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Rachaputi Venkateswaralu Vs. K. Subrahamanyam and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1092 of 1972
Judge
Reported inAIR1973AP206
ActsAndhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 - Sections 2, 10(2); Code of Civil Procedure (CPC), 1908 - Order 22, Rule 10; Transfer of Property Act, 1882 - Sections 108-J
AppellantRachaputi Venkateswaralu
RespondentK. Subrahamanyam and ors.
Appellant AdvocateY.G. Krishna Murty, Adv.
Respondent AdvocateS.V. Kondapi, Adv.
Excerpt:
tenancy - sub tenant - sections 2 and 10 (2) of andhra pradesh buildings (lease, rent and eviction) control act, 1960, order 22 rule 10 of code of civil procedure, 1908 and section 108 j of transfer of property act, 1882 - question raised in petition was whether transferee of tenancy can come on record as appellant in place of original tenant and continue appeal - there is no provision in act enabling such transfer and such transferee does not fall under definition of tenant - held, appeal cannot be continued by transferee of tenancy in place of original tenant. - .....transferor-tenant against an order of eviction passed under the andhra pradesh buildings ( lease, rent and eviction) control act ( hereinafter called the act ).2. my answer to the question is in the negative. i will now proceed to my reasons therefor.3. before i do so, i must refer to the facts of the case. the tenancy relates to a non-residential building. the ist respondent before me was the original tenant. the 2nd respondent landlord filed an eviction petition against him on the ground that he had fallen into arrears in payment of rent. according to her, the stipulated rent was rs. 100 /- per month. but the tenant contended that there was no arrears at all since the rent was only rs. 50 /- per month. all the same the rent controller accepted the landlord's case and ordered eviction......
Judgment:
ORDER

1. The question that has to be answered in this revision petition is whether a transferee of tenancy can come on record as the appellant in an appeal preferred by the transferor-tenant against an order of eviction passed under the Andhra Pradesh Buildings ( Lease, Rent and Eviction) Control Act ( hereinafter called the Act ).

2. My answer to the question is in the negative. I will now proceed to my reasons therefor.

3. Before I do so, I must refer to the facts of the case. The tenancy relates to a non-residential building. The Ist respondent before me was the original tenant. The 2nd respondent landlord filed an eviction petition against him on the ground that he had fallen into arrears in payment of rent. According to her, the stipulated rent was Rs. 100 /- per month. But the tenant contended that there was no arrears at all since the rent was only Rs. 50 /- per month. All the same the Rent Controller accepted the landlord's case and ordered eviction. Against that order, the Ist respondent preferred an appeal to the Sub Court, Nellore in C. M. A. 16/1970. Sometime later the petitioner filed I. A. No. 287/1971 in the appeal for bringing him on record as the appellant on the ground that the Ist respondent had sold him the tenancy right along with stock in trade and goodwill. The petition was dismissed by the lower Court saying that such substitution could not be made. The aggrieved petitioner brought C. M. A. No. 156/72 to this Court. But a petition was filed on his behalf in C. M. P. No. 4928 of 1972 seeking conversion of the Civil Miscellaneous Appeal into a Revision Petition under Section 22 of the Act. The same was granted by me and consequently the matter is now before me in the form of a Revision Petition.

4. It is common ground that the landlord was not a party to the agreement between the petitioner and the Ist respondent for transfer of the tenancy. It is also common case that according to the tenancy agreement the tenant could not sub-let the premises. It is, therefore, manifest that the transfer of tenancy did not bind the landlord. Sri Y. G. Krishnamurty appearing for the petitioner is unable to place before me any provision in the Act or in the Rules made thereunder, which enables a tenant to unilaterally transfer the tenancy in favour of third person.

5. Indeed he cannot do so because without the consent of the landlord a tenant cannot induct or impose another tenant in his place and foist him on the landlord. The provisions of the Act make this position quite clear. Section 2 (ix) of the Act defines ' tenant ' as any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son or daughter, of deceased tenant who had been living with the tenant in the building as a member of the tenant's family upto the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building, by its tenant or a person to whom the collection of rents or fees in a public market, cartstand or slaughter house or of rents for shops has been framed out or leased by a local authority. It is thus manifest that it is only a person who has been agreed to by the landlord that can be called a tenant or when he dies, his surviving members of the family or a tenant who is holding over after the termination of the tenancy. The definition goes farther and declares that a person brought into occupation of the premises by its tenant is not a tenant. In other words even if there is an agreement between the tenant and the third person about the transfer of tenancy without the consent or agreement of the landlord, the third person will not become a tenant within the meaning of the Act even though he has been in occupation pursuant to his agreement with the tenant.

6. A reference to Section 10 (2) of the Act would also make the position clear. Section 10 provides the manner in which tenants can be evicted. Sub-section ( 2) thereof enumerates grounds on which eviction can be sought. Clause (ii) of sub-section (2) provides that if a tenant has, without the written consent of the landlord, transferred his right under the lease or sub-let the entire building or any portion thereof if the lease does not confer on him any right to do so, it would be a ground for his eviction. It is common ground, as I have stated that the lease does not confer any right on the tenant to sub-let and also there is no consent of the landlord for the transfer. Then the transfer of tenancy will be a ground for eviction. Learned counsel argues that such a transfer may be a ground for eviction, but is not forbidden by the Act. But such an agreement is a futile one because such transfers are discountenanced by the Act. If a transfer of tenancy is made out, a tenant is liable to be evicted and as per the provisions of S. 23 of the Act and order of eviction against a tenant passed under the Act shall bind all sub-tenants whether they were parties to the eviction proceedings or not.

7. It is thus seen that there is not only no provision in the Act enabling such a transfer, but also that such transfer is discountenanced. Further, the definition of tenant declares that transfree will not be a tenant. In other words, a transfree, under the circumstances, has no legal status within the frame work of the Act. It is, therefore, difficult to hold that he could conduct a proceeding after bringing himself on record as an appellant or a petitioner. Nevertheless learned counsel for the petitioner refers me to Section 108(J) of the Transfer of Property Act, which enables lessee to transfer, by way of mortgage or sub-lease, his leasehold right in the property and contends that by virtue of this provision, the Ist respondent was entitled to transfer his leasehold right. But this argument forgets that the Act is a special enactment dealing with regulation of leasing of buildings of unreasonable eviction of tenants thereof and has received the assent of the President. Therefore in the matter of relations between landlord and his tenant in regard to buildings which come within the scope of the Act in the tenant to transfer his leasehold right without the consent of the landlord.

8. Even so, it is argued that Order XXII, Rule 10, Civil P. C. enables any person, in whose favour an assignment, creation or devolution of any interest takes place during the pendency of a suit to continue the suit and so, the petitioner by virtue of this provision of the Code of Civil Procedure can continue the appeal. He relies on a bench decision of the Court in Hari Kishan Singh v. B. Narayan, ( ( 1971 ) 1 Andh LT 29 ) wherein it is laid down that :

'the provisions of the Civil P. C., would as far as possible be applied to the proceedings under the Rent Control Act, in cases where no adequate provision is made in the Act or the Rules and provided that the provisions sought to be applied are not in consistent with any express provision of the Act or with the scheme and purpose of the enactment. ' Since there is no adequate provision in the Act for bringing such transferees of tenancy on record, it is argued. O. XXII. R. 10, Civil P. C., should be applied to the circumstances of the case.

On the other hand, Sri Kondapi relying on Menta Subbaramayya v. Batchu Narasimha Swamy, : AIR1972AP186 and Chekoti Lingayya v. Ravipati Lakshminarasimma, ( 1962-1 An WR 294 ), maintains that the revisions of the Civil P. C., do not apply to proceedings under the Act. In the former case my learned brother Sriramulu, J. Sitting single, held that the Rent Controller is not a Court and hence the proceedings instituted before him for eviction are not suits and consequently Order XXII Rule 10, Civil P. C ., was not applicable to the proceedings. In the latter case Narasimham, J., ( as he then was ) held that the Civil P. C. is not made applicable to the proceedings before the Rent Controller. However, Sri Krishnamurty maintains that the decision in Hari Kishan Singh v. B. Narayan, ( 1971 ) 1 Andh LT 29 ) being a decision of a Division Bench should be followed. But even in that decision Kuppuswami, J., speaking for the Court observed :--

'We are inclined to agree with the view that the provisions of the Civil P. C. Would as far as possible be applied to the proceedings under the Rent Control Act in cases where no adequate provision is made in the Act, or the Rules and provided that the provisions sought to be applied are not inconsistent with any express provision of the Act or with the scheme and purpose of the enactment. '

While laying down this rule, the learned Judges held that Order XVIII, Rule 15 of the Civil P. C., cannot be applied to the proceedings before a Rent Controller. Likewise, in the present case, I find that the continuation of an appeal by the transfree of the tenancy in the place of the Original tenant is wholly inconsistent with the definition of ' tenant ' contained in the Act and also with the provisions of Section 10 (2) (ii). Thus I find that even applying the rule laid down by the Division Bench in the aforesaid case, it cannot be said that O. XXII, Rule 10, Civil P. C. can be availed of.

9. In view of the above discussion, the conclusion is that a transferor of tenancy cannot continue the appeal. It follows that the lower Court is right in dismissing the petition. The present revision petition is without any merits and it is accordingly dismissed with costs of the contesting 2nd respondent.

10. Revision dismissed.


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