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Andhra High Court · body

2005 DIGILAW 120 (AP)

Xavier Emenual v. Ratan Raj Kumar

2005-02-10

ELIPE DHARMA RAO

body2005
ELIPE DHARMA RAO, J. ( 1 ) THIS Civil Revision Petition is filed under section 22 of the A. P. Buildings (Lease, rent and Eviction) Control Act, 1960, aggrieved by the order dated 29-7-1998 passed in R. A. No. 46 of 1997 on the file of the Court of the Chief Judge, City Small causes Court, Hyderabad, setting aside the order dated 30-4-1994 passed in R. C. No. 391 of 1987 on the file of the Court of the principal Rent Controller, Secunderabad, and remanding the matter to the Court of rent Controller for disposal afresh, within three months. ( 2 ) ORIGINALLY, the R. C. No. 391 of 1987 was filed by the landlords/petitioners herein under Section 10 (2) (i), 10 (2) (iii) and section 10 (3) of the Act, 1960, seeking to evict the tenants/respondents, herein from the schedule premises bearing No. 225/b (10-2-422), Plot N0. 225/a, West Maredpally, secunderabad. ( 3 ) THE contention of the landlord before the Court of the Rent Controller is that he is the owner of the schedule premises. The respondents are the tenants on a written monthly agreement and the tenancy is month to month. The respondents were highly irregular in payment of rents. The respondents made some alterations and structural changes to the schedule premises without his permission and committed acts of waste, which impaired materially the value and utility of the schedule building. The landlord further contended that the schedule premises is required for self-occupation. Hence he prayed to evict the tenants. ( 4 ) THE tenants/respondents contended that they are regular in payment of rents and when the landlord refused to receive the rent, they sent three months rent by way of money Order, which was received by the landlord. The respondents further contended that the door of the garage had collapsed, as such the door had been fixed when the landlord refused to fix it. The respondents constructed a wall and a gate as there was no safety and thieves had entered many times. The respondents never committed any structural changes and acts of waste. Hence, they beseeched to dismiss the petition. ( 5 ) IN support of the case of the landlord, he examined P. Ws. 1 and 2 and got marked exs. P-1 to P-44. On behalf of the tenant, r. Ws. 1 to 3 were examined and no documentary evidence was adduced. Hence, they beseeched to dismiss the petition. ( 5 ) IN support of the case of the landlord, he examined P. Ws. 1 and 2 and got marked exs. P-1 to P-44. On behalf of the tenant, r. Ws. 1 to 3 were examined and no documentary evidence was adduced. ( 6 ) AFTER appreciation of both oral and documentary evidence, the learned Rent controller observed that the landlord established his case that the schedule premises is required for his personal use and occupation, and on the other hand, the tenant failed to prove that the said alterations were made after obtaining written permission from the landlord and further observed that the petition can be allowed on the grounds of personal requirement of the premises by the landlord, wilful default of payment of rents and material alterations of the building by the tenants. Eventually, the rent Controller allowed the petition by directing the tenants to evict the schedule premises within three months from the date of order. ( 7 ) AGGRIEVED by the said order, the tenant preferred R. A. No. 46 of 1997. ( 8 ) THE appellate Court, after appreciation of both oral and documentary evidence, observed that the order of the Rent controller is apparently erroneous in appreciating the evidence available on record and found that the matter needs to be adjudicated afresh, accordingly, set aside the order of the Rent Controller, and remanded the matter to the Rent Controller for proper adjudication after making further enquiry according to law, within three months from the date of judgment. Assailing the same, the present Civil Revision Petition is filed. ( 9 ) THE learned counsel for the landlord submitted that since the authorities under the Act are not empowered to exercise the power under Order XLI Rule 23 (a) of the code of Civil Procedure, the order passed by the appellate authority is not sustainable and the order under revision is without jurisdiction. He further contended that the appellate authority failed to appreciate the evidence available on record with regard to the adjudication of the appeal and it ought to have recorded the findings of the contentious issues and should have decided the appeal on merits according to the evidence available on record. He further contended that the primary authority has recorded adequate reasons and the order of eviction is sustainable against the respondents. He further contended that the primary authority has recorded adequate reasons and the order of eviction is sustainable against the respondents. Therefore, the order passed by the appellate authority is contrary to the material available on record in remanding the matter to the primary authority. Therefore, he prayed the Court to set aside the order of the appellate Court. . ( 10 ) IN support of his contention, the learned counsel for the landlord relied on a judgment of this Court in Beebanu v. Abdul rasheed, wherein a learned single Judge referred the matter to the Division Bench referring the following two questions tor an authoritative pronouncement:" (1) Whether the appellate authority under the A. P. Buildings (Lease, rent and Eviction) Control Act, 1960 has power to remand the matter to the Rent Controller? (2) If such power is exercised, whether such an order is void or voidable? ( 11 ) IT is contended that the Division bench, on reference, has held that in view of rule 11 (2) of the Rules, it is open to the appellate authority to make further enquiry or require additional evidence to be taken by the Controller. On a careful perusal of the said Division Bench judgment, it is clear that it has laid down a proposition of law that the appellate authority, under the Act, has no power to set aside the order under appeal and at best, it can make further enquiry, take additional evidence or require such evidence to be taken by the Controller. The Division bench has noticed that Rule 11 (2) of the rules is akin to Order 41 Rule 25 of the code of Civil Procedure. Thus the learned counsel for the petitioner has heavily relied on the said Division Bench judgment in support of the contention that the order under revision which has set aside the eviction order passed by the Rent Controller, could not have been set aside by the appellate authority for me purpose of remanding the case ror fresh decision by the controller. , ( 12 ) ON the other hand, the learned counsel appearing for the respondent-tenant submitted that the appellate authority has not committed any irregularity. , ( 12 ) ON the other hand, the learned counsel appearing for the respondent-tenant submitted that the appellate authority has not committed any irregularity. In order to establish the same, he relied on a judgment rendered by a learned single Judge of this court reported in Sachivada Simhachalam v. Kalla Naidu, wherein it was held as follows:"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 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. 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 the 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. "( 13 ) IN view of the above decision, the learned counsel for the respondent-tenant has contended that the appellate authority, in the present case, has rightly set aside the order of the Rent Controller and remanded the matter for fresh adjudication. In this context, my attention has been drawn to section 30 of the Act, which provides the rule making power. Under Section 30 (2) (b) of the Act, the rule making power is with reference to the procedure to be followed by controllers and appellate authorities for the purpose of their functions under the Act. In this context, my attention has been drawn to section 30 of the Act, which provides the rule making power. Under Section 30 (2) (b) of the Act, the rule making power is with reference to the procedure to be followed by controllers and appellate authorities for the purpose of their functions under the Act. Placing reliance on Section 30 (2) (b) of the act, the learned counsel for the petitioner- landlord has contended that since the Act is a self-contended Code and since the procedure to be followed by the Controller and the appellate authority under the Act is a subject on which the rule making provision is contained, implicitly, the provisions of the civil Procedure Code cannot be applied to the proceedings before the Rent Controller and appellate authority. The learned counsel has further referred to Rule 11 (2) of the A. P. Buildings (Lease, Rent and Eviction) Control rules, 1961, which reads as under:"11 (2 ). If the appellate authority decides to make further enquiry, he may take additional evidence or require such evidence to be taken by the controller. " ( 14 ) I find some force in the contention of the learned counsel for the petitioner that the provisions of the Civil Procedure Code are not applicable to the procedure to be followed by the Rent Controller and appellate authority under the Act. On the other hand, the Rules framed under the Act regulate the procedure to be followed by the rent Controller and the appellate authority. The Division Bench judgment of this Court in beebanu s case (supra) has laid down a clear proposition of law that the appellate authority cannot set aside the order of the Rent Controller and remand the case to the Rent Controller for fresh decision. The Division Bench has specifically laid down that in view of Rule 11 (2) of the act, which is akin to Order 41 Rule 25 of the code of Civil Procedure, the appellate authority may take additional evidence or may require such evidence to be taken by the Rent Controller. In my considered opinion, the Division Bench has clearly laid down the proposition of law that the appellate authority has no power to set aside the order of the Rent Controller. In my considered opinion, the Division Bench has clearly laid down the proposition of law that the appellate authority has no power to set aside the order of the Rent Controller. At best, the appellate authority can frame an issue or a point and if required, additional evidence can be recorded by the Rent Controller. The division Bench has never said that the provisions of the Civil Procedure Code are applicable to the proceedings before the rent Controller and appellate authority. On the other hand, the scheme of the Act clearly discloses that the procedure to be followed by the Rent Controller and the appellate authority is the one as provided by the Rules framed under the Act. There is no Rule under the Act which is corresponding to order 41 Rule 23 or Rule 23-A C. P. C. Since the Rent Controller and the appellate authority are statutory Tribunals, their functions should necessarily be within the frame work of the Statute and the Rules. The literary meaning of the word akin is defined in Oxford Dictionary Sixth edition (page 28) as: "similar to: what he felt was more akin to pity than love". Therefore, the word "akin" which literally means similar to cannot be, by any stretch of imagination, understood as "the same" so as to read Rule 11 (2) of the act with Order 41 Rule 25 of C. P. C. on the same footing. Therefore, the provisions of the Civil Procedure Code cannot be applied to the proceedings before the authorities under the Act. ( 15 ) IT is true that a learned single Judge of this Court has held that the provisions contained in Order 41 Rule 23 and 23-A of the Code of Civil Procedure are applicable to the appellate authority under the provisos of the Act. It is noticed that the learned single judge having referred to the Division Bench judgment, has observed that the Division bench has not ruled out the applicability of the provisions of the Code of Civil Procedure to the proceedings before the appellate authority (para 16 of the judgment) in sachivada Simhachalam case (cited 2 supra ). It is noticed that the learned single judge having referred to the Division Bench judgment, has observed that the Division bench has not ruled out the applicability of the provisions of the Code of Civil Procedure to the proceedings before the appellate authority (para 16 of the judgment) in sachivada Simhachalam case (cited 2 supra ). In this context, the learned counsel for the petitioner has contended that the learned single Judge could not have taken a contrary view to the law laid down by the division Bench of this Court and when the division Bench has laid down that the appellate authority does not have power to set aside the order of the Rent Controller for the purpose of remanding the matter to the rent Controller, the learned single Judge could not have taken a contrary view. It is also submitted that the learned single Judge has not referred to Section 30 of the Act, which deals with the rule making power about the procedure to be followed by the authorities under the Act. Thus, it is contended that the learned single Judge in his judgment has also referred to the decision reported in State of Tripura v. Tripura Bar Association and others, wherein the Supreme Court has laid down that a coordinate Bench cannot take a different view from that of the earlier Division Bench judgment and if the subsequent Bench wanted to take a different view than the one taken by the earlier Bench, the proper course would be to refer the matter to a larger Bench. The learned counsel has also relied on a decision in Pradip Chandra Parija and others v. Pramod Chandra Patnaik and others, wherein the Supreme Court has held that a two-Judge Bench of the Supreme court cannot doubt the correctness of a judgment of a three-Judge Bench and the proper course is to refer to a Bench of three judges and if the Bench of three Judges deem fit, a reference can be made to a bench of five learned Judges. Placing reliance on this judgment, the learned counsel for the petitioner has contended that the judgment of the learned single Judge reported in Sachivada Simhachalam case (supra) does not lay down the correct law and since the Division Bench judgment in Beebanu s case (supra) has clearly laid down a proposition that the appellate authority under the Act has no power to set aside the order of the Rent Controller for the purpose of remand, the only course of action open to the appellate authority is to decide the appeal on merits or take additional evidence either by itself or through the Rent controller and under no circumstances, the appellate authority can set aside the order of the Rent Controller for the purpose of remanding the matter to the Rent Controller. ( 16 ) I have carefully gone through the decisions cited across the bar. It is seen that the Division Bench of this Court has laid down a proposition of law that the appellate authority cannot set aside the order of the rent Controller for the purpose of remanding the matter for fresh adjudication. The division Bench has further laid down that in view of Rule 11 (2) of the Rules, the appellate authority can take additional evidence or get the same done through the rent Controller. Therefore, the provisions of cpc are applicable to the Rent Control proceedings, in so far as they do not offend the scheme and purpose of the Act. In fact, the Division Bench judgment has noted the same impliedly in holding that Rule 11 (2) of the Rules is akin to Order 41 Rule 25 of the code of Civil Procedure. It is further noticed that the Division Bench has never attempted to apply the provisions of the Code of Civil procedure to the proceedings under the Act. Since the judgment of the Division Bench is binding on me, I have no hesitation to hold that the judgment of the learned single judge reported in Sachivada Simhachalam case (supra) to the effect that the appellate authority has power to remand on the analogy that the application of the provisions contained in Order 41 Rule 23 and Rule 23-A of the Act, is contrary to the division Bench judgment of this Court. I further note that the judgment of the learned single Judge does not lay down the correct law, since it has not taken into account the provisions contained in Section 30 (2) of the act which has excluded the applicability of the provisions of the Code of Civil Procedure to the proceedings under the Act. It is well settled that the Division Bench judgment is binding on the learned single Judge and also on co-ordinate Division Bench. Even in cases where the subsequent Division Bench does not agree with the view of the earlier division Bench, the subsequent Division bench can, at best, refer the matter to a Full bench but it cannot defer and take a contrary view to the law laid down by the earlier division Bench. ( 17 ) IN view of the above rulings of the division Bench, the learned counsel for the petitioner submitted that the order passed by the appellate authority is contrary to the rulings of both the Division Bench judgments. The appellate authority, instead of retaining the record, set aside the order of the primary authority i. e. , the Rent Controller. Therefore, the order passed by the appellate authority is liable to be set aside. The appellate authority can conduct enquiry either by itself or through the Rent Controller, as provided under law. ( 18 ) THE learned counsel for the respondent also relied on a judgment of another learned Single Judge of this Court reported in Shaik Bandagi Saheb v. Shaik nurulla Saheb wherein, while considering the above said provisions, it was held that:"in a given case, if the Appellate authority thinks that an inquiry is necessary on a point or an issue, he himself can hold the inquiry or alternatively he may transmit such point or issue to the Rent Controller with a direction to hold an inquiry on that point or issue and submit his finding, and after receipt of the finding from the Rent controller the Appellant Authority may decide the appeal on merit. But, it is not an invariable rule that the Appellate authority should always adopt this particular procedure. But, it is not an invariable rule that the Appellate authority should always adopt this particular procedure. The Appellate authority, if he finds that on an issue or a point framed by the Rent Controller, there is no evidence or further evidence or inquiry is necessary for satisfactory disposal of the case, he may set aside the order of the Rent Controller and remand the proceedings to the Rent controller for fresh disposal of the case in accordance with law giving appropriate directions. " ( 19 ) THE learned counsel for the tenant further submitted that taking into consideration the above judgments of the two learned single Judges as guidelines, the order passed by the appellate authority is sustainable under law. ( 20 ) ON considering the rival contentions of the learned counsel for both the parties and in view of the above two Division Bench judgments of this Court, I am unable to accede with the orders passed by the learned Single Judges referred to supra. The learned appellate authority has neither framed any point while passing the impugned order nor framed any issue, to be decided by the Rent Controller, while remanding the matter for recording the evidence by the Rent Controller. Therefore, the order passed by the lower appellate authority is not sustainable. ( 21 ) A reading of the judgment of the appellate authority makes it clear that he made comments against the observations of the Rent Controller. On the other hand, the appellate authority failed to discuss the evidence and the material available on record and since it has wrongly opined that the evidence is not sufficient to give findings on the said issues, the landlord was forced to file this revision against the order of the rent Controller to evict the respondents. The order passed by the Appellate Authority is not in conformity with the rulings of the division Bench in Beebanu s case (supra ). ( 22 ) THEREFORE, I am not able to appreciate the order passed by learned Appellate authority. Following the rulings of the division Bench judgments, the order under revision is set aside and the matter is remanded to the appellate authority with a direction to retain the record either to make further enquiry or to accept additional evidence, for disposal afresh, for adjudication of the appeal. Following the rulings of the division Bench judgments, the order under revision is set aside and the matter is remanded to the appellate authority with a direction to retain the record either to make further enquiry or to accept additional evidence, for disposal afresh, for adjudication of the appeal. If any further enquiry is required, the appellate Court, can either by itself or through Rent Controller conduct the same, as contemplated under section 23 of the Act read with Rule 11 (2) of the Rules. ( 23 ) THE Civil Revision Petition allowed. No costs.