. Rajanna v. Smt. K. Lalitha Reddy, . Where the tenant denies title of the land-lord or claims permanent tenancy, the Controller should decide whether the claim is bona fide and record a finding to that effect and that land-lord shall be entitled to

sue for eviction in a Civil Court also. There is no such indication in Section 14 of the Act. In the contrary, the Court will decide whether an order of eviction can be passed under one or other grounds mentioned in the provision. In fact, the scope of the enquiry is not spell out clearly in Section 10 of the Act. Whereas in Section 14 that has been slated. Added to that, Rule 8 of the A.P. Buildings (Lease, Renl and Eviction) Control Rules, 1961 provides the procedure to be followed by the Controller in dealing with the applications under the Act and specifically under Section 10 of the Act. Broadly stated, in an enquiry of an application under the Act the Controller shall give the parties a reasonable opportunity to state their case, record a brief note of the evidence of the parties and witnesses if examined on either side and upon the evidence so recorded and after consideration of any documentary evidence which may be produced by the parties, pass orders on the application. Therefore, in the very nalure the enquiry is summary and secondly it should conform to the principles of nalural justice and il must be based upon evidence and there must be an order based upon such evidence meaning thereby, it is a decision supported by reasons, again to conform to the principles of nalural justice. Any number of queslions may arise belween the land-lord and tenant or parries in the peliiions before the Tribunal including the relationship of land-lord and tenant, grounds of eviction and culling off amenities etc. The Act has also envisaged a double jeopardy in civil law not to punish or expose the parties to the litigation and the consequences again and again to bring within the concept of res judicata, although not the very words used under Section 16 of the Act which could say finality of certain matters between the parties. It reads as follows :

“16. Decisions which have become final not to be reopened .–The Controller shall summarily reject any application under sub-section (2), or sub-section (3) of Section lOorunderSeclion 12 which raises between the same parties or belween parties under whom they or any of them claim, substantially the same issues as have

been finally decided or as purport to have been finally decided, in a former proceeding under this Act or under any law corresponding thereto in force at the relevant time prior to the commencement of this Act.”

To read it. is almost similar to Section 11 of C.P-C. Any issue between the same parlies which, finally decided in a former proceeding between the same parties, if raised in a subsequent application under Section 10 or 12 etc. will be summarily rejected (by operating the rule of res judicala or even -rule of estoppel) and therein, the specific provisions mentioned are Sections 10 and 12. Therefore, a decision or an order passed in a petition under Section 10 or 12 of the Act would operate as res judicala in regard to certain issues between the parties directly and substantially placed before the Court for decision. Advisedly, Section 14 is omitted under Section 16. Therefore, a Division Bench of this Court in Jecl Kaur v, Smt. Kondalamma, AIR 1983 AP 219 clearly declared the law that the decision on the question of relationship of land-lord and tenant in a petition under Section 14 of the Act will not operate as res judicala. To legally conclude is that the enquiry under Section 14 of the Act being summary in nature for the purpose of cutting off the amenity complained of in regard to the two questions staled above, for that purpose, can never operate as res judicata under Section 11 of C.P.C, or Section 16 of the Act. The reasons are also afforded above that in perambulatory or circumventive method the enquiry in such petition would defeat the very purpose of the provision. In that view of the matter, the forums below ought not to have gone into such a question in such a detail so as to record a finding one way or the other.

11. It is true that the finding on the question of relationship between the land-lord and tenant to be recorded as jurisdiclional fact should be a broad based one called as prima facie or on the face of it not in depth. Regarding the amenity, in view of the clear explanation added to Section 14, the Rent

Controller has got jurisdiction to decide whether a particular amenity land-lord cut off or not would be an amenity within the meaning. Moreover, any Tribunal or any authority under the Act which is vested with the power of deciding certain questions to pass the final orders within the purpose of the Act cannot be equivalent to the jurisdiction of Civil Court under Section 9 of C.P.C. and what is not directly or indirectly vested with such an authority should be presumed to be well with the Civil Court by virtue of Section 9 of C.P.C. That is why Section 9 of C.P.C. is very categoric. Section 9 of C.P.C. reads as under :

“9. The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nalure excepting suits of which their cognizance is either expressly or impliedly barred.”

Regarding an amenity also, this Court is still doubtful whether the explanation appended to Section 14 of the Act is exhaustive. It is mostly in the nalure of illustrations as it is difficult to define the amenities for a tenant or a person in possession of a demised premises, or otherwise, if any amenity not coming within the definition will be compelling the tenant lo approach Civil Court every now and then and conversely if an amenity not defined under Section 14 explanation cannot be provided because of the definition. He will be driven to Civil Court or will be prevented from having the amenity before the Rent Controller himself Therefore, what the Rent Controller cannot possibly afford to give in jurisdiction to a party before it under Section 14 of the Act, the Civil Court is bound to examine and provide it, however, in accordance with law affording opportunity in a suit including damages. Therefore, in this legal light ofthe matter, the Rent Controller and the appellate authority ought to have examined the questions prima facie in so far as the first question is concerned and according to Section 14 in regard to the second question concerned. It is true that insofar as the second question is concerned, the mailer was concluded as the passage would be an amenity according to

the Explanation, however, subject to the purpose or the Court examining it for the purpose of Section 14 Explanation.

12. In the nature of the context of the parties, they complicated the question of relationship.,of land-lord and tenant. The testimony of RW3 created a serious doubt whether the relationship was that of a landlord and tenant or that of owner and the licencee, particularly in view of the definition of lease under Section 105 of the Transfer of Property Act although not applicable, yet to be operated with its well known principle in law of real property. This Court feels that the learned Rent Controller went into the question in depth beyond the jurisdiction to prejudice one of the parties. It is also well known that the authorities of limited jurisdiction for a purpose under the Act cannot take the risk of deciding a question and should always direct one or the other party to the Civil Court in such a situation when it feels difficulty to decide such a question. Therefore, on the question of jurisdiction the legality of the order of the learned Rent Controller cannot be supported.

13. Now, coming to the order of the learned Subordinate Judge, the appellate authority, not only he repeated the first illegality in regard to the jurisdiction of deciding the question of relationship of land-lord and tenant in such a complicated situation but also exercised an excess of jurisdiction in passing an ultimate order directing or permitting petitioners to remove their articles within the demised premises as if it was a charily or concession given to them without recourse to the appropriate forum. If there was the relationship of land-lord and tenant between the parties, such an order would be an open illegality as the order amounts to eviction of a tenant which is embargoed with a defiance clause under Section 10 of the Act. If there was no relationship of land-lord and tenant, the articles of the petitioners worth so much, quantity so much, in the demised premises for a long time raises a presumption of possession either direct or indirect which was to be decided in a properly framed suit for

possession or removal of articles, for, the articles of the petitioners are with the respondent for some reason. Their statute was that of a bailee under Section 70 of the Contract Act regarding which status, only civil Court which could have passed an order and not the Rent Controller. With all this incorrect thinking of the mind of the learned Subordinate Judge in passing such an award is a flagrant violation of the intendment of Section 14 of the Act wherein the learned Subordinate Judge has acted as if he was disposing of an application under Section 10 of the Act. The result is not merely an illegality but a legal absurdity which this Court feels difficult to support. Within Section 22 of the Act, this Court feels that the impugned orders of the learned Rent Controller and the learned Subordinate Judge are neither legal nor proper nor appropriate to have been passed in the manner they have done it. This is a fit case to interfere in this revision petition to pass an order which this Court deems fit in the circumstances.

14. There is lot of evidence produced on record by both sides. The Rent Controller will do well to prima facie decide the question of relationship of land-lord and tenant in the first instance and then to decide whether there was an amenity in the manner stated and whether it was cut off within the meaning appended to Section 14 and Ihe Explanation of the Act and then pass an appropriate order within the same provision. It is also appropriate that the Rent Controller should not go beyond the scope of such questions for the limited purpose in the light of the observation made above. It is also to be indicated that if the Rent Controller feels difficulty to decide the question of relationship of land-lord and tenant, he can also consider whether one or the other party can be directed to approach the Civil Court to seek such a question.

15. In the result, the appeal is allowed. The orders of the teamed Rent Controller and the learned Subordinate Judge are set aside. The matter is remitted back to the learned Rent Controller/District Munsif, Ongole to dispose of it afresh in the light of

the observation made above, however, to permit both parlies to adduce any evidence if they so desire on the questions stated above.

16. If the learned Rent Controller feels it difficult to decide the question of relationship of land-lord and tenant and if any complicated questions arise, he will also decide whether a party should be directed to approach the Civil Court under the circumstances. No costs.

17. Since the matter is pending for a long time it is appropriate that the learned Rent Controller should dispose of the petition within three months from the date of communication of a copy of this order, however, subject to the co-operation rendered by both sides to the Court in doing so, without reference to any of the expressions already made either in the forums below or this Court.

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