SRIKANTH NEEMAKAR Vs. YELLOJI RAO

JUDGEMENT

(1.) This Second Appeal arises out of the suit for possession filed by the plaintiff against the defendant. The material facts of the case, briefly stated, are as under. One M Satyanarayana was the owner of the suit property. He agree to sell it to the plaintiff That agreement led to the suit for specific performance by the plaintiff against the said Satyanarayana. The litigation went right upto the Supreme Court and ultimately a decreet for specific performance was passed in favour of the plaintiff. The Supreme Court rendered its decision on 7-8-1965. One Tuljaram Necmkar was the original tenant of the suit premises. The defendant who is his cousin took over from him the business which was run in the suit premises and continued it there. The plaintiff recognised him as his tenant. In 1968 the plaintiff filed eviction petition against the defendant before the Rent Controller. It was R.C. 97 of 1968. There was a compromise between the parties in that eviction petition and the defendant ccontinued to be in possession of the suit premises. The present suit, O.S. 1474/73, has been filed by the plaintiff against the defendant for eviction on the ground that the defendant has been the tresspasser. The plaintiff has made his claim on the grourd that when the suit premises had fallen vacant earlier, the vacancy was not notified to the Accommodation Controller and that without doing so the defendant was inducted into the premises. The defendant was therefore inducted unlawfully into the suppressed vacancy and that therefore no tenancy rights accrued to him. The plaintiff's rase was based upon sec 3 of the A P. Buildings (Lease, Rent and Evic(ion) Control Act. 1960 (hereinafter referred to as the 'Rent Act' for the sake of brevity). The trial court accepted the case advanced by the plaintiff and held that the defendant has been the tresspasser. Decree for possession was therefore passed against him. The defendant challenged that decree in an appeal which he filed in the Appellate Court. The Appellate court confirmed the decree and dismissed the appeal. It is that Appellate to Court decree which is challenged by the defendant in this Second Appeal.

(2.) It has been contended on behalf of the defendant by Mr. N. Rama- chandra Rao, that even though the lease between the plaintiff and the defendant may not be valid for the purpose of sec. 3 of the Rent Act, it is binding as between the parties. He has therefore contended that the plaintiff having letout the suit premises to the defendant cannot turn round and contend that the contract was illegal and that therefore no rights accrued to the defendant. He has also argued that it is not open to the plaintiff to take advantege of his own wrong. A similar question arose before a Bench of this court in G Eswaraiah vs Mahendrappa Khani. (1) It was a cace which directly arose under the Rent Act. A similar question arose before the Supreme Court under the U.P. (Temporary) Controt of Rent and Eviction Act (3 of 1947) in Murlidhar vs. State of UP. (2). In Mirza (Mohd) vs. Balakistaiah (3) Lakshmaiah J, sitting single has taken the view that the contract similar to one which a B;nch of this court held to be invalid in the Eswaraiah's case (1) is valid, in view of the decision of the Supreme Court in Murtidhar vs. State UP.(2) A similar view has also been taken by Vimadalal J., in S. Anjaiah V.K. Kishtamma (4) The view expressed by the two learned single Judges in the two decisions referred to above has cast doubt upon the validity of the decision of the Bench of this Court in Eswaraiah's case (1) Therefore, it is Second Appeal was referred to the Bench by my learned brother for a futher examination of the question.

(3.) In order to find out whether the decision of the Bench of this Court in Eswaraiah's case (1) is still good law or has ceased to be and ia order to examine the contention which has been raised it is necessarry to turn to sec. 3 of the Rent Act. Sub-sec. (1) of sec. 3 inter alia provides as follows : "Every land-lord shall, wilhin ten days after the building becomes vacant by his ceasing to occupy it, or by the termination of a tenancy, or by the eviction, of the tenant or by release from requisition or otherwise give notice of the vacancy in writing to the officer authorised in that behalf by the Government". The explanation appended to it states :