Om Prakash Steel Furnitures v. Hindi Prachar Sabha
2010-12-10
VILAS V.AFZULPURKAR
body2010
DigiLaw.ai
ORDER: These review petitions are at the instance of the tenant, who suffered an order of eviction from this Court in CRP.Nos.5952, 5953 and 5954 of 2006 dated 25.06.2010. The petitioner was granted time for vacating till the end of September 2010 subject to usual undertaking. The petitioner moved the extension applications being CRPMP.Nos.6172, 6173 and 6174 of 2010 on which initially time was extended till 08.10.2010 by order dated 06.10.2010 and thereafter, extension petitions were disposed of by granting one more month’s time on 08.10.2010. 2. During the said period, the petitioner questioned the order in the revision petitions before the Honourable Supreme Court by SLP (Civil) CC.Nos.16941 – 16943 of 2010 on 26.10.2010. The said SLP was dismissed by Supreme Court on 29.10.2010. The present review petitions were filed on 21.10.2010 and were thereafter listed on 22.10.2010, 28.10.2010 and 29.10.2010 on which date, after hearing both sides, the interim stay of eviction was continued till 12.11.2010 and thereafter, the review petitions were heard on various dates and finally on 01.12.2010 and posted for judgment on 13.12.2010 by extending interim stay till 12.12.2010. 3. The main ground on which these review petitions are pressed by the petitioner/tenant is that the respondent, who secured eviction orders in the revision petitions, referred to above, has sold the petition schedule premises to M/s. Red Rose Constructions on 26.10.2007 and the subsequent purchaser has already filed separate eviction petition and thereby the petitioner having lost title to the property the eviction petitions at his instance are not maintainable. It was also submitted that the said subsequent event of sale of the schedule premises was not disclosed at the time of hearing of the revision petitions, as such, the review of the orders is warranted, as the respondent/revision petitioner cannot be said to be landlord anymore. 4. The said ground, however, arises only in CRP.Nos.5953 and 5952 of 2006, as a subject matter of sale, admittedly, is the godown premises behind shop Nos.3 and 4 so far as CRP.No.5953 of 2006 is concerned and shop no.8 so far as CRP.No.5952 of 2006 is concerned. Shop no.7, which is subject matter concerning CRP.No.5954 of 2006 is, admittedly, not sold by the respondent/landlord and as such, no ground exists for reviewing the order so far as CRP.No.5954 of 2006 is concerned. 5. Rev.
Shop no.7, which is subject matter concerning CRP.No.5954 of 2006 is, admittedly, not sold by the respondent/landlord and as such, no ground exists for reviewing the order so far as CRP.No.5954 of 2006 is concerned. 5. Rev. CRPMP.No.6408 of 2010 arising out of CRP.No.5954 of 2006 is, therefore, liable to be dismissed and is accordingly dismissed. Rev.CRPMP.Nos.6411 and 6414 of 2010: 6. For convenience, the petitioner is referred to as tenant and the respondent is referred to as landlord. 7. The ground for review is already mentioned above and before we take up the merits of the said contentions it is necessary to deal with two other objections of the landlord: 1.MAINTAINABILITY OF REVIEW PETITIONS: Learned counsel for the landlord contends that the review petitions and the SLP cannot be simultaneously prosecuted by the tenant and submits that when the SLP against the main order in the revision petitions is dismissed, these reviews are not maintainable. He also submits and supports it by his own affidavit that when the SLP was taken up before the Honourable Supreme Court, the tenant’s counsel appearing in the SLP was aware of the pendency of the review petitions and therefore, he is said to have informed the Honourable Supreme Court that the review petitions pending before this Court will not be pressed and thereby the tenant was allowed to argue the special leave petition. The SLP was, however, dismissed and now the said review petitions are once again being pressed. So far as maintainability of review petitions by this Court is concerned it is no more res integra in view of the categorical judgment of the Honourable Supreme Court in M.M. THOMAS v. STATE OF KERALA (2000) 1 SCC 666 which held that the plenary powers of the High Court would include power to review relating to errors apparent on the face of the record. The maintainability of the review petitions in the light of filing of SLP against the main order is a vexed question on which there were series of decisions of the Honourable Supreme Court but that question also is now settled by a recent decision of the Supreme Court in MEGHMALA v. G NARASIMHA REDDY (2010) 8 SCC 383 . After thorough analysis of various decisions the Supreme Court held in para 25 as follows: “25.
After thorough analysis of various decisions the Supreme Court held in para 25 as follows: “25. Thus, the law on the issue stands crystallized to the effect that in case a litigant files a review petition before filing the special leave petition before this Court and it remains pending till the special leave petition stands dismissed, the review petition deserves to be considered. In case it is filed subsequent to dismissal of the special leave petition, the process of filing review application amounts to abuse of process of the court.” In view of the same, therefore, these review petitions which were filed before the tenant filed SLP, are maintainable and deserve to be considered on merits. So far as the other objection of the learned counsel for the landlord is concerned, the order dismissing the SLP does not refer to the undertaking by the counsel for the tenant that they would not press the review petitions. Since the proceedings of the Court and orders are sacrosanct it would not be proper to reject the review petitions on the basis of the assertions by the counsel for the landlord and his affidavit in these review petitions. The review petitions, therefore, are held maintainable. 2. MERITS OF THE REVIEW PETITIONS: The eviction decree was passed against the tenant on the ground of willful default in payment of rent. It is the admitted case of both parties that the factum of sale by the landlord in favour of the purchaser, referred to above, in the year 2007, though effected during pendency of the revision petitions, neither of the parties brought it to the notice of this Court. It is even more intriguing that the said purchaser has filed fresh eviction petition being RC.No.20 of 2009 before the II Additional Rent Controller, Hyderabad on the ground of willful default in payment of rent from the date of his purchase i.e., 01.11.2007. Though both parties herein are parties thereto and are contesting the said eviction petition that too was not disclosed to this Court when the revision petitions were heard. Learned counsel for the landlord has filed a copy of the SLP, which shows that this aspect was not disclosed even before the Honourable Supreme Court, as no ground based therein was raised in the SLP.
Learned counsel for the landlord has filed a copy of the SLP, which shows that this aspect was not disclosed even before the Honourable Supreme Court, as no ground based therein was raised in the SLP. The said subsequent event within the knowledge of the parties, and particularly, the tenant, who seeks to take advantage thereof now, is himself guilty of not disclosing the same during the hearing of the revision petitions, cannot, therefore, be heard to say that there is any error apparent on the face of the record warranting review of the judgment. 8. On the factum of sale under registered sale deed dated 26.10.2007, which is basis of these review petitions, is not produced in these review petitions through an appropriate application under Order 41 Rule 27 of the Code of Civil Procedure, 1908, but a copy of the sale deed and a copy of the eviction petition and counter filed by the parties in the purchaser’s subsequent eviction petition are annexed to the review petitions. Technically, therefore, these documents cannot be looked into, as they are neither on record nor are sought to be brought on record by adopting the legal procedure required therefor. 9. However, ignoring the technicalities, I have considered the merits of the tenant’s contentions in these review petitions. It may be mentioned that the landlord has filed counter affidavit in the review petitions accepting the sale but asserting that the landlord continues to collect the rents even till today and seeks to produce the latest rent receipts up to September 2010 and asserts that he continues to be the landlord as defined under Section 2 (vi) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, (for short ‘the Act’). Landlord, therefore, denies that he has no right or interest over the schedule property by asserting that he is very much a landlord and is entitled to continue the eviction proceedings in spite of the sale. 10. Several decisions were cited by the learned counsel for the landlord in support of his plea in the counter, which are, primarily, explaining the definition of the landlord under the Act and in particular the decision of the Supreme Court in BHOGADI KANNABABU v. VUGGINA PYDAMMA (2006) 5 SCC 532 and relied upon para 19, which is as follows: “19.
Several decisions were cited by the learned counsel for the landlord in support of his plea in the counter, which are, primarily, explaining the definition of the landlord under the Act and in particular the decision of the Supreme Court in BHOGADI KANNABABU v. VUGGINA PYDAMMA (2006) 5 SCC 532 and relied upon para 19, which is as follows: “19. In this connection, we may also point out that in an eviction petition filed on the ground of sub-letting and default, the court needs to decide whether relationship of landlord and tenant exists and not the question of title to the properties in question, which may be incidentally gone into, but cannot be decided finally in the eviction proceeding.” 11. The definition of landlord under Section 2 (vi) of the Act is as follows: “2 (vi). “Landlord” means the owner of a building and includes a person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another person or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant.” which includes a person entitled to collect the rent and there is no controversy that as on the date of the decision in the revision petitions the rent was payable to the landlord herein. 12. More importantly, the eviction was ordered by accepting the landlord’s claim that the tenant has committed willful default in payment of rent. The liability of tenant to pay the arrears of rent is, therefore, qua the schedule premises and is not dependent on who the landlord is. Unlike the claim for eviction based on personal requirement of the landlord, which ceases on the landlord selling the property to a purchaser, a claim on the ground of willful default, in my view would not get affected and the landlord would be entitled to continue the eviction proceedings, unless he has assigned his right to collect the arrears of rent also to the purchaser. I am, therefore, unable to accept the contention of the tenant’s counsel that the eviction proceedings initiated by the landlord and pending at the time of sale of the premises, would be affected on account of the sale. 13.
I am, therefore, unable to accept the contention of the tenant’s counsel that the eviction proceedings initiated by the landlord and pending at the time of sale of the premises, would be affected on account of the sale. 13. Learned counsel for the landlord relied upon a decision of this Court in S. KRISHNA REDDY v. N. VENKATA REDDY 1977 (2) An.W.R 187which was a case where pending an eviction petition a property in occupation of the tenant was sold together with assignment to collect arrears of the rent. The question posed before this Court was whether the purchaser can evict the tenant on the said ground of willful default. Answering in the affirmative this Court held in para 7 as follows: “7. … Under Exhibit A-3, the arrear of rent due from the tenant were assigned to the purchaser. He has thus become a person entitled to receive the rent of the building in question. Thus the present landlord satisfies the requirements of the definition in section 2 (vi) not only by reason of his being a person who is entitled to receive the rent of a building on his own account by reason of Exhibit – A3. So far as the proviso to section 10(2)(i) is concerned, it is also satisfied in this case because by reason of the assignment, it has become rent due by the tenant to the landlord within the meaning of the proviso. On a plain reading of section 10(2)(i) it is clear that the arrears of rent contemplated by section 10(2)(i) is arrears of rent due by the tenant in respect of the building. The proviso does not say or require that the arrears of rent should be due to a particular landlord. The requirement is that the tenant should not have paid or tendered any rent due by him in respect of a building. I am, therefore, of the view that the respondent herein is entitled to file the application for eviction of the tenant on the ground mentioned in section 10(2)(i)…” 14. Learned counsel also relied upon an unreported decision of this Court in CRP.No.338 of 1975 dated 04.03.1976 wherein it was held that the rent received/receivable by the landlord after sale is only for the benefit of the purchaser and therefore, notwithstanding alienation, proceedings initiated by the original landlord, can be continued by him.
Learned counsel also relied upon an unreported decision of this Court in CRP.No.338 of 1975 dated 04.03.1976 wherein it was held that the rent received/receivable by the landlord after sale is only for the benefit of the purchaser and therefore, notwithstanding alienation, proceedings initiated by the original landlord, can be continued by him. In view of the above, therefore, the review petitions have no merit and they are liable to be dismissed and are accordingly dismissed. The tenant is granted time till 15.01.2011 to vacate the premises in terms of his undertaking already given before the learned Rent Controller, which will continue to operate till he vacates and hands over possession to the landlord.