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2003 DIGILAW 321 (AP)

Sachivada Simhachalam v. Kalla Naidu

2003-02-28

B.SUDERSHAN REDDY

body2003
B. SUDERSHAN REDDY, J. ( 1 ) THIS Civil Revision Petition is filed by the tenants under Section 22 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short the Act ) aggrieved by the judgment dated 4-3-2002 made in R. C. A. No. 42 of 1996 by the learned Principal Senior Civil Judge-cum-Rent Control Appellate Authority, Visakhapatnam. For the sake of convenience, the parties herein shall be referred to as arrayed in R. C. C. No. 101 of 1995 on the file of the learned Rent Controller, Visakhapatnam. ( 2 ) THE deceased first petitioner filed the said RCC under Sections 10 (1) (2) (i), 3 (b) of the Act against the respondents (petitioners herein) contending that he is the owner of the thatched house consisting of four rooms bearing Door No. 58-6-8, covered by Survey No. 150/1 admeasuring an extent of Ac. 0-52 cents and other adjacent properties admeasuring about Sc. 7-00. It is not necessary in detail to notice the origin of the right, title and interest of the deceased first petitioner. Shorn of all the details - it is the case set up by the deceased first petitioner that the respondents took the schedule property on monthly rent of Rs. 80/- and accordingly paid the rents till December, 1988, but thereafter committed default. Despite the request to vacate the premises since the respondents were not paying the amounts, there has been no response whatsoever from the respondents. In the circumstances, a legal notice dated 13-5-1989 was issued demanding arrears of rent and also requiring the respondents to vacate the schedule property. The respondents refused to vacate the same and under those circumstances, the deceased first petitioner invoked the jurisdiction of the Rent Controller and accordingly filed the eviction petition. ( 3 ) DURING the course of pendency of the RCC, the first petitioner died and petitioners 2 to 5 were brought on record as his legal representatives. The respondents filed a detailed counter inter alia denying the material allegations and averments made in the eviction petition. It is the case of the respondents that the land originally belongs to Visakhapatnam Zilla Parishad. Since the time of their forefathers and ancestors, the said land remained in their possession and several other poor and houseless families. The respondents filed a detailed counter inter alia denying the material allegations and averments made in the eviction petition. It is the case of the respondents that the land originally belongs to Visakhapatnam Zilla Parishad. Since the time of their forefathers and ancestors, the said land remained in their possession and several other poor and houseless families. They have raised thatched houses individually about 50 years back and continued to be in continuous and uninterrupted possession and enjoyment of the same in their own right openly to the knowledge of all including the Zilla Parishad. They have set up a plea of adverse possession. They have denied the right, title and interest of the petitioners in the schedule property. ( 4 ) THE learned Rent Controller has framed the following points for his consideration: 1. Whether the denial of the title of the petitioner by the respondent is bonafide? 2. Whether there is any landlord and tenant relationship in between the petitioner and respondent? 3. Whether the respondent is liable to be evicted, on the ground of wilful default of payment of rent and the petitioner required the petition schedule premises for their personal occupation? The learned Rent Controller held that the denial of title of the first petitioner by the respondents is bona fide and that there is no jural relationship of landlord and tenant between the parties and consequently held that the question of payment of rents as such does not arise and accordingly dismissed the eviction petition filed by the petitioners. The petitioners-landlords preferred an appeal in R. C. A. No. 42 of 1996 before the learned Principal Senior Civil Judge, Visakhapatnam challenging the said order of the learned Rent Controller. The learned appellate authority having re-appreciated the evidence found that the evidence let in by the petitioners clearly established the title and ownership of the deceased first petitioner. The appellate authority accordingly found that the documentary evidence prima facie reveals that the deceased first petitioner has right and title in the schedule property and also further found that there is jural relationship of land and tenant between the deceased first petitioner and the respondents. It is observed by the learned appellate authority that the learned Rent Controller led himself into an error by misreading the documentary evidence and also not considering Ex. It is observed by the learned appellate authority that the learned Rent Controller led himself into an error by misreading the documentary evidence and also not considering Ex. A13- representation made by the respondents themselves and others to the authorities inter alia stating that they are houseless poor and eking out their livelihood by doing coolie and they are very much burdened in the matter of payment of house rents to the owner of the houses and they have accordingly requested the District Collector that they may be provided alternative site in the Government land, so that they can settle themselves in the said land. It is admitted in the evidence of the respondents that they have made such representation. The learned appellate authority found that the learned Rent Controller totally ignored the contents of Ex. A13 representation so made by the respondents. ( 5 ) IT is under those circumstances, the learned appellate authority set aside the order passed by the learned Rent Controller and accordingly remitted the matter for fresh consideration and disposal in accordance with law uninfluenced by any of the observations made in the said order. It is required to notice that the learned appellate authority merely recorded a prima facie finding that there is jural relationship of landlord and tenant between the parties. In this Civil Revision Petition, Sri K. Sarva Bhouma Rao, learned counsel for the respondents-tenants raised only one point for consideration of this Court, viz. , whether the appellate authority has jurisdiction in law to remand the matter for fresh consideration by the Rent Controller? It is submitted that the learned appellate authority, discharging the functions of the appellate authority under the provisions of the Act, has no such authority to remit the matter for fresh consideration by the Rent Controller. The submission is that the learned appellate authority may dispose of the appeal on merits, but not to remit the matter for fresh consideration. ( 6 ) THE learned counsel placed reliance upon the judgment of a Division Bench of this Court in Beebanu V. Abdul Rasheed. This Court upon an elaborate consideration of the matter held that "sub-section (3) of Section 20 of the Act does not confer plenary powers upon the appellate Court and the jurisdiction conferred is circumscribed by expressions employed therein. This Court upon an elaborate consideration of the matter held that "sub-section (3) of Section 20 of the Act does not confer plenary powers upon the appellate Court and the jurisdiction conferred is circumscribed by expressions employed therein. " This Court further held that "the appellate court has a power to make further enquiry and may even receive the additional evidence. Such further enquiry can be made by the appellate authority either by itself or through the Rent Controller, as provided for under Section 20 (3) of the Act read with Rule 11 (2) of the Rules. " This Court did not hold that the appellate authority under the provisions of the Act has no power to remit the matter for fresh consideration by the Rent Controller. The Court further took the view that the power of remand of the appellate authority is limited. It is held:"thus on a fair construction of the provisions of sub-section (3) of Section 20 of the Act read with Rule 11 (2) of the Rules, we are of the opinion that in a situation of this nature, the Court could obtain further materials by taking recourse to further enquiry directing the Rent Controller to take evidence. "the Court, however, held that "the power conferred upon the appellate Court by reason of sub-section (3) of Section 20 read with Rule 11 of the Rules, must therefore, be held to be akin to the power conferred upon the appellate Court as envisaged under Order XLI, Rule 25. " It is required to notice that this Court did not rule out the applicability of the provisions of the Code of Civil Procedure (for short the Code ) to the proceedings before the appellate authority. Order XLI, Rule 23 of the Code confers power of remand upon the appellate Court. It says that where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded. It says that where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded. ( 7 ) ORDER XLI, Rule 23-A of the Code further says that where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23. ( 8 ) THIS Court in Land Acquisition Officer, Tenali Vs. Kanneganti Suseela observed:"order 41, Rule 23 C. P. C. enjoins power on the appellate Court to remand the case if the suit was decided on a preliminary point and the said decree is reversed in appeal. When the case is remanded, the trial Court would register the suit under its original number and proceed to determine as directed by the appellate Court, and the evidence already recorded during the original trial shall be the evidence during the trial after remand also. Rule 23 (A) which is inserted by Act 104/76 with effect from 1-2-1977 speaks of the same power of the appellate Court even in respect of cases disposed of otherwise than on a preliminary point. Under A. P. High Court amendment to Rule 23 even after the decree is reversed in appeal on a preliminary point "where the appellate Court in reversing or setting aside the decree under appeal considers it necessary in the interest of justice to remand the case, it may order remand of the case. " By this amendment discretion is vested in the appellate Court to remand the case if it considers just and necessary to do so in the interest of justice. " ( 9 ) IN Shaik Bandagi Saheb V. Shaik Nurulla Saheb a learned single Judge of this Court took the view that "the inherent power of the appellate authority to remand the proceedings to the Rent controller is not taken away by Section 20 or by any other provisions of the Act. " ( 9 ) IN Shaik Bandagi Saheb V. Shaik Nurulla Saheb a learned single Judge of this Court took the view that "the inherent power of the appellate authority to remand the proceedings to the Rent controller is not taken away by Section 20 or by any other provisions of the Act. Therefore, the Appellate Authority under Section 20 of the Act has power to remand the proceedings to the Rent Controller. " It is held that "the provisions of sub-section (3) of Section 20 do not warrant a construction or an interpretation to hold that the power of the Appellate Authority to remand is impliedly ousted. " This decision has not been overruled by the Division Bench in Beebanu (1 supra) and in fact, the Division Bench observed that "the decision rendered by a learned single Judge in Shaik Bandagi Saheb, to the extent aforementioned is correct because it lays down the correct law. " ( 10 ) IN Soni Vs. K. Nageswara Rao a Division Bench of this Court observed that "c. P. C. shall be applicable where there is no adequate provision in the Act or Rules and such application does not offend the scheme and purpose of the Act. " It is thus clear that the provisions of the Code are applicable to the proceedings under the provisions of the Act before the Rent Controllers as well as the appellate authorities insofar as such application does not offend the scheme and purpose of the Act. It is not the case of the respondents that the provisions of the Code are altogether excluded and shall not be applicable to the proceedings before the Rent Controllers and appellate authorities under the provisions of the Act. The application of Order XLI, Rules 23 and 23-A of the Code, in no manner, adversely affects the scheme and purposes of the Act. Once that is clear, the conclusion is inescapable that Order XLI, Rules 23 and 23-A of the Code shall equally be applicable to the proceedings before the appellate authority under the provisions of the Act. The said power of remand can be exercised even by the appellate authorities discharging the functions under the provisions of the Act. Once that is clear, the conclusion is inescapable that Order XLI, Rules 23 and 23-A of the Code shall equally be applicable to the proceedings before the appellate authority under the provisions of the Act. The said power of remand can be exercised even by the appellate authorities discharging the functions under the provisions of the Act. Rule 11 (2) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules, 1961 (for shore the Rules ) provides that if the appellate authority decides to make further enquiry, he may take additional evidence or require such evidence to be taken by the Rent Controller. ( 11 ) THE power conferred upon the appellate authority by reason of Rule 11 of the Rules is akin to the power conferred upon the appellate Court as envisaged under Order XLI, Rule 25 of the Code. But it does not mean that the said Rule in any manner excludes the applicability and operation of Order XLI, Rules 23 and 23-A of the Code which confers power upon the appellate Court to remit the case in exercise of the power either under Rule 23 or 23-A, as the case may be. In my considered opinion, the power available to the appellate Court under Order XLI, Rules 23 and 23-A of the Code is equally available to the appellate authority under the provisions of the Act, apart from the power conferred upon the appellate authority under Rule 11 of the Rules, which is akin to that of Rule 25 of Order XLI of the Code. So, in a given case, the appellate authority under the provisions of the Act may remand the case and further direct what issue or issues shall be tried in the case so remanded where the appellate authority reversed, in an appeal, the order made by the Rent Controller disposing of the proceeding upon a preliminary point. The appellate authority has also the same power as that of the appellate Court under Rule 23-A of Order XLI of the Code. Likewise, similar power conferred upon the appellate Courts under Order XLI Rule 25 of the Code is also available to be exercised by the appellate authorities under the provisions of the Act. ( 12 ) FOR the aforesaid reasons, I do not find any merit in this Civil Revision Petition. Likewise, similar power conferred upon the appellate Courts under Order XLI Rule 25 of the Code is also available to be exercised by the appellate authorities under the provisions of the Act. ( 12 ) FOR the aforesaid reasons, I do not find any merit in this Civil Revision Petition. The learned appellate authority did not commit any error in remitting the matter for fresh consideration and disposal in accordance with law by the Rent Controller. It is needless to observe that the learned Rent Controller shall not be influenced in any manner by the observations made by this Court as well as the observations made by the learned appellate authority while disposing of the appeal preferred by the petitioners. The Civil Revision Petition is accordingly dismissed. No order as to costs.