KANTAMSETTI BENNAYYA Vs. PANDI SARASWATHI

JUDGEMENT

(1.) The only question that arises for consideration in the Second Appeal is whether the Civil Court has jurisdiction to evict the appellant. The facts in brief are as follows: The plaintiff respondent filed the suit for eviction of defendant-appellant from the suit 'B' schedule property and to deliver the vacant possession of the same to her and for future damages for use and occupation at Rs. 50/- per month from 1-7-1981 till the date of delivery of the property. The case of the respondent-plaintiff is that she purchased the house site measuring 705/9 Sq. Yards with a thatched house described in the plaint 'A' schedule property from one Srikakulapu Mutyalu and his wife Srikakulapu Ammalu for valuable consideration of Rs. 13,000/- under a registered sale deed Ex.A-1 dated 9-3-1981. In the said site, there is a thatched house on the western side and eastern side portion is the vacant site. The said thatched house portion was let out to the appellant by the vendor of the plaintiff, on a monthly rent of Rs. 20/-. On 8-3-1981, the respondent obtained physical possession of vacant portion and constructive possession of thatched house which is under the tenancy of the appellant. The appellant also attorned to the respondent and agreed to pay the rent to the respondent promising to vacate the portion whenever plaintiff requires. The appellant filed suit against the respondent for injunction on the ground that he purchased plaint 'A' schedule property under an oral agreement from the respondent vendors. She also filed another suit on the file of the VI Additional District Munsif Court, Visakhapatnam. Therefore, the respondent issued a notice dated 27-5-1981 to quit, through her counsel asking the defendant to vacate the plaint 'B' schedule thatched house portion and deliver possession of the same.

(2.) The appellant filed written statement denying the allegations in the piaint. According to the appellant, he took on lease the suit premises on rent of Rs. 5/- per month for the first ten years and thereafter it was increased to Rs. 10/-. Since five years, she was paying rent at the rate of Rs. 20/- per month, it is further the case of appellant that there was an oral agreement of sale between the- original owner, namely, Srikakulapu Mutyalu and Srikakulapu Ammalu, pursuant to which, he kept Rs. 4,000/- ready with him so that he can buy the property. He also stated that he is entitled to the protection of Rent Control Act as the house was constructed prior to 26-8-1967 as provided under Section 32(b) of the Andhra Pradesh Rent Control Act. It was also contended before the fower appellate court that in view of the judgment of the Supreme Court striking down Section 32(b) of Andhra Pradesh Rent Control Act and also in view of. G.O.Ms.No. 636 dated 29-12-1983, it is the Rent Control Court which has jurisdiction to deal with the case and the Civil Court has no jurisdiction. The Munsif Court decreed the suit holding that there was no oral agreement of sale and that the appellant is not entitled to the protection of G.O.Ms.No. 636 dated 29-12-1983 as there is no evidence that the building was constructed ten years prior to the issuance of the said G.O. It also held that the Civil Court jurisdiction is not ousted and therefore, the Civil Court Is competent to issue eviction proceedings. On appeal, the II Additional District Judge dismissed the same holding that there is no evidence that the house was constructed prior to the relevant date, namely, 26-8-1957. He also held that since the respondent instituted the proceedings under law when Section 32(b) of the Rent Control Act was in force, subsequent striking down of the same as unconstitutional, by the Supreme Court does not affect the continuation of the proceedings in the Civil Court as their rights were crystallised on the date of filing of the suit. Holding as above, the appeal was dismissed against which the present second appeal is filed.

(3.) The main contention of the learned counsel for the appellant is that in view of the judgment of the Supreme Court striking down Section 32(b) of the Rent Control Act, the Civil Court has no jurisdiction to deal with the matter. The learned counsel further submitted that in view of the judgment of the Supreme Court in M/s. East India Corporation Limited vs. Shree Meenakshi Mills Limited (1) A.I.R. 1991 S.C. 1094, the Civil Court has no jurisdiction. By virtue of the declaration made by the Supreme Court declaring Section 32(b) of the Rent Control Act as unconstitutional, the Civil Court has become corarn non judice and thus the proceedings resulted in the decree being a nullity. According to the learned counsel, the judgment of the learned single judges in S.A. Hakim Saheb vs. P.V.K.Setty (2) 1989 (2) A.L.T. 28 and in M. Mohan Rao vs. T. Subbaiah (3) 1992 (1) A.P.L.J. 245 = 1992 (1) A.L.T. 484 are not relevant to the issue in question, or at any rate, the learned counsel submits that they require reconsideration as the Supreme Court judgment in M/s. East India Corporation Limited vs. Shree Meenakshi Mills Limited (1 supra) was not brought to the notice of the learned judges.