CRP/3699/2012 of M/s. Sri Vijaya Durga Stainless Steel Center, Vs P.Sumanth Kumar on 31 December 2012

ORDER:

In this Civil Revision Petition (C.R.P) assailed order dated 20-07-2012 passed in R.C.C.M.A.No.85 of 2012 on the file of the Court ofPrincipal Senior Civil Judge, Vijayawada (Appeal) confirming orderdated 20-03-2012 passed in R.C.C.No.93 of 2011 on the file of RentController-cum-IV Additional Junior Civil Judge, Viajyawada (RCC).

2. The petitioner herein is the appellant in the appeal andrespondent in the RCC whereas the respondent herein is also therespondent in the appeal and petitioner in the RCC.

For convenience sake, I refer the parties as arrayed in the RCC.

3. The petitioner filed the RCC for evicting the respondentfrom the petition schedule premises (premises) under Section 10(2)(i)of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (forshort ‘the Act’) for the reasons stated therein. Subsequently therespondent was set exparte in consequence of which the petitionerwas examined as PW-1 and on that basis an ex parte decree waspassed as prayed for giving two months time to the respondent todeliver the vacant possession of the premises to the petitioneraggrieved by which the respondent filed petition for setting aside theexparte decree, but the petition was returned to comply with someobjections raised by the Rent Controller which included a direction tothe respondent to file counter along with the petition.

4. According to the respondent no summons were served onhim in the RCC whereby setting him exparte is against law. Furtherinsisting him to file counter along with the petition filed to set aside theexparte order is also not according to law. It is also claimed by himthat even though the petitioner reported that he got no objection toallow the petition the Rent Controller failed to take necessary steps.

5. In fact aggrieved by that the respondent filed the appeal. Aquestion was considered before the appellate Authority as to whether the appeal was maintainable and the respondent should have availedthe provisions of Rule 8(3) of the A.P. Buildings (Lease, Rent andEviction) Control Rules, 1961 (for short ‘the Rules’) by way ofapproaching the Rent Controller to set aside the so called expartedecree. In fact it is held by the Appellate Authority that sub-section (3)of Section 20 read with Rule 11(2) of the Rules under which theappeal was filed does not confer any plenary powers upon theappellate Court.

The order under challenge is not an order on merits. There is nocounter statement and evidence on behalf of the respondent. There isno question of recording any additional evidence in the appeal. It is aclear case that no opportunity was given to the respondent in the RCCto contest the matter on his behalf before the Rent Controller. Therefore, the respondent should have approached the RentController under Rule 8(3) of the Rules.

So aggrieved by that order, the present C.R.P. has been filed.

6. Learned counsel for the respondent would contend that theAppellate Authority has got all the powers of entertaining the appealincluding the question of remanding the matter under Rule 11(2) of theRules. Thereby the Appellate Authority got no right to reject the claimof the respondent in the appeal. In support of his claim, he has reliedupon the following decisions: M. VARADARAJULU CHETTI v. C.[1]SELVARAJSHAIK BANDAGI SAHEB v. SHAIK NURULLA SAHEB[2], BEEBANU v. ABDUL RASHEED[[3]], XAVIER EMENUAL v. RATAN[4]RAJ KUMARand SREE DATTA AGENCIES, HYDERABAD v.[5]DINESH KUMAR KUCHERIA.

7. (a) In the decisions cited above, considered the question ofremanding of similar matters under Section 20(3) of the Act and Rule11(2) of the Rules r/w other relevant provisions. In fact the sum andsubstance of those decisions is that inherent trappings or attributes ofappellate jurisdiction can be limited or restricted or ousted altogetherby statutes or Constitution. An appeal is a judicial process, a

continuation of the original proceeding. The language of sub-section(3) of Section 20 of the Act is quite clear, precise, unambiguous and itdoes not admit more than one meaning. The Appellate Authority isarmed with the power to inquire as he thinks fit either personally orthrough the Rent Controller. This provision only enables the AppellateAuthority to resort to an inquiry either personally or through the RentController if the facts and circumstances of a case warrant him to do soin his discretion. From the provisions of sub-section (3) it cannot bededuced that the power of the Appellate Authority to remand theproceedings to the Rent Controller is ousted. In a given case, if theAppellate Authority thinks that an inquiry is necessary on a point or onan issue, he himself can hold the inquiry or alternatively he maytransmit such point or issue to the Rent Controller with a direction tohold an inquiry on that point or issue and submit his finding, and afterreceipt of the finding from the Rent Controller the Appellate Authoritymay decide the appeal on merit. The inherent power of the AppellateAuthority to remand the proceedings to the Rent Controller is not takenaway by Section 20 or by any other provisions of the Act. Therefore,the Appellate Authority under Section 20 of the Act has power toremand the proceedings to the Rent Controller. Alternatively it shouldbe held that the provisions of sub-Section (3) of Section 20 do notwarrant a construction or an interpretation to hold that the power of theAppellate Authority to remand is impliedly ousted.

(b) Further a plain reading of subsections (1) to (4) of Section 20of the Act would show that there are no restrictions on the appellateauthority to reverse or modify order of Rent Controller as suggested bylearned Senior Counsel. For the same reasons, submission thatappellate authority can only confirm order of Rent Controller andcannot reverse in case of dismissal of eviction petition is to berejected. A perusal of subsection (4) of Section 20 of the act wouldshow that order of appellate authority is subject to any decision of highCourt under Section 22 of the Act. Under Section 22, it is competent to high Court to pass, "such order in reference thereto". In appropriatecase, when High Court can reverse order of appellate authority andrestore order of original authority, Section 20 cannot be read in anarrow manner. Furthermore section 15 of the Act which deals withexecution petitions also makes order passed by appellate authority orrevisional authority executable. If appellate authority is assumed tohave limited jurisdiction of only confirming dismissal orders of RentController, there would not have been any necessity for legislature tosay in so many words in Section 15 of the Act that even an order ofappellate authority is executable. Interpretation suggested by learnedsenior Counsel is not acceptable and indeed it is not possible tointerpret section 20 of the Act restricting power of appellate authority.Therefore this court holds that appellate authority under Section 20 (1)of the Act, in exercise of powers under Subsections (3) and (4) ofSection 20 of the Act, can confirm, reverse or modify order of RentController.

8. In none of these decisions considered the scope of filingsimilar appeal as filed in the present case against the return of thepetition filed under Rule 8(3) of the Rules for answering the queriesraised therein. Thereby all these decisions are not applicable here. Infact significantly the Court below, after having examined the decisionscited, clearly held that the matter could not be considered as there wasno final disposal of the RCC on the basis of any evidence whereasthere was only return of the petition to answer necessary querieswhich could not be entertained and in fact Rule 8(3) of the Ruleswould clearly contemplate that where an exparte order was passed,an application could be filed to set aside such order but the respondentfailed to approach the Rent controller accordingly after the disposal ofthe RCC. In my opinion the order passed by the Court below is properand the question of interference of it does not arise at all. As I see noillegality or irregularity in the impugned order, the C.R.P. is devoid ofmerits.

9. Accordingly, the Civil Revision Petition is dismissed.

No costs.

10. After pronouncing the judgment, it is represented by thelearned counsel for the respondent (petitioner herein) that the petitionfiled by the petitioner under Rule 8(3) of the Rules is pending beforethe Rent Controller and hence till the disposal of that petition, theinterim stay granted by this Court on 06-08-2012 may be continued.

11. Accordingly, the Rent Controller is directed to dispose ofthe petition filed by the petitioner under Rule 8(3) of the Rules within aperiod of four weeks from the date of receipt of a copy of this order. Tillthen the interim stay granted by this Court on 06-08-2012 shall becontinued.

Date: 31-12-2012

YCR

_________________________

G. KRISHNA MOHAN REDDY, J

[1]1993 (1) ALT 576[2]1997 (1) ALT 380[3]2002(2) ALD 474 (DB)

[4]2005(2) ALD 6192005(2) ALD 619

[5]2008 (5) ALD 3442008 (5) ALD 344