K. G. SREENIVASA SETTY v. M. S. SASHIKUMAR GUPTA — 1973 DIGILAW 97 (KAR)

( 1 ) THIS is a tenant's revision petition against the order passed by the fifth Addl. First Munsiff, Bangalore in HRC. No. 355 of 1971. ( 2 ) THE respondents filed a petition for eviction of the petitioner, on the ground of non-payment of rent. After filing the said petition, the respondents who filed an application under S. 29 of the Mysore Rent Control act, 1961 (hereinafter referred to as the Act) and prayed that all further proceedings be stopped and the petitioner be summarily evicted, on the ground that he has not paid the rent due in respiect of the suit premises. The petitioner raised the contention, among others, that the respondents are not the landlords and that as there is no relationship of landlord and tenant between the parties, the Court has no jurisdiction to make any order under S. 29 of the Act. It is thereafter that the order under revision, was made on the 15th of January, 1973. The learned Munsiff has come to the conclusion that there is relationship of landlord and tenant between the parties and that the petitioner is in arrears of rent to the extent of rs. 4,960. The learned Munsiff,-having regard to the circumstances of the case, has given time to the petitioner to pay the arrears of rent, as directed by him. It is the said ordier that is challenged by the petitioner-tenant in this revision petition. ( 3 ) SHRI N. K. Gupta, learned Counsel for the petitioner, contended that the learned Munsiff could not have disposed of the application under s. 29 of the Act without deciding the main matter itself. He contended that the petition of the landlords being one for eviction on the ground of non-payment of rent , the petitioner having raised the contention that there is no relationship of landlord and tenant between the parties, the main matter itself had to be heard on all the issues involved in the case. He further submitted that the finding recorded by the learned Munsiff that there is relationship of landlord and tenant between the parties would not be binding on the petitioner when the matter is taken up for final hearing. ( 4 ) IN support of his case, Shri Gupta relied upon the decision of the full Bench of the Andhra Pradesh High Court in Changanlal v. Narsingh pershad, AIR 1973 AP 1 FB. ( 4 ) IN support of his case, Shri Gupta relied upon the decision of the full Bench of the Andhra Pradesh High Court in Changanlal v. Narsingh pershad, AIR 1973 AP 1 FB. In the sajd decision the Andhra Pradesh High Court had occasion to consider S. 11 of the Andhra Pradesh Buildings Lease, Rents and Eviction Control Act, 1960 which section is analogous to S. 29 of the act. It is enough for the purpose of this case to extract the conclusion of the Full Bench which reads as follows :"in the end we hold that S. 11 is applicable not only to cases where the relationship of landlord and tenant is admitted but also, to cases where such relationship is denied. For the purpose of passing orders under S. ll of the Act, when the relationship of landlord and tenant is denied, the Rent Controller must determine that question finally by making a regular enquiry and not provisionally by making summary enquiry before assuming jurisdiction in the master and pass orders and such a determination should be the decision in the main eviction petition itself. . . . . . . . "with respect, I entirely agree with the view expressed by the Full Bench of the Andhra Pradesh High Court. The enquiry contemplated under s. 29 of the Act is of a summary nature. But, if the tenant raises the contention in an eviction petition filed by the landlord that there is no relationship of landlord and tenant between the parties, the Court, under s. 29 of the Act, will have no jurisdiction to pass any order under S. 29 unless it records a firm and final finding on the jurisdictional issue regarding the relatioship of landlord and tenant between the parties. It is only if there is such relationship, the Court will have jurisdiction to make appropriate, orders under S. 29 of the Act. A finding on the jurisdictional question regarding relationship of landlord and tenant between the parties has to be a, final finding recorded after giving full opportunity to both the parties. It is only if there is such relationship, the Court will have jurisdiction to make appropriate, orders under S. 29 of the Act. A finding on the jurisdictional question regarding relationship of landlord and tenant between the parties has to be a, final finding recorded after giving full opportunity to both the parties. If the rinding on that jurisdictional issue is not recorded as a final finding after giving an opportunity to both the parties, it is likely that the Court may pass air order under S. 29 of tne Act though, in fact, it haa no jurisdiction to do so there being no relationship of landlord and tenant between, the paraes. Even though the occasion for deciding the jurisdiction issue regarding rtlationship of landlord and tenant between the parties is the consideration of the application filed by tha landlord under S. 29 of the Act in which the tenant raises the contention that there is no relationship of landlord and tenant between the parties, the court has to record a firm and final finding on the jurisdictionol issue after giving an opportunity to both the parties to lead evidence in respect of their contentions in regard to that issue, which finding shall be chiding on the parties in the main matter itself. ( 5 ) THE question for consideration is, as to whether the finding recorded by the Court below in regard to the relationship of landlord and tenant between the parties was recorded after making a regular enquiry for the purpose of the petition itself. It is. no doubt, true that the finding is recorded in the order passed on I. A. No. 1. That the finding has been recorded in the order passed on I. A. No. 1 filed under S. 29 of the Act does not necessarily mean that the finding was recorded in a summary manner and for the limited purpose of consideration of the application under S. 29 of the Act. That depends upon the facts of each case. In this case, after the landlord filed the interim application for taking action under S. 29 of the Act, the case was posted for evidence on the main matter as well, as on I. A. No. 1. Evidence was let in in regard to the main petition as well as in regard to I. A. No. 1. In this case, after the landlord filed the interim application for taking action under S. 29 of the Act, the case was posted for evidence on the main matter as well, as on I. A. No. 1. Evidence was let in in regard to the main petition as well as in regard to I. A. No. 1. Both the paitios to the proceedings understood that they are adducing evidence on the main petition also. That that is how the proceedings were conducted in this case is clear from what is stated by the petitioner himself in paragraph S of the memorandum of revision petition under the heading 'statement ol Facts' the relevant portion of which reads as follows :"in the course of the proceedings in the Trial Court the respondents filed an application under S. 29 (1) of the Mysore Rent Control act requesting the Court to stop all further proceedings on the ground that the petitioner has not paid the arrears of rent and current rents. The case was posted for trial on the main matter as well as on I. A. Evidence have been let in with regard to the main petition and also on I. A. No. 1. Both the parties to the proceedings have understood that they are adducing evidence on main petition also. "it is clear from the order of the learned Munsiff that witnesses were examined by the parties and the enquiry was conducted in a full-fledged manner. I have, therefore, no hesitation in coming to the conclusion that the finding on jurisdictional issue regarding relationship of landlord and tenant between the parties, though recorded in the order on I. A. No. 1, is a final finding recorded after regular enquiry, and is binding on the parties in tiie main petition also. As a final finding has been recorded on the preliminary issue regarding relationship of landlords and tenant between, the parties, the question of re-agitating the matter again at the time of final hearing does not arise in this case. ( 6 ) AS the landlords had filed an application under S. 29 of the Act, the Court, after recording a finding in favour of the landlords on the preliminary issue, could not have recorded its findings on the merits of the case. The Court had to decide the application under S. 29 of the Act in the first instance. ( 6 ) AS the landlords had filed an application under S. 29 of the Act, the Court, after recording a finding in favour of the landlords on the preliminary issue, could not have recorded its findings on the merits of the case. The Court had to decide the application under S. 29 of the Act in the first instance. I, therefore, do not find any irregularity in the procedure follcwed by the learned Munsiff. It is, however, necessary to point out that in cashes where the relationship of landlord and tenant is denied in an application under S. 29 of the Act, the Court should frame a preliminary issue in regard to the relationship between the parties, try the same and record a finding on the said preliminary issue before considering the the application of the landlord under S. 29 of the Act. That does not mean, that the Court is precluded from recording evidence, if it thinks that such a course is more convenient, on all the issues involved in the case, ( 7 ) FOR the reasons stated above, this revision petition fails and is dismissed. No costs. --- *** --- .