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Mahboob Bi Vs. Alvala Lachmiah - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 227 of 1961
Judge
Reported inAIR1964AP314
ActsLimitation Act, 1908 - Sections 2(10) and 18; ;Andhra Pradesh Building (Lease, Rent and Eviction) Control Act, 1960 - Sections 10, 20, 20(3) and 22; Evidence Act - Sections 114; Code of Civil Procedure (CPC) - Sections 115
AppellantMahboob Bi
RespondentAlvala Lachmiah
Appellant AdvocateN.V. Ranga Rao, Adv.
Respondent AdvocateP. Shivshankar, Adv.
DispositionRevision allowed
Excerpt:
.....buildings (lease, rent and eviction) control act, 1960 - landlord filed eviction petition before rent controller - tenant refused to take notice served upon him - tenant filed appeal before city small causes court against passing of eviction order - appeal allowed and case remanded back to rent controller to pass fresh order - revision petition filed by landlord challenging entertainment of appeal overlooking bar of limitation - suit under section 2 (10) does not include appeal - no applicability of section 18 in case of fraud in serving notice to tenant - appeal filed by tenant is barred by time and is illegal - lower court not competent to remand case to rent tribunal by virtue of section 20 (3) - moreover no service of notice as it has been refused by tenant - without any notice..........no resort to any other alternative than to set aside the, order of the rent controller thus find force in the contention of mr. shiv shankar that if the order of remand cannot be sustained, the petition before the rent controller has to be dismissed.9. in the result, both the orders of the rentcontroller and of the appellate authority are set aside.but it is made clear that the right of the landlord tofile a fresh application for eviction if otherwise in accordance with law, is not affected by this order. thoughthe c. r. p. is allowed, there will be no order as tocosts.
Judgment:

Munikannaiah, J.

1. This revision petition against the orders of the Chief Judge, City Small Causes Court, Hyderabad, has been filed by the 'Landlord' under Section 22 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960.

2. The facts leading up to this revision petition are the following: The petitioner filed Case No. 1154/60/EV before the Rent Controller, Hyderabad, against the tenant for eviction of the tenant from house bearing No. 22-1-277 (old No. 3894) situated at Anduroon Chaderghat. Tha 'Landlord' who is a woman alleged that the tenant has denied her title and wilfully defaulted to pay the rent. She also complained that the tenant has un-authorisedly sub-let portions of the house. She also maintained that the house was bona fide required for use as her residence.

3. The Rent Controller considered that the refusal of the tenant to receive notice of the proceedings sent by registered post entitled him to set the tenant ex parte and proceed to consider the application for eviction. He held that the petitioner owned the house, that the tenant has committed wilful default in payment of the rents; and that inasmuch as he also found that the house was required for the use of the landlord, he ordered eviction. He, however, negatived the contention of the landlord that the tenant sub-let the house.

4. Aggrieved by this order, the tenant filed Appeal No. 15/3 of 19S1 in the City Small Causes Court, Hyderabad. A preliminary objection was taken by the respondent (landlord) that the appeal is barred by limitation as it was filed six days after the time allowed for filing the appeal. This was met by the appellant therein by alleging that he had no knowledge of the proceedings before the Rent Controller and that he was never served with the notices of the proceedings before the Rent Controller. The landlord, had, therefore, to rely upon the notice sent by registered post and the endorsement of refusal thereon to prove that service was effected. This is countered by the tenant averring that fraud was practised in the matter of service of the registered notice and therefore the tenant is entitled to rely upon Section 18 of the Limitation Act and compute the time available to him for filing the appeal as from the date when the fraud first became known to him. The learned Chief Judge of the City Small Causes Court held the view that though Section 5 of the Indian Limitation Act did not apply, the appellant (tenant) was, however, entitled to the protection afforded by Section 18. In that view and also because he felt that the order of setting the respondent to the eviction petition ex parte does not serve the ends of justice, he allowed the appeal and remanded the case to the Rent Controller to pass a fresh order after taking evidence of the parties.

5. In this revision petition, Mr. Ranga Rao for the petitioner (landlord) conterded that the lower Court has misapplied Section 18 of the Limitation Act and illegally entertained the appeal overlooking the bar of limitation by time. In support of this, his arguments were two-fold. Firstly, he maintained that Section 18 of the Limitation Act is inapplicable to the case of an appeal, and that there-fore the plea of the tenant based upon fraud as giving him an extended period of limitation for the purpose of filing an appeal will not avail the tenant. A reading of the section, to my mind, supports this contention. Section 18 of the Limitation Act is in the following terms:

''Where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded, or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit or making an application--

(a) against the person guilty of the fraud or accessory thereto, or

(b) against any person claiming through him otherwise than in good faith and for valuable consideration, shall be computed from the time when the fraud becomes known to the person injuriously affected thereby, or, in the case of the concealed document, when he first had the means of producing it or compelling its production.' No doubt, there is definite mention of the word 'suit' alone in this section, and when regard is had to the fact that the definition of 'suit' under Section 2(10) of the Limitation Act is made not to include an appeal or an application, the contention should, in my view, be held to be sound. That apart, it is rather difficult to follow the reasoning of the lower Court as to how Section 18 could at all be called in aid by the appellant (tenant) as that Section cannot be said to govern the case of fraud, if any, in respect of service of notice. That section could be said to come into play where the suitor who had to institute a suit or an application has been kept out of such right or of the title on which that right is founded and there is no mention of fraud in regard to service of notice of proceedings. Both these reasons, therefore, impel me to hold that the entertainment of the appeal by the City Small Causes Court, Hyderabad, after the expiration of the time for filing the appeal, is illegal.

6. The second attack against the judgment of the City Small Causes Court has been that even if the appeal has been validly entertained and the preliminary objection has been rightly overruled, still that Court is not competent to remand the case to the Rent Controller and direct a fresh trial of the case. In support of this, learned counsel for the petitioner placed strong reliance on Sub-section (3) of Section 20 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act (Andhra Pradesh Act XV of 1960). That provision reads:

'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 inquiry as he thinks fit either personally or through the Controller, shall decide the appeal . . . . . ... .'

This, it may be pointed cut, is in pari materia with Sub-section (3) of Section 25 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act (Hyderabad Act No. XX of 1954) which has been considered by Mohammed Ahmed Ansari, J. (as he then was) in Brijmohanlal v. Rajalingam, 1959 Andh LT 206. The question whether by virtue of this provision the jurisdiction to remand a case for fresh, decision by the Controller on merits was then considered, and it was observed that inasmuch as the appellate Court is to order further inquiry which is either to be done personally or through the Controller, it is implicit that the appeal should be kept pending all the time before appellate authority. For this reason, it was held that an order of remand by the appellate authority was incorrectly made. As the language of Sub-section (3) of Section 20 of the Andhra Pradesh Act XV of 1960 is unambiguous, there can be no two interpretations regarding the meaning of that sub-section. I am in entire agreement with the view taken by Ansari J.. Therefore the argument that an order of remand such as the one passed by the appellate authority is clearly unsustainable. From what I am thus prepared to hold in regard to the two points taken before me and dealt with above, it has to follow that the appeal before the lower appellate Court was incompetent, and that the order of remand is Incorrect. But yet another peculiar feature in this case renders it difficult to allow the order of eviction passed by the Rent Controller to stand while allowing this revision petition against the appeal. The lower Court in allowing the appeal has been definitely of the view that the tenant was not aware of the proceedings before the Rent Controller because fraud had been practised. The rower Court was thus of the view that the tenant (respondent herein) was unaware of the proceedings before the Rent Controller and was thus kept away from participating in the proceedings. But I am however of the view that the order of the lower Court does not disclose enough material to find clearly that any fraud had been practised. Nevertheless, it is beyond doubt that the tenant could have no notice of the proceedings before the Rent Controller and at any rate It becomes rather difficult to have to hold that there was service of notice on a person when the registered letter has been refused and no notice has beer affixed or otherwise notified. It is, in my view, for this reason that the provisions of the Civil Procedure Code make it obligatory that when service cannot be effected personally, it has to be affixed and a report to that effect is also insisted upon (Vide provisions of Order V of the Civil Procedure Code.) While such sanctity attaches to putting a party on notice of the happenings in Courts or of all other proceedings against a person, it cannot be said that a mere endorse merit of refusal of a postal notice without more, should be considered as service of the notice even in Rent Control proceedings. To my mind, the language of Rule 8 framed under Hyderabad Act No. XX of 1954 amply brings out that such a purpose underlies it also. That rule reads:

'All notices shall ordinarily be served by registered post with acknowledgment due, and when this cannot be effected or is not feasible, in such other manner as the Controller may deem fit in the circumstances of the case.'

When analysed, this would mean that resort to sending notice by registered post is allowable ordinarily and when served would achieve the purpose of effectiving service, but cannot be taken to mean that the sending of the notice by registered post is by itself service of the notice. To my mind, this Rule contemplates that service of the 'notice sent by registered post must also be effected-which again implies that the notice sent by registered post must actually reach the hands of the person to whom the notice is sought to be served. Therefore, it is not possible to read into this Rule that any presumption in regard to service without actual service is either contemplated or invoked or made to apply and it is therefore in the latter part of this Rule, we find the following, viz., 'when this cannot be effected or is not feasible.' The word 'this' employed here would certainly refer in the context to 'service' which has been meant in the earlier part of the same rule. Thus reading the rule, it is not possible to interpret it as incorporating the presumption of service even in cases where there has been refusal to receive notice, Even if fraud is not committed by the person seeking to serve the registered notice at the other end but there has been a refusal for whatsoever reason to receive the notice, there could be no difference in regard to the effect of such non-service. Moreover nothing has been placed before me to show that there is any duty cast upon any person to receive every letter or notice sent by registered post, nor does the refusal to receive has been made the subject-matter of any presumption which may arise under Section 114 of the Evidence Act. Then again, there is the practical difficulty of having to import the knowledge of the date of hearing or the precise proceedings with which the registered notice is concerned in the case of a mew refusal to receive a registered notice. Therefore, these considerations will certainly weigh against accepting an argument that the mere refusal of a registered notice should be taken as service of the notice to the addressee-It is also pertinent to observe that it is for this reason that Rule 8 of Hyderabad flct XX of 1954 itself contemplates that in cases where service cannot be effected or is not feasible, service should be effected in such other manner as the Controller may deem fit in the circumstances of the case. This thus indeed casts a duty upon the Controller to effect service by other means in all cases where the service of the registered notice has not been effected by handing over the letter with the notice, or when the service does not become feasible for any reason whatsoever. Considered this way, I have no hesitation in holding that in the instant case there was no service of the postal notice because it has been refused, and that there has not been service in any other manner which is obligatory under Rule 8. The instant case would, therefore, be one where the proceedings before the Rent Controller were got on without any notice to the respondent and is therefore totally vitiated for the reason that these proceedings without notice to the respondent is illegal and opposed to principles of natural justice.

7. At this stage, it may be mentioned by way of clarification that on the date when this petition was filed before the Rent Controller for eviction i.e., on 3-11-1960, though Andhra Pradesh Act No. XV of 1960 was in force, no rules were framed thereunder, and that the Rules framed under Hyderabad Act XX of 1954 should be taken to continue in force by virtue of the second proviso to Section 33. It is, therefore, more than plain

that Rule 8 of the Rules framed under Hyderabad Act on 28-10-1954 remained to force and applying the same, the above conclusion that the proceedings before the Rent Controller are vitiated, found support from the language of Rule 8 itself.

8. It now remains to consider what order has to be passed in this Revision petition especially when I have reached the conclusion that the order of the lower Court passed in the appeal has to be set aside and that the order of the Rant Controller has been found to be vitiated for want of notice to the Respondent. Mr. Ranga Rao raised a question that that appeal provided under Section 12 of Andhra Pradesh Act XV of 1960 does not contemplate the films of a revision against the orders on the petition for eviction passed by the Rent Controller, but only against the orders of the Controller in execution under Section 15 and the orders of the appellate authority on appeal under Section 20, and that therefore, it would not be competent for this Court while exarcising powers of revision, to interfere with the orders of the Rent Controller. In ether words, the contention has bean that whatever might be the findings in regard to the service of notice, this Court should allow the revision petition and dismiss the appeal but is powerless either to remand the matter for fresh disposal by the Rent Controller, or to set aside the order of the Rent Controller as the appellate Court did not choose to do so. I am unable to accept this contention. No doubt, the learned counsel for the petitioner has pointed out that there is a difference in the language of Section 26 of Hyderabad Act XX of 1954 and Section 22 of Andhra Pradesh Act XV of 1960, though both of them relate to revisions. While in Section 26 of the Hyderabad Act, an application for revision shall lie to the High Court from any final order passed on appeal by an appellate authority on the ground that the original or appellate authority exercised a jurisdiction not vested in it by law, or that the original or appellate authority failed to exercise a jurisdiction so vested, or in following the procedure or passing the order the original or appellate authority acted illegally or with material irregularity, Sub-section (1) of Section 22 of Andhra Pradesh Act XV of 3960 merely says that :

'The High Court may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceeding taken under this Act by the Controller in execution under Section 15 or by the appellate authority on appeal wider Section 20, for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceeding, and may pass such order in reference thereto as it thinks fit,'

Poiniing out to the fact that the Hyderabad Act XX of 1954 had mentioned specifically a revision to the High Court will lie against orders of original or appellate authority and the same words are absent in Section 22 of Andhra Pradesh Act XV of 1960, the learned counsel argued that the revisional powers vested in the High Court is only as against the appeal as such and the powers thus vested in the High Court do not contemplate any interference with the orders of the Rent Controller. This line of reasoning is also sought to be supported by again pointing cut that in Section 22 there is specific mention of exercise of revisional powers by the High Court when the orders of the Controller are concerned only in respect of orders passed or proceedings taken by the Controller in execution under Section 15. The reasoning thus indicated is that when there is thus exclusion of revisional powers directly against the orders of the Rent Controller in respect of matters other than those pertaining to execution under Section 15, it must also follow that orders of the Rent Controller cannot be interfered with and any alteration of it can be in appeal only. But this is, in my view, not only a narrow interpretation of the language of Section 22, but is not warranted by any precedent or authority. On the other land, the pronouncement in Annamalay Chetty v. B. A. Thornhill, AIR 1931 PC 263 which clearly outlines the effect of decisions of appellate Courts and those of the trial Courts and the adoption by a Division Bench of the Bombay High Court consisting of Chagla C. J., and Gajendragadkar, J. in Indra Singh V. Shivax Cawasji, AIR 1948 Bom 347 of that principle manifestly makes out that the order of a trial Court has no independent existence or force apart from the appellate order or decree when it becomes the subject-matter of that appeal. The decision of Salyanarayana Raju, J. in Ethirajamma v. Raghavulu Setti, (1956 Andh WR 1079) considered the question of revisional powers under Section 12-B of the Madras Buildings (Lease and Rent Control) Act, 1949 which is in pari materia with Section 22 of the Andhra Pradesh Act XV of 1960. After referring to the connotation of the words 'legality, regularity or propriety' employed in Section 64A of the Motor Vehicles Act for the purpose of arriving at moaning of those same words which are used in Section 12-B of Madras Act XXV of 1949, and also the opinion of the Division Bench of the Andhra High Court consisting of Viswanatha Sastri and Bhimasankaram, JJ. In Kesava Rao v. Subbaraju, 1955 Andh WR 85 : 1956 Andh LT 67 (AIR 1957 Andh-Pra 55) and deriving support also from the pronouncement of the Supreme Court in Raman and Raman Ltd. v. Government of Madras, (S) : [1956]1SCR256 , the learned Judge held that though Section 12-B cannot in effect and substance, be taken to be a reproduction of the appeal provision, it is equally clear that Section 12-B is wider than the language of Section 115 C. P. C. He sums up that the words 'legality, regularity or proprieity of the order are wide enough to cover both questions of law and fact and go far beyond the revisional jurisdiction strictly so called. 'If further the observation of Viswanatha Sastri, J. viz.,' It is irregular if the procedure followed is in violation of principles of natural justice and fair play in 1956 Andh WR 85; 1956 Andh LT 67 : (AIR 1957 Andh-Pra 55) is taken account of in this content as pertaining to the connotation of 'regularity' used in Section 12-B, the interference by this Court when those principles have been found to be violated would certainly be within the province of the powers under Section 12-B. A fortiori it can therefore be postulated that the same is the case with reference to the revisional powers conferred by Section 22 of Ardhra Pradesh Act XV of 1960; but undoubtedly the limitation imposed by Sub-section (3) of Section 20 as to making orders of remand, as already pointed out, will have, in my view, to be observed even by the, revisicnal Court. Such being the case, there can be no resort to any other alternative than to set aside the, order of the Rent Controller thus find force in the contention of Mr. Shiv Shankar that if the order of remand cannot be sustained, the petition before the Rent Controller has to be dismissed.

9. In the result, both the orders of the RentController and of the appellate authority are set aside.But it is made clear that the right of the landlord tofile a fresh application for eviction if otherwise in accordance with law, is not affected by this order. Thoughthe C. R. p. is allowed, there will be no order as tocosts.


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