IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY NINTH DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.4601 of 2008 BETWEEN: Smt. G. Sarojana. ... PETITIONER AND Baja Madileti. ...RESPONDENT Counsel for the Petitioner : MR. BAJRANG SINGH THAKUR Counsel for the Respondent : SMT. T. VIDYA RANI The Court made the following: ORDER: This revision is at the instance of the landlord directed against the order of the rent appellate Court in I.A.No.198 of 2008 in R.A.No.251 of 2007 dated 22.07.2008 whereby the rent appellate Court declined to pass orders in favour of the landlord under Section 11 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ‘the Act’), pending the rent appeal instituted by the tenant 2. For the sake of the convenience, the parties are referred to as landlord and tenant. 3. The petitioner as a landlord filed eviction proceedings against the respondent in R.C.No.182 of 2007 before the learned Rent Controller, Hyderabad. When summons in the said eviction petition were taken out, it was reported by the process server that the respondent/tenant had already vacated the premises. Thereafter, notice was published in a daily newspaper and as neither the respondent nor his counsel appeared the learned Rent Controller examined P.W.1 and in consideration of his evidence and Exs.P1 to P3 marked by him and in the absence of any rebuttal evidence, allowed the eviction petition by order dated 30.08.2007 directing the respondent to vacate and handover vacant possession of the premises within two (2) months. 4. The tenant, thereafter, filed I.A.No.677 of 2007 to set aside the ex parte decree and order of the learned Rent Controller dated 30.08.2007. The affidavit filed in support of the said application specifically stated that the tenant has vacated the premises on 20.07.2004 itself and therefore, it has become a great surprise for the tenant to hear that a false petition is filed by the landlord. On the said application, the learned Rent Controller passed an order dated 21.11.2007 after taking note of the aforesaid affidavit averments of the tenant that he has already vacated the premises on 20.07.2004. The learned Rent Controller, therefore, felt that in view of that it is not necessary to consider setting aside of the ex parte decree when the tenant had already vacated the premises. Aggrieved by the dismissal of the said petition, the tenant has preferred R.A.No.251 of 2007 before the lower appellate Court. 5. The tenant seeks to contend that there is no relationship of landlord and tenant between the parties and that the decree of eviction obtained by the landlord is on false grounds and is fraudulent. In the said rent appeal, the landlord has filed an application being I.A.No.198 of 2008 invoking Section 11 of the Act requiring the tenant to deposit the arrears of rent, which is quantified at Rs.16,800/- and every month’s rent at Rs.700/- from March 2008 onwards as a condition precedent for contesting the aforesaid rent appeal. Keeping in view the contest by the tenant that there is no relationship of landlord and tenant, the lower appellate Court felt that the said aspect being crucial before ordering the tenant to deposit rents dismissed the landlord’s application under Section 11 of the Act. Aggrieved thereby, the landlord has filed the present revision petition. 6. Heard both the counsel appearing on either side. 7. Learned counsel for the landlord submits that the provisions of Section 11 of the Act being mandatory, in order to permit the tenant to contest the said appeal, the lower appellate Court has failed to give effect to the provisions of Section 11 of the Act and a direction to deposit rents was mandatory for any tenant, who chooses to contest the Rent Controller proceedings and without depositing the rents, is not permissible. 8. Learned counsel for the tenant, on the other hand, relies upon the Full Bench decision of this court in CHAGANLAL v. NARSING PERSHAD[1] wherein the Full Bench held that when the jural relationship of landlord and tenant is disputed there cannot be separate enquiry under Section 11 of the Act within an enquiry under the main eviction petition. In such a situation, therefore, the order under Section 11 of the Act cannot be passed against the tenant. The aforesaid decision is relied upon in support of her contention that there is no jural relationship between the landlord and tenant and that the claim for arrears of rent is for the period subsequent to the tenant vacating the premises and as such, no order under Section 11 of the Act is warranted. 9. In view of the above rival contentions, the point that arises for consideration is whether the lower appellate Court was right in declining to pass orders on the landlord’s application under Section 11 of the Act. 10. For the sake of convenience, Section 11 of the Act is extracted hereunder: “11. Payment or deposit of rent during the pendency of proceedings for eviction : - (1) No tenant against whom an application for eviction has been made by a landlord under Section 10, shall be entitled to contest the application before the Controller under that Section or to prefer any appeal under Section 20 against any order made by the Controller on the application, unless he has paid to the landlord or deposits with the Controller or the appellate authority, as the case may be, all arrears of rent due in respect of the building up to the date of payment or deposit and continues to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Controller or the appellate authority, as the case may be. (2) The deposit of rent under sub-section (1) shall be made within the time and in the manner prescribed. (3) Where there is any dispute as to the amount of rent to be paid or deposited under sub-section (1) the Controller or the appellate authority, as the case may be, shall on application made to him either by the tenant or by the land-lord, and after making such inquiry as he deems necessary, determine summarily the rent to be so paid or deposited. (4) If any tenant fails to pay or to deposit the rent as aforesaid, the Controller or the appellate authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. (5) The amount deposited under sub-section (1) may, subject to such conditions as may be prescribed, be withdrawn by the landlord on application made by him in that behalf to the Controller or the appellate authority, as the case may be.” 11. The opening words of the aforesaid section show that the tenant against whom an application for eviction has been made shall not be allowed to contest any proceedings unless the amount in default is deposited by him. Sub-clause (4) of Section 11 of the Act further provides that in the event of failure of the tenant to deposit the rents as directed by the Controller and the appellate Court, all further proceedings shall be stayed and an order directing the tenant to put the landlord in possession shall follow. Under sub-clause (5) the discretion is vested with the Controller or the appellate Court to impose conditions subject to which the amount deposited can be withdrawn by the landlord pending adjudication of the main matter. A look at the order of eviction passed by the learned Rent Controller dated 30.08.2007, prima facie, establishes that there is relationship of landlord and tenant and on that premise, an order of eviction was passed against tenant. The contention of the learned counsel for the tenant that it is only an ex parte order and as such, it is open for the tenant to contend that there is no relationship of landlord and tenant, however, cannot be accepted in view of the fact that an ex parte decree is as much a decree on merits and until and unless it is set side, the said decree operates governing the relationship between both the parties. The lower appellate Court while passing the impugned order has ignored the aforesaid order of the learned Rent Controller and failed to take into consideration that only when the said order is set aside the contention of the tenant that there is no relationship of landlord and tenant can be considered. 12. After hearing both the parties, it appears that there are various contentions between both parties, which require adjudication. The tenant has already filed a rent appeal, which is pending before the lower appellate Court and all these questions raised by either party can be gone into in the said appeal. For the present, therefore, I am of the view that it cannot be said there is any dispute with regard to relationship of landlord and tenant and thereby, the view of the lower appellate Court that Section 11 application of the landlord need not be ordered by the lower appellate Court does not appear to be correct. In view of the fact that a decree of the learned Rent Controller as on today upholds the relationship of landlord and tenant between the parties, till the same is set aside by the lower appellate Court, the said decree operates and governs the relationship of the parties. The landlord’s application under Section 11 of the Act, therefore, ought to have been allowed by the lower appellate Court. The impugned order is, therefore, liable to be set aside and is accordingly set aside. I.A.No.198 of 2008 filed by the landlord in R.A.No.251 of 2007 is accordingly allowed, however, subject to the following: (1) The tenant is granted two (2) months time to deposit the arrears of rent of Rs.16,800/- at Rs.700/- per month, as claimed in the said petition and shall also be liable to deposit monthly rent at Rs.700/- per month commencing from August 2010 onwards and payable on or before 5th of each month, during the pendency of the appeal. (2) In view of the serious dispute between the parties, the landlord shall not be allowed to withdraw any of the amounts so deposited by the tenant but the same shall abide by the result of R.A.No.251 of 2007. (3) Both the parties are at liberty to raise all available grounds, in accordance with law, before the lower appellate Court in support of their case and any observations made in this order shall not amount to adjudication of any of the questions and shall be treated only as findings relevant for disposal of the revision petition. The civil revision petition is accordingly allowed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J July 29, 2010 DSK [1] 1972 An.W.R. 156