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Andhra High Court · body

2007 DIGILAW 59 (AP)

Sukandraj Jain v. Ram Singh (died) per L. Rs.

2007-01-19

BILAL NAZKI

body2007
ORDER All these civil revision petitions filed under Section 22 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short the Act) arise out of the common judgment dated 1-8-2006 passed in RANos.272 to 277 of 2005 and 46 to 48 of 2006 by the Chief Judge, City Small Causes Court, Hyderabad. 2. The petitioner in all these revision petitions is one and the same and the respondents are three different tenants viz. Hukmichand Bhagat, tenant in respect of the premises bearing No.15-8-182; Md Aslam, tenant in respect of the premises bearing No.15-8-183 and Suraj Chand Bhagat, tenant in respect of the portion of the premises bearing No.15-8-207 and 208. The old numbers of the said mulgies bearing Nos.15-8-182 and 15-8-183 also correspond to old Nos.15-8-207 and 208. The portion of the mulgies occupied by the tenants viz. Hukmichand Bhagat and Md. Aslam, is admeasuring 18 x 19 respectively and the portion occupied by third tenant viz., Suraj Chand Bhagat is admeasuring 6 x 19 and all the mulgies are situated at Sikander Bazar, Opp. Fish Market, Begum Bazar, Hyderabad. 3. The petitioner is hereinafter referred to as the landlord and the respondents are hereinafter referred to as the tenants. 4. The eviction petitions in R.C. Nos.4 to 6 of 2004 filed by the landlord under Section 10 (2)(i) of the Act on the file of the I Additional Rent Controller, Hyderabad, were allowed ex parte by orders dated 16-2-2004 directing the tenants to vacate the suit premises within one month and thereafter the tenants were evicted from the premises occupied by them on 5-4-2004. The tenants filed three different applications in I.A.Nos.161, 163 and 164 of 2004 in R.C.Nos.4 to 6 of 2004 respectively on 12-4-2004 to grant injunction orders restraining the landlord from demolishing, changing or altering the structure of the mulgies and in the said applications injunctions were granted on 12-4-2004. The tenants filed applications in I.A.Nos.160, 162 and 165 of 2004 in R.C.Nos.4 to 6 of 2004 respectively under Section 5 of the Limitation Act to condone the delay of 26 days in filing the petitions to ·set aside the ex parte orders dated 16-2-2004 and also filed IANos.190, 191 and 192 of 2004 in R.C.Nos.4, 5 and 6 of 2004 respectively to set aside the ex parte eviction orders dated 16-2-2004. All the applications were dismissed by different orders dated 17-10-2005 by the Rent Controller. Aggrieved by the same the tenants preferred respectively appeals in RANosA6 to 48 of 2006 and 272 to 277 of 2005 and all the appeals were allowed by common judgment dated 1-8-2006. Assailing the said common judgment these revision petitions have been filed by the landlord. 5. The landlord tiled eviction petitions in R.C.Nos.4 to 6 of 2004 on 7-1-2004 seeking eviction of the tenants alleging that he is the absolute owner and possessor of the ground floor property to an extent of 1020 sq. feet under M.C.H.No.15-8-207 and 208 having purchased the same through registered sale deed dated 12-6-2001 and at the time of purchase there were some tenants in the mulgies as well as some open land was given physical possession to him and the portion, which was under the occupation of the tenants was given by way of symbolic possession and also by way of attornment of tenancy. The tenants in R.C.Nos.4 and 5 of 2004 were in possession of the said mulgies on a monthly rent of Rs.800/- and tenant in R.C.No.6 of 2004 was in possession of the mulgi on a monthly rent of Rs.400/- and the rents have been paid to the previous landlady Rahmatunnisa upto 11-6-2001 and from 12-6-2001 i.e., the date of purchase, the rents have been paid to the landlord upto May 2003 and the tenants did not pay the rents from June 2003 to January 2004 i.e., for a period of 8 months. Whenever the tenants paid the rents, the landlord issued Kaccha receipts and in spite of the request to pay the arrears of rents the tenants did not pay the rents. Therefore, it is stated, that there is wilful default in payment of rents on the part of the tenants. 6. The said eviction petitions were numbered on the same day i.e., 7-1-2004 and notices were issued to tenants for their appearance on 6-2-2004. The summons dated 9-1-2004 were handed over to the process server on 13-1-2004 for service with a direction to return the same on or before the 6-2-2004. 6. The said eviction petitions were numbered on the same day i.e., 7-1-2004 and notices were issued to tenants for their appearance on 6-2-2004. The summons dated 9-1-2004 were handed over to the process server on 13-1-2004 for service with a direction to return the same on or before the 6-2-2004. The process server had been to the petition schedule premises on 13-1-2004 and he has identified the said malgies with the help of the landlord and he found all the mulgies under lock in the presence of two witnesses, who are the residents of premises bearing No.14-6-382 and 14-5-116, Begum Bazar, Hyderabad, and the summons were said to have been affixed on the shutters of the tenants. A perusal of the said summons does not at all disclose the particulars with regard to the time and more so it appears that 13-1-2004 was a holiday and it was during Sankranthi vacation. The said notice was returned only on the last day i.e. 6-2-2004 and the Rent Controller based on the endorsement on reverse side of the summons posted the case to 9-2-2004 for taking steps at the request of the landlord. On 9-2-2004 itself the landlord filed an application for substituted service and the same was allowed adjourning the matter to 13-2-2004 for proof of publication. The landlord issued the matter for publication on 11-2-2004 to "Prajaporatam" a Telugu daily and the said notice was published in the said paper on 11-2-2004 and the landlord filed proof of publication on 13-2-2004. On 13-2-2004 itself the tenants were called absent and the service was held sufficient and they were set ex parte and the matter was posted for landlords evidence on 16-2-2004. On 16-2-2004 the landlord filed affidavit evidence and marked Ex.P-1-plan and P-2-registered sale deed dated 12-6-2001 and the eviction petitions were allowed as follows: "Affidavit evidence of petitioner filed. EX.P-1 and P-2 are marked. Heard. Petitioner claim proved. Hence eviction petition is allowed directing the respondent to vacate the suit premises within one month from the date of this order. No costs." 7. The landlord filed execution petitions and the Rent Controller issued warrants on 31-3-2004 directing the bailiff to deliver the possession of all the three mulgies to the landlord after evicting the tenants. Petitioner claim proved. Hence eviction petition is allowed directing the respondent to vacate the suit premises within one month from the date of this order. No costs." 7. The landlord filed execution petitions and the Rent Controller issued warrants on 31-3-2004 directing the bailiff to deliver the possession of all the three mulgies to the landlord after evicting the tenants. On the next day i.e., 1-4-2004 the bailiff had been to the premises and endorsed on the warrants that the mulgies were under lock. Thereafter, the landlord filed applications to break open the locks and to give police aid to the bailiff to execute the warrants alleging that the tenants are unsocial elements and he apprehends that they may create breach of peace and trouble to the bailiff and the said applications were allowed on 2-4-2004. On 5-4-2004 when the bailiff along with the police went to the said premises, he found all the shops were kept open, though the tenants resisted the execution of warrants the landlord called labour at his own risk to throw the articles out of the mulgies and thus, with the assistance of the police the bailiff evicted the tenants from their respective mulgies and handed over the vacant possession to the landlord. On 6-4-2004 the landlord demolished the internal walls between the three mulgies and opened a hotel. 8. It is the case of the tenants that they came to know about the eviction orders on 5-4-2004 at 4 p.m. itself when they were called upon to vacate the said mulgies. It is stated that they are not the tenants of the landlord but they are tenants of the one S.A. Samad to whom they have regularly paid the rents upto March 2004 and the landlord has nothing to do with them and without serving any notice in the eviction petitions, ex parte orders have been obtained and they were illegally dispossessed from their respective premises with the assistance of the police, though there is no relationship of landlord and tenant between them. Thereafter, they have enquired from the Court record on 6-4-2004 about the landlord obtaining ex parte orders against them on 16-2-2004 and in fact, the said mulgies were not closed on 13-1-2004 when the process server is said to have visited the premises to serve summons but they were carrying on their business in the said mulgies and no one came to serve the summons on 13-1-2004. Therefore, the report of the process server stating that the mulgies were locked is totally false and therefore, the order of substituted service dated 9-2-2004 itself is illegal and setting them ex parte on 13-2-2004 and posting the case to 16-2-2004 is without any justification whatsoever. It is further stated that the order passed on 16-2-2004 in allowing the eviction petitions is illegal as the learned Rent Controller has not discussed the merits of the case and in fact, the landlord failed to prove the relationship of landlord and tenants between them. It is stated that the speed with which the landlord has taken steps to get the summons returned on the ground that the mulgies were locked and the way in which he obtained orders of substituted service and the ex parte orders goes to show that the entire process is not fair and reasonable and fraud has been played on the Court. 9. The tenants further submit that they were the tenants in the said mulgies from 1968 onwards and S.A. Samed is their landlord and they have never paid rents to the eviction petitioner and the landlord never issued any notice of attornment of tenancy or any notice before filing the eviction petitions. It is stated that one Rahmatunnisa Begum, wife of Samad, filed suit O.S.No.199 of 1999 for injunction against her husband claiming title to the said property on the basis of oral gift and the said suit was dismissed on 20-3-2003 by the Family Court negating her claim to the title and that she is not competent to convey the same to the landlord as her claim against her husband was dismissed. It is further stated that their owner, S.A. Samed, also filed a suit in O.S.No.1351 of 2003 against Rahmatunnisa Begum and their landlord for declaration and possession, mesne profits etc., and the said suit is still pending on the file of the I Senior Civil Judge, City Civil Court, Hyderabad. It is further stated that their owner, S.A. Samed, also filed a suit in O.S.No.1351 of 2003 against Rahmatunnisa Begum and their landlord for declaration and possession, mesne profits etc., and the said suit is still pending on the file of the I Senior Civil Judge, City Civil Court, Hyderabad. The landlord suppressing all these facts filed the eviction petitions though he has no right and title to the said property. It is stated that, in fact, the landlord-Bansilal Yadav and his brothers namely, Nandlal Yadav and Hiramanlal Yadav are unsocial elements and they always moved in the society of unsocial elements and they are also involved in the criminal activities indulging in land grabbing matters and the landlord played fraud on the tenants as well as on the Court and got them evicted form the petition schedule premises. It is further stated that as the summons were not at all served in accordance with law, therefore, the ex parte orders are liable to be set aside and though there is no delay in filing the applications dated 12-4-2004 to set aside the ex parte orders as they came to know to about the eviction orders only on 5-4-2004, however, as an abundant precaution they have filed the applications to condone the delay of 26 days in filing the application to set aside the ex parte order. 10. The said applications were enquired to verify whether there was any proper service of notice on the tenants and the tenants were examined as P.Ws.1 to 3 and marked Exs.P-1 to P-64.The landlord was examined as R.W.1 and one Zeenath Khan was examined as R.W.2 and marked Exs. R-1 to R-20. 11 . It is the case of the landlord that the said property originally belonged to S.A. Samad, who gifted the same to his wife Rahmatunnisa Begum in 1966 and he left the company of his wife. In 1995 when the said Samad tried to interfere with the said property, his wife Rahmatunnisa Begum, filed a suit in O.S.No.1464 of 1995 on the file of the VI Assistant Judge, City Civil Court, Hyderabad and obtained injunction on 27-10-1995 and thereafter the suit was transferred to the Family Court and the suit was dismissed on technical grounds against which Rahmatunnisa Begum preferred or appeal in A.S.No.1861 of 2003 on the file of this Court, which is pending. In the meanwhile the said Samad sold the portion of the property to Smt. Durgesh Nandini and Santoshi Bai by executing a sale deed dated 22-8-1996 and delivered physical possession, though he was having no right to sell the said property. The said ladies also filed suits in O.S.Nos.152 and 153 of 2000 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad, for recovery of possession against Rahmatunnisa Begum, SA Samad and the landlord. Insofar as the suit O.S.No.1351 of 2003 filed by Samad no notice has been served on the landlord. It is stated that the landlord rightly took possession of the property bearing No.15-8-182 and 183 and another small mulgi bearing No.15-8-207 and 208 and the internal walls were demolished between the mulgies on 6-4-2004 itself and made it a small hall, doing business in the name and style of Bansilal Tiffin Home and it is further stated that the ex parte order dated 16-2-2004 cannot be set aside and the delay of 26 days cannot be condoned. 12. P. W.1 tenant stated that they obtained status quo orders in the I.A.Nos.161, 163 and 164 of 2004 filed by them in the said respective eviction petitions, which are marked as Exs.P-1 to P-3. It is stated that they have also filed Xerox copies of lease deeds dated 20-7-1968 and 27-1-1966 obtained by their fathers in favour of S.A. Samad and the originals were marked as Exs.B-2 and B-3 in O.S.No.199 of 1999 on the file of the Family Court. The sale deed in respect of portion of the properties sold in favour of Santhoshi Bai is marked as EX.P-6 and the decree in O.S.No.199 of 1999 was marked as EX.P-8. The rent receipts paid to SA Samad from 1974 to 2004, a total of 76 receipts, were marked as Exs.P-17 to P-58. Thus, it is stated that the rents were regularly 253 paid to their landlord - SA Samad and the rent receipts paid by other tenant Aslam were also marked as Exs.P-67 to P-77 13. It appears that there is some relationship between the landlord and the two tenants and Hukmichand Bhagat and Suraj Chand Bhagat are brothers and the other tenant is a Muslim gentleman. Admittedly, there are several suits pending as stated above. It appears that there is some relationship between the landlord and the two tenants and Hukmichand Bhagat and Suraj Chand Bhagat are brothers and the other tenant is a Muslim gentleman. Admittedly, there are several suits pending as stated above. The suggestion to P.W.1 that he became the tenant of the landlord on 12-6-2001 was denied and stated that he never paid any rents to the landlord but he has paid rents only to his original landlord SA Samad and there is no relationship of landlord and tenant between them. It is stated that they never knew about the ex parte orders setting them ex parte on 13-2-2004 and allowing the eviction petitions ex parte on 16-2-2004. Therefore, there is no delay from the date of their knowledge in filing the petitions to set aside the ex parte orders and even the delay of 26 days from the date of ex parte orders is not intentional and they have sufficiently explained the reasons. P.W.2 stated that the said premises were open and they were not locked either on 13-1-2004 or on 1-4-2004. 14. The landlord, examined as RW.1, tried to justify his action in getting the tenants evicted and in his cross-examination it is admitted that he purchased the said property from Rahmatunnisa Begum and there are certain disputes between Rahmatunnisa Begum and her husband - SA Samad and that he has filed a suit in O.S.No.1362 of 1996 against Rahmatunnisa Begum as she was postponing to register the sale deed and thereafter she executed the sale deed on 12-6-2001 and .he has not played any fraud on the tenants or on the Court and the transfer of property by Rahmatunnisa Begum in his favour is not fraudulent and he did not know whether SA Samad sold the portion of the said property in favour of Smt. Durgesh Nandini and Santos hi Bai. It is stated that with regard to beating the Tansco employees, their names were also included but he did not know whether his brother was convicted for six years imprisonment and also fined Rs.5,000/-. The suits filed by Santoshi Bai and Durgesh Nandini in O.S.Nos.152 and 153 of 2003 on the file of the XIII Additonal Chief Judge, City Civil Court, Hyderabad against him and Rahmatunnisa are pending. The suits filed by Santoshi Bai and Durgesh Nandini in O.S.Nos.152 and 153 of 2003 on the file of the XIII Additonal Chief Judge, City Civil Court, Hyderabad against him and Rahmatunnisa are pending. He admitted that from 12-1-2004 to 16-1-2004 the Courts were in vacation and the suggestion that the said mulgies were not locked on 13-1-2004 and that with his collusion the process server filed a false report was denied. The suggestion that the tenants are the tenants of SA Samad till the date of eviction was also denied. The suggestion that with his collusion only the bailiff got prepared a false report dated 1-4-2004 for execution of warrant stating that the shops were under lock was denied. The suggestion that he in collusion with the bailiff and with the assistance of police illegally evicted the tenants on 5-4-2004 in spite of their resistance, objection and protest was denied. In the cross-examination it is admitted as follows: The petitioners (tenants) in all R.Cs.4 and 5 of 2004 are the tenants of S.A. Samad and they paid rents to SA Samad till their eviction" It appears that there is a mistake in recording the said statement by not saying it is not true to suggest. The suggestion that all the three tenants regularly paid the rents to SA Samad till they were evicted and that in spite of the objection by the family members of the tenants they were forcibly evicted was denied. The suggestion that all the three tenants were evicted in collusion with the bailiff by preparing a false panchanama and by playing fraud and misrepresenting before the Court was also denied. 15. The suggestion that all the three tenants were evicted in collusion with the bailiff by preparing a false panchanama and by playing fraud and misrepresenting before the Court was also denied. 15. One Zeenath Khan, examined as R.W.2, though stated that the landlord purchased the said mulgies vide registered sale deed dated 12-6-2001 from Rahmatunnisa Begum and that the tenants were informed about the transfer, in the cross-examination it is stated that the since last 3 or 4 years he knew the tenants and they are all carrying on the business in the said mulgies such as cycle taxi, ration shop and he did not know whether S.A. Samad sold portion of the said property in favour of the Santoshi Bai and Durgesh Nandini; he also did not know whether S.A. Samad continued to be the owner of the said property in question and he also did not know whether the tenants are paying rents to S.A. Samad. 16. The sale deed dated 7-8-1996 executed by S.A. Samad in favour of Santoshi Bai was in respect of a portion of the ground, first and second floors of the premises bearing No.15-8-207 and 208 together with proportionate undivided share of land of 80 sq. yards out of 110 sq. yards. A perusal of the judgment and decree dated 20-3-2003 passed in O.S.No.199 of 1999 on the file of the Family Court, Hyderabad filed by Rahmatunnisa, her son and daughter against SA Samad for grant of perpetual injunction in respect of the said property goes to show that the alleged Hibanama said to have been executed in favour of Rahmatunnisa was not at all proved and accordingly, the suit was dismissed. The learned Rent Controller while considering the applications filed by the tenants for setting aside the ex parte orders by condoning the delay of 26 days in filing the applications to set aside the ex parte order held that the delay of 7 days after passing the eviction order on 5-4-2004 is not sufficiently explained and the contentions of the tenants that the shops were not at all closed and the process server in collusion with the landlord filed a false report was not accepted and accordingly dismissed all the applications by order dated 17-10-2005. Aggrieved by the said order all the aforesaid rent appeals have been preferred by the tenants before the rent appellate authority. 17. Aggrieved by the said order all the aforesaid rent appeals have been preferred by the tenants before the rent appellate authority. 17. The rent appellate Court while considering the various judgments of this Court and the Apex Court with regard to the manner and method of service of substituted service and after examining the relevant rules made under the provisions of the Act and the Code of Civil Procedure, held that there was no sufficient service of notice on the tenants in the eviction petitions and ex parte eviction orders dated 5-4-2004 are illegal and accordingly allowed the applications filed for setting aside the ex parte orders and for grant of injunction directing the landlord to maintain status quo of the structures as they were existing on that date. 18. Though the landlord specifically pleaded in his eviction petitions that the tenants have paid rents upto May 2003 but they did not pay the rents from June 2003, absolutely no evidence has been adduced before the Rent Controller in getting the ex parte orders and even the relationship of landlord and tenants has not been established by the landlord. On the other hand, the tenants filed several rent receipts in proof of their payment of rents in favour of S.A. Samad. Insofar as service of notice it has to be seen that under Rule 7(4) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules, 1961 (for short the Rules) in addition to the particulars prescribed under Rule 3 on the date of first hearing all the documentary evidence of every description in their possession or power on which they intend to rely, and which has not already been filed and all documents which the Controller has ordered to produce have to be produced. Under Rule 7(5) no documentary evidence in the possession of any party, which has not been produced on the date of first hearing shall not be received unless good cause is shown to satisfy the Controller. Under Rule 8 when the application has been presented to the Controller, he shall fix the date on which and the place on which the inquiry of the application will be held and send notice thereof to the applicant and the respondent along with a copy of the application. Under Rule 8 when the application has been presented to the Controller, he shall fix the date on which and the place on which the inquiry of the application will be held and send notice thereof to the applicant and the respondent along with a copy of the application. The Controller 5 shall give reasonable opportunity to the parties 3 concerned and he shall record a brief note of the evidence of the parties and the witnesses and consider the evidence, oral and documentary, and pass orders on the application. If an order is passed ex parte against the tenant the party affected may, within thirty days from the date of the pronouncement of the order may apply to the Controller under Rule 8(3) to set aside the ex parte order and if the Controller satisfied that the summons was not properly served, the Controller shall make an order setting aside the ex parte order after giving reasonable opportunity to both parties. Under Rule 22(4) the service of summons under the Act on the persons shall be effected in any of the following ways: (a) by giving or tendering it to such person; (b) if such person is not found, by leaving it at his last known place of abode or business or by giving or tendering it to some adult member of his family; (c) if the address of such person is known to the Controller, the appellate authority or other authorized person, by sending it to him by registered post; (d) if none of the means aforesaid is available by affixing it in some conspicuous part of his last known place of abode or business. Under Rule 22(5) and (6) the serving officer shall deliver or tender copy of the summons to the respondent personally or to an agent or other person on his behalf by taking the signature, the endorsement or endorsements on the original summons identify such person in the presence of witnesses. If there is nay dispute with regard to the service of summons the Controller shall have the power to administer oaths and require the attendance of the parties concerned to resolve the dispute. If there is nay dispute with regard to the service of summons the Controller shall have the power to administer oaths and require the attendance of the parties concerned to resolve the dispute. Perusal of Rule 22(4) goes to show that the service of summons on the concerned parties shall be by giving or tendering to such person by obtaining their signatures acknowledging the receipt of such summons and if such persons are not found they can be served on any adult member of the family in the presence of witnesses and if the particulars of the said person is known, it has to be sent by registered post and if none of the means mentioned at (a), (b), (c) are available then the last resort is to affix the summons on the abode or business. 19. I am of the opinion that the lower appellate Court after considering the aforesaid Rules and the similar provision under Order 5 Rule 20 CPC with regard to substituted service and in view of the judgment of this Court in M.A. Qader v. Mohd. Azmat Ali rightly held that where the summons are not properly served the question of limitation for filing an application to set aside the ex parte order does not arise, therefore, from the date of eviction order i.e. 5-4-2004 on which date the tenants had the knowledge of about passing of eviction orders, the application filed on 12-4-2004 to set aside the ex parte orders within seven days itself is within the prescribed time and therefore, the said ex parte orders were rightly set aside. The said. judgment has been rightly distinguished as it was held that the Rent Controller has no power under Section 10 of CPC to stay the proceedings by invoking Section 151 of CPC as the Rent Controller is not a Civil Court to perform the similar functions of the Civil Court but the provisions of CPC are applicable only for limited purpose. It was held that Section 10 of CPC is not available for the Rent Controller to stay the proceeding in which the matter in issue is involved in the previous suit between the same parties and in the same litigation. It was held that Section 10 of CPC is not available for the Rent Controller to stay the proceeding in which the matter in issue is involved in the previous suit between the same parties and in the same litigation. As Section 10 of CPC deals with the stay of suit, no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claim litigating under the same title, where such suit is pending in the same or any other Court having jurisdiction to grant the relief claimed, and such situation to stay the suit may not arise by the Rent Controller in respect of the issues contemplated under Section 10 CPC, therefore, this Court held that Section 10 of CPC has no application for grant of stay of suit or other proceedings by the Rent Controller. 20. Learned counsel appearing for the landlord relied on a judgment of the Supreme Court in the case of Basant Singh v. Roman Catholic Mission with regard to substituted service and contended that substituted service in the instant case is legal and valid. The facts of the said case were that the suit was decreed ex parte 30-9-1986 and the application to set aside the ex parte decree was filed on 6-10-1986 under Order IX Rule 13 of CPC on the ground that the summons were not served. In the said case, the trial Court ordered summons both by ordinary post and by registered post on 2-4-1986 and adjourned the matter to 30-4-1986. The registered notice was issued to the defendant vide postal receipt dated 24-4-1986. As on 30-4-1986 the summons issued by registered post were not received back, the case was adjourned to 30-6-1986 awaiting the receipt of the service report. On 30-4-1986 the trial Court again ordered that fresh summons both by ordinary post and registered post be issued within three days. Thereafter, the trial Court also ordered substituted service by resorting to Order V Rule 20 of CPC by publication of summons in local daily. On 30-4-1986 the trial Court again ordered that fresh summons both by ordinary post and registered post be issued within three days. Thereafter, the trial Court also ordered substituted service by resorting to Order V Rule 20 of CPC by publication of summons in local daily. On 5-8-1986 the notice of publication was made and on 22-8-1986 the ex parte order was made and posted the case to 4-9-1986 for evidence of the plaintiff, as 4-9-1986 was declared a public holiday, the case was adjourned to 5-9-1986 and e) parte judgment and decree was passed or 30-9-1986. It is stated that the defendant came to know about the ex parte judgment on 1-10-1986 and filed an application on 6-10-1986 to set aside the ex parte decree. In those circumstances, the Apex Court held that that once notices were sent by registered post with acknowledgement due and notwithstanding the fact that the acknowledgements have been lost or missed or for any reason has not been received by the Court within 30 days from the date of issue of summons the Court shall presume that the notice is duly served. No doubt, the said presumption of service is rebuttable by leading a convincing and cogent evidence but in the said case there was no dispute with regard to sending of summons by registered post to correct and given address and the conduct of the defendant therein shows that the registered summons have been duly served on him and he has not examined the postman who would have been a material witness and whose evidence would have bearing for proper adjudication. However, the said judgment has no application to the facts of the instant case, as admittedly in the instant, case, the summons were not at all sent by registered post or tendered on the tenants as contemplated under Rule 22(4) of the Rules. Therefore, the lower appellate Court rightly distinguished the said judgment. 21. However, the said judgment has no application to the facts of the instant case, as admittedly in the instant, case, the summons were not at all sent by registered post or tendered on the tenants as contemplated under Rule 22(4) of the Rules. Therefore, the lower appellate Court rightly distinguished the said judgment. 21. Insofar as the contention of the landlord that the rent controller has no power to grant injunction under Order 39 Rules 1 and 2 it has to be seen that the Supreme Court in the case of T.Lakshmipathi v. P.Nithyananda Reddy which arises under the Andhra Pradesh Rent Control Act, the Apex Court held as follows: "The tenancy cannot be said to have been determined by attracting applicability of the doctrine of frustration consequent upon demolishing of the tenancy premises. Doctrine of frustration n belongs to the realm of law of contracts; it does not apply to a transaction where It not only a privity of contract but a privity of estate has also been created inasmuch as lease is the transfer of an interest in immovable property within the meaning of Section 5 of the Transfer Property Act (wherein the phrase the transfer of property has been defined) read with Section 105, which defines a lease of immovable property as a transfer or a right to enjoy such property. It is neither the case of the appellants nor of the respondents Nos.2 and 3 that the subject matter of lease was the building and building alone, excluding land whereon the building forming subject matter of tenancy stood at the time of creation of lease." It was further held that a lease of a house or a shop is a lease not only of the superstructure but also of its site. It would be different if not only the site but also the land beneath ceases to exist by any act of nature. In the said case, it was held that though the superstructures were demolished but the land beneath continued to exist and therefore, the rights of tenants continue as the entire tenancy premises have not been lost and the landlord cannot be permitted to take shelter beyond their own act prejudicial to the interest of the tenant. In the said case, it was held that though the superstructures were demolished but the land beneath continued to exist and therefore, the rights of tenants continue as the entire tenancy premises have not been lost and the landlord cannot be permitted to take shelter beyond their own act prejudicial to the interest of the tenant. It was further held that in the event of tenancy, having been created in respect of a building standing on the land, it is the building and land, which are both components of subject matter of the demise and the destruction of the building alone does not determine the tenancy when the land which was site of the building continues to exist. It is argued that Order 39 Rules 1 and 2 of CPC applies with regard to the power of Civil Court for grant of temporary injunctions in a suit but not with regard to the rent control proceedings. No doubt, a perusal of the said provisions goes to show that temporary injunctions are liable to be granted preventing the waste, damage, alienation, removal or disposition of any property but the aforesaid judgment of the Apex Court goes to show that the rights of the landlord and tenant have to be established as on the date of filing of eviction petitions and that even if the building is pulled down, as long as the land is available on which the building was existing, the proceedings under the Act shall continue and have to be decided. Therefore, the properties shall be deemed to be preserved to decide the claims of the parties herein and as admittedly the said building is covered by the provisions of the Act and if that be so, it is the duty of the Rent Controller to protect the property as it is and therefore, it cannot be said that the grant of temporary injunction to preserve the said property from being demolished or damaged is illegal or without jurisdiction. Therefore, I am of the opinion that the Rent Appellate Court rightly allowed the injunction applications also filed by the tenants directing the landlord to maintain status quo of structures as they are existing on the date of filing of the injunction applications. 22. Therefore, I am of the opinion that the Rent Appellate Court rightly allowed the injunction applications also filed by the tenants directing the landlord to maintain status quo of structures as they are existing on the date of filing of the injunction applications. 22. As already stated, I am of the opinion that there was no proper service of summons and in fact, the relationship of landlord and tenants is yet to be proved as the landlord having taken a specific plea that the tenants have paid rent from the date of purchase of the said premises till May 2003 and that they did not pay the rents from June 2003 to January 2004, absolutely no rental receipts have been filed either in the eviction petitions or in the applications to set aside the ex parte order. Therefore, there is every doubt of landlord and tenant relationship. In view of the pendency of the suits with regard to title, the landlord in collusion with the process server as well as the bailiff suppressing the previous litigations and the material facts, got returned the summons without following the due procedure for service of summons by way of registered post and without exhausting the modes available under Rule 22(4) (a) to (c), service of summons by substituted service is illegal and unsustainable. Accordingly, the eviction orders obtained by making false allegations against the tenants that they are unsocial elements and that there may be law and order problem, and in getting return of the warrants issued on 30-3-2004 on the ground that the mulgies were under lock, are illegal and unsustainable. When the tenants are longstanding tenants it cannot be said that all of them have closed the shops on 13-1-2004 and 1-4-2004, therefore, I am of the opinion that evicting the tenants by executing the warrants in spite of their resistance in collusion with the bailiff and with the assistance of the police is illegal and unsustainable. 23. In view of the aforesaid facts and circumstances I am of the opinion that the tenants are entitled for the restoration of possession. It is stated that the applications filed by the tenants for restoration of possession are pending. The tenants ought to have filed a simple application straightway under Rule 8(3) of the Rules for restoration of possession. 23. In view of the aforesaid facts and circumstances I am of the opinion that the tenants are entitled for the restoration of possession. It is stated that the applications filed by the tenants for restoration of possession are pending. The tenants ought to have filed a simple application straightway under Rule 8(3) of the Rules for restoration of possession. The Rent Controller without properly appreciating the evidence on record erroneously dismissed the applications without any justification. 24. Having regard to the facts and circumstances of the case and now that the ex parte orders have been set aside and the eviction petitions have been restored, on the applications filed or to be filed by the tenants under Rule 8(3) of the Rules, the possession also shall be restored in favour of the tenants. In view of the above, I do not see any illegality or irregularity or impropriety in the order under the revisions. 25. The civil revision petitions are g accordingly dismissed with costs quantified s to Rs.3,000/- (Rupees three thousand only) to be paid by the landlord/revision petitioner to the tenants\respondents in each Civil Revision Petition.