MEHTHA Vs. N D THADANI

JUDGEMENT

(1.) The three principal questions among others that arise fo consideration in these second appeals by the plaintiff in O.S, No. 3/5 of 1974,01 the file of the Third Assistant Judge, City Civil Court, Hyderabad ate:

(2.) The plaintiff-appellant is the owner of the premises beaingl Municipal No. 4-1-1079, situated at Boggulkunta, Hyderabad. He let out the first floor portion of the premises to the defendants-respondents on payment of a monthly rent of Rs. 160/- but the defendants subsequently began to claim that a room in the ground floor portion was also let out to them along with the first floor portion and that they are liable to pay Rs. 80/- by way of rent for the first floor portion and another Rs. 80/- for the ground floor portion. They, however, stopped paying any rent. The plaintiff, thereupon, issued a notice on 15-7-1973, terminating their tenancy and calling upon the defendants to vacate the premises and deliver posse sion. The defendants did not comply with the demand. The plaintiff therefore, issued another notice on 13-8-1973 to the same effect but with any response He, therefore, prays for a decree for recovery of possession arrears of rent and past and future mesne profits. It is the specific case of the plaintiff that the first floor premises were constructed subsequent to September, 1957, and as such, it is not a building covered by the provisions of the Act. He alternatively pleaded that even if the provisions of the said Act apply, as no notice of vacancy was given when the tenancy in favour of the defendants was created, that lease was not valid and, as such the defendants are not entitled to the protection of the Act.

(3.) The defendants resisted the suit claiming that not merely the first floor portion but a garage-cum-shop on the ground floor was let out to them on payment of a consolidated sum of Rs. 160/- per month of which Rs. 80/- was for the first floor portion and Rs. 80/- for the garage-cum-shop portion, exclusive of water and electricity charges. It is alleged that the plaintiff, under the plea of repairing and white-washing the garage, took possession of the same in May, 1972 and failed to hand it over to the defendants. The defendants therefore stopped paying rent for the garage and tendered Rs. 80/- for the first floor portion. The plaintiff refused to receive that rent and, hence, the defendants were obliged to send the rent by money order. The money orders were also refused. Not stopping at that, the plaintiff with a view to harass the defendants, disconnected supply of electricity and water to their portion of the premises. The 2nd defendant was, therefore, obliged to file a petition before the Rent Controller for the restroration of water and electricity supply. He also filed a petition for fixation of fair rent. It is their specific case in defence that even the first floor portion was constructed prior to September, 1957 and that the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act apply and, consequently, the Civil Court has no jurisdiction to entertain the suit for eviction. With respect to the plea that the tenancy created in their favour is contrary to section 3 (2) of the Act, it was pleaded that the Accomodation Controller had permitted the 2nd defendant to continue as a tenant and, as such, their tenancy is not invalid. With respect to the arrears of rent, it is their case that as the garage was not re-delivered to their possession, the plaintiff was not entitled to receive Rs. 160/- per month. He was also not entitled to claim any interest as he refused to receive the amount when tendered. On the above facts, it is pleaded that neither the suit for eviction nor the claim for arrears of rent is cognizable by a Civil Court. Those reliefs can be claimed, the former before the Rent Controller and the latter in a Court of Small Causes. The trial Court held that though some portions were added to the first floor after the Act came into force, the premises was not a new building but a building covered by the provisions of the Act and as such, a suit for eviction does not lie in a Civil Court, only the Court of the Rent Controller was competent to entertain it. As regards the relief of arrears of rent, the Court held that the plaintiff was entitled to a decree in a sum of Rs. 1,600/- and, accordingly, awarded a decree for recovery of Rs. 1,600/- but dismissed the suit for recovery of possession. Both the plaintiff and the defendants preferred separate appeals the plaintiff in A S.N. 34 of 1977 questioning the dismissal of the suit so far as the rule of recovery of possession was concerned and the defendant in A.S. 332/77 questioning the decree for arrears of rent. The Additional Chief Judge, Hyderabad, (Temp), who heard and disposed of both the matters by a common judgment, now under appeal, dismissed the plaintiff's appeal and allowed the defendants appeal upon a finding that the first floor portion or the premises was a "Building" within the meaning of the Act and only the Rent Controller had jurisdiction to entertain the claim of the plaintiff for eviction of the defendants and that the claim for arrears of rent was a claim cognizable by a Court of Small Causes and, as such, the Civil Court has no jurisdiction. Hence, these two appeals by the plaintiff.