P APPA RAO Vs. P DASAMUNI REDDY

JUDGEMENT

(1.) 1. This Second appeal is preferred by the defendant in a suit which was instituted for recovery of possession of the plaint schedule building. The two Courts below decreed the plaintiff's suit for possession.

(2.) The relevant facts are that the plaintiff is the landlord and the defendant is the tenant. In the suit, it is claimed by the plaintiff that there was a commencement of the constiuction of the building in the beginning of 1958 and that he completed it in October 1958. According to the plaintiff, the building was leased out for a period of three years to the defendant from 1-11-1958 to 3l-10-1961 and the defendant became a monthly tenant. The defendant committed default in payment of rent. The plaintiff also wanted the building for bis own purposes. The plaintiff had filed H. R. C. Nos 12 of 63 before the Rent Controller, Chandragiri, for eviction of the defendant from the building. The petition was dismissed on 30-9-1963. Immediately there after on 7-10-63 within a week, the plaintiff issued a lawyer's notice to the defendant determining the lease in favour of the defendant and seeking possesssion, In this notice for the first time it was alleged that the building was constructed by him in 1958 and that he filed the petition, H.R.C, No. 12 of 1963 under the bona fide belief that the Andhra Pradesh Buildings (Lease, Rent and Eviction Control) Act, 1960 (hereinafter referred to as 'the Act') was applicable to the premises, but that he came to know that the provisions of the Act did not apply to the suit building, as it was constructed after 26th August, 1957. Knowledge of the fact of the construction after 26th August, 1957 it is averred in this notice, was well- known to the defendant. There was a reply to this notice by the defendant under Ex. A-5 daifd 21-10-1963, wherein the defendant had denied the allegations that the building was constructed in 1958 and that the lease was only for a period of three years. He asserted that the lease was for 25 years. It was also alleged that having lost H, R. C. No 12 of 1963, the plaintiff was seeking eviction on altogether different grounds by a change of front. Inspite of issuing the notice the plaintiff did not file any suit on the ground that the provisions of the Act were not applicable, but chose to file C. M. A. No. 72 of 1963 on the He of the Subordinate Judge, Chittoor. That court on 17-12-1965 had dismissed the appeal filed by the landlord. Thereafter also the plaintiff waited and filed the present suit, O. 3. No. 444 of 1967 for possession of the suit building and other reliefs. Several issues were framed by the trial court. The trial court found that the suit house was newly constructed by the plaintiff in October 1958, that the lease in respect of the premises was only for three years, that the Civil Court had jurisdiction to entertain the suit, that the plaintiff was not estopped from pleading that the Act did not apply to the rase, that the notice to quit was valid, that the proceedings under the Kent Control Act were void ab inilio, that those proceedings did not in any way operate to create any estoppel against the plaintiff and there was no question of any waiver on the part of the plaintiff with regard to statutory objections, on the principle that there is no estoppel against a statute, On appeal in A. S. No. 12/71, the learned Subordinate Judge framed three points for determination:

(3.) The main point debated before me in this second appeal by the parties relates to the question whether the present suit is maintainable, in view of the decision of the Kent Controller in Ex. Bl as confirmed by the appellate authority as per Ex. B. 2. Sri Vcnugopal Reddy for the appellant had contended firstly, that in this suit the plaintiff is esopped from contending that the building came to be constructed after August 1957, that the principle that there can be no estoppel against a statute cannot be invoked in this case; and secondly that even otherwise the plaintiff being fully aware of the fact viz., that the construction of the suit building had taken place in 1958 had waived the benefit of S. 32 of the Act which exempted buildings constructed after 26th August, 1957 from the operation of the provisions of the Act and that if not on the ground of estoppel, on the ground of waiver the plaintiff was precluded from instituting the present suit.