S VENKATA SUBBA RAO Vs. G PUNNARAO

JUDGEMENT

(1.) The Petitioner who is a tenantof the building in Vijayawada belonging to the respondents, suffered a decree of eviction in a rent control case. The said order was confirmed in appeal RCA No. 44/83 by the Rent Control Appellate Authority and the appellate order was confirmed by this Court in C.R.P. No.2960 / 92. While dismissing the C.R.P. on 25-9-92, this Court granted four month's time for eviction. Thereafter, a suit was sought to be filed in the Court, of the Principal District Munsif, Vijayawada seekinga declaration that the order passed by the Rent Controller as confirmed by the appellate authority in RCA No. 44/83 and by this Court in CRP 2960/92 is without jurisdiction and such decree cannot be enforced or executed. The Petitioner also sought the relief of permanent injunction restraining the defendants from executing the decree and thereby evicting the petitioner from the suit building. The proposed suit was not numbered by the Principal District Munsif and the plaint was rejected under Order VII Rule 11 C.P.C. by an order dated 23-1-1993. Against that order, A.S. No. 9 of 1993 was filed in the Court of the II addl. Subordinate Judge, Vijayawada, by the petitioner. The appeal having been dismissed, the present C.R.P. is filed.

(2.) The contention of the learned Counsel for the petitioner is that the respondents became entitled to the suit property as a result of partition butnot as legal representatives of their late father and the respondents should have therefore filed a separate application for eviction instead of continuing the eviction proceedings filed by their deceased father under the provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act. It is submitted that the respondents ought not to have been added as legal representatives and ho decree should have been passed as a result of allowing the L.R. Petition. It is therefore contended that the entire proceedings culminating in the judgment of this Court in C.R.P. No. 2960/92 are null and void and without jurisdiction. Relying on the decisions of the Supreme Court in Kiran Singh vs. Chaman Pasiwan and Sunderdas vs. Ram Prakash, it is submitted that the question of jurisdiction of the Court can be raised at any stage and even at the stage of execution. Hence it is argued, that the plaint should not have been rejected on the ground that the decision in the earlier proceedings constitutes res judicata. and that the question of jurisdiction should have been gone into after numbering the suit.

(3.) It is not in dispute that the very same objection i.e., with regard to the competency of the respondents to continue the proceedings as legal representatives was raised in the earlier rent control proceedings and it was decided against the petitioner by the Rent Controller and the appellate authority who held that the house being joint family property, the father while he was alive, filed the application in his capacity as manager of the joint Hindu family seeking eviction on the ground that it was required by his son (one of the respondents herein) for setting up business and that by virtue of the partition that took place during the pendency of the rent control case, the respondents were entitled to maintain the application for eviction notwithstanding the death of the father. It was observed by the appellate Court that, the respondents were entitled to continue the eviction petition both in their capacity as L.Rs and also as owners of the property. It is noticed that at the time of hearing of the C.R.P., no contention was advanced with regard to survival of cause of action to continue the eviction petition by virtue of the partition though a ground was raised in the C.R.P. In fact, the factum of partition itself was challenged by the petitioner. Having failed in the earlier C.R.P., the judgment of which has become final, the same objection is now sought to be revived in the suit on the specious plea that the decree passed by the Rent Controller is not executable in the absence of landlord and tenant relationship and that the proceedings must be deemed to have abated with the death of the respondent's father. I have no doubt in my mind that such a plea connot be allowed to be raised at this stage once again, especially when the maintainability of the eviction petition under the Rent Control Act involves findings on certain facts which the Rent Controller and the Appellate Court were entitled to go into. By giving a colour of jurisdiction to the objection sought to be raised by the petitioner, the finality of the order in RCA 44 / 93 (which was confirmed in CRP No. 2960/92) shall not be allowed to be diluted by permitting another suit on the very same aspect. Otherwise, there would be a death knell to the principle of finality of litigation and there would be any number of suits to circumvent the eviction orders passed under the Rent Control Act.