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2007 DIGILAW 308 (AP)

MACHA MOHANDAS v. KAREEMUNNISSA BEGUM

2007-03-21

P.S.NARAYANA

body2007
( 1 ) HEARD Sri V. Sanjeeva rao, learned Counsel representing the appellant and Sri Srinivas, learned Counsel representing the respondent. ( 2 ) ON 3-7-1998, this Court made the following order : "admit. Ground Nos. 1, 3 and 4 framed by the appellant's Counsel in the Memo filed on 24-3-1998 are the substantial questions of law to be decided in the second appeal. " The said grounds reads as hereunder : (1) The order under appeal is contrary to law, justice and facts of the case. (2) That the Court below ought to have seen that there was no breach of obligation existing in favour of the respondent either expressly or by implication as on the date of filing of the suit against the appellant herein. (3) That the Court below ought to have seen that the conduct of the respondent/plaintiff was such that she is not entitled to any assistance from the Court for the reliefs as sought for. This Court in CMP No. 13106 of 1997 made the following order: "post before the Civil Admission Court after 2 weeks. In the meanwhile counter to be filed. In the meantime there shall be interim stay of execution of decree. " however, Sri Sanjeeva Rao, learned counsel representing the appellant had pointed out that in the facts and circumstances of the case, the following substantial questions of law would arise for consideration and hence the Counsel made a request that he may be permitted to advance his submissions on the strength of the substantial questions of law as specified hereunder: 1. Whether a sub-tenant is entitled for the relief of injunction against the real owner when subletting is not permissible under the lease ? 2. Whether a sub-tenant can succeed on the plea of possession over the property independent of the admission of the original tenant that he ceased to occupy the property ? ( 3 ) WHETHER injunction can be granted to establish new state of things to those existing on the date of suit ? ( 4 ) WHETHER the sub-tenant can maintain the suit against the real owner without making the original tenant as a party? 3. ( 3 ) WHETHER injunction can be granted to establish new state of things to those existing on the date of suit ? ( 4 ) WHETHER the sub-tenant can maintain the suit against the real owner without making the original tenant as a party? 3. The learned Counsel would maintain that in the light of the proviso to section 100 (5) of the Code of Civil procedure for reasons to be recorded, this second appeal can be disposed of on the strength of the said substantial questions of law. The learned Counsel also would point out that here is a case where the original tenant admits surrender and the sub-tenant claiming to be sub-tenant filed a suit for perpetual injunction. The learned Counsel also would submit that even if the case of the sub-tenant to be accepted to be true, the said sub-tenant cannot maintain a suit as against the real owner without making the original tenant as a party. While further elaborating his submissions the learned counsel also pointed out that from the facts and circumstances it is clear that the building in question or the specified premises, relating to which the suit had been instituted, are governed by A. P. Buildings (Lease, Rent and Eviction Control) Act and in the light of the specific statutory prohibition, subletting is not permissible unless there is written permission and therefore the possession of this alleged sub-tenant, which is not admitted, cannot be styled as lawful possession and hence such possession cannot be protected by a Court of law. The learned Counsel also would submit that even otherwise injunction being an equitable relief, in a case of this nature, the appellate Court totally erred in reversing the well considered judgment of the Court of first instance and hence viewed from any angle, the second appeal is bound to succeed. The Counsel also placed reliance on certain decisions to substantiate his submissions. 4. Per contra, Sri Srinivas, learned counsel representing the respondent- plaintiff would submit that the possession of the sub-tenant cannot by styled to be unlawful and even if it is to be taken as not lawful possession, a trespasser also cannot be thrown out except by due process of law. The Counsel placed strong reliance on certain decisions to substantiate his contention. The Counsel placed strong reliance on certain decisions to substantiate his contention. While elaborating his submissions the learned Counsel would point out to order 1 Rule 3 of the Code of Civil procedure and would maintain that this plea of non-joinder of the original tenant as party had not been pleaded and for the first time the said ground is taken, taking the opposite party by surprise at the second appeal stage, the same cannot be permitted. While further elaborating his submissions, the Counsel also pointed out the applicability or otherwise of the provisions of A. P. Buildings (Lease, Rent and Eviction control) Act may have to be decided both on facts and law and merely because certain facts are available, without taking any specific plea in this regard and for the first time the said question is being raised before this Court, the same not to be permitted. ( 5 ) HEARD both the learned Counsel and perused the findings recorded by the court of first instance and also the findings recorded by the appellate Court. ( 6 ) THE parties hereinafter would be referred to as plaintiff and defendant as arrayed in the original suit OS No. 3570 of 1985 on the file of I Assistant Judge, City civil Court, Secunderabad. ( 7 ) THE plaintiff filed the suit OS no. 3570 of 1985 on the file of I Assistant judge, City Civil Court, Secunderabad, for permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit portion specified in the sketch by attempting to demolish the same or the adjoining portions and thereby endangering its existence and also mandatory injunction directing the defendant to restore the same into the original condition and also for recovery of damages. ( 8 ) THE plaintiff pleaded in the plaint as hereunder : "the defendant is the present owner of the bungalow bearing Nos. 35 and 35/a situated at Sarojini Devi Road, Secunderabad a portion of the said premises was leased out to B. N. Mistry more than four decades ago by the predecessors in title of the defendant. The portion thus leased out comprised of major portion of the bungalow of premises bearing No. 35, Sarojini Devi road, Secunderabad. 35 and 35/a situated at Sarojini Devi Road, Secunderabad a portion of the said premises was leased out to B. N. Mistry more than four decades ago by the predecessors in title of the defendant. The portion thus leased out comprised of major portion of the bungalow of premises bearing No. 35, Sarojini Devi road, Secunderabad. Out of the said portion taken on lease by B. N. Mistry, he had leased out a small portion consisting of enclosed varandah with tiled roof on the eastern side of the terraced bungalow. The portion leased out to the plaintiff consisted of two rooms, kitchen, bath and WC as shown in the plaint sketch. Plaintiff is therefore living in the said portion on the eastern side of the bungalow for over 30 years. N. B. Mistry died in August, 1983 even after the death of b. N. Mistry, Mrs. S. B. Mistry received rents upto December, 1983. e. , at the rate of Rs. 70/- per month. It is further submitted that the respondent filed an eviction petition against B. N. Mistry and the same is pending as RC No. 329 of 1981. After his death, the defendant filed an application to bring the plaintiff and one another as the heirs and legal representatives of the deceased, B. N. Mistry. It is admittedly shown that the plaintiff is the sub-tenant of the deceased. Thus, the plaintiff has been in possession and enjoyment of the said portion, described in the plaint schedule as the sub-tenant of b. N. Mistry for over 30 years and the said right is admitted and acknowledged by the defendant in his application for bringing plaintiff as a party to the eviction petition. Plaintiff further submitted that the defendant, through his agents and servants started digging foundation in the compound wall and are also threatening to demolish the building including the portion in plaintiffs occupation. Since the plaintiff was alone, she was being threatened by the agents and servants of the defendant and was also interfering with the amenities. Therefore, she is taking temporary shelter in the house of her daughter at East Maredpally, secunderabad. Taking advantage of her absence in the premises, defendant, through his agents and servants, demolished a portion of the main bangalow and also the portion in plaintiffs occupation, comprising of Bath, WC and Kitchen. Therefore, she is taking temporary shelter in the house of her daughter at East Maredpally, secunderabad. Taking advantage of her absence in the premises, defendant, through his agents and servants, demolished a portion of the main bangalow and also the portion in plaintiffs occupation, comprising of Bath, WC and Kitchen. Plaintiff further contended that she, having been brought on record as a respondent in RC No. 329/81 by the defendant, is not liable to be evicted or dispossessed from the said portion in her occupation, otherwise than under due process of law. Plaintiff further submitted that the activities of the defendant in premises No. 35, Sarojini Devi Road, secunderabad, are endangering the existence of the said portion in her occupation. Further, if the structure is demolished highhandedly, plaintiff will be deprived of her rights of tenancy and also the protection under the Rent Control Law. Therefore, the plaintiff is entitled to a permanent injunction restraining the defendant from demolishing the said portion, described in plaint schedule, any further and also for mandatory injunction to restore the portion high-handedly demolished to it original condition by reconstructing the Bath, WC and Kitchen. It is further contended that subsequent to the institution of the suit and during the intervening night of 31st October and First day of November, 1985 the defendant had removed and dismantled the roof and the walls of the portion in plaintiffs occupation and thereby the entire premises became uninhabitable. In other words, plaintiff is deprived of the enjoyment of the premises in her occupation by means otherwise than under due process of law by the highhanded acts of the defendant and his agents on and from 1-11-1985, and the defendant and his agents also did not care to and violated the orders passed by the Hon'ble court in IA No. 1009 of 1985 granting status quo as on 8-11-1985. Therefore, the plaintiff is entitled to seek damages for depriving her of the possession and use of the premises in her occupation for the period commencing from 1-11-1985 till 1-6-1990 at the rate of Rs. 300/- p. m. ,. e. Rs. 16,500/ -. Therefore, the plaintiff is entitled to seek damages for depriving her of the possession and use of the premises in her occupation for the period commencing from 1-11-1985 till 1-6-1990 at the rate of Rs. 300/- p. m. ,. e. Rs. 16,500/ -. Plaintiff further submitted that since the defendant has demolished the structure existing on the date of filing the suit and also failed to give effect to the orders dated 14-2-1989 passed by the lower appellate court in CMA No. 124/86, plaintiff is entitled to seek the remedy of the mandatory injunction in respect of the remaining portion of the premises. Hence the suit. " ( 9 ) THE defendant filed the written statement with the following averments : "it is true this defendant is owner of the premises bearing Nos. 35 and 35/a situated at Sarojini Devi Road, Secunderabad. It is also true that the portion of the said premises was leased out to B. N. Mistry, more than four decades ago by the predecessors of the defendant. It is incorrect to say that the portion leased out comprised of major portion of the bungalow in premises bearing No. 35, S. D. Road, Secunderabad. It is true that out of the said portion taken out by B. N. Mistry, a small portion was leased out consisting of enclosed varandah with tiled roof on the eastern side of the terrace bangalow. It is categorically denied that the plaintiff is living in the said portion on the eastern side of the bangalow for over 30 years. Plaintiff is not in possession of the suit property neither on the date of filing suit nor prior to it. Plaintiff did not file any rent receipts to show that she is paying rent to the landlord at anytime. It is further contended that merely filing an implead petition does not speak about the possession of the plaintiff nor it gave any rights to the plaintiff. The allegation that the plaintiff has been in possession and enjoyment of the suit property for over thirty years is categorically denied and baseless. Once the main tenant surrendered the tenancy rights, sub-tenant had ceased to occupy or exist. It is further contended that the question of bringing on record as respondent does not arise in RC 329/81 when the main petition itself was withdrawn by the defendant as not pressed. Once the main tenant surrendered the tenancy rights, sub-tenant had ceased to occupy or exist. It is further contended that the question of bringing on record as respondent does not arise in RC 329/81 when the main petition itself was withdrawn by the defendant as not pressed. The question of evicting the plaintiff or dispossessing the plaintiff from the suit premises does not arise as she voluntarily vacated the premises long ago. The question of depriving the right of tenancy of the plaintiff does not arise as there was no right existing in favour of the plaintiff. The plaintiff is not entitled for relief of permanent injunction restraining the defendant from demolishing suit portion as the plaintiff was not in possession of the suit schedule property as on the date of filing the suit. Plaintiff also not entitled for mandatory injunction to restore the portion as the plaintiff voluntarily vacated the portion. The plaintiff vacated the premises of her own accord. The allegation that the plaintiff is entitled to damages at the rate of Rs. 300/- from 1-11-1985 is denied. The plaintiff did not pay rents either to this defendant or to her landlady from December, 1983. The plaintiff also vacated the premises and not entitled to any damages. It is further contended that the plaintiff is not entitled to any relief of permanent injunction or mandatory injunction or for damages of rs. 16,500/- of the damages or for any other reliefs. " ( 10 ) ON the strength of the pleadings, the following issues and additional issues were settled before the Court of first instance : 1. Whether the plaintiff is entitled for permanent injunction as prayed for ? 2. Whether the plaintiff is entitled for a mandatory injunction directing the defendant to restore the original condition of the portion of the suit schedule property as prayed for ? 3. To what relief ? additional issues : 1. Whether the plaintiff is entitled for the relief of damages as prayed for ? 2. Whether the plaintiff is entitled for mandatory injunction for entire suit property ? ( 11 ) THE plaintiff got examined PWs. 1, 2 and 3 and PW. 2 being the plaintiff herself and Exs. Al to A13 had been marked. On behalf of the defendant, DWs. 1, 2 and 3 were examined and Exs. Bl to B5 were marked. Exs. Whether the plaintiff is entitled for mandatory injunction for entire suit property ? ( 11 ) THE plaintiff got examined PWs. 1, 2 and 3 and PW. 2 being the plaintiff herself and Exs. Al to A13 had been marked. On behalf of the defendant, DWs. 1, 2 and 3 were examined and Exs. Bl to B5 were marked. Exs. Cl to C28 also had been marked. The Court of first instance, after recording findings, came to the conclusion that the plaintiff is not entitled for mandatory injunction and also the relief of damages and ultimately dismissed the suit without costs. Aggrieved by the same, the unsuccessful plaintiff preferred the appeal A. S. No. 19 of 1993 on the file of I Additional Chief judge, City Civil Court, Secunderabad. The appellate Court framed the following point for consideration : "whether the judgment and decree passed by the trial Court dismissing the suit OS no. 3570/85 is unsustainable and liable to be set aside ?" The appellate Court discussed the oral and documentary evidence available on record and came to the conclusion that the sub-tenancy of the plaintiff had been clearly established and relying upon the decisions reported in ACME Tiles and Building products v. B. Sudershan, 1993 (3) ALT 359 and Potturi Saraswathi v. V. Veerabhadra Rao, 1985 (1) APLJ 277 , it came to the conclusion that taking forcible possession is impermissible and ultimately partly allowed the appeal declaring that the appellant is entitled for possession of the premises, which was dismantled, after reconstruction and further directed the defendant to reconstruct the dismantled portion of the premises wherein the plaintiff is residing as sub-tenant and also pay damages of Rs. 16,500/ -. Aggrieved by the same, the present second appeal is preferred. ( 12 ) SEVERAL of the facts appear to be not in controversy. However, there is a serious controversy relating to the relationship and status of the plaintiff a sub-tenant. The Court of first instance recorded findings in detail and had negatived the said relief. The appellate Court reversed the same principally on the ground that even if the plaintiff to be treated as sub-tenant, such sub-tenant cannot be dispossessed by taking law into his own hands by the real owner without adopting the due procedure and following the due process of law. The appellate Court reversed the same principally on the ground that even if the plaintiff to be treated as sub-tenant, such sub-tenant cannot be dispossessed by taking law into his own hands by the real owner without adopting the due procedure and following the due process of law. The appellate Court in fact placed strong reliance on the ACME Tiles and Building products's case (supra) and Potturi saraswathi's case (supra) and recorded such findings. Reliance also was placed on the decision reported in Hamida v. Md. Kahlil, 2001 AIR SCW 2057, wherein it was held that finding recorded by the court of appeal neither perverse nor based on no evidence and upsetting the finding by taking a different view on re-appreciation of evidence would not be proper more so in the absence of any substantial question of law that would arise for consideration between the parties in a second appeal under Section 100 of the Code of civil Procedure. The apex Court followed the decision in Smt. Satya Gupta v. Brijesh kumar, 1998 (6) SCC 423 = 1998 (5) ALD (SCSN) 14. ( 13 ) IT appears from the record that the plea that the original tenant was not impleaded as a party and in the absence of such original tenant, the suit cannot be maintained was not taken and no issue in relation thereto had been settled. Hence, submissions at length were made by the counsel representing the respondent herein, the plaintiff in the suit, that this plea cannot be permitted at this stage. ( 14 ) SECTION 100 of the Code of Civil procedure deals with second appeals and sub-section (5) specifies the appeal shall be heard on the question so formulated and the respondent shall at the hearing of the appeal, be allowed to argue that the case does not involve such question. The proviso, however, specifies that provided that nothing in the sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. The proviso, however, specifies that provided that nothing in the sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. ( 15 ) ON a careful reading of the substantial questions of law on the strength of which the second appeal had been admitted, no doubt this Court is satisfied that those questions cannot be said to be substantial questions of law to be heard in a second appeal. However, in the light of the facts and circumstances, this Court is satisfied that the substantial questions of law, which had been argued in elaboration by the Counsel representing the appellant in the second appeal specified supra, deserve consideration at the hands of this Court. ( 16 ) IN the light of the evidence of pw. 2 coupled with the evidence of PWs. 1 and 3 and also DWs. 1 and 2 as well, there cannot be any doubt or controversy that the building in question and the specific portion, which is the subject-matter of this litigation, would be governed by the provisions of a. P. Buildings (Lease, Rent and Eviction control) Act. ( 17 ) IN Munnalal v. Mahadevmal dularam, 1974 (1) APLJ 184 , the learned judge of this Court while dealing with sections 2 and 23 and Rule 23 (7) of Rule 23 of A. P. Buildings (Lease, Rent and Eviction control) Act and the Rules framed thereunder, came to the conclusion that the sub-tenant inducted into possession without written consent of the landlord or not warranted by the lease, cannot claim any relief under Section 23 of the Act and he cannot also file an application under rule 23 (7) of the Rules framed thereunder. Reliance also was placed on the decision of the Division Bench of this Court in Neti gopalakrishna Gokhale and another v. Brahmandam Narasimham, 1957 (2) an. WR 546, wherein the Division Bench held that person having right making no objection when another is dealing with the property inconsistent with that right, such party not entitled to injunction. ( 18 ) HERE is a case where the Court of first instance negatived the relief and the appellate Court had reversed the same party allowing the appeal. WR 546, wherein the Division Bench held that person having right making no objection when another is dealing with the property inconsistent with that right, such party not entitled to injunction. ( 18 ) HERE is a case where the Court of first instance negatived the relief and the appellate Court had reversed the same party allowing the appeal. The fact that the defendant is the real owner of the property is not in serious controversy. It is stated that Mistry was the original tenant and the plaintiff is claiming the sub-tenancy. Certain submissions were made in relation to the admissions made by the defendant as DW. 2. The evidence available on record is not clear whether any consent as such had been obtained or whether any written instrument is there between the parties relating to the same. The documentary evidence Ex. A. 13, and Ex. A. 9 in particular had been referred to. The report of the Commissioner-Ex. C1 and also exs. C2 to C22, the photos, and Exs. C23 to c28 also had been referred to. ( 19 ) THE relief of perpetual injunction or mandatory injunction are equitable reliefs. When the statute ordains a prohibition, normally the Court to be reluctant in exercising the discretion especially while invoking the equity jurisdiction. However, on facts, this Court is satisfied that the conduct of the owner is definitely blameworthy. However, in the peculiar facts and circumstances what may have to be decided is whether the equity jurisdiction to be invoked in favour of the alleged sub-tenant, who is claiming the status of the sub-tenant or whether the decree and judgment of the court of first instance to be restored. ( 20 ) AS can be seen from the whole factual matrix, the picture is not clear relating to the aspect of the alleged subtenancy though certain admissions in this regard in the evidence of DW. 2 had been pointed out. Even otherwise it is stated that the parties did not put this aspect in issue. When that being so, when a plea of this nature is being raised that too at the stage of second appeal, this Court is of the considered opinion that it would be just and proper to give opportunity to both the parties, and this Court is not inclined to express any opinion about the merits or demerits of the matter. When that being so, when a plea of this nature is being raised that too at the stage of second appeal, this Court is of the considered opinion that it would be just and proper to give opportunity to both the parties, and this Court is not inclined to express any opinion about the merits or demerits of the matter. In view of the same the judgment and decree of the appellate Court are set aside and the matter is remanded to the appellate Court to permit both the parties to let in further evidence especially on the aspect of the applicability or otherwise of A. P. Buildings (Lease, Rent and Eviction Control) Act and the impact thereof relating to the relief granted in this particular case, in the facts and circumstances of the case. ( 21 ) ACCORDINGLY, the second appeal is allowed and the decree and judgment of the appellate Court are hereby set aside and the matter is remanded to the appellate Court for the purpose referred to supra. No costs. .