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Changalal and ors. Vs. Narsingh Pershad - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 976 of 1969
Judge
Reported inAIR1973AP1
ActsAndhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 - Sections 11
AppellantChangalal and ors.
RespondentNarsingh Pershad
Appellant AdvocateC.P. Sarathi and ;Jayasree Sarathi, Advs.
Respondent AdvocateMadukara Rao Ganu, Adv.
Excerpt:
- - that by insertion of section 11, the legislature clearly intended to give protection to the tenants, provided he pays the rent due to the landlord and continued to pay till the disputes are settled and therefore section 11 applied not only to a case where the tenancy is admitted but also to a case where the tenancy is disputed and a summary enquiry can be made about the relationship before applying section 11. in a subsequent decision in ishvarlal v. on the question of jurisdiction of the court to entertain an application under section 11 and the relationship of landlord and tenant was raised in revision, held that section 11 applied to only to cases of admitted tenancy as not only the section begins with the expression 'no tenant against whom an application for eviction has been.....order1. in this revision petition, the order of the rent controller, appealed against, was the direction given to the tenant to deposit a sum of rs. 758 /- as arrears of rent as per the provisions of section 11 of the act. the contention of the respondent tenant was that the petitioner was not his landlord. but on the landlord filing the sale deed in his favour for the premises concerned and rental agreements alleged to have been executed by the tenant prima facie found that there was the relationship of landlord and tenant and therefore he should deposit the arrears as per the provisions of section 11. this is an order affecting the rights and liabilities of the parties and a mere procedural one, however summary the enquiry had been. therefore this order is appealable.2. this leads us to.....
Judgment:
ORDER

1. In this revision petition, the order of the Rent Controller, appealed against, was the direction given to the tenant to deposit a sum of Rs. 758 /- as arrears of rent as per the provisions of Section 11 of the Act. The contention of the respondent tenant was that the petitioner was not his landlord. But on the landlord filing the sale deed in his favour for the premises concerned and rental agreements alleged to have been executed by the tenant prima facie found that there was the relationship of landlord and tenant and therefore he should deposit the arrears as per the provisions of Section 11. This is an order affecting the rights and liabilities of the parties and a mere procedural one, however summary the enquiry had been. Therefore this order is appealable.

2. This leads us to the merits of the order passed in appeal by the Chief Judge, Small Causes Court. The Chief Judge held that there was no proper enquiry regarding the relationship of landlord and tenant and remanded the case to allow the parties to adduce evidence in the case and dispose it of according to law. It is against this that the revision has been filed in this Court. The contention put forward now is that on a petition under Section 11 of the Act, the Rent Controller has no jurisdiction to enquire into the relationship of landlord and tenant, that on a prima facie finding in a summary enquiry that the respondent is the tenant, direct him to deposit the arrears of rent. This question came to be considered in Hari Rao v. Subba Lakshmamma, 1966-1 Andh WR 122, where the respondent, against whom the petition was filed for eviction on the ground of wilful default in payment of the rent, contended that he was not a tenant, that the building was his, that in respect of the building a usufructuary mortgage was executed in favour of the petitioner whereunder he continued to occupy the building executing a rental deed in lieu of interest and there was no relationship of landlord and tenant, the trial Court had gone into the question and held that there was jural relationship of landlord and tenant between the parties and that the tenants had wilfully defaulted in payment of rent and directed eviction and on a petition under Section 11 of the Act the tenants were directed to deposit the arrears of rent, the question arose whether, when there was a dispute with regard to the jural relationship between the parties as landlord and tenant, the Court had no jurisdiction to give direction to the tenants under Section 11, it was held by Ekbote, J. that by insertion of Section 11, the Legislature clearly intended to give protection to the tenants, provided he pays the rent due to the landlord and continued to pay till the disputes are settled and therefore Section 11 applied not only to a case where the tenancy is admitted but also to a case where the tenancy is disputed and a summary enquiry can be made about the relationship before applying Section 11.

In a subsequent decision in Ishvarlal v. Kursheed Begum, 1968-1 Andh LT 110, where also the petition was filed for eviction on the ground of wilful default and the respondent denied the plaintiff's title to the house and their relationship of landlord and tenant and the petition under Section 11 of the Act for the deposit of the arrears of rent was ordered and on non-payment the tenant was directed to be evicted under Section 11 (4) of the Act and in appeal the matter was remanded, Chandrasekhara Sastry, J. on the question of jurisdiction of the Court to entertain an application under Section 11 and the relationship of landlord and tenant was raised in revision, held that Section 11 applied to only to cases of admitted tenancy as not only the Section begins with the expression ' No tenant against whom an application for eviction has been made ..................' but also as no provision has been made in Section 11 for a summary enquiry with regard to the relationship of landlord and tenant as in the case of a dispute relating to quantum of arrears of rent payable which should be decided summarily under Section 11 (3). He further went on to say that on a scrutiny of the several clauses of Section 11 of the Act, he was satisfied that it was never intended that a question of title or tenancy was to be summarily tried under Section 11 of the Act and an order made for the deposit of the supposed arrears of rent and to order eviction in case of default of depositing such amount.

In view of these two conflicting decisions, in another case where a similar question arose, Syed Ahmed v. Naimathullah Shareef, C. R. P. No. 1327/68, D /- 19-6-1969 ( Andh Pra ), the matter was referred to a Bench by our learned Brother Alladi Kuppuswami, J. and this case went up before a Bench consisting of Ekbote and Ramachandra Rao, JJ. That was also a case of a petition for eviction on the ground of wilful default in payment of rent and the respondent resisted it on the ground that the sale deed in favour of the petitioner was executed as a collateral security and the rental deed, was in lieu of interest, the Rent Controller rejected this plea and finding that there was a wilful default, directed eviction. In appeal, a petition under Section 11 (1) of the Act was filed for depositing the arrears of rent. It was contended that the Court could not determine the question of landlord and tenant under Section 11 and this was rejected and an order was passed for depositing the arrears. The Bench held that Section 11 applied not only to cases of admitted tenancy but also to cases of disputed tenancy, that the Court had jurisdiction to enquire summarily into this question, give a finding and then proceed under Section 11. We find it difficult to accept this view. Not only is there no provision in Section 11 of the Act for making a summary enquiry with regard to the relationship of landlord and tenant as is specifically provided for in Section 11 (3) with regard to the quantum of arrears of rent, we find a provision for such enquiry under the proviso to Section 10 (1) of the Act. As pointed out by our learned Brother Ekbote, J. In (1966) 1 Andh WR 122, the denial of relationship of landlord and tenant by the respondent is a jurisdictional matter which will have to be decided by the Rent Controller before he assumes jurisdiction. Under the proviso to Section 10 (1) of the Act , the Rent Controller shall decide whether the demand or claim is bona fide and if he records a finding to that effect the landlord is entitled to sue for eviction of the tenant in the Civil Court. This would mean, if on the other hand, the Controller finds that the claim is not bona fide he shall have to pass an order of eviction, as Sec. 10 (2) (vi) provides for the eviction of the tenant, where his denial of title has been found to be not bona fide. Therefore an enquiry with regard to the disputed tenancy should end either in the dismissal of the petition if it is found to be bona fide one or straightway ordering eviction of the tenant, if it is not a summary enquiry is made under Section 11 for purpose of directing the tenant to deposit the rent and if in that summary enquiry he is found to be the tenant and an order is made under Section 11 (3) for deposit of rent, this would mean in default he should be made to put the landlord in possession under Section 11 (4). If subsequent to this order on a regular enquiry if the relationship of landlord and tenant if found not established, it would have created considerable hardship to the respondent who had been evicted notwithstanding that there was no relationship of the landlord and tenant. It is obviously due to this, no provision has been made under Section 11 of the Act, whereas a provision has been made under the proviso to Section 10 (1). We are therefore inclined to agree with the decision of Chandrasekhara Sastry, J. In ( 1968 ) 1 Andh LT 110 that Section applies only to cases of admitted tenancy and no summary enquiry can be held under that section for the determination whether the relationship of landlord and tenant exists between the parties.

3. As we are disagreeing with the decision of the Bench in C. R. P. No. 1327 of 1968, D /- 19-6-1969 ( Andh Pra ) we direct that this matter may be placed before His Lordship, the Chief Justice, to be referred in a Full Bench.

4. The reference will be on the following question : Where the relationship of landlord and tenant is in dispute, whether a summary enquiry can be made under Section 11 of the Andorra Prudish Buildings (Lease Rent and Eviction) Control Act, and orders for deposit of arrears of rent be passed under Section 11 (3) of the Act.

JUDGEMENT

Ramachandra Raju, J.

5. This matter arises out of an eviction petition filed by the petitioner herein against the respondent under the provisions of the Andhra Pradesh Buildings (Lease Rent and Eviction) Control Act, 1960 (hereinafter referred to as the Act') The question referred to the Full Bench is that:

'Where the relationship of landlord and tenant is in dispute, whether a summary enquiry can be made under Section 11 of the Andhra Pradesh, (Lease, Rent and Eviction) Control Act and orders for deposit of rent be passed under Section 11(1) of the Act'.

6. The defence raised by the (tenant) respondent in the eviction petition is that the building in question does not belong to the petitioner and that he is not his tenant and he never executed the alleged rental deed in his favour. In the eviction petition, the petitioner filed an interlocutory application under Section 11 (1) of the Act for the purpose of passing orders to give a direction to the respondent to deposit arrears of rent of Rs.480/- and to continue to deposit future rents every month and in case of failure to do so by the respondent to make an order directing the respondent to put the petitioner in possession of the building as provided under Section 11 (4) of the Act. On the petitioner filing the sale deed and some rental deeds in his favour for the premises concerned, the Rent Controller prima facie came to the conclusion that hi is the landlord and the respondent is his tenant and directed the respondent to deposit arrears of rent into court. Against that order of the Rent Controller, the respondent took the matter in appeal to the Chief Judge, City Small Causes Court, Hyderabad. The learned Chief Judge by coming to the conclusion that the way in which the Rent Controller passed the order is most unsatisfactory and that when the respondent is denying that he is the tenant of the petitioner, the Rent Controller should have held an enquiry calling upon the parties to adduce evidence, remitted back the case to the Rent Controller to hold an enquiry as to the relationship between the petitioner and the respondent and dispose of the case according to law. It is against this order of the learned Chief Judge, City Small Causes Court, this revision Judge, City Small Causes Court, this revision petition has been filed in this Court.

7. The contention put forward by the respondent is that in a petition filed under Section 11 of the Act for the purpose of directing the tenant to deposit arrears of rent or the rent during the pendency of the proceedings for eviction, the Rent Controller has no jurisdiction to enquire into the relationship of landlord and tenant and where the relationship of landlord and tenant is denied by the respondent in an eviction petition, no such order can be passed under Section 11 and that Section 11 has application only to undisputed cases of tenancy. The same question came to be considered by this court earlier in (1966) 1 Andh WR 122 where the respondent, against whom the petition was filed for eviction on the ground of wilful he is not a tenant, that the building is his and there in no relationship of landlord and tenant between him and the petitioner. When on a petition filed under Section 11 of the Act, the tenant was directed to deposit arrears of rent, the question arose whether, when there was a dispute with regard to the jural relationship between the parties as landlord and tenant, the Court has jurisdiction to give a direction to the tenant under Section 11 of the Act. Gopal Rao Ekbote, J., who decided that case held that Section 11 applies not only to a case where tenancy is admitted but also to a case where tenancy is disputed and a summary enquiry can be made about the relationship before passing orders under Section 11. In a subsequent decision in (1968) 2 Andh WR 52 = (1968) 1. Andh LT 110, where also the eviction petition was filed on the ground of wilful default in payment of rent and the respondent denied the petitioner's title to the building and the relationship of landlord and tenant, when the question arose whether orders can be passed under Section 11 of the Act in such a case, Chandrasekhara Sastry, J., held that Section 11 applies only to cases of admitted tenancy and the Rent Controller has no jurisdiction to pass an order under Section 11 when the very relationship of landlord and tenant is denied by the respondent in the petition for eviction and that it was never intended that a question of title or tenancy is to the summarily tried under Section 11.

In view, of these two conflicting decisions in another case (1970) 1 Andh WR 149, where a similar question arose, the matter was referred to a 'Bench and it came to be heard by Bench consisting of Gopal Rao Ekbote and Ramachandra Rao, JJ., That was also a case of an application for eviction on the ground of wilful default in payment of rent when the respondent resisted it denying title of the petitioner. The Rent Controller rejected that plea and on finding that there was wilful default in payment of rent ordered eviction. In the appeal, a petition was filed under Section 11 (1) of the Act for directing the tenant to deposit arrears of rent. That application was opposed on the ground that Section 11 of the Act is only applicable where the relationship of landlord and tenant is admitted and not otherwise. The Bench held that Section 11 applies to cases where the tenancy is admitted as well as to cases where the tenancy is disputed and the language of Section 11 is comprehensive enough to clothe the Rent Ccontroller as well as the Appellate Authority with jurisdiction to hold a summary enquiry for determining the question whether the relationship of landlord and tenant exists between the parties for disposing of an application under Section 11 and passing an order thereof under Section 11 (4) of the Act.

8. Finding it difficult to accept this view the learned Judges, Chinnappa Reddy and A.D.V.Reddy, JJ., before whom the present C.R.P. came up for hearing referred the question mentioned above to the Full Bench. The learned Judges are of the view that under the proviso to Section 10 (1) of the Act, where the tenant denies the title of the landlord, the Controller shall decide whether the denial is bona fide and if be records a finding to that affect the landlord is a Civil Court. This would mean, if on the other hand, the Controller finds that the claim is not bona fide he shall have to pass an order of eviction, as Section 10 (2) (vi) provides for the eviction of the tenant, where the denial of title has been found to be not bona fide. Therefore an enquiry with regard to the disputed tenancy should end either in the dismissal of the petition if it is found to be a bona fide one or straightway ordering of the eviction of the tenant, if it is not. If on the other hand, a summary enquiry is made under Section 11 for purposes of directing the tenant to deposit the rent and in that summary enquiry he is found to be the tenant and an order is made under Section 11 (1) for deposit of rent, this would mean, in default he should be made to put the landlord in possession as provided under Section 11 (4). If subsequent to this order, on a regular enquiry if the relationship of landlord and tenant is found to be not established, it would have created considerable hardship to the tenant who had been evicted notwithstanding of the fact that there was no relationship of landlord and tenant. It is obviously due to this, no provision has been made under Section 11 of the Act whereas a provision has been made under the proviso to Section 10 (1) for deciding the relationship of landlord and tenant. On this the learned Judges observed that they are inclined to agree with the decision of Chandrasekhara Sastry, J., in Iswarlal v. Khursheed Begum. (1968) 2 Andh WR 52, that Section 11 applies only to cases of admitted tenancy and no summary enquiry admitted tenancy and summary enquiry can be held under that provision for determination whether the relationship of landlord and tenant exists between the parties. This is how the matter came to be referred to a Full Bench by the learned Judges.

9. As the preamble shows the object of the Act is to consolidate and amend the law relating to the regulation of leasing of buildings, the control of rent thereof and the prevention of unreasonable eviction of tenants therefrom in the State of Andhra Pradesh. Therefore the Act mainly deals with leasing of building the payment of rent and the rights and obligations of the owners (landlords) and the tenants. Therefore it is only in cases where the relationship of landlord and tenant exists between the parties with regard to a building, the Act has any application. Provision is made under Section 10 for eviction of tenants from buildings. Under Section 10 (1) it is provided that a landlord who seeks to evict his tenant shall apply to the Controller. The various grounds on which the eviction of a tenant can be sought are enumerated in Section 10 (2). The grounds mentioned are (1) default in payment of rent, (2) transferring or sub-letting by the tenant, (3) the tenant using the building for a purpose other than that for which it was leased, (4) the tenant committing acts of waste (5) the tenant's acts and conduct causing nuisance, (6) the tenant securing alternative building (7) the tenant ceasing to occupy the building for a continuous period of four months without reasonable cause, (8) mala fide denial of landlord's title and (9) the tenant claiming permanent tenancy rights.

From what is mentioned in Section 10 (2) it is clear that it is only when the jural relationship of landlord and tenant exists between the parties, an eviction petition can be maintainable on any of the grounds mentioned therein. Unless that relationship exists either admitted or proved, the Rent Controller can have no jurisdiction to pass orders of eviction. Therefore, so far as the Rent Controller is concerned the jural relationship of landlord and tenant between the parties is a jurisdictional fact. Provision is made under the proviso to Section 10 (1) that where the tenant denies the title of the landlord or 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. That means the jurisdiction of the Rent Controller does not depend upon the admission of the tenant of the landlord's title. Even though the tenant denies the landlord's title, the Rent Controller should as mentioned in the proviso to Section 10 (1) go into the question and give a finding. Mere assertion of the tenant does not oust the jurisdiction of the Rent Controller. When the tenant denies the landlord's title and if the Rent Controller after enquiring into the matter gives a finding that the denial is bona fide, his jurisdiction ceases thereafter. But if his denial is found to be without foundation he is liable to be evicted on any of the grounds mentioned in Section 10 (2). As mentioned above the eviction of the tenant can be sought on any of the grounds enumerated in Section 10 (2) of the Act. In many cases the question of title itself may not be in dispute. It is possible to envisage cases where the title of the landlord is not disputed and yet the relationship of landlord and tenant is disputed. For instance where a respondent in an eviction petition pleads that though the petitioner is the owner of the buildings he is either a licensee or a mere trespasser and therefore the petition for eviction is not maintainable before the Rent controller, and the remedy of the petitioner is only to file a regular suit in a Civil Court for possession. Therefore the proviso to Section 10 (1) may not attract all cases where the jural relationship of landlord and tenant is denied. The proviso deals with only cases of denial of title. The respondent in an eviction petition may deny that there is jural the relationship of landlord and tenant between the petitioner , and him either on the ground building and he is not a tenant or on the ground that thought the petitioner is the owner of the building he denies his own status as a tenant and claims himself to be either as a mere trespasser or a licensee in which case also the Rent Controller will have no jurisdiction to deal with the matter and the remedy of the landlord would be only to file a suit against the tenant for possession in a regular Civil Court.

10. Now the provisions contained in Section 11 of the Act may be examined. It is convenient to extract here the entire section which 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 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 matter 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 landlord, and after making such enquiry as he deems necessary, determine summarily the rent to be so paid or deposited.

(4) If any tenant fails to pay or deposit the rent as aforesaid, the Controller or 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 condition as may be prescribed, be withdrawn by landlord on application made by him in that behalf to the Controller or the appellate authority, as the case may be. '

11. A reading of Section 11 as extracted above would show that an embargo is put on a tenant against whom an application for eviction has been made to contest that application unless he pays 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 subsequent rent until the termination of the proceedings and if he fails so to pay or deposit without showing any sufficient cause, he is liable to be directed to put the landlord in possession of the building and stop all further proceedings. That means, the provisions contained in Section 11 enable a landlord to make an application either to the Controller or to the appellate authority, as the case may be, for the purpose of directing the tenant to pay or deposit all arrears of rent and also continue to pay or deposit subsequent rent that would become due and in case of failure on the part of the tenant to do so to make an order directing the tenant to put him in possession of the building and terminate all further proceedings. When such an application under Section is made by the landlord no difficulty would arise in cases where the relationship of the landlord and tenant was not denied by the tenant and there is no dispute about it. The trouble arises only in cases where the tenant denies that relationship. Such cases pose two questions ; The first question is whether the application is not maintainable at all under Section 11 which was the view taken by Chandrasekhara Sastry, J., in ( 1968 ) 2 Andh WR 52 and which found favour with the referring Judges. If it cannot be said that the application under Section 11 is not maintainable at all and if the petition is maintainable, the second question would be what has to be done by the Rent Controller or the appellate authority, as the case may be, with regard to the denial by the tenant of the relationship of landlord and tenant before an order can be made directing the tenant to deposit all arrears of rent and continue to deposit future rent pending the proceedings and on his failure to do so to make an order directing the tenant to put the landlord in possession of the building and terminate all proceedings.

As already mentioned above, the Rent Controller before whom a petition for eviction is filed would get jurisdiction to deal with the matter only when there is relationship of landlord and tenant between the parties. Therefore the question of relationship of landlord and tenant is a jurisdictional fact. Before any valid orders can be passed either by the Rent Controller or by the appellate authority that jurisdictional fact must exist. According to the proviso to Section 10 (1) of the Act, 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 which means the eviction petition is not maintainable and it has to be dismissed. This proviso mentions only two categories of cases - cases of denial of title of the landlord and claiming of a right of permanent tenancy by the tenant. The controller has to decide whether the denial or claim is bona fide and when he finds that the denial or claim is not bona fide only, he can proceed further to decide the case on merits or otherwise he has to dismiss the application in limine to enable the landlord to sue the tenant in a Civil Court for the same purpose. Apart from this proviso made under Section 10 (1) no other provision is made under Section 11 for determination of the question of relationship of landlord and tenant for the purposes of that section. Though provision is made under sub-sec. (3) of Section 11 to determine summarily the rent payable whenever there is any dispute as to the amount of rent, no such provision is made in Section 11 for any determination of the question when the relationship of landlord and tenant is disputed. As already seen above, power is given to the Controller under proviso to Section 10 (!) only to determine the denial of title of the landlord on the claim of a right of permanent tenancy. This power given under the proviso will be available to the authorities for the purpose of Section 11 of the Act also since the orders to be passed under Section 11 are in the same proceeding and pending its final disposal. It is true in the proviso to Section 10 (1) no provision is made with regard to other cases of denial of the relationship of landlord and tenant. Even so the jurisdiction is denied by the denial of the relationship of landlord and tenant in whatever manner by the alleged tenant, the Controller is entitled to decide that question as a jurisdictional fact. By mere denial of that relationship the proceedings do not become not maintainable and it cannot be said that the Controller no longer has any jurisdiction to go into the matter. He is entitled to decide the disputed fact of the relationship of landlord and tenant as a jurisdictional fact. Therefore, in all cases of denial of the relationship of landlord and tenant, it can be gone into by the authorities under the Act and decide it as a jurisdictional fact.

12. The further question to be considered is whether the Rent Controller or the Appellate Authority, as the case may be, has no jurisdiction to pass an order under Section of the Act when the very relationship of landlord and tenant is denied by the respondent in an eviction petition. By placing reliance on the language used in Section 11, it was argued that that section has no application only to cases where the relationship of landlord and tenant is not denied and the respondent in an eviction petition is admittedly a tenant. In support of this argument, the decision ( 1968 ) 2 Andh WR 52, of this Court already referred to and Abdul Azeez Khan v. Appachi Gounder, (1957 ) 2 Mad LJ 513, of the Madras High Court were relied upon. Section 11 commences with the words ' No tenant against whom an application for eviction has been made by the landlord under Section 10 ............... ' Stress was made on the term ' tenant ' used in the opening words of the Section. The argument is that the term used assumes that the respondent in an eviction petition must admittedly be a tenant and there should not be any dispute regarding the relationship of landlord and tenant. In the decision of the Madras High Court which is of a Single Judge, the consideration was of Section 7-A of the Madras Buildings ( Lease and Rent Control ) Act, which is similar to the present Section 11 of the Act. The learned Judge who decided that case took the view that the disability imposed by Section 7-A is only on a tenant and not on any person and in a proceeding for eviction where the question whether the respondent is a tenant or not is itself in issue it is difficult to see how Section 7-A can come into operation. The learned Judge has observed that if it were not so instead of the expression ' no tenant ' the expression ' no person ' would have been used by the Legislature in Section 7-A. In the decision (1968) 2 Andh WR 52, Chandrasekhara Sastry, J., came to the same conclusion because of the term ' tenant ' used in the opening words of Section 11. According to the learned Judge the opening words used in Section 11 assumes that the respondent in an eviction petition is a tenant, which means in a given case where there is no dispute between the parties regarding the relationship of landlord and tenant. According to the learned Judge this conclusion is reinforced by the fact that in clause (3) of Section 11 a summary enquiry is contemplated, only when there is a dispute as to the amount of rent to be paid or deposited under S. 11 (1) authorising the Controller or the appellate authority, as the case may be, to determine summarily the rent to be paid or deposited. No such provision is made to enquire and determine summarily the relationship of landlord and tenant when it is a dispute. Ultimately the conclusion arrived at by the learned Judge is that when the main issue between the parties is whether the respondent in the eviction petition is the tenant and the petitioner is the landlord, the Rent Controller has no jurisdiction to pass orders under Section 11 and the question of title or tenancy is never intended to be tried summarily under Section 11 of the Act.

13. In our opinion, the two questions, viz., whether Section 11 can have no application at all to cases where the relationship of landlord and tenant is not an admitted fact and no orders as envisaged under Section 11 can be passed in such cases and whether the relationship of landlord and tenant which is a jurisdictional fact can be summarily tried and determined for the purpose of Section 11 are different. It is one thing to say that Section 11 has no application at all to cases where the relationship of landlord and tenant is denied and is a different thing to say that that relationship though a jurisdictional fact can be summarily tried once for the purpose of Section 11 and a second time finally for the disposal of the eviction petition. As regards the second point with regard to the summary determination of the question, viz., whether the relationship of landlord and tenant exists between the parties or not, we are inclined to agree with the view taken by Chandrasekhara Sastry, J., we do not think that there can be summary trial for it for the purpose of Section 11. For one thing, no such provision is made in Section 11 for any summary trial if the fact of relationship of landlord and tenant is in dispute, similar to the provision made under clause (3) of Section 11 with regard to any dispute as to the amount of rent to be paid or deposited under Section 11 (1). That fact being a jurisdictional fact, without the existence of which no valid orders could be passed under the Act, it should be determined not by a summary enquiry but by a regular enquiry. We do not think that there can be any determination of that question summarily once for the purpose of Section 11 and a second time for the purpose of disposal of the main eviction petition. It may be in cases, as provided under Section 10 (2) (vi) where eviction is sought on the ground that the tenant has denied the title of the landlord, the determination of that question, given for the purpose of Section 11, disposes of the main eviction petition itself. It may also be even in cases where eviction is sought on grounds other than the denial of the title and in the eviction petition when the tenant comes forward with a case of denial of title, the finding for the purpose of Section 11 that the landlord has no title to the building in question would itself be sufficient to dispose of the main eviction petition on the ground of denial of title without going into the grounds on which the eviction petition was filed. Even so for the sake of completeness the Rent Controller may also have to go into the grounds on which the eviction petition was filed before finally ordering the eviction of the tenant in which case it would become necessary to pass orders as envisaged under Section 11 pending final disposal of the eviction petition. Except in cases of denial of title of the landlord or claiming of a right of permanent tenancy, in other cases of denial of the relationship of landlord and tenant apart from the determination of that question, the other grounds on which the eviction is sought to have necessarily to be gone into and determined before the eviction petition is finally disposed of. Therefore even when for the purpose of Section 11 the disputed fact of relationship of landlord and tenant has to be determined not summarily but finally by a regular enquiry, it is not as if in all cases the determination of that question itself can finally dispose of the eviction petition itself and passing of orders pending disposal of the proceedings as envisaged under Section 11 would become unnecessary. Of course, if the finding is going to be that there is no relationship of landlord and tenant in all cases that itself may have the effect of disposing of the eviction petition itself because when that is found the eviction petition has to go for want of jurisdiction. Therefore even if the question of relationship of landlord and tenant is to be determined finally by a regular enquiry there will still be need in many cases for determination of other questions for disposing of the eviction petition and therefore the need to pass orders as envisaged under Section 11 pending final disposal of the eviction petition.

14. In this connection one other aspect of the matter need be considered. As provided under clause (4) of Section 11 of the Act, if any tenant fails to pay or deposit the rent as per orders passed under clause (1) of Section 11, 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. Disagreeing and overruling two earlier Single Judge decisions in a recent decision Raja Ramiah v. Komanduru Krishnaswami, ( in C. R. P. No. 1867 of 1968 ) given on 24-11-1970 ( Mad ), a Division Bench of this Court held that the expression ' stop all further proceedings ' means termination of the proceedings and putting the landlord in possession of the building. If that is so, in cases where there is actually no relationship of landlord and tenant, but on a summary enquiry if that relationship is to be found, difficulties would arise. In such cases the effect would be to bring about the eviction of the respondent in an eviction petition even when there is actually no relationship of landlord and tenant. The existence or otherwise of the relationship would become certain only when a full enquiry is made and not when it is summarily enquired. Therefore, if summary enquiry of that fact is permitted to be made for the purpose of Section 11, in some cases there is a possibility of causing prejudice and hardship to the respondents. We do not think that the Legislature would have intended such a contingency in making the provision as contained in clause (4) of Section 11 of the Act. For all these reasons, we have no hesitation in coming to the conclusion that even for purposes of Section 11 when there is a dispute between the parties with regard to the relationship of landlord and tenant the dispute must be determined by making a regular enquiry and not by making a summary one and the finding in such an enquiry would be a finding in the eviction petition itself.

15. If the extreme contention that Section 11 is applicable only when the relationship of landlord and tenant is admitted and not otherwise is to be accepted, as rightly observed by the learned Judges in the decision Syed Ahmed v. Naimathullah Shareef (1970) 1 Andh WR 149, every tenant who is sought to be evicted under the Act can easily resort to the device of setting up a plea of denial of the relationship of landlord and tenant with a view to evade the enforcement of the provisions of Section 11 of the Act. The Act which confers certain rights on the tenants imposes also certain obligations on them before they can claim benefits provided thereunder. Section 11 puts an obligation on the tenant to pay the arrears of rent and to continue to pay the rent due during the pendency of the proceedings before he can resist the claim for the eviction. If the contention put forward is to be accepted a tenant who does not choose to deny the relationship of landlord and tenant would be obliged to not only pay or deposit the arrears of rent but continue to pay the rent during the pendency of the proceedings and an unscrupulous tenant would be enabled to evade the same by merely denying the relationship of landlord and tenant. We do not think that the Legislature is enacting Section 11 of the act would have intended that the provision should apply only to cases where the tenancy is admitted and not to cases where it is denied. A plain reading of the section would not suggest such an intention. We do not think too much stress can be laid on the term ' tenant' used in Section 11 for inferring such an intention. In Section 11, in the opening words ' person' is used it only means the tenant, either admitted or found and not necessarily admitted only. By mere use of the term ' tenant' it is not possible to say that the Legislature intended the section to be applicable only to cases of admitted tenancy and not otherwise. If the tenancy is in dispute and the respondent in an eviction petition denies that he is the tenant of the petitioner, certainly for the purposes of Section 11 also that matter can gone into and determined before orders are passed thereunder. It is true that while provision is made under section 11 (3) for summary determination of the question, for the purpose of passing orders under Section 11, where there is any dispute as to the amount of rent to be paid or deposited as provided under section 11 (1) no such provision is made where the relationship of landlord and tenant in dispute. Not making a similar provision with regard to the dispute as to the relationship of landlord and tenant only means that the Legislature never intended the determination of that question which is a jurisdictional fact summarily even for the purpose of Section 11.

16. Having regard to these circumstances, we are clearly of opinion that Section 11 of the Act applies not only to cases where the relationship of landlord and tenant is admitted but also to other cases where that relationship is denied. That question of fact, being a jurisdictional fact even for the purpose of section 11, has to be decided finally by means of a regular enquiry and it would become the determination in the main eviction petition itself. We do not think that such a question can be decided summarily once for the purpose of Section 11 and a second time finally for the purpose of disposal of the eviction petition. We are unable to agree with the learned Judges in (1970) 1 Andh WR 149 who took a contrary view. In some cases, that final determination may itself dispose of the main eviction petition itself. But that would be a different thing and it does not matter.

17. A Division Bench decision of the Calcutta High Court in D. R. Gellatly v. J. R.W. Cannon, : AIR1953Cal409 , seems to support the view which we have taken. That case had arisen under Section 14 (4) of the West Bengal Rent Control (Temporary Provisions) Act. In that case some order was made under Section 14 (4) for payment of rent by the tenant. The tenant took a plea in the written statement filed by him that there is no relationship of landlord and tenant between him and the opposite party. It was contended on behalf of the tenant that since the defence had been taken in the written statement, there could not be any question of making any order under Section 14 (4) till the issue raised by that defence was decided and it was held that he was, in fact a tenant. The learned Judges observed that that contention appears to be right.

18. Another decision cited at the Bar and which needs mention is a Full Bench case Mahabir Ram v. S. S. Prasad : AIR1968Pat415 , of the Patna High court. In that case the learned judges were dealing with a suit for ejectment of a tenant under the Bihar Buildings (Lease, Rent and Eviction) Control Act. Under Section 11-A of the Act it is provided that if in a suit for recovery of possession of any building the tenant contests the suit, as regards claim for ejectment, the landlord may make an application at any stage of the suit for order on the tenant to deposit month by month rent at a rate of which it was last paid and also the arrears of rent, if any. In the written Statement, the defendant raised a plea disputing the relationship of landlord and tenant between him and the plaintiff. The question arose whether for purpose of Section 11-A a summary investigation of the relationship of landlord and tenant can be gone into. It was held that on an application under Section 11-A , it was incumbent upon the court to find out in a summary way on the materials before it, whether there is relationship of landlord and tenant and the same question may have to be gone into at the time of trial, but that would no bar to a tentative determination of the question at the earlier stage when the provisions of Section 11-A are resorted by the landlord. But there, it is a Civil Court which was dealing with the matter and not any special Tribunal created for the purpose of that Act conferring special jurisdiction. There is no question of determination of jurisdictional fact by the court before assuming jurisdiction. But here, under the Act proceedings can be taken and the rent Controller would get jurisdiction only when there is a relationship of landlord and tenant between the parties. That jurisdictional fact has to be decided by the Rent Controller first before he assumes jurisdiction in the matter. Therefore, the view taken by the Full Bench of the Patna High Court in that case cannot have any application to the case before us.

19. In the decision Topandas v. M/s Gorakharam Gokalchand, : [1964]3SCR214 , the Supreme Court was dealing with the provisions of the Bombay Rent, Hotel and Lodging House Rates Control Act. Section 29 of that Act deals with jurisdiction of courts. It is provided there under that in Greater Bombay, the court of small Causes, Bombay shall have jurisdiction to entertain and try any suit or proceeding between a landlord and tenant relating to the recovery of rent or possession of any premises. The suit was filed in the City Civil Court, Bombay. The plaintiff filed the suit on the ground that there was no relationship of landlord and tenant between him and the defendant. The defendant raised a plea of existence of such a relationship and contended that the jurisdiction of the City Civil Court was ousted. An argument was raised on behalf of the defendant in that case that all claims or questions under the Act shall be tried exclusively by the court mentioned in that section and it does not matter whether the claim or question is raised by the plaintiff or the defendant. The Supreme Court while holding that the argument is untenable observed that :

'The plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts, he will get his relief from the forum chosen. If he frames his suit in a manner not warranted by the facts and goes for his relief to a court which cannot grant him relief on the true facts, he will have his suit dismissed.'

The Supreme Court further held that the defendant by his plea cannot force the plaintiff to go to a forum where on his averment he cannot go. Therefore if the petitioner in an eviction petition comes forward with a case that the respondent is his tenant and even when the respondent denies that relationship between them, the Rent Controller is competent to go into and decide that matter and it is not as if the Rent Controller has to dismiss the eviction petition in limine without going into the matter even for purposes of assuming jurisdiction.

20. In the decision Kantaben v. Dasha Shrimali Vanik Gnati, (1969), 10 Guj LR 720, a Division Bench of the Gujarat High court was dealing with the provisions contained in Section 12 (4) of the Saurashtra Rent Control Act, which is somewhat in similar tenants to our present Section 11 of the act. The question that arose for determination in that case was whether an order passed under Section 12 (4) requires that there must be a final decision about the defendant being the tenant of the suit premises or that a person shown or found to be a prima facie tenant is enough to justify the court to exercise its power under that provision. In that case, it was contended on behalf of the appellant that before passing an order under Section 12 (4) the Court must record its finding about the defendant being a tenant in respect of the suit premises and the finding must be of a final character in the sense that it determines the issue raised in the suit itself. Support was sought for that contention from the decision in Civil Revision Application No. 32 of 1966 given by the Single Judge on 17.10.1967 under Section 11 (4) of the Bombay Rent Control Act, which is exactly in similar terms with Section 12 (4) of the Saurashtra Rent Control Act. There also the defendant had denied to be a tenant in respect of the suit shop. In that case, the Court before deciding that issue finally exercised its powers under Section 11 (4) on the basis that there was a prima facie case that the defendant was a tenant. The learned Judge of that High court who decided that case held that the court was in complete mis-impression of law in interpreting the provisions of Section 11 (4) in holding that when a person was prima facie shown to be a tenant, such an order could be made and before any such order can be passed it should be finally decided whether the defendant was a tenant or not. This view taken by the learned judge in Civil Revision application No. 32 of 1966 did not find favour with the learned Judges in (1969) 10 Guj LR 720. Section 12 (4) of the Saurashtra Rent Control Act which the learned judges were dealing with in that case runs thus:

'Where at any state of a suit for the recovery of rent, with or without a claim for possession, the court is satisfied from the pleading of the parties and affidavits or otherwise that the tenant is withholding the rent on the ground that the rent is excessive and standard rent should be fixed, the Court shall, and in any other case if it appears to the Court that it is just and proper to pass such an order, it may pass an order directing the tenant to forthwith deposit, in the court such amount of rent as the Court believes to be reasonably due to the landlord. The court may also order him to deposit in court monthly or periodically, such amount as it considers proper, against rent which may become due during the pendency of the suit.'

Then sub-section (5) of Section 12 says that no appeal shall lie from any order made under sub-section (4). The Learned judges took the view that for purpose of passing an order under Section 12 (4) it is enough if the court is satisfied that he is a tenant even prima facie or provisionally for purposes of that application. He need not necessarily he held to be a tenant for all purposes in the suit that may have to be determined later on. The learned Judges further observed that to hold otherwise would render the effect of Section 12 (4) nugatory and meaningless. For one thing, the present Section 11 of the act and Section 12 (4) of the Saurashtra Rent Control Act are couched in different language and they do not mention the identical matters. Whereas for orders passed under Section 11 appeal is provided, for orders passed under Section 12 (4) of the Saurashtra Rent Control Act no such appeal has been provided. In the present case, as already discussed above, to hold that even for purposes of Section 11 the disputed fact of relationship of landlord and tenant must be decided finally will not make that provision nugatory. Even after the determination of that question finally, there would still be cases where there will be need for passing of orders as orders as contemplated under Section 11 pending final disposal of the proceedings. Further there is the proviso to Section 10 (1) of the act, where it is provided that where the tenant denies the title of the landlord, the Controller shall decide whether the denial is bona fide and if he records a finding to that effect, the landlord is entitled to sue for eviction of the tenant in a Civil Court. That means, whenever there is a denial of the title of the landlord, the Controller should decide that question and if he finds that such a denial is bonafide it is incumbent upon him to dismiss the eviction petition without going into the merits of the case and it is for the landlord then to go to a regular Civil Court for that purpose. Having regard to these and other reasons which were given in the discussion above we are unable to agree with the view taken by the learned Judges of the Gujarat High Court in the above decision.

21. In the decision Rai & Sons (P) Ltd. V. Phelps & Co. (P) Ltd., 1970 RCJ 924 (Delhi), the Delhi High court was dealing with section 11 of the Delhi Rent Control act whereunder provision is made for deposit of arrears of rent and in default for striking out the defence. The question arose whether or not an interim order can be passed for deposit of rent pending final decision on the question of relationship of landlord and tenant. Without much discussion the learned Judge who decided that case took the view that the power to grant a relief would normally include the power to grant that relief on a provisional basis also in appropriate vases, by an interim order. We are unable to accept this proposition of law as of universal application.

22. In the end we hold that Section 11 is applicable nor only to cases where the relationship of landlord and tenant is admitted but also to cases where such relationship is denied. For the purposes of passing orders under Section 11 of the Act, when the relationship of landlord and tenant is denied, the Rent Controller must determine that question finally by making a regular enquiry and not provisionally by making a summary enquiry before assuming jurisdiction in the matter and pass orders and such a determination will be the decision in the main eviction petition itself. We answer the question referred accordingly.

Parthasarathi, J.

23. While agreeing that the question referred to us should be answered in the manner proposed by my learned brother I shall state my reasons for my concurrence.

24. In the order of reference, the validity of the view taken by a Division Bench on an earlier occasion was doubted in these terms;

'Not only is there no provision in Section 11 of the act for making a summary enquiry with regard to the relationship of landlord and tenant as is specifically provided for in section 11 (3) with regard to the quantum of arrears of rent, we find a provision for such enquiry under the proviso to Section 10 (1) of the act. As pointed out by our learned Brother, Ekbote, J., in Hari Rao v. Subbalakshmamma, (1966), 1 Andh WR 122, the denial of relationship of landlord and tenant by the respondent is a jurisdictional matter which will have to be decided by the rent Controller before he assumes jurisdiction.'

25. It was further observed that the Rent Controller is under a duty to decide under the proviso to Section 10 (1) whether the denial of the title of the landlord or the claim of permanent tenancy is bonafide. If the controller finds that the claim or denial is not bonafide he shall have to pass an order of eviction as provided by Section 10 (2) (vi). The enquiry under the proviso to Section 10 (1) can result in one of two possible alternatives. If the denial of title or the claim of permanent tenancy is held to be bona fide, the petition for eviction has to be rejected. If on the other hand the denial of title or the claim of permanent tenancy is held to be not bona fide the order of eviction would have to follow straightway under the provisions of Section 10 (2) (vi).

26. The provisions of Section 11 were then adverted to in the order of reference. It was pointed out that if as a result of a summary enquiry under Section 11 a direction as to deposit of rent is made and if the tenant is evicted for non-compliance with the order, considerable hardship would arise in the cases where as a result of regular enquiry the relationship of landlord and tenant is not established.

27. The view taken by the learned judges rests on the hypothesis that the enquiry under Section 11 is a distinct proceeding the effect of which is limited to that proceeding. The learned judges also thought that, if the view taken in the summary enquiry under Section 11 about the merits of the tenant's plea is reversed as a result of more elaborate enquiry to be made by the Rent Controller at a later stage in the main eviction petition, the eviction ordered as a result of the erroneous order made in the summary process would occasion great hardship. Such a situation, the learned Judges thought, could not have been intended by the legislature. It was as a result of the process of reasoning outlined above that the learned referring Judges indicated preference for the view which runs counter to the ratio of the earlier decision.

28. On a careful reading of sections 10 and 11 and on a consideration of the entire scheme of the statute, it appears to me that it is fallacious to regard the proceedings under Sections 11 and 10 as altogether distinct and unrelated to each other. The Scheme of the enactment leaves one in no doubt that, the application under Section 11 and the proceeding either before the Rent Controller or before the Appellate authority under that section is no more than an interlocutory application in the main proceeding. Where the party opposing the application for eviction denies the jural relationship of landlord and tenant, the rent Controller is bound to adjudicate on the plea as a collateral or jurisdictional fact. The legislature has been clear indication that in proceedings for eviction, the Rent Controller is under an obligation to decide the controversy if a plea of want of title of the landlord is put forward as a defence. This duty to decide arises in all cases of denial of the relationship of landlord and tenant although section 10 refers only to the two instances of denial of title and claim of the permanent tenancy.

29. In view of the fact that the statute does not postulate a separate or a summary enquiry under Section 11 and a further or more elaborate enquiry at a later stage in the main petition, the argument based on inconveniences and hardship is, in my opinion, untenable.

30. The effect of the two sections may be stated as follows:

Section 10 enacts that a tenant shall not be evicted except in accordance with the provisions of Sections 12 and 13. At the very threshold, the legislature envisaged a situation where the denial of the title of the landlord or a plea of permanent tenancy might be made. It is incumbent on the Controller to decide whether such a plea is bona fide. Where the opposite party succeeds in establishing the bona fide of such a plea, the landlord shall be entitled to pursue the normal remedy for eviction in a Civil Court. Section 10 thereafter mentions the grounds on which an eviction might be ordered. One of the grounds is that the tenant has denied the title of the land lord or claims a right of the permanent tenancy and such denial or claim was not bona fide. It is apparent from this provision that a plea bearing on permanent tenancy or on the lack of title of the landlord is justiciable in the proceeding before the rent Controller and that the competence of the Special tribunal to decide the controversy is indisputable. It is unnecessary to analyse further the provisions of Section 10.

Section 11 contemplates a proceeding which is ancillary to the proceeding under Section 10. It enacts that to enable a tenant to contest the application for eviction made by the land-holder, arrears of rent that accrued due should be paid and that no part of the future rent should be allowed to fall in arrears during the pendency of the proceeding before the rent Controller or the Appellate Authority. The wording of section 11 makes it explicit that the orders that the court may have to pass in considering the matters specified in Section 11 are ancillary in nature. The intention is to deny to the opposite party the right to contest the proceeding except on the fulfillment of the obligation as to payment of rent. It is manifest that the proceeding under section 11 is necessarily dovetailed to the main petition for eviction. The orders passed under Section 11 are intended to subserve or make fully effectual the ultimate result of the petition for eviction.

31. The right to resist eviction is made to depend on the fulfillment of the obligation to pay rent. The object underlying Section 11 cannot be achieved unless the controversy as to jural relationship is resolved. This proposition I deem to be the main and indisputable premises. It follows that the decision on the jural relationship of the parties pertain to the entire proceeding. In other words, when the rent controller decides the question, whether on application made under Section 11, or when the plea as to the absence of jural relationship is taken and decided even apart from application under Section 11, the decision governs the entire proceedings; there is no need or occasion to consider the matter further or de novo at any subsequent stage.

32. The situation contemplated by the learned referring judges does not arise if sections 10 and 11 are read and understood in the manner indicated above. The assumption made in the order of reference that, the controversy relating to the jural relationship between the parties to the petition is to be decided in a summary manner under Section 11, and later in a more elaborate manner under Section 10, does not accord with the legislative intendment or the provisions of the two sections.

33. It must be remembered that the legislature has constituted a Tribunal which is to exercise the power of deciding, for the purpose of the proceeding before it, whether, the relationship of landlord and tenant subsists. It is necessary to recall to mind the principle set out in the classical exposition thereof by Lord Esher M.R., R. V. Commissioner for Special Purposes of Income Tax (1888) 21 QBD 313. The Master of Rolls indicated the dichotomy that is inherent in a situation like the one in the instant case arising by the constitution of a special Tribunal by a statute. Where the tribunal is given power to do certain things and decide some facts, the legislature may in effect say that, if a certain stage of facts exists and is shown to such tribunal before it proceeds to do certain other things, it shall have the jurisdiction but not otherwise. It is not for the special tribunal conclusively to decide whether the state of facts exists. If the tribunal exercises the jurisdiction without the existence of the necessary facts it will be held that it has acted without jurisdiction.

34. Applying that principle to the provisions of Sections 10 and 11 it will be noticed that the legislature has given the power to the Rent Controller to adjudicate on the question whether the jural relationship is of landlord and tenant. It is evident that the rent Controller's jurisdiction depends on the parties before it being landlord and tenant. If such a relationship does not in fact exist, but nevertheless the tribunal has erroneously pronounced that the jural relationship exists and proceeds to decide the controversy, the result will be that the tribunal would be held to have acted upon without jurisdiction. The party aggrieved can have the decision set aside by pursuing the remedies open to him at law. There is no merit in saying that a wrong decision on the question of jural relationship is productive of hardship only when it is made under Section 11. An erroneous decision on the same question, if reached in the main petition itself, is equally productive of hardship. The party defending the action might in both cases be subjected to hardship as a result of erroneous decision of the court. The question is not whether a hardship occasioned by the erroneous decision but rather the test is whether the legislature did not clothe the Rent Controller with the jurisdiction to decide the question and to do certain things as a consequence of the decision. Viewed in this light I have no doubt that the legislature has conferred on the Rent Controller and the Appellate Authority the power to decide the question of jural relationship between the parties to the proceeding. The legislature has entrusted the tribunal with jurisdiction which includes the jurisdiction to determine whether the relationship of landlord and tenant exists. If the tribunal finds that it does not exist it cannot proceed further and it will have to dismiss the proceeding as incompetent.

35. In suits on negotiable instruments leave to defend the action has to be obtained in some cases before the defendant is allowed to have adjudication of his defence. The position under Section 11 offers parallel to this extent that the amount claimed by the landlord has to be paid as a condition precedent to participate at the inquiry. The object will be frustrated if the section is to be construed in the manner asked for by the respondent. If that construction were to prevail, one has only to deny the relationship of tenancy to continue in possession without paying anything for the occupation.

36. The legislature apparently thought that the hardship arising in a few cases where a party is thrown out of possession by an erroneous decision under Section 11 is negligible when compared with the hardship that would be caused, if tenants are allowed to drag on contumaciously proceedings for eviction, although, they are in default. While the possibility exists of the special tribunal acting erroneously so as to subject a person who is not a tenant to the hardship of eviction, the legislature in its wisdom thought that this is outweighed by the larger and more manifest benefit accruing from the insistence on the payment of rent as a condition precedent for entertaining the defence of the opposite party. The point to be emphasised is that there is no warrant for making a distinction as regards decisions involving such hardship at the stage contemplated by section 11. The position is essentially the same whether the tribunal commits an error at the earlier stage of Section 11 or at the later stage of the main enquiry. In either case hardship is inevitable and it can be set right only by the remedies of appeal and revisions or by regular actions in Civil courts.

37. In my opinion there can be only a single decision on the question of the legal relationship in the entire proceeding for eviction and not two decisions as conceived in the order of reference.

38. The proceeding under Section 11 is an integral part of the main application for eviction. The plea that the requisite jural relationship is absent and that the tribunal cannot act in the manner desired by the lanalord is a controversy that the Rent Controller has the competence, to decide. A decision on this question pertains to the entire proceeding and determines its future course and it is erroneous to deem the proceedings under Section 10 and 11 as two distinct and unrelated proceedings. I am consequently of opinion that there is no warrant for the assumption that the decision under Section 11 is summary and that a further decision on the same matter under Section 10 would have to be rendered.

39. In pursuance of the above said order this petition finally coming on for hearing upon perusing the orders of this court and the petition and the orders of the Lower court and records in the case and upon hearing the arguments of Mr. C. P. Sarathy, and Mr. C. Jayashree Sarathy, Advocates for the petitioners and Mr. Madhukara Rao Ganu, Advocate for the respondent. The court made the following order :

' In view of the answer given by the Full Bench this Civil Revision Petition is dismissed but in the circumstances without costs. The learned counsel for the respondents submits that the respondent should be permitted to withdraw the amount deposited by him before the Appellate Authority. He may do so at his own risk.'

40. Petition dismissed.


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