S RAMESH Vs. MOHAMMED IMAM HANNORAI

JUDGEMENT

(1.) The learned portfolio Judge of Hyderabad District ordered notice before admission on 16-6- 2006 in CRP No.2704 of 2006 and directed to list the CRP along with CMA No.4586 of 2004 and granted stay of eviction for a limited period and subsequent thereto on 30-6-2006 Sri Chandra Sekhar Reddy, the learned Counsel, entered appearance and the same had been recorded and the stay was directed to be continued and a further direction was made to list the matter after six weeks along with CMA No.4586 of 2004. On 25-8-2006, the learned Judge made the following order:

(2.) Facts in brief:-The revision is preferred under Section 22 of A.P. Buildings (Lease, Rent and Eviction) Control Act 1960, hereinafter in short referred to as "Act" for the purpose of convenience, as against an order of eviction made in RC No.666 of 1999 on the file of I Additional Rent Controller, Hyderabad as confirmed in RA No.27 of 2003 on the file of Additional Chief Judge, City Small Causes Court, Hyderabad. The civil miscellaneous appeal is filed as against an order of remand made in AS No. 140 of 2003 on the file of XIII Additional Chief Judge-Fast Track Court, City Civil Court, Hyderabad under Order XLIII Rule l(u) of the Code of Civil Procedure, hereinafter in short referred to as "Code" for the purpose of convenience. The facts appear to be a bit novel. R.C. No.666 of 1999 was filed by the respondents in the CRP for eviction under Section 10(2)(i) and Section 10(2)(ii)(b) of the Act referred to supra. It appears that the said petitioners in the RC No.666 of 1999 also filed a suit OS No.1341 of 2000 on the file of VI Junior Civil Judge, City Civil Court, Hyderabad, claiming the relief of recovery of rents. It is no doubt brought to the notice of this Court that at a particular stage when the evidence was in progress in the Rent Control Proceedings, Tr. O.P. No.2337 of 2001 was moved before the Chief Judge, City Civil Court, Hyderabad by the Revision Petitioners in the CRP/respondents in the RC referred to supra under Section 24 of the Code with a prayer to transfer OS No.1341 of 2000 on the file of VI Junior Civil Judge, City Civil Court, Hyderabad to I Additional Rent Controller-XIII Junior Civil Judge, Hyderabad and to conduct joint trial with RC No.666 of 1999. It is pertinent to note that the said O.P. was resisted by the respondents in the CRP since it was specified in the order that counter was filed and the application was opposed. But however, it was recorded that the suit OS No.1341 of 2000 was filed for recovery of arrears of rent and the same had already been claimed in the eviction case and in RC No.666 of 1999 the respondents filed a petition for eviction on the ground of default of payment of rent and the parties are the same and the property involved is the same and hence both may be tried together. The learned Judge also recorded that an early disposal was prayed for. In such circumstances, at the instance of the revision petitiohers in the CRP the Transfer O.P. was allowed and OS No.1341 of 2000 was withdrawn from the file of VII Junior Civil Judge and transferred to the I Additional Rent Controller-XIII Junior Civil Judge, Hyderabad with a direction to conduct joint trial with RC No.666 of 1999 and to dispose of the same within three months from the date of receipt of the order. The I Additional Rent Controller/XIII Junior Civil Judge by a common Judgment dated 23-12-2002 disposed of RC No.666 of 1999 and also the suit OS No.1341 of 2000. Evidence was recorded in the Rent Control Proceedings. PW.1, Mohd. Imam and RW.1 Sri Srinivas were examined. Exs.P1 to P52 and Exs.R1 to R18 were marked. The Court of first instance ordered eviction in the RC and also decreed the suit with costs. Aggrieved by the same, RA No.27 of 2003 was preferred to the Additional Chief Judge, City Small Causes Court, Hyderabad and the Appellate Authority by order dated 18-4-2006 confirmed the findings of the learned Rent Controller and dismissed the Appeal. Aggrieved by the same, the civil revision petition referred to supra was preferred under Section 22 of the Act. The unsuccessful tenants, likewise, being aggrieved of the Judgment and Decree made in OS No.1341 of 2000 carried the matter by way of appeal AS No. 140 of 2003 on the file of XIII Additional Chief Judge-Fast Track Court, City Civil Court, Hyderabad and the appellate Court by order dated 29-7-2004 while allowing the Appeal and setting aside the Judgment and Decree of the Court of first instance remanded the matter directing to try OS No.1341 of 2000 independently as per Law and dispose of the same. Aggrieved by the said remand order the present civil miscellaneous appeal is preferred by the unsuccessful plaintiffs in the said suit under Order XLIII Rule 1 of the Code. These are the brief facts.

(3.) Contentions of Sri Basith Ali Yavar:-Sri Basith Ali Yavar, the learned Counsel representing the revision petitioners in the CRP had taken this Court through the findings which had been recorded by the Courts below, the learned Rent Controller and also the Appellate Authority, and would maintain that the Rent Controller is a persona designata and hence even if there is an order of transfer made under Section 24 of the Code, the joint trial conducted itself is bad. The learned Counsel also would point out that it is a question concerned with the inherent lack of jurisdiction of the Rent Controller trying a civil suit and inasmuch as the civil suit was tried along with the Rent Control case and common judgment was made, the revision petitioners are seriously prejudiced. Even otherwise, the Counsel would contend that relating to the aspect of inherent lack of jurisdiction, neither estoppel nor res judicata would operate and hence inasmuch as the Common Judgment itself being vitiated, an order of remand was correctly made and in the light of the order of remand made in AS No. 140 of 2003, the order made even in RC No.666 of 1999 and RA No.27 of 2003 referred to above, being invalid or non est in the eye of Law, this matter also to be remanded with a direction to the learned Rent Controller to independently deal with RC No.666 of 1999 totally unconcerned with the suit referred to supra. Incidentally, the learned Counsel also pointed out to certain other factual aspects. The Counsel placed strong reliance on the decision of the Apex Court in Isabella Johnson (Smt.) v. M.A. Susai (Dead) by LRs., 1991 (1) APLJ (SC) 45.