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Andhra High Court · body

2001 DIGILAW 1082 (AP)

Enderi Lakshmiram v. Shaki Ibrahim

2001-09-21

S.ANANDA REDDY

body2001
( 1 ) THIS revision petition is filed by the 1st respondent in the E. A. No. 184 of 1994 in e. P. No. 52 of 1994 against the Decree Holder in R. C. No. 47 of 1992, in whose favour an order of eviction of the 2nd Respondent was filed. ( 2 ) YHE petitioner herein filed R. C. No. 47 of 1992 for eviction of the 2nd Respondent herein, who was the tenant from the petitioner. Pending the proceedings, the petitioner filed an application under Sec. 11 of the A. P. Buildings (Lease, Rent and eviction) Control Act, 1960 (hereinafter referred to as the Act ) for a direction to the respondent therein to deposit the arrears of rent and failing which all further proceedings should be stopped and the respondent must be directed to put the premises in possession of the Petitioner. Though the Respondents therein contested that the Petitioner is not entitled for any relief, the Rent Controller passed an order, having given a finding that there is no dispute that there was a tenancy between the petitioner and the Respondent, directing the Respondent therein to deposit the arrears of rents within a period of 15 days and failing which all further proceedings being stopped and the Respondent was further directed to put the Petitioner into possession of the suit premises. As the respondent therein failed to comply the said order passed in I. A. No. 100 of 1994 under Sec. 11, consequently the main RCC as closed in terms of the said order. Thereafter the present Petitioner, who was also the Petitioner in R. C. No. 47 of 1992 filed E. P. No. 52 of 1994 seeking execution of the order passed under Sec. ll (4) as well as the orders passed in the final R. C. C. When the said E. P. , was pending, the 1st respondent herein filed E. A. No. 184 of 1994 in E. P. 52 of 1994, claiming that he is a third party to the proceedings and the warrant issued in respect of the suit schedule premises, bearing Door No. 12/23, should not be executed against him as he was a lessee on a monthly rent of Rs. 650/- from Sri S. R. Y. Ankineedu Prasad and sri S. R. Y. Padmanabha Prasad, who are the owners of the premises. 650/- from Sri S. R. Y. Ankineedu Prasad and sri S. R. Y. Padmanabha Prasad, who are the owners of the premises. According to the respondent, he came to know of the order of eviction, which was obtained by the petitioner against the 2nd Respondent only when the Court Amin came to the schedule premises on 10-11-1994 for execution. As the 1st Respondent is the tenant from the original owners, the said eviction order obtained by the Petitioner against the 2nd respondent cannot be enforced against the 1st Respondent. Accordingly, he sought for recall of the warrant issued to the Amin. This was contested by the present petitioner stating about the proceedings taken up by him against the 2nd respondent. According to the Petitioner, the premises was leased out to him by Sri ankineedu Prasad and Sri Padmanabha prasad, who are the original owners of the premises. The Petitioner herein in turn leased out the same to the 2nd Respondent. As the 2nd Respondent had committed default in payment of rent, he was constrained to file eviction proceedings by filing R. C. C. No. 47 of 1992 against the 2nd respondent. While the said proceedings were pending, he also filed I. A. No. 100 of 1994 seeking a direction under Sec. 11 of the act to the Respondent to deposit the arrears of rent and also for a consequential order of stopping all further. Proceedings as well as to put the petitioner into possession by the respondent/tenant. The Rent Controller passed orders on 22-7-1994, directing the tenant to pay the arrears of rent within a period of 15 days; failing which the respondent/tenant was directed to put the into possession of the premises. As the respondent/tenant has not complied with the said order; final orders were passed in the R. C. on 16-8-1994 in terms of the order passed in I. A. No. 100 of 1994 closing the r. C. C. Thereafter, the Petitioner filed the e. P. , for execution of the order passed under Sec. 11 (4), which was made the final order while closing the R. C. C. The Rent Controller, on the above contentions, framed the issue to the effect whether the Petitioner in E. A. is entitled for the relief as claimed? the Rent Controller after considering the rival contentions and also the material on record, felt that the order passed under sec. the Rent Controller after considering the rival contentions and also the material on record, felt that the order passed under sec. 11 (4) is not an executable order and the rent Controller has no power to order eviction under Sec. ll (4 ). According to the rent Controller, if the tenant fails to comply the orders, the claims have to be carried out in the main R. C. C. As no such order of eviction was passed under Sec. 10 of the act, the petitioner in the R. C. C. is not entitled to execute the order under sec. 11 (4 ). According to him, the order passed in I. A. No. 100 of 1994 has no legal sanctity. Further, according to the 2nd respondent/judgment-Debtor, under ex. B-4 Memo, he has delivered possession of the property to the original landlords, who in turn inducted the petitioner in E. A. as their tenant. Therefore, the petitioner in r. C. C. is not entitled to dispossess the petitioner in E. A. under the guise of executing the order that was obtained against the Respondent in the R. C. C. No. 47 of 1992. According to the Rent Controller a fresh tenancy was created between the petitioner in E. A. and the original landlord and consequently the tenancy rights of the 1st respondent in the E. A. , are extinguished. Therefore, the learned Rent Controller allowed the application filed by the 1st respondent herein under Rule 23 (7) of the rent Control Rules. Aggrieved by the said proceedings, the Petitioner in whose favour the eviction order was passed has come up in the present revision. ( 3 ) THE learned Counsel for the petitioner contended that the Rent Controller was in error in holding that the order passed under sec. ll (4) is not executable. It is also contended that the orders passed under sec. 11 (4) are independent and are executable as the tenant had committed default in compliance of the order passed under Sec. 11 (4 ). According to the learned counsel, if the contention of the 1st respondent is accepted that the order passed under Sec. 11 (4) is not executable, the very purpose of passing such an order would frustrate and the provisions of sec. 11 (4) would become nugatory. According to the learned counsel, if the contention of the 1st respondent is accepted that the order passed under Sec. 11 (4) is not executable, the very purpose of passing such an order would frustrate and the provisions of sec. 11 (4) would become nugatory. The learned Counsel relied upon a judgment of this Court in the case of T. Venkatesam v. A krishnaiah where this Court held that the rent Controller, who passed an order under sec. 11 (4) has got implied power under sec. 11 to order execution of the same. The learned Counsel also contended that the rent Controller had erred in holding that the Rent Controller has no power to order eviction under Sec. 11 (4) and even if it is so issed, it is beyond the powers of Sec. ll. The said observations of the Rent Controller are clearly erroneous in the light of the above-referred decision. The learned counsel also contended that when the petitioner filed an application under Sec. 11 the 2nd Respondent herein contested that said application alleging that he was a tenant to the original owners and there is no relationship of landlord and tenant between the present petitioner and the 2nd respondent. But the said contention was negatived by the Rent Controller while passing orders under Sec. 11 (4) and consequently directed the 2nd Respondent to deposit the arrears of rent within 15 days; failing which the 2nd Respondent was directed to put the petitioner in possession. The 2nd Respondent in spite of complying the said order, in collusion with the original owners from whom the Petitioner had taken the premises on lease and with whose permission the building was sub-leased to the 2nd Respondent and created a surrender by the 2nd Respondent to the original owners and set up a fresh lease in favour of the 1st Respondent herein. It is contended that when an order of eviction was passed by the Rent Controller against the 2nd Respondent, the 2nd Respondent is not free to surrender the said premises to anybody else, except to the petitioner, who was the decreeholder. The 2nd Respondent had surrendered the same to some third parties who are also bound by the said order of eviction passed against the 2nd respondent, as their possession is only through the 2nd Respondent. The 2nd Respondent had surrendered the same to some third parties who are also bound by the said order of eviction passed against the 2nd respondent, as their possession is only through the 2nd Respondent. Therefore, it is contended that even if there was a lease from the original owners, the said lease is not at all valid, as the original owners have not obtained their possession legally and the possession if it is obtained, it is only collusive through the 2nd Respondent and hence the eviction order passed against the 2nd Respondent is equally binding on the original owners as well as the subsequent tenant from them. Therefore, it is contended that the present application filed by the 1st respondent under Rule 23 (7)of the Rent control Rules is not maintainable and the petition is liable to be dismissed. The learned Counsel also contended that it is not in dispute that the petitioner is admittedly a tenant from the original owners, whose tenancy is not disputed. In fact, when R. CNo. 47 of 1992 was pending, the original owners filed I. A. No. 379of 1994 to get themselves impleaded alleging that the petitioner had changed their title, but the trial Court dismissed the said application having found that the original owners are not necessary parties in the said r. C. C. , which was filed by the petitioner as landlord of the 2nd Respondent/subtenant. In the light of the above, it is also contended that the original owners are well aware of the pendency of the eviction proceedings against the 2nd Respondent. Therefore, the 2nd Respondent is not free to surrender the premises to the original owners and the original owners also not entitled to take possession from the 2nd respondent against whom the eviction order was passed ordering delivery of possession to the petitioner herein. Therefore, it is contended that the impugned order is liable to be set aside. The learned Counsel for the petitioner also relied upon the following decisions: changanlal v. Narsingh Pershad, Koneru aruna Kumari v. Shaik Ali and S. Venkata reddy v. M/s. New Tirnmala Emporium. ( 4 ) THE learned Counsel for the 1st respondent, on the other hand, contended that the 1st Respondent is not aware of the proceedings between the petitioner and the 2nd Respondent. According to him, he was tenant from the original owners on a monthly rent of Rs. ( 4 ) THE learned Counsel for the 1st respondent, on the other hand, contended that the 1st Respondent is not aware of the proceedings between the petitioner and the 2nd Respondent. According to him, he was tenant from the original owners on a monthly rent of Rs. 650/- and the lease was given in his favour for a period of eleven months as per the lease deed dt. 1-8-1994. According to the learned Counsel, even if an order has been passed in favour of the petitioner and against the 2nd Respondent under Sec. ll (4) of the Act, the said order is not executable as the main R. C. , itself was disposed of without ordering eviction of the 2nd Respondent. According to the learned counsel, the orders passed under Sec. ll (4) are executable as long as the main R. C. , is pending. When once the main R. C. , was disposed of without passing any orders of eviction, the orders passed under Sec. ll (4) would become unexecutable. According to the learned Counsel, the R. C. , was closed by stopping all further proceedings in view of the order passed under Sec. ll (4) of the Act. As such there is no order of eviction in favour of the Petitioner and against the 2nd respondent. Therefore, there is no executable order. The learned Counsel also contended that insofar as the petitioner is concerned, he is a third party, as there was a lease in his favour from the original owners and his possession should not be disturbed either by the petitioner herein or even under the proceedings by way of execution of an order against the 2nd respondent. The learned Counsel also referred and relied upon on Ex. B-4 under which the 2nd Respondent claimed to have vacated the premises and delivered it to the original owners. In the light of the delivery of possession by the 2nd Respondent to the original owners, who in turn leased out the premises to the 1st Respondent, the petitioner is not entitled to proceed against the 1st Respondent. The order that had been obtained in terms of Sec. 11 (4) has also become ineffective, in view of the vacation of the premises by the 2nd Respondent/ judgment-debtor. As the 2nd Respondent is not in possession of the premises, the order passed under Sec. ll (4) is not executable. The order that had been obtained in terms of Sec. 11 (4) has also become ineffective, in view of the vacation of the premises by the 2nd Respondent/ judgment-debtor. As the 2nd Respondent is not in possession of the premises, the order passed under Sec. ll (4) is not executable. In any case, as the 1st Respondent is a bona fide tenant from the original owners under ex. X-1, Lease Deed, his possession should not be affected. The learned Counsel also relied upon a judgment of his Court in the case of G. Krishna Murthy v. B. Narasimha rao and contended that the revision is liable to be dismissed. ( 5 ) FROM the above rival contentions the issue to be considered is whether the 1st respondent is entitled to object to the execution of the orders of eviction passed in favour of the Petitioner and against the 2nd respondent. ( 6 ) IT is not in dispute that the present petitioner filed RCC No. 47 of 1992 against the 2nd Respondent and also filed i. A. No. 100 of 1994 seeking an order under sec. 11 of the Act. The Rent Controller passed an order under Sec. 11 (4) on 22-7-1994 directing the 2nd Respondent herein to deposit the arrears of rent within a period of 15 days, failing which he was also directed to put the Petitioner into possession of the premises. The direction to deposit the arrears of rent within 15 days was not complied with. In view of the failure to deposit the arrears of rent, the 2nd respondent was obligated to put the petitioner into possession of the premises. Thereafter, in the main RCC, the Rent controller passed orders on 16-8-1994. The said order is in terms of the order passed in i. A. No. 100 of 1994 and further proceedings were closed. The result is that the 2nd respondent has to put the Petitioner in possession of the premises. As he did not do so, E. P. No. 52 of 1994 was filed by the present Petitioner seeking delivery of possession of the premises from the 2nd respondent. When the Court Amin went for delivery of possession of the premises, the 1st Respondent herein objected claiming that he is the tenant from the original owners and thereafter filed E. A. No. 184 of 1994 under Rule 23 (7) of the Rent Control rules. When the Court Amin went for delivery of possession of the premises, the 1st Respondent herein objected claiming that he is the tenant from the original owners and thereafter filed E. A. No. 184 of 1994 under Rule 23 (7) of the Rent Control rules. The claim of the 1st Respondent is that he is the tenant from the original owners and therefore he should not be evicted while executing an order against the 2nd Respondent. The said claim was accepted by the Rent Controller. According to the Rent Controller, the order passed under Sec. 11 (4) of the Act is not executable and the order of eviction passed in ia. No. 100 of 1994 is beyond the jurisdiction of the Rent Controller. This finding of the rent Controller is clearly against the judgment of this Court in T. Venkatesam v. A. Krishnaiah (1 supra ). In the said decision this Court had gone into the contention about the jurisdiction as well as executability of such an order and held that the order passed under Sec. 11 (4) directing the tenant to put the landlord in possession is perfectly within the jurisdiction and the rent Controller had the implied powers under Sec. 11 to execute such an order. In the light of the said decision of this Court, there is absolutely no merit in the observations and findings of the Rent controller that an order passed under sec. ll (4) is not executable. In fact, the 1st respondent, who is claiming to be a third party, has no right to contest about the executability of an order passed under sec. 11 (4) of the Act. The order passed under sec. 11 (4) is not being contested by the 2nd respondent against whom that order was passed. Therefore on either of the counts the petitioner (?) has no merit to contend that the order passed under Sec. ll (4) is not executable. ( 7 ) COMING to the other ground that the 1st Respondent was a lessee under Ex. A-1, lease deed, said to have been executed by the original owners and his alleged possession from the date of the lease and consequently the eviction order passed against the 2nd Respondent is not binding. Even here also, I do not find that there is any merit in the contention of the 1st respondent. A-1, lease deed, said to have been executed by the original owners and his alleged possession from the date of the lease and consequently the eviction order passed against the 2nd Respondent is not binding. Even here also, I do not find that there is any merit in the contention of the 1st respondent. Admittedly, the Petitioner herein is a tenant from the original owners. This fact is not disputed by anybody. The petitioner in turn sublet the premises to the 2nd Respondent, who had committed the default and against whom the eviction proceedings are taken. Insofar as the relationship between the petitioner and the 2nd Respondent is concerned, it should be the landlord and the tenant and the petitioner herein is entitled to take all the steps as that of a landlord not only to recover the rents but also to get him evicted from the suit premises. In such process the order of eviction was obtained by the petitioner against the 2nd Respondent. One of the contention advanced by the learned counsel for Respondent No. l is that the 2nd Respondent delivered possession to the original owners, who in turn let out the premises to the 1st Respondent. At the out set the said contention is not tenable. The eviction order has been passed against the 2nd Respondent in favour of the petitioner herein. He has to deliver the possession only to the petitioner and not to the third parties, may be the original owners. As far as the original owners are concerned, they have to get back possession only from the petitioner and not from the third parties. Therefore, even assuming that the 2nd respondent has delivered the possession to the original owners, it is an illegal possession in their hands and the lease in favour of the 1st Respondent by them is equally illegal and unsustainable and the petitioner is entitled to proceed against them as their possession is referable to the possession of the 2nd Respondent only, who is the Judgment-debtor in the eviction proceedings. Though it was claimed that the 2nd Respondent has filed Ex. B-4, Memo, showing that he has surrendered the premises to the original owners, it has no relevancy in view of the above findings of this Court. Though it was claimed that the 2nd Respondent has filed Ex. B-4, Memo, showing that he has surrendered the premises to the original owners, it has no relevancy in view of the above findings of this Court. The 2nd Respondent is bound under the order of the Rent Controller to deliver the possession to the Petitioner, who is entitled as the landlord under the provisions of the Act. ( 8 ) THE learned Counsel for the 1st respondent relied upon a judgment of this court in G. Krishna Murthy v. B, Narasimha rao (5 supra), especially on the observations of the Court in paragraph 21, which reads:- the gamut of sub-rule (7) of Rule 23 is wide enough to clothe the Court with a power to examine even in the execution proceedings whether the decree could be executed and the principle of the executing Court cannot go behind the decree cannot be extended to in view of the statutory powers so specially conferred on the court in this Case and therefore, that doctrine under the Code of Civil procedure has no room or scope to be extended in view of the statutory powers so specially conferred on the court in this case and, therefore, that doctrine under the Code of Civil procedure has no room or scope to be extended in view of the maxim "generalia specialibus non derogant" as the rule framed is a special statutory prevision. " a Perusal of the above shows that the gamut of sub-rule (7) of Rule 23 is wide enough to clothe the Court with the power to examine even in the execution proceedings whether the decree could be executed and the principle of executing court cannot go behind the decree cannot be extended to in view of the statutory powers, specifically conferred on the Court. Therefore, according to the said judgment, the executability or otherwise also can be gone into while enquiring into the claims under Rule 23 (7) of the Rules. There is absolutely no dispute as to the width of the powers of the Rent Controller while considering an application under Sec. 23 (7 ). But in the light of the judgment of this court already referred to, the orders passed under Sec. 11 (4) are executable and therefore there is no need to go behind the decree and to hold that it is not executable. But in the light of the judgment of this court already referred to, the orders passed under Sec. 11 (4) are executable and therefore there is no need to go behind the decree and to hold that it is not executable. ( 9 ) COMING to the other decisions relied upon by the learned Counsel for the petitioner, the decision of a Full Bench of this Court in the case of Changanlal v. Narsingh Pershad (2 supra), the issue was when the relationship of landlord and tenant is denied, whether such a question can be enquired into in proceedings under sec. ll, the Full Bench answered that such determination will be the decision in the main eviction petition itself and not a matter of summary enquiry for orders under Sec. 11 of the Act. Therefore, this judgment will not be of any assistance to the Petitioner. ( 10 ) IN Koneru Aruna Kumari v. Shaik Ali (3 supra) this Court while considering the scope of Rule 23 (7) of the Rent Control rules held that even third parties or tenant can file such petition. Even though such petition is not contemplated by Rule 23 (7), still the Tribunal can under inherent powers rectify the injustice brought out by its own order. The said findings are made under the circumstances where an eviction order was obtained against a person, who was not the tenant by playing fraud on the Court, by showing a fictitious person and not showing a real person as a tenant, the very same Court, which had passed the order of eviction, is duty bound to set aside the wrong order and to place the parties in the same position as they were before the passing of the order in that petition. This judgment is also not of much assistance to the Petitioner, as it is not the case of the petitioner that any fraud was played either on the Petitioner or on the Court. On the other hand, fraud was played by the 2nd respondent by collusively claiming that possession was delivered to the original owners and from then the 1st Respondent is claiming to be the tenant. As the action of the 2nd Respondent s alleged delivery of possession to the original owners, and the alleged lease to the 1st Respondent by the original owners is illegal even if it is true. As the action of the 2nd Respondent s alleged delivery of possession to the original owners, and the alleged lease to the 1st Respondent by the original owners is illegal even if it is true. No doubt the 2nd Respondent filed Ex. B-4 memo into the Court stating that he has delivered possession, but it is only an unilateral memo filed by the 2nd respondent alleging that he had delivered possession to the original owners. As there is no order in favour of the original owners for delivery, they are not entitled to take possession from the 2nd Respondent against whom the eviction petition was filed by the present Petitioner which fact was known even to the original owners, who admittedly have filed I. A. No. 379 of 1994 to get themselves impleaded in the r. C. C. , which was dismissed by the court on 22-7-1994, observing that they are not the necessary parties to the said proceedings. ( 11 ) THE learned Counsel also relied upon a judgment of this Court in the case of s. Venkata Reddy v. M/s. New Tirumala emporium (4 supra ). In this case, this Court held that an order passed under Sec. 11 (4), where the tenant was directed to put the landlord in possession on his failure to deposit the rents, shall be deemed to be an order passed under Sec. 10 (2) of the Act and the same is executable under Sec. 15 of the act. This judgment also supports the contention of the Petitioner that the orders passed under Sec. ll (4) are executable. ( 12 ) IN any case, as already held that the delivery of possession by the Respondent no. 2 to the original owners, even if it is true, is not legal and the persons, who obtained illegal possession from the judgment-debtor, the 2nd Respondent, are equally bound by the orders passed by the rent Controller in favour of the petitioner and consequently the 1st Respondent also, who claims to have obtained a tenancy from the original owners is bound by the order. As long as the original owners have not obtained possession from the Petitioner, who is their tenant, the original owners are not entitled to take possession either collusively or fraudulently from the tenant of the Petitioner and the possession even though they have obtained, their possession is only under Respondent No. 2 and not as original owners and therefore they are bound by the eviction orders passed by the rent Controller and in the course of execution against the 2nd Respondent, who is the Judgment-debtor, the Petitioner is entitled to evict the 1st Respondent also. Accordingly, the order passed by the rent Controller allowing the application under Sec. 23 (7) is set aside and the E. A. , is dismissed and consequently the Petitioner is entitled to execute the order passed against the 2nd Respondent by removing even the 1st Respondent, who claims to be in possession of the premises. ( 13 ) THE Civil Revision Petition is accordingly allowed. No costs.