Telangana High Court
Smt. G.Aruna vs Mandal Srinivas on 10 January, 2025
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE Dr. JUSTICE G.RADHA RANI
SECOND APPEAL No.434 of 2004
JUDGMENT:
This Second Appeal is filed by the appellant / respondent No.2 /
defendant No.2 aggrieved by the judgment and decree dated 28.01.2004 passed
in A.S.No.29 of 2003 (A.S.No.14 of 1997 on the file of the learned Senior Civil
Judge, Asifabad) by the learned III Additional District Judge (Fast Track
Court), Asifabad in reversing the judgment and decree dated 04.07.1997 passed
in O.S.14 of 1994 by the learned District Munsif, Sirpur.
2. The respondent No.1 is the plaintiff. The plaintiff filed a suit for
possession, ejection of tenant / defendant and for recovery of possession of the
premises bearing No.2-3-22 (New) / 2-3-53 (Old) situated at Sirpur
Kaghaznagar with arrears of rent of Rs.2,400/- and future mesne profits @
Rs.500/- per month from the date of filing the suit.
3. The plaintiff submitted that the plaintiff’s father by name Mandala
Rangaiah and the brother of Mandala Rangaiah by name Mandala Narayana
obtained a piece of land to an extent of 58 x 52 square feet in Survey Nos.67
and 120 situated at Kaghaznagar in the Sirpur notified area on lease from the
management of the M/s.Sirpur Paper Mills, Kaghaznagar in the name of
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Mandala Narayana. The plaintiff was a barber by caste and his father and his
father’s brother were living jointly since childhood and they intended to open a
joint hair cutting saloon in the year 1960 on the said piece of land and a
temporary structure was erected. The Municipality, Kaghaznagar also allotted
door No.2-3-53 to the said shop. An electric service meter bearing No.318 was
also obtained in the name of Mandala Narayana. In the year 1976, Mandala
Narayana obtained bank loan of Rs.1000/- from the State Bank of Hyderabad,
Sirpur-Kaghaznagar Branch to develop the shop and the father of the plaintiff
stood as guarantor. Due to their poor financial condition, they could not re-pay
the loan till 1980 and therefore they gave a portion of the shop measuring
18 x 16 square feet on rent to the defendant on a monthly rent of Rs.100/- in the
month of January, 1980. The remaining portion of the shop was in possession
and enjoyment of Mandala Narayana (paternal uncle of the plaintiff). As a
sub-tenant, the defendant (deceased) ran Renuka Wine Shop in that rental
premises. In the month of October, 1990, under a mutual understanding
between the father of the plaintiff and Mandala Narayana, the said shop bearing
No.2-3-22 was given to the plaintiff, as the plaintiff had no source of livelihood.
The Management of M/s.Sirpur Paper Mills terminated the tenancy of Mandala
Narayana and on 01.11.1990, the plaintiff entered into rental agreement with
M/s.Sirpur Paper Mills in respect of the said shop on a monthly rent of Rs.15/-.
The tenancy of the plaintiff was continued with M/s.Sirpur Paper Mills,
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Kaghaznagar. The defendant approached the plaintiff on 05.11.1990 and
requested the plaintiff to continue the tenancy and agreed to pay monthly rent of
Rs.150/- to the plaintiff. The plaintiff agreed to the said oral tenancy under the
following conditions:
(a) To hand over the shop bearing No.2-3-22 to the plaintiff whenever on
demand without any prior notice.
(b) That the defendant would not make any pakka constructions.
(c) That the defendant would pay monthly rent of Rs.150/- on the 5th day of
every month.
(d) The tenancy was monthly for a period of 11 months commencing from 5th
day of English calendar month.
(e) Municipal taxes would be paid by the defendant.
3.1. The plaintiff further averred that the defendant was sub-tenant of the
plaintiff in respect of the disputed shop. In the month of October, 1992, the
plaintiff came to know that the defendant violated the conditions stated above
and started construction and made the wine shop into two portions without his
knowledge and consent. Therefore, the plaintiff demanded vacant possession of
the disputed shop from the defendant for running barber shop therein. Since
then, the defendant was neither paying the rent nor handing over the vacant
possession of the disputed shop to the plaintiff. The defendant with a malafide
intention to deprive the plaintiff got transferred the disputed shop in his name in
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the Office of the Municipal Commissioner, Kaghaznagar. Knowing the said
fact, the plaintiff gave an application dated 02.01.1993 to the Municipal
Commissioner, Kaghaznagar not to transfer the disputed shop in the name of
defendant. Subsequently, the plaintiff came to know that the defendant gave a
legal notice dated 09.03.1993 to M/s.Sirpur Paper Mills requesting to cancel the
rental agreement of plaintiff. The plaintiff also came to know that the defendant
also filed a colluded suit O.S.No.6 of 1993 against the Municipal
Commissioner, Kaghaznagar in respect of the disputed shop without making the
plaintiff as a party to the said suit and obtained ex-parte decree dated
24.06.1993. The defendant made all efforts to deprive the plaintiff from the
disputed shop. After obtaining colluded decree, the defendant again started
making construction. On knowing the said fact, the management of M/s.Sirpur
Paper Mills gave a telegraphic message to the defendant to stop the
construction. The defendant violated the terms and conditions of the tenancy
and stopped payment of monthly rent from the month of October, 1992.
Therefore, the plaintiff issued a notice dated 27.09.1993 under Section 106 of
the Transfer of Property Act (for short “TP Act“), 1882 terminating the sub-
tenancy of the defendant with effect from the end of November, 1993. The said
notice was returned un-served, as the defendant managed for its return. Under
the said circumstances, the plaintiff was constrained to issue the self-same
notice dated 09.12.1993 under Section 106 of the TP Act, 1882 by registered
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post with acknowledgment due as well as under Certificate of Posting and also
made an affixture of the notice on the door of the disputed shop. In accordance
with the said notice, the sub-tenancy of the defendant was terminated with effect
from the midnight of 05.02.1994. Inspite of service of notice, the defendant
failed to handover vacant possession of the disputed shop, but gave a vague
reply dated 11.02.1994 on un-founded grounds. As such, the plaintiff filed the
suit.
4. The defendant filed written statement contending that he was the owner
and occupier of the suit schedule premises bearing Municipal Door No.2-3-22
(old No.2-3-53) situated on the R.P. Road at Sirpur-Kaghaznagar. The said
premises consisted of two rooms situated side by side covering an area of 17′ x
17′ and the defendant was running a wine shop in the name and style of Renuka
Wines in the suit premises. Originally, one Mandala Rangaiah (plaintiff’s
father) and Mandala Narayana, who were brothers, were having a temporary
structure with damper sheets over the said plot of 17′ x 17′. It was bearing
Municipal No.2-3-53 and that they sold the said superstructure standing over the
Government Land in Survey No.67/2 to the defendant in the year 1980 and
inducted him into possession of the same. Subsequently, the defendant
reconstructed his suit shop and he was continuously in peaceful possession of it
since 1980 to till date without any interference of anybody. In the year 1990,
during the revision of property tax, the Municipal Authorities entered the suit
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(disputed) shop in assessment books and other records in the name of defendant
and had given a Municipal Door No.2-3-22. The defendant was paying the
property tax regularly. Thus, it would show that the defendant was the owner
and possessor of the suit (disputed) shop and the plaintiff had no right or interest
and not entitled to file this suit. The claim of the plaintiff that the defendant
was his sub-tenant was totally false and misconceived. He denied that there was
no landlord and tenancy relationship between him and the plaintiff with regard
to the suit (disputed) shop nor there was any alleged oral tenancy. The suit was
not maintainable in the present form and liable to be dismissed and prayed to
dismiss the suit with costs.
5. Basing on the said pleadings, the trial court framed the issues as follows:
(i) Whether the plaintiff was entitled for recovery of possession of plaint
schedule property, as prayed for?
(ii) To what relief?
6. Subsequently after the death of the defendant, his legal representatives
were brought on record as defendants 2 to 6. The defendants 3 to 6 being
minors were represented by their mother defendant No.2. No separate or
additional written statement was filed by defendants 2 to 6.
7. The plaintiff examined himself as PW.1 and got examined his father
Mandala Rangaiah as PW.2, the neighboring shop people as PWs.3 and 4 and
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the Estate Officer of M/s.Sirpur Paper Mills as PW.5 and got marked Exs.A1 to
A81 in support of his contention. The defendant No.2 was examined as DW.1
and another independent witness as DW.2. Exs.B1 to B10 were marked on
behalf of the defendants.
8. On considering the oral and documentary evidence on record, the trial
court dismissed the suit observing that the lease agreement between the plaintiff
and M/s.Sirpur Paper Mills was only pertaining to the period from 01.11.1990
for a period of 11 months. As such, the lease expired on 30.09.1991 and the
plaintiff had no locus standi to file the suit in the year 1994. The trial court
further observed that Sirpur notified area was merged with Municipality,
Kaghaznagar with effect from 20.01.1989. As such, the real owner has to file
the suit under Rent Control Act and as per the lease agreement between the
plaintiff and M/s.Sirpur Paper Mills marked under Ex.A4, the plaintiff could not
sublet the suit premises and as such, he flouted the conditions of lease and a
wrong doer was not entitled to seek eviction of defendants. The trial court
further held that the plaintiff had not impleaded M/s.Sirpur Paper Mills Limited
as a party. As such, the suit suffered from non-joinder of proper and necessary
party and the plaintiff had no right to evict the defendants as on the date of the
suit i.e. in the year 1994, as the plaintiff was no more the lease holder of
M/s.Sirpur Paper Mills. The trial court further observed that in its opinion,
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M/s.Sirpur Paper Mills only can file a Rent Control Case to evict the tenants
and as such dismissed the suit.
9. Aggrieved by the said dismissal, the plaintiff preferred an appeal. The
appeal was heard by the learned III Additional District Judge (Fast Track
Court), Asifabad and vide judgment and decree dated 28.01.2004 in A.S.No.29
of 2003 reversed the findings of the trial court and directed the defendants to
vacate the suit schedule premises within two (02) months from the date of its
judgment and directed the defendants to pay Rs.2,400/- towards arrears of rents
and that the future mesne profits would be decided after an enquiry to be held
on the application filed by the plaintiff under Rule 20 Rule 12 (1)(ba) of CPC
and allowed the appeal with costs.
10. Aggrieved by the said reversal judgment passed by the learned III
Additional District Judge (Fast Track Court), Asifabad, the defendant No.2
preferred this Second Appeal.
11. This Court admitted the Second Appeal on the following substantial
question of law:
(I) Whether there is any perversity in the judgment of the First Appellate Court
in decreeing the suit?
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12. Heard Sri V.Ravi Kiran Rao, learned counsel for the appellant –
defendant No.2 and Sri Laxmi Manohar, learned counsel for the respondent –
plaintiff.
13. Learned counsel for the appellant contended that the husband of the
appellant (i.e. the deceased defendant No.1) purchased the suit schedule
property i.e. plot measuring 18′ x 60′ along with temporary structure with
damper sheet bearing Municipal Door No.2-3-53 situated at Sirpur-
Kaghaznagar, Asifabad District. The husband of the appellant was enjoying the
suit schedule property as owner and was running a wine shop in the name and
style of Renuka Wines. In the year, 1980, during the revision of property tax,
the Kaghaznagar Municipal Authorities entered the suit shop in the assessment
book and in other records and assigned Municipal No.2-3-22. Further, the
husband of the appellant was regularly paying Municipal Taxes pertaining to
the suit property as lawful owner and possessor of the property till he died.
Subsequently, the appellant and the other legal representatives of the deceased
succeeded to the property and they were in peaceful possession and enjoyment
of same. The lower appellate court without appreciating the documentary
evidence filed by the defendants marked under Exs.B1 to B10 reversed the well
considered judgment rendered by the trial court on legal as well as on factual
aspects. The respondent – plaintiff failed to prove the payment of any lease
amount by the defendant in respect of the suit schedule premises as sub-tenant.
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The Appellate Court relying on oral evidence, presumed the existence of sub-
lease and status of the deceased defendant as sub-tenant and ordered eviction of
the appellant from the suit schedule property. The judgment and decree passed
by the Appellate Court was patently illegal and perverse to the facts and
evidence on record. Even, as per the plaintiff, the lease obtained by his father
and paternal uncle was terminated by M/s.Sirpur Paper Mills on 01.11.1990.
But a rental agreement dated 05.11.1990 was executed in favor of the
respondent – plaintiff by M/s.Sirpur Paper Mills under Ex.A4. Ex.A4 was
considered as not a reliable document by the trial court, as it did not contain
date and seal. The Appellate Court merely relying upon the oral evidence of
PW.5, treated the respondent – plaintiff as tenant of the schedule premises, even
though, the respondent – plaintiff violated the terms and conditions of the
agreement of lease. Even though the tenancy was not extended further, the
lower appellate court treated the respondent as tenant and further treated the
deceased defendant No.1 as sub-tenant of the respondent, without appreciating
the oral and documentary evidence in a proper perspective. The judgment under
appeal was contrary to the evidence on record. As such, the same was liable to
be set aside. He further contended that even prior to the institution of the suit
by the respondent herein, the husband of the appellant filed O.S.No.6 of 1993
against Kaghaznagar Municipality and obtained decree of permanent injunction
against the Municipality in respect of the suit schedule premises. Exs.B1 to B4
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tax receipts would clearly show that the husband of the appellant herein was the
owner and possessor of the suit schedule premises. The Appellate Court
ignoring the documents filed and the evidence let in, passed the judgment under
appeal. The Appellate Court failed to observe that no documentary evidence
was produced by the respondent – plaintiff to show the payment of any rent or
any amount towards lease by defendant No.1. Merely relying on the oral
evidence, accepted the plea of sub-lease in favor of defendant No.1 and ignored
the plea of ownership of the property claimed by deceased defendant No1 and
set aside the well considered judgment rendered by the trial court. The Lower
Appellate Court failed to appreciate Exs.B8 and B9 receipts showing the
payments made by PW.2, the father of the respondent herein towards purchase
of the suit schedule premises and though oral evidence was let in, in respect of
the said documents, disbelieved the same. The Lower Appellate Court had not
weighed the evidence on record of the plaintiff and the defendant on the same
scale. He further contended that the Lower Appellate Court erred in not taking
into consideration the effect of Ex.B7, the Government Order, which would
clearly show that the area of M/s.Sirpur Paper Mills including the suit schedule
premises was included in the Municipal area of Kaghaznagar Municipality with
effect from 20.01.1989 and the provisions of AP Rent Control Act were
applicable and the Civil Court had no jurisdiction to entertain the suit for
eviction under general law. The Appellate Court ignored the well considered
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principles of law that even though the parties submitted themselves to the
jurisdiction of the Court and to prosecute the case, it was the Court which has to
take judicial notice with regard to jurisdictional aspect and shall decide the
matter whether the Court has jurisdiction or not and relied upon the judgment of
the erstwhile High Court of Andhra Pradesh in D.Satyanarayana Rao v.
Vasudev Asrani and another1 on the aspect that an order passed by a Court
having no jurisdiction in relation thereto would be a nullity and that even a right
order passed by a wrong forum would be a non-coramjudis. Such a question of
inherent lack of jurisdiction could be raised at any stage. He also relied upon
the judgment of the High Court of Andhra Pradesh in Mrs.Jaya P.Hamrajani
v. Mrs.Rose Elvina D’Souza 2, wherein it was held that the Supreme Court
Judgment in Motor General Traders and another v. State of Andhra
Pradesh [AIR 1984 SC 121] striking down the provisions of Section 32(b) of
the Rent Control Act is also applicable to all pending suits or appeals. He
further contended that the Lower Appellate Court also failed to observe that
Exs.A15 to A81 did not contain the number of the suit premises or the extent of
the area leased, but had taken the same into consideration, even though the
evidence of the respondent – plaintiff would disclose that he obtained lease
from M/s.Sirpur Paper Mills initially for a period of 11 months through Ex.A4
1
2001 (3) ALD 510
2
1995 (1) ALD 187
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and prayed to set aside the judgment of the Lower Appellate Court in A.S.No.29
of 2003 and to restore the judgment of the trial court in O.S.No.14 of 1994.
14. Learned counsel for the respondent on the other hand contended that the
Lower Appellate Court rightly allowed the appeal by considering all the oral
and documentary evidence adduced by both the parties answering all the issues
with all fairness and justice. The appellant filed the present Second Appeal only
to stall the execution proceedings before the court below to deny the legitimate
fruits of the decree passed by the Lower Appellate Court in favor of the
respondent – plaintiff. The Second Appeal was filed without any valid grounds
and substantial questions of law involved only with a fraudulent, dishonest and
malafide intention to cause wrongful loss to the respondent – plaintiff and to
obtain wrongful gain to themselves. The respondent – plaintiff was a helpless
poor person. He was a barber by profession and relied upon the judgment of
K.P.Janaki Ram v. K.Suguna Bai 3 in support of his contention, wherein it was
held that the AP Buildings (Lease, Rent and Eviction) Control Act, 1960 (for
short “the Act”), Section 10(1) proviso had to be applied only to a case where
the relationship of landlord and tenant existed. Where the tenant denied title of
landlord and relationship of landlord and tenant not established in the case, the
Rent Control Court had no jurisdiction. The landlord had to approach the Civil
Court for eviction and possession of premises under proviso to Section 10(1) of
3
1995 (2) ALT 61
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the Act. He relied upon the judgment of the Hon’ble Apex court in Bachhaj
Nahar v. Nilima Mandal and another4 on the aspect that in the absence of
pleadings and an opportunity to the first defendant to deny the claim, the High
Court could not have converted a suit for title into a suit for enforcement of an
easementary right. ……… Even if the High Court felt that a case for easement
was made out, at best liberty could have been reserved to the plaintiffs to file a
separate suit for easement. But the High court could not, in a second appeal,
while rejecting the plea of the plaintiffs that they were owners of the suit
property, grant the relief of injunction in regard to an easementary right by
assuming that they had an easementary right to use the schedule property as a
passage. He also relied upon the judgment of the Hon’ble Apex Court in
Karunanidhi v. Seetharama Naidu and others5 on the aspect that framing of
substantial questions of law was essential for dealing with the issue concerned
by the High Court. Such question can be formulated at the time of admission or
at any time of final hearing by assigning reasons. But without framing a
substantial question on applicability of provisions of an Act, the High Court
cannot suo motu apply provisions for deciding the appeal It was also held in the
above judgment that though High Court has power to formulate the substantial
question of law, but when a question was neither raised before the trial court,
the First Appellate Court or even before the High Court and without a pleading,
4
(2008) 17 SCC 491
5
(2017) 5 SCC 483
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issue and finding recorded, the High Court had no jurisdiction to suo motu
examine the question in Second Appeal.
15. Learned counsel for the respondent- plaintiff relied upon the above
judgment to contend that the appellant – defendant had not raised before the
courts below that the Civil Court had no jurisdiction to decide the matter and it
was the Rent Control Court, which was only having jurisdiction. He further
relied upon the judgment of the Hon’ble Apex Court in Suresh Lataruji
Ramteke v. Sau.Sumanbai Pandurang Petkar and Others 6 on the aspect that
the Second Appeal cannot become a third trial on facts or “one more dice in the
gamble”. When a substantial question of law is formulated by the Court then
the same must be made known to parties and thereafter they have to be given an
opportunity to advance arguments thereon.
16. On considering the rival contentions, now the point that arises for
determination is whether the appellant can raise the aspect of lack of jurisdiction
of the trial court without there being any pleading in the said regard or any
substantial question of law framed by this Court. It is pertinent to note that the
appellant raised the above ground in his grounds of appeal raising the same as
one of the substantial questions of law arising for consideration as:
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2023 Law Suit (SC) 939
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sa_434_200411(2). Whether the suit is maintainable under law
even if both the parties subjected themselves to the
jurisdiction of District Munsif Court, Sirpur even in
the light of Ex.B7 i.e. Government Order when area of
M/s. Sirpur Paper Mills including the suit schedule
area included in the Kaghaznagar Municipality with
effect from 20.01.1989 and attracts the provision of
Rent Control Act by ousting the jurisdiction of Civil
Court in eviction matters?
17. In the judgment relied by the learned counsel for the respondent in
Suresh Lataruji Ramteke v. Sau.Sumanbai Pandurang Petkar and Others
(cited supra), the Hon’ble Apex Court while considering whether the High
Court could have proceeded to decide the substantial question of law in the
absence of affording adequate opportunity of hearing to the parties held that:
“When a substantial question of law is formulated by the Court,
then the same must be made known to the parties and thereafter
they have to be given an opportunity to advance arguments
thereon.”
The Hon’ble Apex Court held that:
13. The jurisprudence on Section 100, CPC is rich and
varied. Time and again this Court in numerous judgments has
laid down, distilled and further clarified the requirements that
must necessarily be met in order for a Second Appeal as laid
down therein, to be maintainable, and thereafter be adjudicated
upon. Considering the fact that numerous cases are filed before
this Court which hinge on the application of this provision, we
find it necessary to reiterate the principles.
13.1. The requirement, most fundamental under this section is
the presence and framing of a “substantial question of law”. In
other words, the existence of such a question is sine qua non for
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sa_434_2004exercise of this jurisdiction.[Panchugopal Barua v. Umesh
Chandra Goswami and Others [(1997) 4 SCC 713].
13.2. The jurisdiction under this section has been described
by this Court in Gurdev Kaur v. Kaki [(2007) 1 SCC 546 –
Two Judge Bench)] stating that post 1976 amendment, the
scope of Section 100 CPC stands drastically curtailed and
narrowed down to be restrictive in nature. The High Court’s
jurisdiction of interfering under Section 100 CPC is only in a
case where substantial questions of law are involved, also
clearly formulated/set out in the memorandum of appeal. It has
been observed that:
“At the time of admission of the second appeal,
it is the bounden duty and obligation of the High
Court to formulate substantial questions of law
and then only the High Court is permitted to
proceed with the case to decide those questions
of law. The language used in the amended
section specifically incorporates the words as
“substantial question of law” which is indicative
of the legislative intention. It must be clearly
understood that the legislative intention was
very clear that legislature never wanted second
appeal to become “third trial on facts” or “one
more dice in the gamble”. The effect of the
amendment mainly, according to the amended
section, was:
(i) The High Court would be justified in
admitting the second appeal only when a
substantial question of law is involved;
(ii) The substantial question of law to precisely
state such question;
(iii) A duty has been cast on the High Court to
formulate substantial question of law before
hearing the appeal;
(iv) Another part of the section is that the appeal
shall be heard only on that question.”
Gurdev Kaur (supra) was referred to and relied
upon in Randhir Kaur v. Prithvi Pal Singh &
Ors. [(2019) 17 SCC 71 (DB)]
13.3. In Santosh Hazari v. Purushottam Tiwari [(2001) 3
SCC 179 – Three Judge Bench] a Bench of three Judges, held
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as under in regard to what constitutes a substantial question of
law:
a) Not previously settled by law of land or a binding precedent.
b) Material bearing on the decision of case; and
(c) New point raised for the first time before the High Court is
not a question involved in the case unless it goes to the root of
the matter. Therefore, it will depend on facts of each case.
Such principles stand followed in Government of Kerala v.
Joseph [2023 SCC Online SC 961 (DB)] and Chandrabhan v.
Saraswati [2022 SCC Online SC 1273 (DB)].
13.4 Non-formulation of substantial question(s) of law renders
proceedings “patently illegal”. This Court’s decisions
in Umerkhan v. Bimillabi [2011 9 SCC 684 (DB)] and Shiv
Cotex v. Tirgun Auto Plast Private Ltd. & Ors. [2011 9 SCC
678 (DB) indicate this position.
15. In Kichha Sugar Co. Ltd. v. Roofrite (P) Limited
[2009 16 SCC 280 – Three Judge Bench], it was observed:
“4. Our attention is drawn by the learned
counsel for the respondents to the provisions
of Section 100(5) of the Civil Procedure Code
where the respondent to a second appeal is
permitted “to argue that the case does not
involve such question” i.e. the questions
formulated earlier. No doubt, but then the order
on the second appeal should indicate, howsoever
briefly, why the questions formulated at the
earlier stage had, at the stage of final hearing,
been found to be no questions of law.”
16. Substantial questions should ordinarily, not be framed at
a later stage. If done so, then parties must be given an
opportunity to meet them. This Court in U.R. Virupakshappa
v. Sarvamangala [2009 (2) SCC 177], held:
“15. It, furthermore, should not ordinarily frame
a substantial question of law at a subsequent
stage without assigning any reason there for and
without giving a reasonable opportunity of
hearing to the respondents. [See Nune Prasad v.
Nune Ramakrishna [(2008) 8 SCC 258: (2008)
10 Scale 523]; Panchugopal Barua v. Umesh
Chandra Goswami [(1997) 4 SCC 713] (SCC
paras 8 and 9); and Kshitish Chandra Purkait
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sa_434_2004v. Santosh Kumar Purkait [(1997) 5 SCC 438]
(SCC paras 10 and 12)].
16. The High Court, in this case, however,
formulated a substantial question of law while
dictating the judgment in open court. Before
such a substantial question of law could be
formulated, the parties should have been put to
notice. They should have been given an
opportunity to meet the same. Although the
Court has the requisite jurisdiction to formulate
a substantial question of law at a subsequent
stage which was not formulated at the time of
admission of the second appeal but the
requirements laid down in the proviso appended
to Section 100 of the Code of Civil Procedure
were required to be met.”
18. Thus, the Hon’ble Apex Court held that though the High Court has
requisite jurisdiction to formulate a substantial question of law at a subsequent
stage, which was not formulated at the time of admission of the Second Appeal,
the parties should be put to notice and that they must be given an opportunity to
meet the same. The lack of jurisdiction was also raised by the trial court in its
judgment and the same was also addressed by the Lower Appellate Court. The
appellant has also raised it as one of the grounds in the grounds of appeal
requiring the Court to formulate the same as one of the substantial questions of
law. This Court had not framed the said question while admitting the appeal.
However, both the parties addressed their arguments on the said aspect and
placed reliance upon various judgments on this aspect. It was a well settled
principle of law that the plea of lack of jurisdiction can be entertained at any
stage [Most. Rev. P.M.A. Metropolitan and others v. Moran Mar
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Marthoma and another – 1995 Supplementary (4) SCC 286], wherein it was
held that an order or decree passed without jurisdiction is nonest in law.
19. The Hon’ble Apex Court in Shri Saurav Jain & another v. M/s.
A.B.P.Design and another [LL 2021 SC 354] in Civil Appeal No.4448 of
2021 also held that an order or decree passed without jurisdiction is nonest in
law and that the plea of a bar or lack of jurisdiction can be entertained at any
stage. The lack of jurisdiction of the Court is a pure question of law, which can
be examined at any stage of the case and it cannot be waived simply because
the defendant had not raised the plea at the initial stage in his pleadings.
20. As rightly contended by the learned counsel for the appellant, even if
both the parties agreed to submit themselves to the jurisdiction of the Court by
consent, a duty lies upon the Court to take notice on the jurisdictional aspect.
The High Court of Andhra Pradesh in D.Satyanarayana Rao v. Vasudev
Asrani and another (cited supra), wherein also in a similar matter, where the
petitioner filed a civil suit for recovery of possession and mesne profits instead
of filing before the AP Buildings (lease, rent and eviction) Control Act, 1960
and the same was decreed in favor of the petitioner and in the execution petition
filed, the lack of jurisdictional aspect was raised by the judgment debtor and the
Executing Court concurred with the contention of the judgment debtor by
relying upon the judgment of the Hon’ble Apex Court in Motor General
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Traders and another v. State of Andhra Pradesh [AIR 1984 SC 121],
concurred with it, observing that:
8. In the instant case, admittedly, the suit was filed before the
Court, which did not have any jurisdiction. An order passed by
a Court having no jurisdiction in relation thereto would be a
nullity. In Kiran Singh v. Chaman Paswan [AIR 1954 SC
340], the Apex Court at paragraph 6 of the judgment held;
“6. ……..,., It is a fundamental principle that a
decree passed by a Court without jurisdiction is
a nullity, and that its invalidity could be set up
whenever and wherever it is sought to be
enforced or relied upon even at the stage of
execution and even in collateral proceedings. A
defect of jurisdiction, whether it is pecuniary or
territorial, or whether it is in respect of the
subject-matter of the action, strikes at the very
authority of the Court to pass any decree, and
such a defect cannot be cured even by consent of
parties …”
9. Yet again, the Apex Court in Pandurang v. State of
Maharashtra [AIR 1987 SC 535], held that even a right order
passed by a wrong forum would be a non-coramjudis. Such a
question of inherent lack of jurisdiction can be raised even in
collateral proceedings.
21. As seen from the record, the defendant got marked G.O.Ms.No.18 issued
by the Housing Municipal Administration and Urban Development Department
dated 09.01.1989 notifying inclusion of Sirpur notified area into the limits of
Kaghaznagar Municipality with effect from 20.01.1989. The objections taken
by M/s. Sirpur Paper Mills was rejected and a final notification was issued and
the same was published in the extraordinary issue of Andhra Pradesh Gazette
dated 20.01.1989. As the Telangana Buildings (least, rent and eviction) Control
Act, 1960 is applicable to all the Municipal Corporations and Municipalities in
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the State of Telangana and the Kaghaznagar Municipal area limits was notified
with effect from 20.01.1989, the above Act is applicable for evicting the
tenants.
22. The definition of landlord under Section 2(vi) of AP Buildings (Lease,
Rent & Eviction) Control Act, 1960 defines landlord as follows:
“Landlord means the owner of a building and includes a person
who is receiving or is entitled to receive the rent of a building
whether on his own account or on behalf of another person or
on behalf of himself and others or as an agent, trustee, executor,
administrator, receiver or guardian or who would so receive the
rent or be entitled to receive the rent; if the building were let a
tenant.
The explanation under this definition also includes: ‘A tenant
who sub-lets a building shall be deemed to be a landlord within
the meaning of this Act in relation to the sub-tenant.”
Thus, the definition of the landlord includes a tenant, who sub-lets a
building within the meaning of the Act.
23. The pecuniary jurisdiction of the Rent Controller is limited to Rs.3,500/-
per month in the areas covered by the Municipal Corporations in the State and
Rs.2,000/- per month in other areas. As the disputed premises is situated within
the limits of Kaghaznagar Municipality and within the pecuniary jurisdiction of
the Rent Controller, it was the Rent Controller who had jurisdiction to entertain
and adjudicate the petition filed by the plaintiff for eviction of the defendant.
24. Learned counsel for the respondent contended that when the tenant
denied the title of the landlord, it was the Civil Court, which had the
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jurisdiction, but not the Rent Control Court and relied upon the judgment of the
erstwhile High Court of Andhra Pradesh in K.P.Janaki Ram v. K.Suguna Bai
(cited supra), wherein the learned Single Judge basing upon the facts of the case
observed that when the petitioner was denying tenancy and title of landlord to
demised premises by virtue of an agreement of sale in his father’s favor
executed in 1956 and landlord not able to establish payment of rent at any time
by tenant since 1956, even if the petitioner is assumed to be tenant, it was a case
of bonafide denial of title of landlord. The Rent Control Court has no
jurisdiction. The landlord has to approach the Civil Court for eviction and
possession of premises under proviso to Section 10(1) of the Rent Control Act.
25. As such, it is considered fit to extract Section 10(1) of the Rent Control
Act along with its proviso. It reads as follows:
10. Eviction of tenants:
(1) A tenant shall not be evicted whether in execution of a
decree or otherwise except in accordance with the provisions of
this section or sections 12 and 13.
Provided that where the tenant denies the title of the landlord or
claims right of permanent tenancy, the Controller shall decide
whether the denial or claim is bona fide and if he records a
finding to that effect, the landlord shall be entitled to sue for
eviction of the tenant in a Civil Court and the Court may pass a
decree for eviction on any of the grounds mentioned in the said
sections, notwithstanding that the Court finds that such denial
does not involve forfeiture of the lease or that the claim is
unfounded.
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26. Thus, as per the proviso to Section 10(1) of the Rent Control Act, when
the tenant was denying the title of the landlord, the case was initially to be filed
before the Rent Control Court and in the written statement if the tenant was
denying the title of the landlord, it was the Controller, who should decide
whether the said claim was bonafide or not and after recording a finding to that
effect, has to direct the parties to approach the Civil Court if required.
27. Thus, there must be prima facie adjudication with regard to the title of
the landlord in terms of proviso to Section 10(1) of the Rent Control Act for
maintaining a suit before the Civil Court for eviction. Thus, when the State
Rent Control Act provides for specific provisions relating to adjudication of
disputes between a landlord and a tenant, the Civil Court has no jurisdiction to
entertain and try such suits.
28. But, however, in Rent Control proceedings, the title of the property
cannot be decided. In the written statement filed by the defendant, he did not
accept the title of the plaintiff to the suit schedule property and contended that
he purchased the suit schedule property from the predecessors of the plaintiff
i.e. his father and his paternal uncle. The question of title cannot be gone into
by the Rent Controller and have to refer the parties to the Civil Court to decide
the same. The Controller could only give a finding whether the denial of title is
bonafide or not. In the present case, as the title of the plaintiff is denied by the
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defendant, it was the Civil Court, which was having the ultimate jurisdiction to
decide the said aspect and whether the plaintiff is entitled for recovery of
possession or not.
29. Considering that the original suit was pertaining to the year 1994 and
though it was proper for the plaintiff to approach the Rent Controller,
considering the defence taken by the defendant, wherein he denied the title of
the plaintiff and as the suit has to be ultimately decided by the Civil Court and
as the trial court, as well as the Lower Appellate Court had decided all the
aspects, it is considered not fit to relegate the plaintiff to file a case before the
Rent Controller after such a long period of 30 years and which was ultimately
to be decided by the Civil Court. This Court considers it as an unnecessary
technicality to insist the plaintiff to approach the Rent Controller.
Substantial Question of law: Whether there is any perversity in the
judgment of the First Appellate Court in decreeing the suit?
30. On a perusal of the judgment of the Lower Appellate Court, the Lower
Appellate Court considered the pleadings and evidence on record and observed
that there was no categorical denial by the defendant in his written statement
that the land was taken on lease from M/s. Sirpur Paper Mills Limited by the
plaintiff’s father and his paternal uncle and that he only stated that he had no
knowledge of the said fact, but the copy of the legal notice issued by defendant
No.1 to the General Manager of M/s. Sirpur Paper Mills Limited dated
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09.03.1993 marked under Ex.A7 would show the admission of the defendant of
the ownership of M/s. Sirpur Paper Mills Limited.
31. On considering the contents of Ex.A7, the Lower Appellate Court
observed that defendant No.1 requested the Company to cancel the rental
agreement executed in favor of the plaintiff and requested to execute an
agreement in his favor in respect of the said land. The Lower Appellate Court
also observed that the defendant admitted that the schedule premises was given
to him by the plaintiff’s father and his paternal uncle, but denied the nature of
transaction as lease and contended that it was a sale, but failed to file the
registered / un-registered sale deed, through which he purchased the same. It
was also rightly observed that the oral evidence of DWs.1 and 2 could not be
looked into, as according to them, the transaction was covered under an un-
registered sale deed and since the document was not produced before the Court,
held that the defendants failed to prove that the father of the plaintiff and his
paternal uncle sold the said property to defendant No.1. The lower appellate
court also observed that the receipts marked under Exs.B8 and B9 were not
confronted to PW.2, the father of the plaintiff. The lower appellate court also
observed that there was no cross-examination of PW.2 and his evidence
remained un-controverted. The Lower Appellate Court also observed that the
Estate Officer of M/s. Sirpur Paper Mills was examined as PW.4 and he stated
about the lease deed executed by M/s. Sirpur Paper Mills in favor of the
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plaintiff’s father and his paternal uncle Narayana initially and subsequently to
the plaintiff in the year 1990 under rental agreement marked under Ex.A4 with
the Company and that he identified the signatures on Ex.A4 and that there was
no cross-examination of PW.5. As such, the rental agreement marked under
Ex.A4, remained un-challenged. The Lower Appellate Court also considered
the documents marked under Exs.A8 and A9, the certified copy of the plaint in
O.S.No.6 of 1993 and certified copy of the decree in the suit filed by defendant
No.1 against the Municipality, Kaghaznagar and observed that the decree was
not binding on the plaintiff, since he was not a party to the suit and that the said
decree would not confer any title in favor of defendant No.1.
32. Thus, considering the oral and documentary evidence adduced by the
plaintiff and defendant on record, the Lower Appellate Court rightly came to
the conclusion that the plaintiff was tenant of the schedule premises and as a
tenant he sub-let the premises to defendant No.1 and defendant No.1 violated
the terms of the sub-lease and that the plaintiff validly terminated the tenancy
by issuing a notice under Section 106 of the Transfer of Property Act, 1882, and
is entitled for recovery of possession of the premises. This Court does not find
any perversity in the judgment of the Lower Appellate Court in drawing the
inferences basing upon the evidence let in and coming to the said conclusions.
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33. In the result, the Second Appeal is dismissed confirming the judgment
and decree dated 28.01.2004 passed in A.S.No.29 of 2003 (A.S.No.14 of 1997
on the file of the learned Senior Civil Judge, Asifabad) by the learned III
Additional District Judge (Fast Track Court), Asifabad.
No order as to costs.
As a sequel, miscellaneous applications pending in this appeal, if any
shall stand closed.
_____________________
Dr. G. RADHARANI, J
Date: 10th January, 2025
Nsk.
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