CHANGALAL Vs. NARSINGH PERSHAD

JUDGEMENT

(1.) In this revision petition, the order of the Rent Controller, appealed against, was the direction given to the tenant to deposit a sum of Rs. 758.00- as arrears of rent as per the provisions of Section 11 of the Act. The contention of the respondent tenant was that the petitioner was not his landlord. But on the landlord filing the sale deed in his favour for the premises concerned and rental agreements alleged to have been executed by the tenant prima facie found that there was the relationship of landlord and tenant and therefore he should deposit the arrears as per the provisions of Section 11. This is an order affecting the rights and liabilities of the parties and a mere procedural one, however summary the enquiry had been. Therefore this order is appealable.

(2.) This leads us to the merits of the order passed in appeal by the Chief Judge, Small Causes Court. The Chief Judge held that there was no proper enquiry regarding the relationship of landlord and tenant and remanded the case to allow the parties to adduce evidence in the case and dispose it of according to law. It is against this that the revision has been filed in this Court. The contention put forward now is that on a petition under Section 11 of the Act, the Rent Controller has no jurisdiction to enquire into the relationship of landlord and tenant, that on a prima facie finding in a summary enquiry that the respondent is the tenant, direct him to deposit the arrears of rent. This question came to be considered in Hari Rao v. Subba Lakshmamma, 1966-1 Andh WR 122, where the respondent, against whom the petition was filed for eviction on the ground of wilful default in payment of the rent, contended that he was not a tenant, that the building was his, that in respect of the building a usufructuary mortgage was executed in favour of the petitioner where under he continued to occupy the building executing a rental deed in lieu of interest and there was no relationship of landlord and tenant, the trial Court had gone into the question and held that there was jural relationship of landlord and tenant between the parties and that the tenants had wilfully defaulted in payment of rent and directed eviction and on a petition under Section 11 of the Act the tenants were directed to deposit the arrears of rent, the question arose whether, when there was a dispute with regard to the jural relationship between the parties as landlord and tenant, the Court had no jurisdiction to give direction to the tenants under Section 11, it was held by Ekbote, J. that by insertion of Section 11, the Legislature clearly intended to give protection to the tenants, provided he pays the rent due to the landlord and continued to pay till the disputes are settled and therefore Section 11 applied not only to a case where the tenancy is admitted but also to a case where the tenancy is disputed and a summary enquiry can be made about the relationship before applying Section 11. In a subsequent decision in Ishvarlal v. Kursheed Begum, 1968-1 ALT 110, where also the petition was filed for eviction on the ground of wilful default and the respondent denied the plaintiffs title to the house and their relationship of landlord and tenant and the petition under Section 11 of the Act for the deposit of the arrears of rent was ordered and on non-payment the tenant was directed to be evicted under Section 11 (4) of the Act and in appeal the matter was remanded, Chandrasekhara Sastry, J. on the question of jurisdiction of the Court to entertain an application under Section 11 and the relationship of landlord and tenant was raised in revision, held that Section 11 applied to only to cases of admitted tenancy as not only the Section begins with the expression " No tenant against whom an application for eviction has been made .................." but also as no provision has been made in Section 11 for a summary enquiry with regard to the relationship of landlord and tenant as in the case of a dispute relating to quantum of arrears of rent payable which should be decided summarily under Section 11 (3). He further went on to say that on a scrutiny of the several clauses of Section 11 of the Act, he was satisfied that it was never intended that a question of title or tenancy was to be summarily tried under Section 11 of the Act and an order made for the deposit of the supposed arrears of rent and to order eviction in case of default of depositing such amount. In view of these two conflicting decisions, in another case where a similar question arose, Syed Ahmed v. Naimathullah Shareef, C. R. P. No. 1327/68, D /- 19-6-1969 ( Andh Pra ), the matter was referred to a Bench by our learned Brother Alladi Kuppuswami, J. and this case went up before a Bench consisting of Ekbote and Ramachandra Rao, JJ. That was also a case of a petition for eviction on the ground of wilful default in payment of rent and the respondent resisted it on the ground that the sale deed in favour of the petitioner was executed as a collateral security and the rental deed, was in lieu of interest, the Rent Controller rejected this plea and finding that there was a wilful default, directed eviction. In appeal, a petition under Section 11 (1) of the Act was filed for depositing the arrears of rent. It was contended that the Court could not determine the question of landlord and tenant under Section 11 and this was rejected and an order was passed for depositing the arrears. The Bench held that Section 11 applied not only to cases of admitted tenancy but also to cases of disputed tenancy, that the Court had jurisdiction to enquire summarily into this question, give a finding and then proceed under Section 11. We find it difficult to accept this view. Not only is there no provision in Section 11 of the Act for making a summary enquiry with regard to the relationship of landlord and tenant as is specifically provided for in Section 11 (3) with regard to the quantum of arrears of rent, we find a provision for such enquiry under the proviso to Section 10 (1) of the Act. As pointed out by our learned Brother Ekbote, J. In (1966) 1 Andh WR 122, the denial of relationship of landlord and tenant by the respondent is a jurisdictional matter which will have to be decided by the Rent Controller before he assumes jurisdiction. Under the proviso to Section 10 (1) of the Act , the Rent Controller shall decide whether the demand or claim is bona fide and if he records a finding to that effect the landlord is entitled to sue for eviction of the tenant in the Civil Court. This would mean, if on the other hand, the Controller finds that the claim is not bona fide he shall have to pass an order of eviction, as Sec. 10 (2) (vi) provides for the eviction of the tenant, where his denial of title has been found to be not bona fide. Therefore an enquiry with regard to the disputed tenancy should end either in the dismissal of the petition if it is found to be bona fide one or straightway ordering eviction of the tenant, if it is not a summary enquiry is made under Section 11 for purpose of directing the tenant to deposit the rent and if in that summary enquiry he is found to be the tenant and an order is made under Section 11 (3) for deposit of rent, this would mean in default he should be made to put the landlord in possession under Section 11 (4). If subsequent to this order on a regular enquiry if the relationship of landlord and tenant if found not established, it would have created considerable hardship to the respondent who had been evicted notwithstanding that there was no relationship of the landlord and tenant. It is obviously due to this, no provision has been made under Section 11 of the Act, whereas a provision has been made under the proviso to Section 10 (1). We are therefore inclined to agree with the decision of Chandrasekhara Sastry, J. In ( 1968 ) 1 ALT 110 that Section applies only to cases of admitted tenancy and no summary enquiry can be held under that section for the determination whether the relationship of landlord and tenant exists between the parties.

(3.) As we are disagreeing with the decision of the Bench in C. R. P. No. 1327 of 1968, D /- 19-6-1969 ( Andh Pra ) we direct that this matter may be placed before His Lordship, the Chief Justice, to be referred in a Full Bench.