* THE HON’BLE MR. JUSTICE R. KANTHA RAO + C.R.P.No. 2259 of 2009 AND + C.R.P.No. 4900 of 2010 % Dated 04.02.2011 # Umakanth Padhi .....Petitioner AND $ Poornachandra Padhi .....Respondent ! Counsel for the petitioner: Mr.K.Someshwar Kumar ^ Counsel for the Respondent : Mr.T.Rajasekhar Rao <GIST: > HEAD NOTE: ? Cases referred [1] 2010(1) ALD 366 2 2002(4) ALD 90 (SC) 3 (1989) 4 SCC 732 4 2007 (2) ALD 808 5 1998(2) ALT 105 THE HON’BLE MR JUSTICE R. KANTHA RAO C.R.P.No.2259 of 2009 AND C.R.P.No.4900 of 2010 Date:04.02.2011 Between: Umakanth Padhi …Petitioner And Poornachandra Padhi …Respondents THE HON’BLE MR JUSTICE R. KANTHA RAO C.R.P.No.2259 of 2009 AND C.R.P.No.4900 of 2010 COMMON ORDER: Heard the learned counsel appearing for the petitioner and the respondent. C.R.P.No.2259 of 2009 is filed by the tenant against the judgment and decree dated 01.05.2009 in R.C.A.No.1 of 2009 passed by the Senior Civil Judge, Parvathipuram, Vizianagaram District confirming the order passed by the Rent Controller-cum-Principal Junior Civil Judge, Parvathipuram in R.C.C.No.2 of 2006. C.R.P.No.4900 of 2009 is also filed by the tenant against the order dated 06.10.2010 in E.A.No.190 of 2010 in E.P.No.1 of 2009 in R.C.C.No.2 of 2006 passed by the Rent Controller-cum-Principal Junior Civil Judge, Parvathipuram. Both the civil revision petitions relate to the same subject matter of the dispute and between the same parties. Hence, they are disposed of by the following common order. The landlord filed eviction petition against the tenant under Section 10(2)(i), 10 (c) of A.P. Buildings (Lease, Rent and Eviction) Control Act. In response to the eviction petition filed by the landlord on the ground of willful default and also for his bona fide requirement for residential purpose, the tenant filed counter admitting that though originally the landlord is the owner of the schedule mentioned premises which is meant for residential purpose, the tenant purchased the premises from the landlord under an oral sale in the year 1999 before the elders. Thus, according to the tenant, he is not the tenant under the respondent, there is no relationship of landlord and tenant and he is the absolute owner of the schedule mentioned premises. The leaned Rent Controller upon considering the entire evidence on record in the light of the contentions urged by both parties, arrived at a decision that the revision petitioner is the tenant under the respondent and he failed to prove that he himself is the owner of the property and that he is in possession of the schedule mentioned premises as the owner. Having arrived at such a conclusion, the learned Rent Controller ordered eviction of the revision petitioner on the ground that the denial of the title of the respondent is not bona fide and that he also did not pay the rent to the landlord since the year 2003 and thereby committed willful default. The findings arrived at by the Rent Controller and the consequent order of eviction passed against the revision petitioner were confirmed by the appellate authority. Since the revision petitioner failed to vacate the premises within the period stipulated by the Rent Controller which order had been confirmed by the appellate authority, the respondent filed E.P.No. 1 of 2009 and in the said E.P., he filed E.A.No.190 of 2010. The revision petitioner/J.Dr. filed a memo in the executing court stating that C.R.P.No.2259 of 2009 is pending before this Court and therefore no orders can be passed in the E.A. or E.P. The learned executing Court rejecting the contention urged by the revision petitioner, issued warrant directing the delivery of the property by removing the obstruction caused by the revision petitioner. It is contended on behalf of the revision petitioner that the ground No.1 basing on which the eviction was ordered is not the ground on which the eviction was sought for, there is a suit filed by the revision petitioner against the respondent for specific performance of oral contract of sale and keeping in view that the revision petitioner claimed the title in the said suit, the courts below ought to have directed the parties to pursue their remedies before the civil Court before which the suit for specific performance of oral contract is pending. On the other hand, it has been contended by the learned counsel appearing for the respondent that the Rent Controller as well as appellate authority, upon considering the entire evidence on record with reference to the pleadings of both parties, concurrently held that the revision petitioner failed to make out a case that he is the owner of the property under oral contract of sale from the respondent and further his denial of the title of the respondent-landlord is not bona fide, therefore, the Rent Controller as well as the appellate authority are perfectly justified in passing the order of eviction and in a situation like this, the law does not contemplate that the matter shall not be decided by the courts under the Rent Control Act till the title dispute is settled by the competent civil Court. Reliance is placed by the learned counsel appearing for the revision petitioner on AVULAPALLE MALLIKARJUNA AND OTHERS v. N.T. CHENGALARAYAPPA[1] wherein the learned single Judge of this Court held that where the suit filed by the respondent/tenant claiming to be in possession of property as owner for specific performance of agreement of sale and the suit is dismissed on the ground that respondent landlord may seek recovery of possession, by instituting a separate suit and there existed no basis for the petitioner to file RCC. The above cited judgment was rendered by the learned single Judge keeping in view the facts of the case before him and in fact, no ratio has been laid down in the said decision and the facts of present case also being different, the said decision is not applicable to the present case. Reliance has also been placed by the learned counsel for the petitioner on J.J. LAL PVT. LTD,. AND OTHERS v. M.R. MURALI AND ANOTHER[2] wherein the Supreme Court held that the High Court was in error in taking the denial of the title by the tenant which is on the eviction petition filed by the tenant as primary ground for eviction and proceeded to decide the same and this is not only violative of the established procedure for civil trials but also violative of principles of justice and fair play. According to the Supreme Court the tenants have been certainly prejudiced in their defence and, therefore, availability of that ground for eviction of tenants in the present proceedings cannot be sustained. Reliance has further been placed by the revision petitioner on MAJATI SUBBARAO v. P.V.K. KRISHNA RAO (DECEASED) BY L.Rs.[3] wherein the Supreme Court held as follows: “The denial of title of landlord by the tenant need not be anterior to the eviction petition. Even a denial of the landlord's title by a tenant in a written statement in an eviction petition under the Rent Act concerned furnishes a ground for eviction and can be relied upon in the very proceedings in which a written statement containing the denial has been filed As observed by the Punjab and Haryana High Court to insist that a denial of title in the written statement cannot he taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be filed by the landlord would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit for ejectment of the tenant on the ground of forfeiture entailed by the tenant's denial of his character as a tenant in the written statement.’ The above said two decisions are not applicable to the facts of the present cases. On the other hand, the learned counsel appearing for the respondent-landlord relied upon decisions reported in KAREEM HUSSAIN (DIED) BY LRs. v. VEERANKI RAMA KRISHNA PRASAD (DIED) BY LRs.[4] wherein the learned single Judge of this Court held that when the Courts under Sections 10(2)(i) and 10(3)(a)(i) of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 arrived at a decision that there is relationship of landlord and tenant and satisfaction about the grounds on which the eviction was sought i.e. committing willful default in payment of rent, the courts can order eviction despite the pendency of the suit for specific performance in which the tenant asserted the title of the schedule of the premises in himself. According to the learned single Judge though the summary proceedings may be subject to the result of the suit, pendency of the suit does not debar the rent courts for exercising their jurisdiction under the Rent Control Act. Another learned single Judge of this Court in KEDAR BHATIA v. LINGARKAR PANDURANGA RAO (SINCE DIED) AND OTHERS[5] after reviewing the various judgments on the subject, clarified the legal position as follows: “There is absolutely no basis and no justification whatsoever on the part of the petitioner to have denied the title of the respondents in respect of the petition schedule premises. It is not a bona fide one. The evidence of the petitioner herein does not inspire any confidence whatsoever. He has been making all sorts of efforts to protract the litigation and without any just and bona fide reason had set up his own title and denying the title of the respondent-landlords in respect of the petition schedule premises. The question of reference to the Civil Court for adjudication of disputes relating to the title would arise only if the Rent Controller or the Appellate Court, as the case may be, comes to the conclusion that the denial of the title by a tenant is a bona fide one. In fact there is no evidence whatsoever led by the petitioner herein on the said question. There is no cloud whatsoever on the right, title and interest of the respondents-landlords in respect of the petition schedule premises.” “Unless the tenant establishes bona fide title, the question of reference to civil Court does not arise. Tenant has not established even semblance of title to the petition schedule premises. Jural relationship of landlord and tenant has been established. Tenant therefore is liable for eviction as denial of landlord’s title by tenant is not bona fide.” Coming to the facts of the present case, it cannot be expected of the respondent-landlord to seek eviction initially on the ground that the revision petitioner denied the title of the landlord without any bona fides, since he never thought that the tenant would set up such plea. He sought the eviction of the revision petitioner on the grounds available on the date of filing of the eviction petition. Only after filing counter by the revision petitioner, it was revealed that the revision petitioner had set up ownership in himself and thereby denied the relationship of landlord and tenant between him and respondent. Therefore, it is not necessary on the part of the respondent landlord to amend the eviction petition adding the ground of denying his title by the revision petitioner without any bona fides. Since the revision petitioner disputed the very existence of landlord and tenant relationship and set up title in himself under an oral contract of sale, the rent Courts can order eviction under Sections 10(2)(i) and 10(3)(a) (i) of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 on the said ground which is available to the respondent landlord. The rent controller as well as appellate authority have recorded a specific finding that there is absolutely no convincing evidence placed by the revision petitioner in proof of his acquiring title to the schedule mentioned property under oral contract of sale from the respondent and thus, concurrently held that the denial of title by the respondent revision petitioner is not a bona fide. As rightly held by the learned single Judge of this Court in KEDAR BHATIA’s case, the question of approaching the civil court for adjudication of dispute relating title would arise only when the Rent Controller or Appellate Authority as the case may be recording a positive finding that the denial of title of landlord by the tenant is bona fide. In the instant case, the learned Rent Controller and the Appellate Authority have not recorded a finding that the denial of title of respondent by the revision petitioner is a bona fide. Both the courts have concurrently held that the plea of acquiring title under oral contract of sale is set up only to protract the litigation and is without any basis or foundation. Therefore, the argument advanced by the leaned counsel for the revision petitioner that the rent Courts have no jurisdiction to adjudicate upon the question of eviction in view of the dispute relating to title of the schedule mentioned premises has no substance. The Rent Controller and the Appellate Authority have jurisdiction under the Act to go into the question of title for the limited purpose of ascertaining whether there existed any landlord and tenant relationship and also to find out whether the denial of title of landlord if any pleaded by the tenant is bona fide. The suit pending before the civil Court is not an impediment for the rent Courts to order eviction having recorded a positive and definite finding that the denial of title by the tenant is not a bona fide. Insofar as C.R.P.No.4900 of 2010 is concerned, the learned Principal Junior Civil Judge, Parvathipuram which is executing Court has not committed any error in issuing the warrant of delivery holding that though C.R.P.No.2259 of 2009 is pending before this Court, there being no stay granted by this Court, the executing court can proceed with the disposal of the execution petition. For the aforementioned reasons, I absolutely see no valid ground to interfere with the order impugned in these revision petitions and accordingly dismiss both the revision petitions. There shall be no order as to costs. The revision petitioner is granted two months time to vacate the schedule mentioned premises from the date of this order. _______________ Date:04.02.2011. R. KANTHA RAO, J Note: L.R. copy to be marked. B/O ccm THE HON’BLE MR JUSTICE R. KANTHA RAO C.R.P.No.2259 of 2009 AND C.R.P.No.4900 of 2010 Date:04.02.2011 [1] 2010(1) ALD 366 [2] 2002(4) ALD 90 (SC) [3] (1989) 4 SCC 732 [4] 2007 (2) ALD 808 [5] 1998(2) ALT 105