*THE HON'BLE SRI JUSTICE P.S. NARAYANA +C.R.P.No.2157 of 2009 % 31-7-2009 # Ashwini Kumar .. Petitioner Vs. $ Govindlal .. Respondent <GIST: >HEAD NOTE: ! Counsel for petitioner : Sri B.Vijaysen Reddy ^ Counsel for respondent : Sri K.K. Waghray ? CASES REFERRED: 1996(1) ALT 635 THE HON'BLE SRI JUSTICE P.S. NARAYANA C.R.P.No.2157 of 2009 Date : 31-7-2009 Between : Ashwini Kumar .. Petitioner and Govindlal .. Respondent The Court made the following order : ORDER: 1. Govindlal, the respondent in the Civil Revision Petition, filed C.R.P.M.P.No.4535/2009 to vacate the interim order made in C.R.P.M.P.No.3023/2009 dated 6-5-2009 and to pass such other suitable orders. When the vacate application is taken up for hearing, the Counsel on record Sri B.Vijaysen Reddy representing the Revision petitioner and Sri Waghray representing the respondent in the C.R.P./vacate petitioner made submissions in elaboration and also further made a request for final disposal of the C.R.P. itself. Hence the Civil Revision Petition itself is taken up for final hearing and the same is being disposed of. 2. Sri Vijaysen Reddy, the learned Counsel representing the Revision petitioner had taken this Court to the relevant portions of the order made in R.A.No.28/2008 on the file of Chief Judge, City Small Causes Court, Hyderabad and would maintain that at para-7 the learned Judge having observed that moving an application on execution side cannot be sustained, in stead of dismissing the Appeal, totally erred in allowing the Appeal with a further direction to treat the same as independent application to be entertained and to be decided. The learned Counsel also would maintain that the appellate Court ought to have seen that though the II Additional Rent Controller is a Court of original jurisdiction while entertaining the proceedings in E.P.No.4/2007 it is acting as executing Court and such proceedings in R.C. will be independent proceedings. The learned Counsel also would maintain that the proceedings in E.P.No.4/2007 and R.A.No.425/99 are independent and cannot be merged and hence the impugned order directing conversion of application in E.P. as application in R.C.No.425/99 is wholly without jurisdiction. The learned Counsel also would maintain that the appellate Court ought to have seen that though the procedural laws have to be interpreted to advance the cause of justice, the interpretation should not be so liberal so as to lead to anomalous situation. Thus, the learned Counsel would conclude that in the peculiar fact-situation in the light of the fact that in the event of a fresh application to be filed since the bar of limitation would be operative, since by virtue of this direction the said valuable right accrued to the Revision petitioner in a way had been taken away, the order made by the appellate Court cannot be sustained and hence the Civil Revision Petition to be allowed. 3. Per contra, Sri Waghray, the learned Counsel representing the respondent would maintain that it is true that the respondent filed E.A(SR) 2557/2007 in E.P.No.4/2007 in R.C.No.425/99 on the file of II Additional Rent Controller, Hyderabad invoking Section 10(5)(a) of A.P. Buildings (Rent, Lease and Eviction) Control Act, hereinafter in short referred to as “Act” for the purpose of convenience, and the said application was filed for restoration of possession. The Counsel also would maintain that it is no doubt true that the Rent Controller dismissed the said application on a technical ground and the Counsel also pointed out to the relevant portion in this regard. The learned Counsel also would maintain that a regular enquiry as contemplated under Section 10(5)(a) of the Act and the mere fact that the appellate Court had given liberty to convert the same as I.A. in stead of E.P. would not cause any serious prejudice since the Revision petitioner as well can resist the said application on the grounds available to him in law. The learned Counsel also would further maintain that in pursuance of the said direction made by the appellate Court, in fact the said application was numbered as I.A.No.108/2009 and inasmuch as it is at the stage of enquiry, liberty may be given to the petitioner to contest the said application on merits. In stead, for reasons best known the Revision petitioner had challenged the said order by filing the present Civil Revision Petition. Even otherwise, in the light of the convincing reasons recorded by the appellate Court, this is not a fit matter to be interfered with under Section 22 of the Act. 4. Heard the Counsel and perused the order under challenge. 5. Several of the facts appear to be not in serious dispute or controversy. E.A(SR).No.2557 and E.P.No.4/2007 in R.C.No.425/99 on the file of II Additional Rent Controller, Hyderabad was filed by the respondent in the present Civil Revision Petition, Mr.Govindlal/petitioner/Judgment-debtor under Section 10(5)(a) of the Act to direct present Revision petitioner/respondent in the said application/Decree-holder to restore possession of the petition Schedule mulgi bearing No.21-2-72, Gulzar House, Hyderabad. The learned Rent Controller after referring to Section 10(5)(a) of the Act observed that E.P.No.4/2007 was terminated on 4-5-2007 because the Judgment-debtor had vacated and delivered vacant possession of the Schedule mulgi to the landlord and so it is evident that there is no pending E.P.No.4/2007 on the file of the said Court and hence the question of relief i.e., restoration of Schedule mulgi does not arise. It was further observed that the petition is not maintainable where there is no pending Eviction Petition and hence the petition had been rejected. Being aggrieved of the same, the said petitioner Mr.Govindlal, had preferred R.A.No.22/2008 on the file of Chief Judge, City Small Causes Court, Hyderabad and the appellate Court having formulated the following Points for determination: Whether the impugned order is liable to be set-aside and if so to what relief, recorded reasons at paras 6, 7, 8 and 9 and ultimately allowed the Appeal, but however, observed that the petition filed as E.A (S.R) No.2557/2007 is to be considered as an independent application to the execution proceedings and shall be entertained by the trial Court by treating the same as independent application having connection to the proceedings R.C.No.425/99 and shall decide it on merits after giving opportunity to either party. Aggrieved by this liberty given by the appellate Court, the present Civil Revision Petition had been preferred. 6. The appellate Court in fact had referred to the decision in Bampat Patalia Vs. Ghulam Fayazuddin and another [1]. There is no serious controversy relating to the other factual matrix. Hence the same need not be dealt with in elaboration while deciding the present Civil Revision Petition. It is no doubt true that the appellate Court at para-7 observed as hereunder: “As rightly pointed out by the trial Court, the appellant committed mistake in moving this application on execution side that too in the proceedings of E.P.4/2007 which is a proceeding which has been closed long ago after its purpose has been over. A right given to the tenant under Section 10(5)(a) of the Act is an independent right and a proceeding launched invoking this provision will be independent to the execution petition. In the circumstances, considering the fact that such petition is maintainable in law, the trial Court shall entertain this petition as an independent application which got connection with proceedings of R.C.425/99, but not as an execution application. Accordingly, the impugned order is to be set-aside and required directions are to be given”. 7. There cannot be any doubt in relation to the ambit of Section 10(5)(a) of the Act aforesaid. May be that in stead of filing an application in the R.C., by mistake on execution side this application had been filed and the same was rejected by the learned Rent Controller and the appellate Court rectified the same giving liberty to prosecute the said application filed as E.A. to be numbered as I.A. in the R.C. This Court is thoroughly satisfied that no serious prejudice is caused by the order made by the appellate Court. It is needless to say that the Revision petitioner is at liberty to contest the matter in accordance with law. 8. With the above observation, the Civil Revision Petition shall stand dismissed. No order as to costs. _________________ Justice P.S. Narayana Date : 31-7-2009 L.R. copy to be marked : YES / NO AM [1] 1996(1) ALT 635