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2014 DIGILAW 1234 (AP)

Ameda Nityanandam v. Gattu Babu

2014-09-26

A.RAMALINGESWARA RAO

body2014
ORDER A. Ramalingeswara Rao, J. 1. Petitioners filed R.C.C. No. 2 of 2010 on the file of the Rent Controller-cum-Principal Junior Civil Judge, Nirmal (for short, lower court), seeking eviction of the respondents from the petition schedule premises which is a residential house with open place bearing municipal door No. 1-3-151/3 (old) corresponding to new 1-4-91/G and also identified as 1-3-353, situated at Shashtrinagar locality of Nirmal Town on the ground that the respondents committed willful default in payment of rents from January, 2003 onwards and they required the premises bona fidely. 2. The said petition was allowed by the lower court on 27.09.2013 directing the respondents to vacate the petition schedule premises and handover the vacant possession to the petitioners within two months from the date of that order. Against the said order, the respondents preferred R.C.A. No. 1 of 2013 before the Appellate Tribunal-cum-Senior Civil Judge, Nirmal (for short, Appellate Tribunal). The respondents also filed Cross Objections against the order passed by the lower court, challenging the finding holding that the respondents cannot be evicted on the ground of denial of title of the petitioners by them in the counter as not bona fide. In the said appeal, the respondents filed an application in I.A. No. 450 of 2013 seeking stay of operation of the execution of the decree dated 27.09.2013 passed in R.C.C. No. 2 of 2010 by the Lower Court, pending disposal of the appeal. The said application was allowed by an order dated 25.11.2013, granting stay of the order passed by the lower court, till the disposal of the appeal. Challenging the grant of said stay without insisting the appellants before the Appellate Tribunal, respondents herein, to deposit the costs as directed by the lower court or imposing conditions, the present Revision Petition is filed. 3. The learned counsel for the petitioners submits that the appeal preferred by the respondents is not maintainable before the Appellate Tribunal without depositing costs and payment of defaulted rents. On the other hand, the learned counsel for the respondents submits that no Civil Revision Petition is maintainable against an interlocutory order passed in rent control proceedings. In view of the rival contentions, the following points arise for determination in this Revision. "(i) Whether the Civil Revision Petition is maintainable against the order of stay granted by the Appellate Tribunal in the appeal preferred by the respondents? In view of the rival contentions, the following points arise for determination in this Revision. "(i) Whether the Civil Revision Petition is maintainable against the order of stay granted by the Appellate Tribunal in the appeal preferred by the respondents? (ii) Whether the Appellate Tribunal can grant stay of all further proceedings of the rent control without insisting the appellants to deposit the amounts of arrears of rent and costs?" 4. The learned counsel for the petitioners, in support of his contentions, relied on a decision of this Court in Tulsi Bai v. Gulab Kanzar Bai 1978 (1) APLJ 164 . In the said case, the landlord filed the eviction petition on the ground of denial of title of the landlord, willful default, sub-lease of the premises without prior permission of the landlord and bona fide requirement. The Rent Controller found all the four grounds in favour of the landlord and accordingly passed orders of eviction. The tenant preferred an appeal before the appellate authority. When the tenant preferred an appeal before the appellate authority, the office called upon him to deposit the entire arrears of rent upto the date of filing of the appeal before registering the appeal. But, without making such deposit, pending registration of the appeal, the tenant filed an application for granting stay of the order of eviction passed by the Rent Controller and the appellate authority granted stay on condition of the tenant depositing a sum of Rs. 3,000/-. Challenging the same, the above Revision was filed by the tenant contending that (i) the arrears of rent mentioned in Section 11(1) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short, the Act) are the arrears which are legally recoverable only and therefore the liability to deposit arrears of rent cannot extend to arrears for a period beyond three years which are barred by time and (ii) as the petitioner questioned the jural relationship of landlord and tenant between him and the respondent by denying the title of the respondent to the building and that question being a jurisdictional one, it must be decided first by the appellate authority before any direction can be given to the petitioner for depositing the arrears of rent. The Division Bench, by agreeing with the decision of another Division Bench in K. Ramulu v. Govt. The Division Bench, by agreeing with the decision of another Division Bench in K. Ramulu v. Govt. of Andhra Pradesh 1975 (1) ALT 220, held that the direction of the appellate court to deposit the arrears of rent for the entire period is valid. With regard to point No. 2, the Division Bench agreed with the view in Khursheed Shedur V. Waheed Ali 1974 (1) APLJ 294 and held the appellate authority can pass an order under Section 11 of the Act on the basis of the findings given by the Rent Controller in the eviction petition. The finding of the Rent Controller holds good till it is set aside by the appellate authority and on the basis of that finding, the appellate authority can direct payment or deposit of the arrears of rent without any need for the appellate authority itself to determine summarily the amount of arrears to be paid or deposited, when there is a dispute about it, as provided under sub-section (3) of Section 11 of the Act. 5. In S. Sathaiah v. B. Rajamani 1999 (6) ALT 120 , which was decided by a learned single Judge of this Court, the revision petitioner preferred an appeal under Section 20 of the Act against the order of eviction. The appellate authority rejected the appeal in limini on the ground that the arrears of rent determined by the Rent Controller have not been paid so far and therefore, the appeals are not maintainable by reason of the embargo contained in Section 11(4) of the Act. When that order was challenged, this Court, by following the judgments of the Division Bench in Tulsi Bai's case (supra) and Khursheed Shedur's case (supra), held that the appellate authority was right in rejecting the appeal in limini for non-deposit of the rents. Another learned single Judge of this Court in K. Venkatesh v. A. Subrahmanyam 2001 (3) ALD 165 held that the appeal preferred by the tenant is not maintainable without depositing even the admitted rents. 6. The decision cited by the learned counsel for the respondents in B. Chinnva Raju v. B.V. Rama Rao 2001 (6) ALT 93 is a case where a revision was filed against an interlocutory order in a rent control appeal. 6. The decision cited by the learned counsel for the respondents in B. Chinnva Raju v. B.V. Rama Rao 2001 (6) ALT 93 is a case where a revision was filed against an interlocutory order in a rent control appeal. The revision petitioner filed the interlocutory application in the pending appeal seeking appointment of an advocate commissioner for verification of the records, and when the said application was dismissed as not maintainable under Section 25 of the Act, the revision was filed. It was held that on a reading of Section 22 of the Act, the revision against an interlocutory order in an appeal is not maintainable and revision under Section 22 is maintainable only against an order passed in appeal under Section 20 of the Act or Section 15 of the Act. When Specific provision is there under the Act, recourse cannot be taken to Section 115 of the Code of Civil Procedure and accordingly the revision was dismissed. 7. Section 22 of the Act reads as follows: "22. Revision:- (1) The High Court may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceeding taken under this Act by the Controller in execution under Section 15 or by the appellate authority on appeal under Section 20, for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceeding, and may pass such order in reference thereto as it thinks fit. (2) The costs of and incident to all proceedings, before the High Court under sub-section (1), shall be in its discretion." 8. A reading of the above provision clearly reveals that the High Court, may at any time, call for and examine the record relating to any order passed or proceeding taken under this Act by the Controller in execution under Section 15 or by the appellate authority on appeal under Section 20 of the Act, and such power is extended to call for and examine the records relating to any order passed or proceeding taken. 9. Section 11 of the Act reads as follows: "11. 9. Section 11 of the Act reads as follows: "11. Payment or deposit of rent during the pendency of proceedings for eviction:- (1) No tenant against whom an application for eviction has been made by a landlord under Section 10, shall be entitled to contest the application before the Controller under that Section or to prefer any appeal under Section 20 against any order made by the Controller on the application, unless he has paid to the landlord or deposits with the Controller or the appellate authority, as the case may be, all arrears of rent due in respect of the building up to the date of payment or deposit and continues to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Controller or the appellate authority, as the case may be. (2) The deposit of rent under sub-section (1) shall be made within the time and in the manner prescribed. (3) Where there is any dispute as to the amount of rent to be paid or deposited under sub-section (1) the Controller or the appellate authority, as the case may be, shall on application made to him either by the tenant or by the land-lord, and after making such inquiry as he deems necessary, determine summarily the rent to be so paid or deposited. (4) If any tenant fails to pay or to deposit the rent as aforesaid, the Controller or the appellate authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. (5) The amount deposited under sub-section (1) may, subject to such conditions as may be prescribed, be withdrawn by the landlord on application made by him in that behalf to the Controller or the appellate authority, as the case may be." 10. (5) The amount deposited under sub-section (1) may, subject to such conditions as may be prescribed, be withdrawn by the landlord on application made by him in that behalf to the Controller or the appellate authority, as the case may be." 10. In view of the clear language in Section 11 of the Act, the appeal under Section 20 against any order made by the Controller on the application filed by the landlord is not maintainable, unless the tenant has paid to landlord or deposits with the Controller or the appellate authority all arrears of rent due in respect of the building up to the date of payment or deposit and continues to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Controller or the appellate authority, as the case may be. 11. In spite of such clear language, the appellate authority granted stay without imposing any conditions. The respondents should have shown sufficient cause to satisfy the appellate authority to pass an appropriate order or should have shown mitigating circumstances for non-deposit of rents. No such attempt was made. The appellate authority observed in a single sentence that the payment of defaulted rents cannot be asked to be paid by the petitioners/appellants without assigning any reason for such finding. Though the decree directs the appellants to deposit a sum of Rs. 5,500/- towards costs and was noticed by the appellate authority, the same was also not directed to be deposited. 12. In view of the above circumstances, the order passed by the appellate authority is not in accordance with law and remains suspended and the proceedings in R.C.A. No. 1 of 2013 shall not be taken up further till the respondents deposit the arrears of rents and costs for which a time of three months is granted. 13. Subject to the above observations, the Civil Revision Petition is allowed. No costs. Miscellaneous Petitions pending, if any in this Civil Revision Petition, shall stand closed.