Skip to content


Sri Rama Co-operative Building Society by Its Secretary, Visakhapatnam Vs. Ankitham Venkata Bhanoji Rao - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 136 of 1962
Judge
Reported inAIR1966AP1
ActsMadras Buildings (Lease and Rent Control) Act, 1949 - Sections 7 and 12(3); Madras Buildings (Lease and Rent Control) Rules, 1951 - Rule 12(2); Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 27(1)
AppellantSri Rama Co-operative Building Society by Its Secretary, Visakhapatnam
RespondentAnkitham Venkata Bhanoji Rao
Appellant AdvocateT. Ramachandra Rao, Adv.
Respondent AdvocateD. Sri Rama Sastry, Adv.
DispositionPetition allowed
Excerpt:
.....the rules framed thereunder with particular reference to the regional transport authority and the appellate authority do not contemplate anything like a regular hearing in a court of justice. they also observed that in order to present its case effectively the first respondent was entitled not only to have the report read out but also to study it so that it could understand it and state its case fully and effectively before the appellate authority. , the principle contained in the latter is a sound principle which affords proper guidance to tribunals like appellate authority in dealing with appeals under rent control act. would be applicable to cases in which additional evidence is sought to be let in and substantially the ground mentioned in that provision of law would be applicable as..........further enquiry as he thinks fit either personally or through the controller, shall decide the appeal.' rule 12 has to be read along with this provision in the statute. the words 'decide to make further enquiry' referred to in rule 12(2) obviously refer to what the authority decides in accordance with the provision of section 12(3) above viz., 'after making such further enquiry as he thinks fit.'12. the above section shows that he has to make further enquiry only if he thinks fit. the words 'as thinks fit' show that a discretion is vested in him under these words which is meant to be exercised in a judicial manner. the section mentions 'shall decide the appeal'. rule 12(2) says 'if the appellate authority decides to make further enquiry'. this use of same word 'decides' also.....
Judgment:
ORDER

Anantanarayana Ayyar, J.

1. The petitioner Sri Kama Co-operative Building Society, Feels aggrieved by the order passed by the learned Subordinate Judge, Visakhapatnam in I. A. No. 61 of 1961 in C. M. A. No. 5 of 1961.

2. Relevant facts are as follows:--

Bhanoji Rao, who is the sole respondent in this revision petition, filed a petition before the House Real Controller. Visakhapatnam for eviction of Co-operative Society, who is the sole petitioner in this revision petition, on the basis that the Co-operative Society was a tenant of certain premises mentioned by the petitioner. The Society raised a contention thut it was not tenant under Bhanoji Rao and that it was the owner of the premises under a purchase which had been made many years back.

3. The Madras Buildings (Lease and Rent Control) Act, 1949 (Madras Act XXV of 1949) applies to the case. Section 7 of that Act runs as follows:

'A tenant shall not be evicted whether in execution of a decree of otherwise except in accordance with the provisions of this section.

* * * * Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the (Controller shall decide, whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded,'

The learned Rent Controller, after recording a considerable volume of evidence, decided under the second proviso extracted above that the denial of claim of Bhanoji Rao's title by the Society was bona fide. Accordingly, he dismissed Ihe petition. Against that order, Bhanoji Rao Wed C. M. A. No. 5 of 1961. In that appeal, he filed I. A. No. 81 of 1961 praying for admission of the printed Bye-laws of the Society as additional evidence. The learned Subordinate Judge heard that I. A. No. 61 of 1961 even before the appeal itself was heard and passed an order allowing that petition on the following grounds:

(1) It is clear from the order of the Rent Controller that he referred to the Bye-laws of the respondent Society, though the said Bye-laws have not been marked as an exhibit.

(2) The printed Bye-laws now produced is a hook-let, published by the respondent Society and there cannot be any objection for the genuineness of the same, as the learned Rent Controller referred to the Bye-laws in his order.

(3) In my opinion, it is necessary that the Bye-laws should be marked, and by marking the same, there can be no prejudice to the respondent, as the respondent himself published the Bye-laws'.

4. The learned counsel for the Co-operative Society contends that the learned Subordinate Judge was not correct in the statement of ground No. 1 and that, in fact, the Bent Controller has not referred to the Bye-laws of the Society. The learned counsel for Bhanoji Rao is not able to point out any portion of the order of the Rent Controller in which reference is made to Bye-laws of the Society and which can be a good basis for the ground No. 1 of the learned Subordinate Judge, The fact that the genuineness of the printed bye-laws cannot be objected to as mentioned in Ground No. 2 is not by itself sufficient to justify the order to admit it as additional evidence. If Ground No. 3 were tenable, the order of the lower Court would be correct and lawful.

5. The contention of Sri T. Ramachandra Rao for the petitioner-society is that the appellate authority could lawfully come to conclusion as in Ground No. 3 only on hearing the I. A. along with the appeal and on consideration of the sufficiency or otherwise of the evidence already on record.

6. Rules 11 and 12 trained under the Madras Buildings (Lease and Rent Control) Act, relate to hearing of appeals. They run as follows :

'11(1), Every appeal against an order of the Controller, shall, in addition to the grounds of appeal, specify the date on which the order was received by the appellant. The appeal shall be signed by the appellant and his counsel if any and presented to the appellate authority or to such officer as he appoints in this behalf by the appellant himself personally or by his recognised agent or by counsel at any time during office hours on a working day. The appeal shall be, accompanied by a copy of the order of the Controller appealed from.

(2) Every appeal under the Act shall be accompanied by a spare copy or sufficient number of spare copies thereof for service on the respondent or respondents mentioned therein.

12(1) When an appeal under the Act is preferred the appellate authority shall fix a day for hearing the appeal and send notice thereof to the appellant or appellants and the respondent or respondents mentioned in the appeal and shall also send a copy of the appeal along with the notice to the respondent or respondents.

(2) ft the appellate authority decides to make further enquiry he may take additional evidence or require such evidence to be taken by the Controller.'

Shri T. Ramachandra Rao, the learned counsel for the petitioner-society, contends that the words 'decides to make further enquiry' mean that the appellate authority must apply its mind to the evidence already available and to the question as to whether that evidence is sufficient and then decide whether additional evidence is necessary and should be admitted. The learned counsel for the respondent, on the other hand, contends that the Tribunals under the Act are quasi judicial tribunals and that they are governed purely by rules, that the elaborate provisions of Civil Procedure Code do not apply and that Rule 12(2) does not require that the appellate authority, in coming to decide on further enquiry and taking additional evidence, should do so on the basis of the evidence already on record on grounds urged regarding the I. A. and other matters like a regular Civil Court.

7. In Arjun Singh v. Kartar Singh, AIR 1951 SC 103 relying on Parsotim Thakur v. Lal Mohar Thakur. AIR 1931 PC 143 it was observed as follows:

'The true test, therefore, is whether the appellate Court is able to pronounce judgment onthe materials before it without taking into consideration the additional evidence sought to beadduced. On the other hand the District Judgemade up his mind to admit the certified copiesof the registers even before he heardthe appeal. Therewas thus no examination of the evidence on therecord and a decision reached that the evidenceas it stood disclosed a lacuna which the Courtrequired to be filled up for pronouncing its judgment. In the circumstances, the learned Judgesof the High Court were right in holding that theDistrict Judge was not justified in admittingthis evidence under Order 41, Rule 27'

8. In AIR 1931 PC 143 their Lordships held as follows:

'Under Rule 27, Clause (1) (b) it is only where the appellate Court 'requires' it (i.e. finds it necessary) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case, it must be the Court that requires it. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but 'when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent.'

9. Order 41, Rule 27 C.P.C. is a relevant provision relating to production of additional evidence in the appellate Court. What their Lordship referred to as Clause 1(b) is Clause 1(c) as numbered in the Andhra Pradesh State, I shall refer to it hereafter as Clause 1(c), That Clause 1(c) is not the only ground on which fresh evidence can be admitted. There are provisions under Clauses (a) and (b) also; but we are not concerned with those provisions in these proceedings. Rule 12(2) did not lay down the provisions regarding additional evidence in such elaborate terras as in Order 41, Rule 27 C. P. C. But the ground on which the evidence was sought by Bhanoji Rao to he admitted was substantially what is contained under Order 41, Rule 27(1)(c) and not what is contained in Clauses (a) and (b) of Order 41, Rule 27(1) C. P. C. Ground No. 3, on which the order of the appellate authority is based, is also substantially what is stated in Clause 1 (c). Though the provisions of Order 41, Rule 27 C.P.C. do not apply to the present case and though Rule 12 applies, the substantial basis on which it is sought to be admitted is the same as what is contained in Order 41, Rule 27(1) (c). The principle of the decision of the Privy Council would apply if the principle of Order 41 Rule 27(1)(c) C.P.C. would apply to the present case though that provision by itself as Rule 27(1) (c) does not apply.

10. The question is whether the principle of Order 41, Rule 27 (1) (c) would apply to this case though Rule 12(2) of the Rules framed under the Act applies. The learned counsel for the petitioner-society relies on a decision in New Prakash Transport Co. Ltd. v. New Suwarna Transport Co. Ltd; (S) : [1957]1SCR98 . Therein. It was observed as follows: (at p. 236)

'Thus the Motor Vehicles Act and the rules framed thereunder with particular reference to the Regional Transport Authority and the Appellate Authority do not contemplate anything like a regular hearing in a Court of justice. No elaborate procedure has been prescribed as to how the parties interested have to be heard in connection with the question, who is to be granted a stage carriage permit.

* * * * The learned Judges of the Appeal Court have observed that the contents of a long report, such as the second report was, could not be carried in one's head. They also observed that in order to present its case effectively the first respondent was entitled not only to have the report read out but also to study it so that it could understand it and state its case fully and effectively before the Appellate Authority.'

Their Lordships finally held as follows: (at p. 237):

'Hence, in our opinion, there was nothing in the rules requiring a copy of the police report to be furnished to any of the parties, nor was there any circumstances necessitating the adjournment of the hearing of the appeal, particularly when no request for such an adjournment had been made either by the first respondent or by any other party.

* * * * The rules framed under Chapter IV for 'the conduct and hearing of the appeals that may be preferred under this chapter (Section 68(2)(b)) do not contemplate any such facilities being granted to the parties, though it is open to the Appellate Authority to make any such 'further enquiry, if any, as it may deem necessary'.'

Their Lordships also observed as follows (at p. 241):

'As already indicated, the statutory provisions do not contemplate that either the Regional Transport Authority or the Appellate Authority had to record evidence or to proceed as if they were functioning as a Court or law.....'

The Rent Controller had to record evidence and decide the case on evidence. The appellate authority also had to decide on evidence. Further the Appellate Authority is a Subordinate Judge i.e., an officer who ordinarily presides in a Civil Court. Under Section 12(1)(a) of the Act, the State Government may, by general or special order notified in the Fort, St. George Gazette, confer on such officers and authorities as they think fit, the powers of appellate authorities for the purposes of this Act. Accordingly Government notified the Subordinate Judge. Visakhapatnam as the appellate authority. Though the appellate authority under the H. R. C. Act, is not a Civil Court in relevant matters, in the matter of its having to decide appeals based on evidence, its procedure is much more akin to a Civil Court, than to an appellate authority under the Motor Vehicles Act.

11. Section 12 (3) of the Act runs as follows:

'The appellate authority shall send for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further enquiry as he thinks fit either personally or through the Controller, shall decide the appeal.' Rule 12 has to be read along with this provision in the statute. The words 'decide to make further enquiry' referred to in Rule 12(2) obviously refer to what the authority decides in accordance with the provision of Section 12(3) above viz., 'after making such further enquiry as he thinks fit.'

12. The above section shows that he has to make further enquiry only if he thinks fit. The words 'as thinks fit' show that a discretion is vested in him under these words which is meant to be exercised in a judicial manner. The section mentions 'shall decide the appeal'. Rule 12(2) says 'if the appellate authority decides to make further enquiry'. This use of same word 'decides' also indicates that the question as to whether his coming to a conclusion as to making further enquiry should be done in a judicial manner just as in deciding the appeal. Though Rule 12 (2) does not lay down expressly any strict restrictions as in Order 14 Rule 27 (1) (c) C.P.C., the principle contained in the latter is a sound principle which affords proper guidance to tribunals like appellate authority in dealing with appeals under Rent Control Act. The proviso to Section 7 itself says that the Controller 'shall decide' whether the denial or claim is bona fide.

13. Ordinarily, the decision of the Rent Controller has to be based on the evidence. Appeal against his decision will be filed on the alleged basis that his finding, as based on the evidence before him, is erroneous. Ordinarily, the appellate Court has to see whether the finding of the Rent Controller, as based on the evidence as it stood before the Bent Controller was erroneous or right. But, as an extra-ordinary measure, there is provision in Rule 12(3) and Section 12(3) for enlarging the quantum of evidence and thus widening the basis on which appellate Court can come to a decision in such a matter. In such circumstances, the principle of Order 41, Rule 27(1)(c) C.P.C. would be applicable to cases in which additional evidence is sought to be let in and substantially the ground mentioned in that provision of law would be applicable as good guidance though that provision itself does not apply directly. That principle has to be read and applied as interpreted by the decisions of their Lordships of the Privy Council and the Supreme Court by me above extracted.

14. It is true that in Section 68(2)(b) of the Motor Vehicles Act also, the words used are 'further enquiry if any, as it may deem necessary' but the Supreme Court held that there was nothing in the rules requiring a copy of the police report being furnished to any of the parties as the rules framed for hearing of appeals did not contemplate any such facilities. Those words are similar to the words in Section 12(3). But, in the matter or evidence being admitted and used as basis of decisions, the procedure in appeal proceedings under the Motor Vehicles Act such as were concerned in that case its well as in the original proceedings of the Regional Transport Authority are substantially different from the procedure in hearing of appeals and hearing applications under the Rent Control Act. The crucial difference is that in those proceedings under the Motor Vehicles Act, statutory provisions did not contemplate that the authorities had to record evidence or to proceed as if they are functioning as a Court of law whereas the Rent Control authorities have to record evidence and proceed in a manner substantially similar to a Court of law. The very fact that Bhanoji Rao filed I. A. No. 61 of 1961 for admission of additional evidence emphasises the fact that the Rent Controller passed his order on evidence which had been duly brought on record with a good degree of formality like a Court of law and that the appellate authority also had to base its decision on the evidence on record in the appeal and for that purpose Bhanoji Rao sought to enlarge the evidence in appeal by putting in fresh evidence. So, the decision in (S) : [1957]1SCR98 is distinguishable and does not apply to the facts of the present case.

15. The contention of the learned Advocate for the petitioner (Co-operative Society) in tenable.

16. I, therefore, allow the revision petitionwith costs of this Court. It is hereby madeclear that it is open to the appellate authority toconsider the admission of additional evidence atthe time of hearing the appeal according to law.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //