ORDER
T. Ch. Surya Rao, J.
1. These two civil revision petitions are directed against the judgment dated 9.10.2000 passed by the learned Principle Subordinate Judge, Rajahmundry, in R.C.A. No. 1 of 1997 and, therefore, they can be disposed of together. The unsuccessful tenants, 3 to 7 are the revision petitioners in CRP No. 5572 of 2000 and 1 and 2 are the revision petitioners in CRP No. 174 of 2001.
2. It is expedient to refer the parties as they are originally arrayed in the eviction petition to avoid any confusion. The demised premises is situate on the municipal office road, Rajahmundry, abutting the municipal office. The owners thereof are the father of one Kaki Venkata Brahmanandam and the father of Kaki Venkata Suryanarayana Murthy and Kaki Venkata Satyanarayana Murthy, who owned it in equal moieties. The petitioners-Venkata Brahmanandam, Venkata Suryanarayana Murthy and Venkata Satyanarayana Murthy on whom the property devolved after the demise of their respective fathers together leased out the demised premises in favour of one A.China Yerikala Reddy, the first respondent, and late A.Y. Reddy, the father of the second respondent and Respondents 4 to 6, under a registered lease deed dated 14.8,1964. The lease was originally granted for a period of 30 years terminable by 31.10.1994. The rent stipulated for the first 25 years was at the rate of Rs. 500/- and for the remaining 5 years was at the rate of Rs. 800/- per month. The tenants were permitted to effect necessary alterations and additions to the ground floor and first floor of the demised premises and to raise structures at their expenses on the vacant space available abutting thereto and at the end of the lease period the lessees should deliver the structures to the lessors without claiming any right, title or interest in the newly made structures, if any. The first respondent and late A. Y. Reddy together formed a partnership and started the hotel business under the name and style of “Hotel Apsara” in the demised premises and later they enlisted the third respondent as one of the partners. It is the case of the petitioners that the firm had stood dissolved and the tenants stopped the business and kept the demised premises under lock and key for quite a long time. However, the Respondents 1 and 2 sub-let the demised premises to the third respondent under a registered sub-lease deed dated 5.9.1985 and thus transferred their lease hold rights in favour of the third respondent. The third respondent in turn created a partnership in the name and style of “Hotel Apsara” by taking the Respondents 4 to 6 as his partners and he being the Managing Partner. The newly constituted firm is the 7th respondent. Thus the demised premises has been under the occupation of the newly constituted firm. The eviction petition was, therefore, filed on the premises of the alleged sub-lease; acts of waste which impaired the utility and value of the property; and wilful default for the period between April, 1991 to July, 1993. After the death of Kaki Venkata Suryanarayana Murthy, his legal representatives were impleaded as Petitioners 4 to 6 and after the death of Late Brahmanandam Petitioners 11 to 17 were impleaded as his legal representatives.
3. The case of the Respondents 1 and 2 who resisted the petition separately was that they alone were entitled to the tenancy rights in the demised premises. Late A.Y. Reddy died after executing a will deed dated 4.9.1983 bequeathing all his properties in favour of the second respondent and, therefore, the Respondents 1 and 2 were entitled to the rights over the demised premises. The business was always run by the first respondent, who had taken nominally the third respondent as one of the partners. After the death of late A.Y. Reddy, the Respondents 1 and 2 invested huge amounts and changed the whole facade of the Hotel by installing new machinery, gadgetry, kitchen and restaurant and for such investment it necessitated a loan to be obtained from the Bank and at the suggestion of the third respondent, the document styling as a sub-lease was created nominally and only for the purpose of obtaining loan from the Bank. But, in reality, it was a sham and nominal document. However, the Respondents 3 to 6 became avaricious and started creating documents without notice to the Respondents 1 and 2 but the Respondents 1 and 2 had never given up the rights over the demised premises in any manner.
4. The case of the Respondents 3 to 7 was that the third respondent was taken as a partner by the original tenants and he later acted as a Managing Partner of the firm. After the death of his father-in-law late A.Y. Reddy, the partnership stood dissolved and the business was affected. The parties wanted to make alterations to the demised premises as the Respondents 1 and 2 were not inclined to undertake those alterations and they made over running of the Hotel to the third respondent. Accordingly, partnership deed dated 12.10.1983 was executed. To enable the respondents 3 to 6 to secure bank loans, Respondents 1 and 2 executed a sub-lease deed dated 5.9.1985 assigning their interest in the demised premises in favour of the third respondent being one of the partners. Although the document was styled as sub-lease, it was only an assignment of rights under the lease. There arose a dispute after the death of late A.Y. Reddy amongst second respondent and the Respondents 4 to 6 and their mother. On account of those disputes, the Respondents I and 2 got the eviction petition filed through the landlords against them and also a suit for damages in O.S. No. 36 of 1987 on the file of the Subordinate Judge, Rajahmundry. The respondents 3 and 4 purchased 1/12th share in the demised premises under a registered sale deed dated 27.2.1993 for a consideration of Rs. 1,95,000/- and as such they became the co-owners along with the petitioners. The Respondents 3 to 6 being the partners of the 7th respondent-firm are in possession of the demised premises and, therefore, the eviction petition was liable to be dismissed. All of them denied of having committed any acts of waste and wilful default.
5. On the above pleadings, the learned Rent Controller framed three points on the alleged sub-lease, acts of waste and default and on an appreciation of evidence adduced on either side, eventually the learned Rent Controller, directed the respondents to vacate the premises within three months from the date of his order. Inter alia in his order, the learned Rent Controller found that the Respondents 1 and 2 had sub-let the premises to the third respondent who had been independently conducting the business by taking Respondents 4 to 6 as partners. In the process, he negatived the pleas of nominal and sham nature of Ex.A.2-sub-lease; acts of waste and wilful default. However, the Appellate Court having noticed that although the rents were remitted by the third respondent under three banker’s cheques having regard to the delay caused in paying those rents which remained unexplained, was of the view that there had been wilful default on the part of the tenants from January, 1991 onwards while negativing the plea of acts of waste. It concurred with the learned Rent Controller that there had been a sub-lease without the consent of the landlords while confirming the eviction order. Assailing the said order, the present two civil revision petitions have been filed as aforesaid.
6. Sri V.L.N.G.K. Murthy, learned Counsel appearing for the landlords fairly conceded before me that the ground of wilful default must fail. The Appellate Court inter alia in its judgment in para 17 had given a tabular form showing the dates of payment of rents which were irregular for the period between 12.2.1997 to 6.3.2000. The eviction petition having been filed in the year 1987, the irregular payments referred to in the judgment clearly pertain to the period subsequent to the filing of the eviction petition. Having regard to the same and in view of the clear provisions of Section 11(4) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (“the Act” for brevity) and the law on the point, certainly that cannot be a ground to conclude that it was a case of wilful default. In that view of the matter, presumably, the learned Counsel conceded the point fairly.
7. Inasmuch as there has been a concurrent finding of both the Courts below that the tenants have not committed any acts of waste impairing the value or utility of the demised premises and as the landlords are not assailing the said finding by filing any independent revision petition, there remains to be considered the sole ground of alleged sub-lease.
8. Sri V.L.N.G.K. Murthy, raised a preliminary objection about the maintainability of CRP No. 5572 of 2000 since the Respondents 3 to 7 did not choose to file an appeal as against the eviction order passed by the learned Rent Controller. However it is expedient to consider the preliminary objection as well as the ground of sub-lease on which the eviction was ordered by both the Courts below together, particularly when the unsuccessful appellants filed the other revision petition in CRP No. 174 of 2001.
9. The lease in this case was in favour of late A. China Yerikala Reddy and late A.Y. Reddy. Ex.A.1 is the registration extract of the said lease deed dated 14.8.1964. It is said under the original of Ex.A.2- the sublease dated 5.9.1985 that the demised premises was sub-let in favour of the third respondent by the Respondents 1 and 2 after the death of late A.Y. Reddy, Exs.A.3 to A.10 are the registered notices and replies exchanged between the parties. Indubitably, the nomenclature of the said document and the terms contained therein inter alia manifest a transaction of sub-lease. It only remains to be seen as to whether it is a nominal and sham document as contended by the Respondents 1 and 2 or a case of assignment of lease hold rights as contended by the Respondents 3 to 7. In the absence of any convincing evidence, either direct or circumstantial, in proof of the respective pleas taken by the respondents and if it is left to consider Ex.A.2 alone, there can be no doubt that the transaction is a clear case of sub-lease. At the outset, it may be mentioned that the pleas taken by Respondents 1 and 2 on one side and Respondents 3 to 7 on the other side qua Ex.A.2 are not consistent nay divergent. Of course, they are consistent in one aspect that it was not a case of sub-lease. Regardless of the controversy as to whether the transaction covered by the original of Ex.A.2 is a sub-lease or assignment of lease hold rights; how it came be to executed must be shown clearly by the parties. Except the ipse dixit of R.W.1, the second respondent and the son of late A.Y. Reddy, there has been no other evidence adduced by the respondents. The third respondent has not chosen to come into the witness box and depose on oath. The burden is heavy on the respondents to bring home the plea taken by them. Having regard to the fact that the respondents have taken divergent pleas qua the original of Ex.A.2, non-examination of the third respondent and lack of any other evidence, either direct or circumstantial, except the ipsi dixit of R.W.1, is it legitimate for the Rent Controller in a summary enquiry to come to a definite conclusion that the transaction under the original of Ex.A.2 is a sham and nominal transaction, is the moot question. The answer without any hesitation would certainly be in the negative.
10. Obviously, the lease of the demised premises was in favour of late A. China Yerikala Reddy and late A.Y. Reddy and, therefore, they were the tenants. They had constituted a firm in the name and style of “Hotel Apsara” and later they enlisted the third respondent as one of the partners. The third respondent independently has no right in the demised premises whatsoever except as a partner in the hotel business. It appears that the Respondents 3 to 6 have constituted a new partnership firm under the name and style of “Hotel Apsara”, which is the 7th respondent. There is nothing on record to show that the original lessees continued to be the partners in the newly constituted firm. It appears that there have been serious property disputes in between the second respondent and the Respondents 3 to 6 inter se since the date of death of late A.Y.Reddy. Whatever may be the cause behind the said disputes there has been no evidence on record to show that the Respondents 1 and 2 have been continuing to be the partners of the 7th respondent firm. The hotel business is now admittedly being carried on by the Respondents 3 to 6. Having regard to the above factual matrix, the law on the point need be noticed.
11. In Gunda Muthulingam and Ors. v. Komaravalli Markandeya, 1985 ALT 306. Justice M. Jagannadha Rao, as his Lordship then was, reviewing the law on the point and having regard to the provisions of Section 10(2)(v) of the Act was of the view that if at least one partner is common to the old firm and the new firm which is in occupation of the premises there cannot be said to be sub-letting.
12. According to the facts in that case, the members of the original partnership who were admittedly the tenants were six in number and the new partnership in question was formed after the retirement of two of the erstwhile partners. All the four partners of the new firm were in fact the partners of the old firm. In that view of the matter, it was held that it was not a case of sub-letting by the first firm in favour of the second firm inasmuch as four partners were common in both the firms and as those four partners who were the tenants having not been ceased to be in occupation of the premises.
13. In ARM Group Enterprises Ltd. v. Waldorf Restaurant, , the Apex Court considered the point of devolution of tenancy from tenant to his partnership firm. That was a case where the landlord had inducted one Allenberry and Co., the third respondent, as a contractual tenant some time before 1951. On 1.7.1953 the said tenant inducted one “E” being the sole proprietor of Waldorf Restaurant as sub-tenant. On 12.8.1953 the third respondent-tenant gave a formal notice to the landlord expressing its intention to surrender the tenancy and vacate the leased premises by 31.8.1953. That determined the lease in accordance with Section 111 of the Transfer of Property Act, 1882. Later on “E” the sub-tenant formed a partnership with two other persons which was registered on 1.3.1954. The landlord, however, filed a suit for the eviction of the tenant-third respondent. That suit was decreed on 27.4.1955 as per the terms of the compromise. The landlord moved an application for execution of the compromise decree against the firm-the first respondent. The counter suit filed by the firm against the landlord for injunction ended in dismissal as having been barred under Section 47 of the Code. The landlord’s application for execution was allowed by a learned Single Judge of the High Court. However, the appeal was allowed by a Division Bench on the ground that by operation of law “E”, the sub-tenant either as a proprietorship concern or as a partner of the partnership firm became a tenant directly under the original landlord. The question that arose before the Apex Court was as to whether the firm could claim the status of a subtenant and seek protection against the eviction in execution of the compromise decree obtained against the tenant under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. Under Section 13 of the said Act a tenant of the first degree can create a valid subtenancy. A Division Bench of the Calcutta High Court held that by operation of law a proprietorship concern or as a partner of the partnership firm became a tenant directly under the original landlord. Relying on its earlier judgment in Indra Kumar Karnani v. Atul Chandra Patitundi, , wherein it was held that the consent of the landlord was not required for creating sub-tenancy by the ‘tenant of the first degree’ and consent of the landlord was, however, held to be necessary where the sub-tenant defined in the Act as ‘tenant inferior to the tenant of the first degree’ when created a sub-tenancy and in the case of creation of sub-tenancy by the tenant of the first degree, the sub-tenant even on termination of tenancy of the first degree would become ‘direct tenant’ under the landlord and was thus protected, and he could be evicted only on proof of any of the grounds under the provisions of Section 12 of the said Act, the Apex Court held in para 35 thus:
“Under Section 14 of the Partnership Act, 1932, in the absence of an agreement to the contrary, property exclusively belonging to a person, on his entering into partnership with others, does not become a property of the partnership merely because it is used for the business of the partnership. Such property will become property of the partnership only if there is an agreement – express or implied – that the property was, under the agreement of the partnership, to be treated as the property of the partnership.”
The Apex Court referred to its earlier judgment in Helper Girdharbhai v. Saiyed Mohd. Mirasahed Kadri, , wherein at pages 1784 and 1790 it was held thus:
“5. …It is well settled that if there was such a partnership firm of which the appellant was a partner as a tenant the same would not amount to sub-letting leading to the forfeiture of the tenancy. For this proposition see the decision of the Gujarat High Court in the case of Mehta Jagjivan Vanechand v. Doshi Vanechand Harakhchand, . Thakkar, J. of the Gujarat High Court as the learned Judge then was, held that the mere fact that a tenant entered into a partnership and allowed the premises being used for the benefit of partnership does not constitute assignment or sub-letting in favour of the partnership firm entitling a landlord to recover possession. This view is now concluded by the decision of this Court in Madras Bangalore Transport Co. (West) v. Inder Singh, .
19. ….We may mention that in Gundalapalli Rangamannar Chetty v. Desu Rangiah , Subba Rao, J. as the learned Chief Justice then was, held that there cannot be a sub-letting, unless the lessee parted with legal possession. The mere fact that another is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub-lease.”
In fact the judgment of the Madras High Court in Gundalapalli Rangamannar Chetty’s case was referred to and relied upon by Justice M. Jagannadha Rao, as his Lordship then was, in Gunda Muthulingam and Ors. v. Komaravalli Markandeya (supra).
14. In Labanya Neogi v. W.B. Engineering Company, , the Apex Court held thus:
“To establish sub-letting, the landlady has to prove abandonment or transfer of interest in favour of another person. In the case in hand, the tenancy was between the landlady and M/s W.B. Engineering Company, which was originally a partnership firm and from the records of this case, it transpires that Mr. Tahilian (DW.1) became the sole owner as stated above. The original tenancy was for the purpose of residential accommodation of the firm and right from the inception of the tenancy Mr. Tahilian was in occupation of the suit premises. Therefore, there was no abandonment or transfer of the tenancy by M/s W.B. Engineering Company, the tenant.”
15. The legal position seems to be thus obvious. If the tenant of the demised premises later enters into a partnership firm and continued to be in the legal possession of the premises, it is not a case of sub-lease in favour of the firm. If the tenant parts with legal possession in favour of the newly created firm, it is obvious that it is a case of sub-lease. If at least one partner is common to the old firm and the new firm, which is in occupation of the premises, it cannot be said to be a case of sub-letting.
16. In the instant case, the original lessees were the first respondent and late A.Y. Reddy. They entered into a partnership by taking the third respondent as one of the partners. It cannot be said that it was a case of sub-lease in favour of the firm inasmuch as the original lessees did not part with the legal possession of the demised premises as they continued to be in possession of the premises as partners along with the 3rd respondent. Obviously, the Respondents 3 to 6 entered into a new partnership under the name and style of “Hotel Apsara” the 7th respondent firm, wherein the first respondent and the second respondent-son of late A. Y. Reddy are not the partners. That the third respondent who was a partner of the erstwhile firm continued to be a Managing Partner of the newly constituted 7th respondent firm cannot, in my considered view, alter the position. Obviously, the demised premises is in the occupation of the newly constituted firm being run and managed by the Respondents 3 to 6. It may be mentioned here that it has been specifically averred in the eviction petition in para 12 that the third respondent created a partnership in the same name and style of “Hotel Apsara” by taking into the Respondents 4 to 6 as partners; and that the newly constituted firm is the 7th respondent therein; and that the scheduled property is now in the occupation of the newly constituted firm “Hotel Apsara” who are not the original lessees of the scheduled property and that the acts of the Respondents 1 and 2 amounts to transfer of lease hold rights to the Respondents 3 to 7 or sub-letting of the demised premises. This statement of fact averred in para 12 has not been controverted either in the counter filed by the Respondents 1 and 2 or in the counter filed by the Respondents 3 to 7. It is no doubt true that they have categorically denied the sub-lease but that is not the answer to the question. Even the fact that the Respondents 4 to 6 being the daughters of late A.Y. Reddy and his legal heirs will not alter the situation inasmuch as the 3rd respondent who was not the original lessee had taken them as partners and constituted a new partnership to the exclusion of Respondents 1 and 2. No sooner the death of late A.Y. Reddy the erstwhile partnership where the original lessees and the Respondent 3 were partners stood dissolved. When new partnership has been formed in between the Respondents 3 to 6, it cannot be the continuation of the erstwhile partnership although the third respondent is common in both the firms. In that view of the matter, clearly the original lessees have parted with their juridical possession. Therefore, the present partnership firm wherein the Respondents 3 to 6 are the partners cannot be called as a tenant. Even accepting the plea of the third respondent that it was a case of assignment of lease hold rights in his favour by the erstwhile tenants, it cannot be said that the newly constituted partnership firm is the tenant under the landlords. In that view of the matter, in the absence of any consent in writing from the landlord, the 7th respondent firm constituted by the Respondents 3 to 6 cannot be a tenant under the landlords and it was a clear case of sub-tenancy.
17. Admittedly, Respondents 3 and 4 together had purchased the undivided 1/12th share of the demised premises and to that extent obviously they became the co-owners. Can they be evicted from the demised premises which is the undivided property, having due regard to the fact that the Respondents 3 and 4 are the owners thereof to the extent of l/12th share along with the petitioners is the next question.
18. In Badri Narain v. Rameshwar Dayal, , a four Judge Bench of the Apex Court held in para 9 thus:
“If the lessor purchases the lessee’s interest, the lease no doubt is extinguished as the same man cannot at the same time be both a landlord and a tenant, but there is no extinction of the lease if one of the several lessees purchases only a part of the lessor’s interest. In such a case the lease hold and the reversion cannot be said to coincide.”
19. Earlier the Privy Council in Shaikh Faquir Bakhsh v. Murlidhar, AIR 1931 PC 63, held thus:
“The plaintiff’s rights under lease of a part did not merge in his rights as joint proprietor of the whole of the property and as between the parties the plaintiff held a valid and subsisting lease and so in an accounting between them the rent under the lease and not the reasonable profits of the property leased was the measure of contribution which the leased properties ought to make to the divisible revenue of the entire property.”
20. Following its above judgment and the judgment of the Privy Council, very recently the Apex Court in T. Lakshmipathi v. P. Nithyananda Reddy, 2003 (3) ALT 26 (SC), held in para 18 thus:
“In the case at hand, it cannot be denied, nor has it been denied that the appellants herein are not purchasers of the entire ownership interest in the property. What they have purchased is interest of some out of all the co-owners of the property. The interest of the Respondent No. 1, whatever be its extent, has not come to vest in the appellants. The appellants have also acquired the tenancy rights in the property. Thus they have acquired partial ownership and full tenancy rights. It cannot be said that the interests of the lessee and the lessor in the whole of the property have become vested in the appellants at the same time and in the same right. The lease cannot be said to have been determined by merger. So long as the interests of the lessee, the lesser estate and of the owner, the larger estate do not come to coalesce in full either the water of larger estate is not deep enough to enable annihilation or the body of lesser interest does not sink or drown fully.”
21. In Jagdish Dutt and Anr. v. Dharm Pal and Ors., , in para 7 it was held thus:
“When a decree is passed in favour of a joint family the same has to be treated as a decree in favour of all the members of the joint family in which event it becomes a joint decree. Where a joint decree for actual possession of immovable property is passed and one of the decree-holders assigns his interest in favour of the judgment-debtor, the decree gets extinguished to the extent of the interest so assigned and execution could lie only to the extent of remaining part of the decree. In case where the interest of the coparceners is undefined, indeterminate and cannot be specifically stated to be in respect of any one portion of the property, a decree cannot be given effect to before ascertaining the rights of the parties by an appropriate decree in a partition suit. It is no doubt true that the purchaser of the undivided interest of a coparcener in an immovable property cannot claim to be in joint possession of that property with all the other coparceners. However, in case where he is already in possession of the property, unless the rights are appropriately ascertained, he cannot be deprived of the possession thereof for a joint decree-holder can seek for execution of a decree in the whole and not in part of the property. A joint decree can be executed as a whole since it is not divisible and it can be executed in part only where the share of the decree-holders are defined or those shares can be predicated or the share is not in dispute. Otherwise the executing Court cannot find out the shares of the decree-holders and dispute between joint decree holders is foreign to the provisions of Section 47, CPC. Order XXI, Rule 15, CPC enables a joint decree-holder to execute a decree in its entirety but if whole of the decree cannot be executed, this provision cannot be of any avail. In that event also, the decree holder will have to work out his rights in an appropriate suit for partition and obtain necessary relief thereto. Various decisions cited by either side to which we have referred to do not detract us from the principle stated by us as aforesaid.”
22. In E.V. Jagannadha Rao v. L.S. Eswara Rao, (DB), a Division Bench of this Court held in para 31 thus:
“Judged in the light of the aforesaid discussion, it must be held that Rent Control Petition filed by the landlord was maintainable on the date when it was filed and that it will not be a non-est proceeding merely on account of the purchase by the tenants of a moiety share, though it will have relevance to the relief that may be granted to the parties. The tenants being already in possession of the building, the proper order that could be passed in the circumstances of the case will be to direct the landlord to be in joint possession along with the tenants, leaving it open to the landlord to sue for partition of his specific share in the property.”
23. However, having regard to the latest pronouncement of the Apex Court in T. Lakshmipathi v. P. Nithyananda Reddy (supra), which again has come to be rendered under the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, I960 and the earlier four Judge Bench judgment of the Apex Court in Badri Narain’s case (supra) and the judgment of the Privy Council referred to supra, it is obvious that there cannot be a merger of a lease and sale if the lessee purchases a moiety of lease hold right from one of the coparceners or joint owners of the property/lessors. In between the lessors and the lessees inter se the lease subsists. Once the lease subsists, the lessee is liable to pay rent and is also liable to other consequences as per the provisions of the Act. In view of this clear legal position, the Respondents 3 and 4 cannot be heard to say that they are not liable to be evicted from the demised premises having purchased 1/12th share of the demised premises from one of the lessors.
24. That apart, the Respondents 3 to 6 having been eo nomine parties to the proceedings and when the eviction petition was allowed directing them to vacate the premises, they did not choose to prefer an appeal against the said eviction order. Instead the Respondents 1 and 2, the original lessee and the son of the other lessee respectively, filed the appeal. That is an indicia that the Respondents 3 to 6 have not been aggrieved by the eviction order. They cannot now maintain the revision petition in CRP No. 5572 of 2000 on the premise that according to Section 22 of the Act a revision petition can be filed by any aggrieved party, taking shelter under the expression “any aggrieved party”. Section 22 of the Act which confers the right to prefer a revision reads as under:
“22. Revision :–(1) The High Court may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceeding taken under this Act by the Controller in execution under Section 15 or by the appellate authority on appeal under Section 20, for the purpose of satisfying itself as to the legality, regularity or of propriety of such order or proceeding, and may pass such order in reference thereto as it thinks fit.
(2) The costs of and incident to all proceedings, before the High Court under Sub-section (1) shall be in its discretion.” (Emphasis is mine)
25. A perusal of the said provision shows that the High Court may call for the record and examine the same relating to an order passed by the Controller or the proceeding taken in execution under Section 15 or an order passed by the appellate authority on appeal under Section 20 so as to satisfy itself as to the legality, regularity or propriety of such order or proceeding. If the said provision is read in juxtaposition with the Section 115 of the Code of Civil Procedure (“the Code” for brevity), a marked distinction between these two is apparent. Section 115 of the Code may be excerpted hereunder thus;
“115. Revision :–(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears–
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,
the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would occasion a failure of Justice or cause irreparable injury to the party against whom it was made.
(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.
(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit to other proceeding is stayed by the High Court.
Explanation :–In this section, the expression any case which has been decided includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.”
26. It is obvious from a perusal of Sub-section (1) of Section 115 of the Code that a revision can be maintained where no appeal lies. Notwithstanding the same, the Apex Court in, Vidya Vati v. Devi Das, , in para 7 held thus:
“Now, there can be no doubt that under Section 115 of the Code of Civil Procedure a revision application can lie before the High Court from an order made by a subordinate Court only if no appeal lies from that order to the High Court. The words of limitation used in Section 115 are “in which no appeal lies thereto” and these words clearly mean that no appeal must lie to the High Court from the order sought to be revised.”
27. However, Section 115 of the Code was amended under the Act 104 of 1976 by incorporating Sub-section (2). Sub-section (2) clearly bars a revision to the High Court against an order against which an appeal lies to the High Court or to a Court subordinate thereto. Thus, the controversy has been set at naught by amending the Section 115 of the Code suitably. Turning to Section 22 of the Act, it does not contain any limitations unlike Section 115 of the Code does. This marked distinction between the two provisions shall not be lost sight of. Thus, when we read Section 22 of the Act in juxtaposition with Section 115 of the Code it is obvious that the Section 22 does not bar a revision to the High Court directly without availing the remedy of appeal conferred under Section 20 of the Act. The only limitation engrafted thereunder appears to be, from a perusal of the Section 22, that a person who seeks to file the revision petition must be an “aggrieved party”. It necessitates therefore, to consider the meaning of the expression “aggrieved party”. The meaning of the expression “aggrieved party” as can be seen from West’s Legal Thesaurus/Dictionary at Page-38 is as follows:
“Someone who suffers a substantial grievance; Someone whose legal right is invaded; Someone whose personal or property rights are directly affected by a decree, order or judgment.”
28. The Apex Court in J.M. Desai v. Roshan Kumar, AIR 1976 SC 578, in para 12 held thus;
“The expression “aggrieved person” denotes an elastic, and, to an extent, an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best, its features can be described in a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content, and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner’s interest, and the nature and extent of the prejudice or injury suffered by him.”
29. The Respondents 3 to 6 who have preferred to suffer the eviction order without assailing the same by exercising the right of appeal cannot be said to have suffered substantial prejudice directly by the impugned judgment of the Appellate Court. Having regard to the stance taken by them in the eviction petition, they ought to have filed an appeal against the order of eviction since their interests would be directly affected rather than the interests of the Respondents 1 and 2, particularly when there appears to be some conflict of interest in between them inter se. Well, when they have preferred not to file an appeal, notwithstanding the fact that their interest in the demised premises has been directly affected, they cannot now be heard to say that they are the aggrieved parties.
30. In this connection, Sri V.L.N.G.K. Murthy, learned Counsel appearing for the landlords seeks to place reliance upon a Judgment of the Privy Council in Md. Khaleef v. Les Tanneries, AIR 1926 PC 34. That was a case where a suit was filed against A and B by the plaintiff. Eventually suit against B was dismissed but decreed against A by the trial Court. The plaintiff did not choose to file an appeal against the dismissal. However, A and B filed an appeal jointly and the appeal was decided against the plaintiff. The plaintiff then sought file an appeal before the Privy Council against A and B jointly as against the Appellate Court decree. It was held that the appeal was not maintainable: as against B. It is, therefore, the contention of the learned Counsel appearing for the landlords that the revision petition in CRP No. 5572 of 2000 is not maintainable. As discussed by me hereinabove, to maintain the revision petition under Section 22 of the Act, the respondents should come within the expression “any aggrieved party”. They cannot be permitted to have the advantage of the expression “any aggrieved party” so as to mean that not only the persons who are eo nomine parties to the proceedings but any person having been aggrieved by the adverse result to come within the expression “any aggrieved party”, they must really be aggrieved by the order passed by the Court which according to me is adverse to their interest. When they have preferred to suffer the order of eviction without assailing the same by exercising the right of appeal, they cannot now be considered as aggrieved parties when the Appellate Court confirmed the said order of eviction when an appeal had been filed by the Respondents 1 and 2. Therefore, the revision petition filed by the respondents in CRP No. 5572 of 2000 is not maintainable and is liable to be dismissed.
31. As discussed by me hereinabove, the Respondents 1 and 2 have clearly parted with the possession of the demised premises in favour of the newly constituted firm by the Respondents 3 to 6, the Respondents 3 to 6 are not the original lessees. The third respondent obviously cannot be the legal heir of late A.Y. Reddy being the son-in-law. The Respondents 4 to 6 have not occupied the premises in the capacity of legal heirs of late A. Y, Reddy. Instead they assert that they are the partners of the newly constituted firm along with the third respondent, who is the Managing Partner thereof. In that view of the matter, the finding of the learned Rent Controller that there has been sub-lease in favour of the Respondents 3 to 6 by the original lessees cannot be assailed. Even otherwise, Ex.A.2 clearly affirms the stand of the landlords. The divergent stands taken by the Respondents 1 and 2 on the one hand and the Respondents 3 to 6 on the other hand that it was a nominal and sham document and that it was nothing but assignment of leasehold rights merit no consideration for paucity of evidence. The respondents miserably failed to establish the same. In that view of the matter, the eviction order passed by the learned Rent Controller on the premise that there had been a sublease cannot be interfered with.
32. For the foregoing reasons, both the Civil Revision Petitions Nos. 5572 of 2000 and 174 of 2001 fail and are dismissed. Consequently, the revision petitioners-tenants are directed to vacate the demised premises within two months from this date. Under the circumstances, there shall be no order as to costs.