IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE FOURTEENTH OF OCTOBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.704 of 2002 and CIVIL REVISION PETITION Nos.1377 and 1674 of 2005 SA.No.704 of 2002 and CRP.No.1377 of 2005: BETWEEN Abdul Nabi Chowdary. ... APPELLANT/ PETITIONER AND Mohd. Ismail and others. ...RESPONDENTS Counsel for the Petitioner: MR. M.V.S SURESH KUMAR Counsel for the Respondents: MR. V. VENKATARAMANA CRP.No.1674 of 2005: BETWEEN Bahadur Ali Khan and three others. …PETITIONERS AND Abdul Nabi Chowdary. ...RESPONDENT Counsel for the Petitioners: MR. V. VENKATARAMANA Counsel for the Respondent: MR. M.V.S SURESH KUMAR The Court made the following: COMMON JUDGMENT: All these matters are connected and are substantially between the same parties. Since they have been heard together, they are being disposed of by this common judgment. The facts, which are material, in S.A.No.704 of 2002 are set out hereunder, as the decision in the second appeal would have a bearing on both the revision petitions. SA.No.704 of 2002: 2. Brief resume of facts is as follows: (a) Appellant is the plaintiff in the suit O.S.No.5027 of 1993 before the learned VIII Assistant Judge, City Civil Court, Hyderabad. The respondents 1 and 2 herein are defendants 1 and 2 in the suit, who are co-owners of the suit property. The respondents 3 to 5 herein, who were arrayed as defendants 3 to 5 in the suit, are the subsequent purchasers. For the sake of convenience, the appellant/plaintiff is referred to as tenant and the first defendant is referred to as the landlord and defendants 3 to 5 as purchasers. (b) The premises bearing No.20-4-1189 was owned by the first defendant. To the South of this property there was an open land belonging to defendants 1 and 2, which was leased out to the plaintiff/tenant under Ex.A2 dated 01.01.1972. The tenant was allowed to take up construction on the open land and he constructed a mulgi (shop) on the ground floor bearing No.20-4-1189/3 as well as a room on the first floor thereof. The tenant was paying rent at Rs.75/- per month up to August 1987. Thereafter, under Ex.A4 notice dated 12.10.1987, the first defendant/landlord asked the tenant to pay the rents only to him. Consequently, a rental deed Ex.A3 dated 01.11.1987 for eleven months initially was executed by the tenant in favour of the first defendant and clause 22 of the said deed is sought to be enforced in the suit and as well as this second appeal. It is, therefore, appropriate to extract clause 22 of the said deed, as under: “That if the landlord wants to sell the Mulgi the tenant shall alone be entitled to purchase the same and the landlord is bound to sell it to the tenant in view of his long period of tenancy.” (c) The said rental deed worked up to June 1993 without any misunderstandings. Then, on 06.07.1993, the tenant filed an injunction suit being O.S.No.2317 of 1993 before the learned VIII Assistant Judge, City Civil Court, Hyderabad against the defendants 1 and 2 for perpetual injunction alleging that defendants 1 and 2 are trying to alienate suit property contrary to clause 22, referred to above. The tenant obtained ad interim injunction under Ex.A13. It appears that defendants 1 and 2 refused service of the said injunction through bailiff as per report Ex.A14 dated 08.07.1993. The tenant thereupon gave notice Ex.A15 dated 12.07.1993 and on the basis of the report of affixture of summons, the first defendant was set ex parte on 19.07.1993 and on 30.07.1993 the temporary injunction was made absolute. The tenant claims that the rent sent by him by money order dated 17.08.1993 was refused by the first defendant and under Ex.A18 dated 26.10.1993, defendants 1 and 2 informed the tenant of the sale of the suit schedule property to defendants 3 to 5 on 17.07.1993 and attorned the tenancy to defendants 3 to 5. (d) The tenant gave a reply Ex.A21 dated 10.11.1993 complaining violation of clause 22 and seeking its enforcement filed the suit O.S.No.5027 of 1993 before the learned VIII Assistant Judge, City Civil Court, Hyderabad for mandatory injunction against all the defendants directing them to execute registered sale deed in favour of the tenant in respect of the suit schedule property i.e. premises bearing No.20-4-1189/3 admeasuring 98 sq. feet. (e) On contest, the said suit was dismissed by judgment and decree of the trial Court dated 19.01.1998 and the same was confirmed by the lower appellate Court in A.S.No.61 of 1998 under judgment and decree dated 10.12.2001 giving rise to the present second appeal. 3. One of the main findings against the tenant is that a suit of this nature for mandatory injunction is not maintainable, as according to the trial Court the tenant could have sought such a relief only by appropriate suit under the Specific Relief Act, 1963. The lower appellate Court also affirmed the said finding of the trial Court. Hence, the substantial question of law on which this second appeal was admitted on 15.04.2004 reads as under: “Whether a suit for mandatory injunction would not lie to enforce a clause in the rental deed to the effect that the tenant alone would be entitled to purchase the property in the case of sale by the landlord?” 4. Mr. M.V.S. Suresh Kumar, learned counsel for the appellant and Mr. Vedula Venkataramana, learned senior counsel appearing for the contesting respondents 3 to 5, have made elaborate submissions in support of their respective case. 5. While the learned counsel for the appellant points out that the question with regard to the maintainability of the suit was never raised by the respondents/defendants in the common written statement filed by them before the trial Court, the learned senior counsel submits and relies upon one sentence in para 6 of the written statement wherein the defendants have stated that no mandatory relief can be granted and the suit was stated to be not maintainable. 6. Learned counsel for the appellant points out that notwithstanding the temporary injunction restraining alienation passed against the defendants under Ex.A13 dated 06.07.1993, having refused the service of the said injunction order through bailiff under Ex.A14, defendants 1 and 2 in collusion with defendants 3 to 5 have resorted to alienation in a fraudulent manner with a view to defeat Ex.A13 – order of injunction. He relies upon the rental deed and clause 22 extracted, as above, and points out that a categorical right given to the plaintiff/tenant is defeated by collusive sale transaction between defendants 1 and 2 on the one hand and defendants 3 to 5 on the other. Learned counsel also points out that in the absence of any plea in the written statement on maintainability, no issue was framed by the trial Court and as such, non-suiting the plaintiff/appellant on that ground was not justified. 7. Learned senior counsel, on the other hand, submits that the question of maintainability goes to the root of the matter and is a pure question of law. The tenant is estopped from sustaining the suit when he has not filed any suit for specific performance either in the first instance when he filed O.S.No.2317 of 1993 for perpetual injunction nor at the second instance when the present suit O.S.No.5027 of 1993 was filed. 8. Keeping in view the substantial question of law, as framed, for consideration, it is evident that the suit filed by the tenant is primarily to prevent the breach of obligation and such a suit, in my view, is clearly referable to Section 39 of the Specific Relief Act, 1963. The learned senior counsel contents that the Court would refuse an injunction when an equally efficacious relief can be obtained by any other mode, as provided under Section 41(h) of the Specific Relief Act, which deals with discretion of the Court in grant of injunctive relief. But, in my view, the maintainability of the suit and the discretion of the Court to grant a relief are two different things altogether. In a given case, a suit may be maintainable but the Court may or may not exercise discretion in favour of the plaintiff and merely because the discretion cannot be exercised, the same would have no reflection on the maintainability of the suit. Even assuming that such a suit for mandatory injunction was not available and only an action for specific performance was required to be initiated by the plaintiff, a look at clause 22 of the rental deed would show that only a preferential right was conferred on the tenant that whenever the landlord seeks/intends to sell, he shall first offer it to the tenant. Thus, a preferential right alone was conferred on the tenant under the aforesaid clause. There was, admittedly, no agreement as such with respect to essential terms of sale, as neither consideration nor mode of payment nor other terms and conditions were agreed between the parties. It is, therefore, difficult to accept that the tenant should have filed a suit for specific performance in the absence of any agreement between the parties containing essential terms and conditions of sale. The only agreement, as stated above, was with respect to giving a preferential right to the tenant and nothing more. The violation of the said preferential right would amount to breach of obligation and in my view, the suit, as framed, was maintainable to the extent of the first part of the relief against the likely breach complained of. However, the rest of the relief directing registration of sale deed in favour of the plaintiff/tenant etc. is concerned, that part amounts to seeking specific performance of a contract and when there is no contract, in existence, except as to preferential right to purchase, I am unable to see how the plaintiff/tenant could enforce the second part of the relief. As already mentioned above, in the absence of any consensus ad idem with regard to terms and conditions of sale, the mandatory injunction directing the defendants to register and execute a sale deed in favour of the plaintiff could not have been enforced. 9. Apart from the infirmity, as above, the rental deed relied upon by the tenant is an unregistered rental deed for a period of 11 months. The said 11 months period had long expired and in the absence of any specific renewal deed, the tenancy of the plaintiff is now only a monthly tenancy under the Transfer of Property Act, which is now protected under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 in view of the quantum of rent. The present relief sought for in the suit amounts to seeking enforcement of a clause in an unregistered rental deed, which expired long before the suit and as such, the said clause cannot be said to survive beyond the period of lease. 10. Even otherwise also and even assuming that the suit of the plaintiff is maintainable, there is another strong reason, which supports dismissal of the suit. As would be noticed from the chronology given above, the rental agreement – Ex.A22 is between the plaintiff/tenant and the first defendant – owner. The second defendant, who is a co-owner along with the first defendant, is not a party to the said agreement. The present suit for mandatory injunction, therefore, could not be enforced against the second defendant, as even according to the plaintiff there was no agreement even for preferential right with the second defendant. 11. There is yet another reason as to why the plaintiff/tenant cannot get the relief. This suit was filed on 27.12.1993 seeking mandatory injunction to prevent breach of clause 22 but by then the title over the suit schedule property was already vested in defendants 3 to 5 under registered sale deed dated 17.07.1993. The plaint in the present suit specifically refers to the knowledge of the plaintiff/tenant of the said registered sale deed in favour of defendants 3 to 5 and the said sale deed is described as collusive but no relief is claimed as against the said sale deed of defendants 3 to 5. Thus, even if the plaintiff is held entitled to the relief sought for in the plaint against the first defendant, the title vested in defendants 3 to 5 cannot be divested in the absence of any declaration sought against their sale deed dated 17.07.1993. 12. Viewed at any of the angles aforesaid, the suit of the plaintiff, which was dismissed by both the Courts below, does not warrant any interference in this second appeal and though the substantial question of law is partly answered in favour of the appellant, the impugned judgments of both the Courts below deserve to be confirmed for the reasons aforesaid. The second appeal is accordingly dismissed. CRP.No.1377 of 2005: 13. This revision is by the petitioner/tenant, who suffered an order of eviction under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ‘the Act’) on the ground that he committed willful default in payment of rent from July 1993 to February 1994. 14. The purchasers/respondents 3 to 5 in the second appeal, referred to above, filed eviction petition being R.C.No.255 of 1994 before the learned Principal Rent Controller, Hyderabad against the petitioner/tenant by contending that they purchased the suit schedule premises under sale deed dated 17.07.1993 and the petitioner’s tenancy with regard to the ground floor mulgi was attorned in their favour but the petitioner/tenant has stopped paying rents from July 1993 onwards even after receiving attornment notice and thereby committed willful default. 15. The petitioner/tenant resisted the eviction by denying the default and contended that in the notice of attornment no details of purchase have been given and that tenant had paid rents up to June 1993 to the previous owner under receipt and that the tenant had already filed O.S.No.2317 of 1993 for contravention of clause 22 of the rental deed and in spite of knowledge of temporary injunction obtained by the tenant, fraudulent sale dated 17.07.1993 was made and thereby, he denied that the respondents are lawful owners of the mulgi. He also pleaded that there is no default as nobody from the respondents came to collect the rents whereupon the tenant sent the rent by the money order dated 17.08.1993, which was refused and attempts to pay the rent through cheque were also refused whereupon the tenant filed R.C.No.731 of 1993 under Section 9 of the Act. 16. Learned Rent Controller recorded the evidence of P.Ws.1 and 2 on behalf of the respondents and marked Exs.A1 to A4 whereas the petitioner was examined as R.W.1 and Exs.R1 to R7 were marked. Learned Rent Controller noticed that though the jural relationship was denied in the counter, the tenant admitted in evidence that he is paying rents at the same rate, which amounts to admitting the first respondent as landlord. Learned Rent Controller also noticed that the tenant’s suit O.S.No.5027 of 1993 (which is subject matter of the second appeal) was pending but so far as the default period is concerned, the tenant having admitted the tenancy and liability to pay the rent, the failure to pay the rent was held to be willful. The other aspects in the order are not relevant. Against the said order of the learned Rent Controller dated 17.02.2005, the tenant preferred an appeal being R.A.No.121 of 2000 wherein an additional aspect as to the jurisdiction of the learned Rent Controller was also raised by the tenant but the same was negatived on the ground that the tenant himself had invoked the jurisdiction of the learned Rent Controller by filing R.C.No.731 of 1993 under Section 9 of the Act, as such he cannot contend to the contrary. The finding of willful default was, however, confirmed on the ground that though the tenant’s R.C.No.731 of 1993 was disposed of on 23.03.1995, he did not take any steps to deposit the rent from the date of filing of the said RC till disposal and the same was equated to willful default and as such, the eviction decree was confirmed. Hence, this revision. 17. Mr. M.V.S. Suresh Kumar, learned counsel for the petitioner, has contended, firstly, that mere non-deposit of rents during the pendency of the petition for deposit of rent under Section 9 of the Act would not make the tenant liable for willful default, as wrongly understood by the lower appellate Court. Secondly, he also submits that the entire period of default is covered by the tenant’s petition under Section 9 of the Act i.e. R.C.No.731 of 1993, which was ultimately allowed and in view of the said order under Section 9 of the Act it cannot be said that there is any willful default on his part. 18. Mr. Vedula Venkataramana, learned senior counsel, appearing for the respondents/landlords contends that the rents were not paid notwithstanding the notice of attornment and the petitioner/tenant cannot contend that he is not aware of the particulars and details of the purchasers/respondents, as the tenant himself filed O.S.No.5027 of 1993 (which is subject matter of second appeal above) by impleading the respondents herein as defendants 3 to 5. It is also contended that mere filing an application under Section 9 of the Act would not absolve the tenant of the willful default and there is no finding under Section 9 of the Act in support of the petitioner/tenant. 19. I have seen the findings of both the Courts below as well as Ex.R7, which is the certified copy of the order in R.C.No.731 of 1993. Though I agree with the learned counsel for the petitioner to the extent that finding of the lower appellate Court that tenant should have taken steps for deposit of rent pending R.C.No.731 of 1993 which itself amounts to willful default is erroneous. Having filed Section 9 petition, the petitioner/tenant was under no obligation to seek an interim permission for deposit of rents and merely on that ground it cannot be said that the default in not seeking such an interim permission amounts to willful default. The decision relied upon by the lower appellate Court in KONIJETI VARALAKSHMAMMA v. MENTA MASTHAN RAO[1] is clearly distinguishable as that was a case where Rule 5 of the Rules framed under the Act was not complied with. 20. However, the rest of the contentions of the learned counsel for the petitioner cannot be accepted, primarily, in view of the findings in Ex.R7 order in R.C.C.No.731 of 1993. A look at the said order shows that it was not a decision on merits and there was no finding by the learned Rent Controller in favour of the tenant regarding bonafide doubt as to who among the landlords is entitled to receive the rents. On the contrary, the order in R.C.C.No.731 of 1993 was passed on consent of both parties and after recording that the respondents/landlords agreed for the deposit without prejudice to their rights and claims, which was accepted by the tenant and deposits accordingly were made. In the absence of any finding under Section 9 of the Act, mere deposits as per order in R.C.No.731 of 1993 would not rescue that and the admitted default has to be held to be willful. That part of the finding of both the Courts below, therefore, warrants no interference. The civil revision petition is accordingly dismissed. However, the tenant is granted time for vacating the premises up to 31.01.2012 subject to: 1. The tenant shall give an undertaking before the learned Rent Controller within two (2) weeks from today that he shall voluntarily hand over the vacant schedule premises to the landlords. 2. The tenant shall pay arrears of rent, if any, as well as the rent for the period up to the vacation of the premises on/before 31.12.2011. 3. The tenant shall not sell, alienate or otherwise part with possession over the schedule premises by creating any third party interest during the time granted to him for vacating the premises. 4. In default of any of the conditions 1 to 3, as above, the landlords are free to approach the executing Court for execution of the order of eviction. CRP.No.1674 of 2005: 21. This revision arises out of orders in R.C.No.443 of 1999 and R.A.No.299 of 2003. The appellant in the second appeal and the petitioner in the revision petition, both referred to above, claimed that he had let out the first floor above the premises bearing No.20-4-1189/3 to the first respondent in R.C.No.443 of 1999, who is the first petitioner herein, on 01.01.1992 at the rate of Rs.75/- per month, which is being used for the purpose of godown. In other words, the landlord/petitioner in R.C.No.443 of 1999, who is himself a tenant of the ground floor, claims to have sub-let the first floor, as above and thereby, to the extent of sub-tenant, eviction petitioner claims to be his landlord. 22. It is alleged that the sons of the said sub-tenant fraudulently purchased the entire property under registered sale deed dated 17.07.1993, which is subject matter of second appeal and CRP.No.1377 of 2005, referred to above. On the ground that the sub-tenant has not paid rents from January 1997 to end of July 1999 this eviction petition is filed on the ground on willful default. The sub-tenant denied any tenancy and any jural relationship and consequently, disputed the claim of the tenant. On recording of evidence laid by both sides, the learned Rent Controller reached a finding that there is no evidence of relationship of tenant and sub-tenant between the eviction petitioner and the first respondent and consequently, dismissed the eviction petition. The appeal there against, however, succeeded under the impugned judgment of the lower appellate Court on the basis of written statement of the purchasers, which was filed in O.S.No.5027 of 1993 (which is subject matter of S.A.No.704 of 2002, referred to above) marked as Ex.P4 in this eviction petition as well as on the basis of notice of attornment Ex.P5, which was given by previous owner. The lower appellate Court, therefore, found relationship as tenant and sub- tenant between eviction petitioner and the first respondent, which is held sufficient to establish relationship, as landlord and tenant for the purpose of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 and consequently, finding as to willful default was recorded against first petitioner herein. 23. It would be immediately noticed that the sub-tenant arrayed in the eviction petition, who is the first petitioner in this revision, is not a party in O.S.No.5027 of 1993 and as such, anything stated by any defendant in the said suit cannot bind him. Secondly, Ex.P5 attornment notice is, admittedly, a notice given by the previous owner to the eviction petitioner herein informing him of the sale. The alleged sub-tenant is equally not bound by the said notice. It is, therefore, surprising as to how the lower appellate Court could reach such a finding holding that the first petitioner herein is sub-tenant of the eviction petitioner (first respondent herein) on the basis of the aforesaid documents, which do not bind the sub-tenant. 24. Moreover, it is the case of the first petitioner/sub-tenant that he had deposited Rs.13,500/- with the eviction petitioner/first respondent herein in January 1992 towards advance but he denied having paid any rent any time. The lower appellate Court, therefore, ought to have dealt with and examined the matter from the point of view as to whether there is any evidence to establish the jural relationship of landlord and tenant between the first petitioner and the first respondent herein, particularly, when the learned Rent Controller has given specific findings on that aspect. The findings reached by the lower appellate Court having been found to be perverse there is no option but to set aside the judgment of the lower appellate Court. On the facts and circumstances of the case, I deem it appropriate to remit R.A.No.299 of 2003 for fresh consideration to the lower appellate