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D. Balakrishnamurthy and ors. Vs. Manasani Veeranarassaiah Alias - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberC.R.P. Nos. 1490 and 1849 of 1968
Judge
Reported inAIR1971AP251
ActsAndhra Pradesh Buildings (Lease, Rent and Eviction Control) Act, 1960 - Sections 10 and 23; Code of Civil Procedure (CPC), 1908 - Order 23, Rule 3
AppellantD. Balakrishnamurthy and ors.
RespondentManasani Veeranarassaiah Alias ;narasimha and anr.
Appellant AdvocateK. Venkatachar, Adv. for N.S. Murdikar, Adv.
Respondent AdvocateM. Surya Gupta, Adv.
Excerpt:
.....tenant ordered to be evicted - sub-tenant contended that order of eviction based solely on consent of parties lacked jurisdiction base and so such decree was nullity - order of eviction against tenant effective against sub-tenant as well - legality of decree can be questioned only on grounds of fraud and collusion - order of eviction based on consent not necessarily void of jurisdictional basis - where tenant elects not to proceed with case it is natural to presume that his defence is meritless - consent between landlord and tenant prima facie evidence that conditions of section 10 are satisfied - case remitted to lower court to decide afresh in light of observations made. - - the order of eviction obtained against a tenant is effective against the sub-tenant as well..........for the eviction of the tenant under section 10 of the andhra pradesh buildings (lease, rent and eviction control) act. 1960 (hereinafter referred to as the act)' was granted. the order of eviction relates to the non-residential premises bearing door nos. 87-b-1 and 87-a situate at sarojinidevi road, secunderabad. the landlords petitioners based their application for eviction on the allegation, of wilful default in payment of rent, submission of the landlords. and the user of with the purpose of the lease. the tenant, who was the sole respondent in the application,. raised several pleas in his answer to the petition. he denied that there was a sub-lease and asserted that he himself was carrying on business in the premises in the name and style of 'rio cafe' and that the.....
Judgment:
ORDER

1. In Rent Control Case No.577 of 1963 on the file of the Rent Controller. Sucunderabad. an application for the eviction of the tenant under Section 10 of the Andhra Pradesh buildings (Lease, Rent and Eviction Control) Act. 1960 (hereinafter referred to as the Act)' was granted. The order of eviction relates to the non-residential premises bearing Door Nos. 87-B-1 and 87-A situate at Sarojinidevi Road, Secunderabad. The Landlords petitioners based their application for eviction on the allegation, of wilful default in payment of rent, submission of the landlords. and the user of with the purpose of the lease. The tenant, who was the sole respondent in the application,. raised several pleas in his answer to the petition. He denied that there was a sub-lease and asserted that he himself was carrying on business in the premises in the name and style of 'Rio Cafe' and that the alleged sub-tenant was no other than his agent who was assisting him in the business. It was also stated that in the premises Door No.87-A,, business in the name of the 'Dio laundry' was being carried on by the tenant himself with the assistance of a washerman. the tenant also denied the other material averments in the petition including the one about the wilful default in the payment of rent. The contesting parties appear to have adduced evidence in support of their respective pleas. It would appeal that the landlords-petitioners let in evidence of applications to and transactions with the Commercial Tax Department, which tended to show that the hotel business run in the premises was solely on account of persons other than the tenant on their own account. Oral evidence also appears to have been adduced by the parties.

2. Nearly three years after the presentation of the petition, the parties entered into a compromise as a result of which memo of compromise was submitted to the Court. Thereupon, the court directed eviction of the tenant after the directed eviction of the tenant after the expiry of the time fixed by the parties in the memorandum of compromise. Execution of the order of eviction was sought by the landlords who succeeded in obtaing possion from sub-tenant other than the respondent in C.R.P. No.1480 of 1968.

3. The respondent who claims, to be the sub-tenant the premises resisted the proceedings for delivery of possession on the ground that the eviction order passed on the consent of the landlords and the tenant, is a nullity and is consequently not executable. The objector's petition E.A.No.217 of 1966 was considered by the Rent Controller along with the petition for delivery of possession E.P.No.86 of 1966. While disallowing the objection of the sub-tenant, the Rent controller, nevertheless, negatived the prayer for execution. There are, therefore, two revision petitions preferred to this Court. C.R.P. No.1940 of 1968 by the landlords and C.R.P, No.1849 of 1968 by the sub-tenant. The landlords and the sub-tenant will hereinafter be referred to as the petitioners and the respondents respectively.

4. On behalf of the petitioners, the contention is that Section 23 of the questioned by the sub-tenant except on the ground of fraud or collusion. The order of eviction obtained against a tenant is effective against the sub-tenant as well although they are not eo nomine parties to the proceedings; and the only ground on which the order made against the tenant can be impeached is that it is vitiated by fraud or collusion. Counsel submits that the lower Court did not uphold the plea of collusion. and therefore the enforceability of the order of eviction is beyond dispute. The terms of Sec 23 are quite clear. The intention of the legislature is to treat the proceedings against the tenant as equally effective against the sub-tenant. In a proceeding for eviction , the tenant represents the sub-tenants as well; and the order for eviction, when made against a tenant, is conclusive against persons deriving their interest from him. The derivative interest of the sub-tenant is adequately protected by the provisions that it is open to him to attack the order by proving fraud or collusion.

5. In the case on hand, the Rent Controller was of opinion that it was unnecessary to go into the question of fraud or collusion alleged by the sub-tenant. Accordingly there was no finding on that aspect the case. The ground which the Rent Controller disallowed the execution is obviously intenable. He was of opinion that the pan shop in the occupation of the respondent is not part of the building to which the order of eviction relates. The reasoning adopted by the Rent Controller is that the pan shop was erected by the respondent in the open space which is not appurtenant to the building which was the subject-matter of the lease. This reasoning ignores the terms of the decree. Rightly or wrongly, there was an order of eviction which related to the pan shop was well. The legislature has enacted that an order of eviction shall be conclusive against the sub-tenant except on proof of fraud or sub-tenant except on proof of fraud or collusion. It is not permissible to allow the respondent to resist the execution of the decree on the ground that the order of eviction is null and void, (sic) (not?) because of fraud or collusion, but on one extraneous to them. The argument that prevailed in the Court below is unsustainable. because it can be upheld only by circumventing the plain terms of the order of eviction. It is not open to a Court executing the decree to question its validity. The special provision made under Sec 23 enables the sub-tenant to attack the legality of the decree only on grounds of fraud or collusion. On no other ground can the execution of the decree be defeated. The order of the lower Court in this respect. cannot, therefore, be sustained.

6. But the learned Counsel for the respondent contends that it is open to him to make out that the order of eviction based on consent is devoid of jurisdiction and is of no legal effect at all. The argument formulated by him is that a tenant (which expression includes from eviction under the statute except in cases where the Controller is satisfised that the grounds specified in the statute as warranting the eviction, exist. The jurisdictional base for an order of eviction is the satisfaction of the Court that the conditions prescribed by the statute for ordering eviction are made out. That is to say eviction merely on the basis of the consent of the parties. It is submitted by Counsel for the respondent that the order of eviction bases alone on the consent of parties lacks the jurisdictional base and is, therefore, devoid of legal effect.

7. In support of his contention , he has drawn my attention to Ferozi Lal v, Man Mal. : AIR1970SC794 . In that case, the Supreme Court had to consider the effect of Section 13 of the Delhi and Ajmer Rent Control Act, which contains a provision analogous to Section 10 of the Andhra Pradesh Act. BY virtue of section 13 of the Rent Controller Act, which the Supreme Court had to consider. an order evicting a tenant from the premiese occupied by him could be made only of the Court was satisfied about the existence of certain grounds one of which was that the tenant sub-let or otherwise parted with the possession of the premises without obtaining the consent of the landlord in writing. The facts in that case were that a proceedings initiated for the eviction of the tenant ended in a compromises under which the tenant was granted some time for delivering possession of the premises. After the expiry of the four-year period granted to the tenant, the landlord attempted to execute the decree. There was resistance to the decree. There was resistance to the execution of the decree by sub-tenant. Thereupon, a second compromise between the sub-tenant and the landlord was entered into the effect of which was to grant the sub-tenant further time to give up possession. At the expiry of that period, the landlord again levied execution. The sub-tenant repeated his objection to the exuection and the ground urged was that the original order directing eviction was a nullity as it was based solely on consent of the parties. The Supreme Court upheld the order of the Rent Controller and the High Court that the decree for eviction was a nullity. The principle laid down in the decision is hat without its satisfaction as to the existence of the condition specified in the statue. The Court was incompetent to pass a decree for possession. The jurisdiction of the Court to pass a decree for recovery of possession depends upon its satisfaction that one or more of the grounds mentioned in the statue have been provided in the statute have been proved. Hegde, J. who spoke for the Court observed as follows:

'From the facts mentioned earlier, it is seen that at no stage, the Court was called upon to apply its mind to the question whether the alleged subletting is true or not. Order made by it does not show that it was satisfied that the sub-letting complained of has taken place , nor is there any other material on record to show that it was so satisfied.'

His lordship then added that from the record of the case it was clear that the Court had proceeded solely on the basis of the compromises arrived at between the parties.

8. The principle deducible from the observations made by the learned Judge is patent. The Court's jurisdiction to pass on order of eviction is, no doubt, conditioned by the existence or proof of one or more of the grounds specified of the Court, which is an essential prerequisite for decreeing eviction, need not necessarily be the product of a contested proceedings. What is material is the cognizance or the awareness of the Court that the requisite grounds exist If this cognizance or awareness can be proved by the record, the fact that the order of eviction has emanated as a result of the consent between the parties will be immaterial. The argument of the learned Counsel before me is tantamount to saying that the satisfaction of the Court. which gives jurisdiction to make the order of eviction must be the end product of a process of an adjudication made by the Court. I find no warrant for the contention so formulated by learned counsel. The essence of the matter is that the jurisdictional fact or base must be established. It is not necessary that the satisfaction of the Court about the existence of the ground should spring out of a judicial adjudication. Even if the proceedings does not culminate in the Court's adjudication, it is possible for it to be satisfied about the existence of the requisite condition. On a true construction of Section 10 it is obvious that the competence of the Court to order eviction need not necessarily rest on the satisfaction reflected in its decision. The satisfaction. which is not based on its decision , may have, nevertheless arisen by reason of the facts and circumstances disclosed by the record.

9. This view derives support from what has been stated by the Supreme Court in the case cited above. Hegde. J. pointed out that 'the order made by the Court did not show that it was satisfied that the sub-letting compained of had taken place' and then added, 'nor is there any other material on record to show that it was so satisfied.'

10. The above-mentioned observations of Hedge. J, necessarily implies that even if there was no adjudication by the Court but nevertheless. it was satisfied that the subletting compained of has taken place. the competence of the Court to make the order is established. It is also to be noted that the established. It is also to be noted that the learned Judge referred in the same paragraph to the Court having been called upon to apply its mind to the question 'at no stage'. The expression 'at no stage the Court was called upon apply its mind to the question' is very material. It shows that if the parties had adduced evidence about the grounds specified in the statute for ordering eviction and if at that stage. the Court was called upon apply its mind to the controversy, but the parties preferred to settle the matter without waiting for the Court's adjudication, the jurisdictional base is made out for the order of eviction.

11. My attention was also drawn to another decision of the Supreme Court in Kaushalya Devi v.K.L. Bensal AIR 1970 SC 836. that was case where the decree for eviction was passed on the basis of an award and there was no material before the Court to indicate that any of the statuary grounds mentioned in Section 13 of the Act, existed, Consequently, it was held that the order of eviction was a nullity.

12. Learned Counsel also cited S. Asia Industries v. Sarup Singh, : [1965]3SCR829 , which is clearly irrelevant in that case, an application for eviction was made against the tenant and the sub-tenant, Before the application was decided, the tenant company was dissolved and the question that arose was, whether the sub-tenant. In that context, certain observations were made by Sarkar, J, in his judgment. It is those dicta that are pressed into service on behalf of the respondent. The learned Judge observed:-

'An assignee or a sub-tenant is, therefore, interested in showing that there was the requisite conser ......... Otherwise, if under section 25 an eviction order obatined against the direct tenant is binding on them, they would be liable to be condemned without a hearing.'

13. The learned Judge also referred to the possibility of collusion between the direct tenant and the landlord and expressed the view that the sub-tenant was entitled to be heard in a proceedings for eviction, it is cleat that the statute, the effect of which was considered by Sarkar, J., did not contain a provision analogous to Section 23 of the Andhra Pradesh Act. As pointed out by me even at the outset. Sufficent protection is given under the Andhra Pradesh Act to the sub-tenant because he has the right to impugn the validity of a collusive or fraudulent proceedings. The dicta of the Supreme Court relied on by the Counsel for the respondent were made in a case which is altogether were made in a case which is altogether different from the case on hand. Moreover, they related to a proceedings which was governed by a statue which presumably did not contain a provision corresponding to Section 23.

14. The position is that an order of eviction based on consent of the parties is not necessarily void of the jurisdictional base, i.e., the existence of one or more of the conditions mentioned in Section 10 were shown to have existed when the Court, which is a pre-requisite for the Court, which is a pre-requisite for the order of eviction, need not be by the manifestation borne out by a judicial finding. If at some stage the Court was called upon on apply its mind to the question and there was sufficient material before it before the parties invited it to pass an order in terms of their agreement. it is possible to postulate that the Court was satisfied about the grounds on which the order of eviction was based.

15. It is true that the Andhra Pradesh Act as aslo similar enactment in other States, are intended to confer certain benefits on the tenants The legislature policy and intendment are designed to secure the continuance of the existing tenancy and the benefit or long tenancy in future It is also clear that the legislature has prohibited the making of agreements by tenants, the effect of which is to make the benefits of the legislation inapplicable to them. Tenants are not allowed to contract themselves out of the benefits of the Act. Nevertheless, it appears to me that it was not intended by the law-makers to promote wasteful and vexatious litigation by preventing tenants from exercising their discretion whether to contest or not a proceedings for eviction.

16. If the tenant, on a consideration of the pros and cons of his case, considers it inadvisable to persist in his unmeritorious defense any further or thinks it discreet to retire from the contest, and then elects to enter into a compromises, it is submitted by Counsel of the respondent that the tenth section of the Act should be construed as a limitation on the competence of the Court to order eviction except on the adjudication made by it. So construed, it results in the landlords beings obliged to flight out their causes to the bitter end though the tenant may think it fit to concede that tenant ground for eviction exists, offers to settle the dispute.

17. In case where the tenant elects not to proceed with his defense, it is natural to presume that his defense is without merit or has title change of successful outcome. It is justifiable for the Courts to act on the maxim as they do in several other spheres of law, that every person is presumed to act in furthernace of his own interest so as to promote it. I see no reason why the consent of the tenant should not be held to be a prima facie indication of the existence of one or more of the conditions prescribed by the making the order of eviction, It is true that a mere order of consent without any other material on record would be insufficient to established the satisfaction contemplated by Section 10 for making a valid order of eviction. But, when the question arises whether the Court acted on the basis, of such satisfaction, it would in my opinion., be relevant to take into account the presumption arising out of the consent of the tenant along with the other materials on record.

18. As the lower Court has not considered this aspect of the matter, the case had to be remitted to it for deciding in the light of the record in the petition for eviction, and in these petitions whether the order of eviction was not based upon the satisfaction of the Court that one or other of the grounds specified in Section 10 of the Act existed. The lower Court will also go into the question whether the order of eviction is vitiated by fraud or collusion. The order of the lower Court is set aside and E.P.No.86 of 1966 and E.A.No.217 of 1966 will be dealt with further in the light of the observations made herein. The costs of the revision petitioners will be allowed to the party ultimately successful in the Court below.

19. Case remanded.


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