THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY C.R.P.Nos.6096,6097, 6099, 5219, 5230 and 5231 of 2009 (DATED : 08-02-2010) C.R.P.No.6096 of 2009 Bansi Lal Yadav S/o late Shankar Lal Yadav …Petitioner A n d Mohd. Aslam S/o Late Mohd. Yousuf ….Respondent C.R.P.No.6097 of 2009 Bansi Lal Yadav S/o late Shankar Lal Yadav …Petitioner A n d Suraj Chand Bhagat S/o Lae Bhanu Lal Bhagat ….Respondent C.R.P.No.6099 of 2009 Bansi Lal Yadav S/o late Shankar Lal Yadav …Petitioner A n d Hukmi Chand Bhagat S/o Late Bhanu Lal Bhagat ….Respondent C.R.P.No.5219 of 2009 Bansi Lal Yadav S/o late Shankar Lal Yadav …Petitioner A n d Hukmi Chand Bhagat S/o Late Bhanu Lal Bhagat ….Respondent C.R.P.No.5230 of 2009 Bansi Lal Yadav S/o late Shankar Lal Yadav …Petitioner A n d Suraj Chand Bhagat S/o Late Bhanu Lal Bhagat ….Respondent C.R.P.No.5231 of 2009 Bansi Lal Yadav S/o late Shankar Lal Yadav …Petitioner A n d Mohd. Aslam S/o late Mohd. Yousuf ….Respondent THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY C.R.P.Nos.6096,6097, 6099, 5219, 5230 and 5231 of 2009 COMMON ORDER: The issue involved in all these revision petitions is one and the same, and therefore, they are heard together and are being disposed of by this common order. 2. Background facts in a nutshell leading to filing of these revisions by Bansi Lal Yadav are: Bansi Lal Yadav filed R.C. Case Nos. 4 of 2004, 5 of 2004 and 6 of 2004 on the file of XIII Junior Civil Judge-cum-I Additional Rent Controller, Hyderabad under Section 10(2)(i) of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short, the `Act’) seeking eviction of the tenants. More precisely, R.C.No.4 of 2004 is filed seeking eviction of Hukmichand Bhagat, R.C.No.5 of 2004 is filed seeking eviction of Mohd. Aslam and R.C.No.6 of 2004 is filed seeking eviction of Suraj Chand Bhagat. The three mulgies are situated contiguously. Mulgi bearing Municipal No.15-8-182 (old No.15-8-207 & 208) is the subject matter of R.C.No.4 of 2004, Mulgi bearing No.15- 8-183 (Old No.15-8-207 & 208) (portion) is the subject matter of R.C.No.5 of 2004 and Mulgi bearing No.15-8-183/1 corresponding to Old No.15-8-207 and 208 (Portion) situated at Begum Bazar, Hyderabad is the subject matter of R.C.No.6 of 2004. Ex parte orders came to be passed on 16.02.2004 in all the three R.Cs directing the tenants to vacate the schedule premises within one month. The landlord levied the execution of the ex parte orders and obtained possession through the process of Court on 05.4.2004. The tenants filed applications being I.A. No.s 161, 163 and 164 of 2004 to set aside the ex parte orders along with delay condonation petitions in R.C.Nos. 4 to 6 of 2004 respectively. They also moved applications seeking injunction against the landlord from demolishing, changing or altering the structure of the mulgies. All the applications ended in dismissal by order dated 17.10.2005 of the Rent Controller. Aggrieved by the same, the tenants preferred appeals being R.A.Nos.46 to 48 of 2006 and 272 to 277 of 2005. The appeals came to be allowed setting aside the ex parte orders, by common judgment dated 1.8.2006. Assailing the common judgment, the landlord filed C.R.P.Nos.4953 to 4956, 4960, 4973 to 4976 of 2006. These revision petitions came to be dismissed by this Court, by a common order dated 15.12.2006. The relevant portion of order reads as hereunder:- “ 22.As already stated, I am of the opinion that there was no proper service of summons and in fact, the relationship of landlord and tenants is yet to be proved as the landlord having taken a specific plea that the tenants have paid rent from the date of purchase of the said premises till May 2003 and that they did not pay the rents from June 2003 to January 2004, absolutely no rental receipts have been filed either in the eviction petitions or in the applications to set aside the ex parte order. Therefore, there is every doubt of landlord and tenant relationship. In view of the pendency of the suits with regard to title, the landlord in collusion with the process server as well as the bailiff suppressing the previous litigations and the material facts, got returned the summons without following the due procedure for service of summons by way of registered post without exhausting the modes available under Rule 22(4)(a) to (c), service of summons by substituted service is illegal and unsustainable. Accordingly, the eviction orders obtained by making false allegations against the tenants that they are unsocial elements and that there may be law and order problem, and in getting return of the warrants issued on 30-3-2004 on the ground that the mulgies were under lock, are illegal and unsustainable. When the tenants are longstanding tenants it cannot be said that all of them have closed the shops on 13-1-2004 and 1-4-2004, therefore, I am of the opinion that evicting the tenants by executing the warrants in spite of their resistance in collusion with the bailiff and with the assistance of the police is illegal and unsustainable. 23.In view of the aforesaid facts and circumstances I am of the opinion that the tenants are entitled for restoration of possession. It is stated that the applications filed by the tenants for restoration of possession are pending. The tenants ought to have filed a simple application straightaway under Rule 8(3) of the Rules for restoration of possession. The Rent Controller without properly appreciating the evidence on record erroneously dismissed the applications without any justification. 24. Having regard to the facts and circumstances of the case and now that the ex parte orders have been set aside and the eviction petitions have been restored, on the applications filed or to be filed by the tenants under Rule 8(3) of the Rules, the possession also shall be restored in favour of the tenants. In view of the above, I do not see any illegality or irregularity or impropriety in the order under the revisions. 3. The landlord unsuccessfully carried the matter to the Supreme Court assailing the orders passed in CRP Nos.4953 of 2006 & batch and ultimately, Civil Appeal No.511 of 2008 (Arising out of S.L.P(C) No.774 of 2007) filed by the landlord ended in dismissal on 17.01.2008. Paragraphs 6, 7 and 8 of the judgment in Civil Appeal No.511 of 2008 read as hereunder:- “ 6.While deciding the Civil Revision Cases, the High Court made the following observations in the impugned order:- 23.In view of the aforesaid facts and circumstances I am of the opinion that the tenants are entitled for restoration of possession. It is stated that the applications filed by the tenants for restoration of possession are pending. The tenants ought to have filed a simple application straightaway under Rule 8(3) of the Rules for restoration of possession. The Rent Controller without properly appreciating the evidence on record erroneously dismissed the applications without any justification. 24.Having regard to the facts and circumstances of the case and now that the ex parte orders have been set aside and the eviction petitions have been restored, on the applications filed or to be filed by the tenants under Rule 8(3) of the Rules, the possession also shall be restored in favour of the tenants. In view of the above, I do not see any illegality or irregularity or impropriety in the order under the revisions. 7.On behalf of the appellants, the learned counsel raised a very simple submission. He submitted that the High Court in para 24 of the impugned order, as quoted hereinabove, observed that since the eviction petitions were restored on the applications filed by the tenants- respondents, it would be open to the tenants- respondents to get possession restored in their favour or restoration could be given on the applications to be filed by the tenants-respondents under Rule 8(3) of the Rules. Therefore, the learned counsel contended that the observations made in para 24, in the manner indicated above, must be deleted. The learned counsel appearing for the tenants-respondents, however, has submitted that they have no objection, if this portion of the order is deleted. 8.That being the stand taken by the parties, we delete the observations made by the High Court, as quoted hereinabove, in its order in para 24 to the above extent:- “the eviction petitions have been restored, on the applications filed or to be filed by the tenants under Rule 8(3) of the Rules, the possession also shall be restored in favour of the tenants”. 4. The tenants filed I.A.No.425 to 427 of 2006 in R.C.Nos. 4 to 6 of 2004 under Section 144 C.P.C seeking restoration of possession of the premises. The Rent Controller allowed the respective applications filed by the tenants and ordered for restoration of the schedule premises. The landlord filed R.C.As 135 to 137 of 2008 assailing the orders passed on the applications filed under Section 144 CPC. The appellate authority dismissed the appeals, by order dated 05.01.2009. Aggrieved thereby, the landlord filed C.R.P.Nos.344, 347 and 343 of 2009 respectively. All the C.R.Ps came to be allowed remanding the matter to the appellate authority for fresh disposal, by order dated 30.01.2009. The relevant portion of the order passed in those revisions reads as hereunder: “ On a perusal of the judgment under revision, it is apparent that the judgment of the lower appellate Court is not in consonance with the observations of the apex Court. In this view of the matter, the judgment under revision is liable to be set aside and the matter can be remanded to the lower appellate Court for fresh disposal.” 5. On remand, the appellate authority while confirming the order with regard to restitution (restoration) remanded the matter back to the Rent Controller with regard to working out the modalities for restoration of possession of the premises to the tenants, by judgment dated 25.03.2009. On remand, the Rent Controller considered the report of the Commissioner and directed the landlord to re-erect the partition walls, which were removed earlier in the place where they were by the date of filing of R.Cs. It is suffice to refer the order dated 25.06.2009 passed by the Rent Controller in the applications filed by one of the tenants, i.e., in I.A.No.425 of 2006 in R.C.No.4 of 2004, which reads as hereunder:- “But, the present case facts are entirely different as the respondent/landlord after obtaining ex parte orders and after taking delivery of the possession and on the same day the landlord has removed the partition walls making three mulgies into a big hall entirely changing the structure of the building. Aggrieved by the same, the petitioner/tenant and other two tenants filed a petition to set aside the said ex parte decree and it went up to the Hon’ble Supreme Court and all the three R.C cases were restored by setting aside the ex parte decree in favour of the respondent/landlord. After that, the restoration petitions were filed by the tenant/respondent under Section 144 of the Code of Civil Procedure and it was disposed of on merits ordering restoration of the possession to the tenant by the landlord. So, the provisions under Section 19 of the Rent Control Act is only applicable wherein a landlord fails to make any necessary repairs to the building within a reasonable time after the notice is given the tenant can attend repairs. So, in this case, admittedly the tenant is not in possession of the schedule property as on today. He was evicted by obtaining ex parte orders by the landlord. Later on, the ex parte order was set aside and this Court in its order in I.A 425 of 2006 dated 4.8.2008 ordered repossession of the property to the tenant by the landlord. So the Section 19 of the Rent Control Act has no application to the present case, in view of the facts and circumstances in this petition. 11.So, with regard to the foregoing discussion, referred above, this Court is herewith formulating the modalities as under: “The respondent/landlord is hereby directed to re-erect the partition walls which were removed earlier in the place where they were by the date of filing of RC 4 of 2004 by making the big hall into three mulgies within one month from the date of this order and shall immediately deliver possession of petition schedule mulgi to the petitioner/tenant; the landlord further directed to file a report informing the delivery to the tenant/petitioner within one month. If the landlord fails to re-construct the partition walls within one month from the date of this order, the tenant will be at liberty to get construct the partition walls and take over possession of the mulgi as it was earlier by the date of RC 4 of 2004. The petitioner/tenant is at liberty to deduct the expenses incurred by him for construction of the said walls from out of the future rent payable by him to the landlord by accounting for the same before this Court. 12.So, by formulating the above modalities, the petition is accordingly disposed of”. 6. The orders passed by the Rent Controller on remand came to be questioned by the landlord by filing appeals being R.A.Nos.59 of 2009, 60 of 2009 and 61 of 2009 before the appellate authority. The appellate authority, by judgment dated 22.10.2009 dismissed all the appeals. The relevant portion of the judgment reads as hereunder:- “ In the result, the appeal is dismissed. The impugned order dt.25.6.2009 rendered in I.A.425/2006 in R.C 4 of 2004 by learned I Additional Rent Controller, Hyderabad is hereby confirmed. The appellant/landlord shall follow the directions given in the impugned order within one month from the date of this judgment, failing which, the respondent/tenant is at liberty to take assistance of the court by filing the execution petition and get the interior walls constructed for partitioning the petition schedule property from the other property at his own expenses and take possession of the petition schedule property. The expenses incurred by him are to be deducted from the rents payable by him to the appellant/landlord, accounting the same before the trial Court”. 7. The landlord filed two sets of revision petitions. The first two sets of C.R.Ps being 6099 of 2009, 6096 of 2009 and 6097 of 2009 under Section 22 of the Act arise out of the order passed by the appellate authority remanding the matter to the Rent Controller for working out the modalities. The 2nd set of revision petitions filed by the landlord are against the orders passed in R.A.Nos.59 to 61 of 2009 confirming the order of the Rent Controller working out the modalities for putting the tenant back in possession of the schedule premises. More precisely, C.R.P.No.5231 of 2009 is filed against the order dated 22.10.2009 passed in R.A.No.60 of 2009, C.R.P.No.6096 of 2009 is filed against the order dated 25.3.2009 passed in R.A.No.136 of 2008. The respondent in these two C.R.Ps is Mohd. Aslam, who is the tenant. C.R.P.No.5219 of 2009 is directed against the order dated 22.10.2009 passed in R.A.No.59 of 2009 and C.R.P.No.6099 of 2009 is directed against the order dated 25.3.2009 passed in R.A.No.135 of 2008. Hukmi Chand Bhagat is the respondent in these two C.R.Ps., and he is the tenant of the schedule premises. C.R.P.No.6097 of 2009 is directed against the order dated 25.3.2009 passed in R.A.No.137 of 2008 and C.R.P.No.5230 of 2009 is directed against the order dated 22.10.2009 passed by the appellate authority in R.A.No.61 of 2009. Suraj Chand Bhagat is the respondent in these two C.R.Ps and he is the tenant of the schedule premises. 8. For the sake of convenience, the parties will hereinafter be referred to as `landlord’ and `tenant’. 9. Heard Sri P.Gangaiah Naidu, learned Senior counsel appearing for the landlord and Sri M.V.S.Suresh Kumar, learned counsel appearing for the tenants. 10. Learned Senior Counsel appearing for the landlord submits that the applications filed by the tenants under Section 144 CPC seeking restoration of the possession of the schedule premises consequent on ex parte decree being set aside are not maintainable since the Code of Civil Procedure is not applicable to the Rent Control Proceedings except to the extent of summoning witnesses and compelling production of documents as provided under proviso to sub rule (8) of Rule 22 of A.P. Buildings (Lease, Rent and Eviction, Control) Rules, 1961. He would also contend that nearly six years have been elapsed from the date of the tenant getting possession of the schedule premises pursuant to the ex parte order through process of Court and the original position of the schedule premises has been considerably changed by lapse of time and its identity has been lost and therefore, it has become impossible to put the tenant back in possession in the premises from which he has been evicted. In a way, the contention of the learned Senior Counsel is that various developments have taken place after the landlord took possession of the premises through process of Court pursuant to the ex parte orders passed in Rent Control Cases and new tenant has been inducted and various persons filed suits claiming the property and therefore, it has become impracticable to put the tenant in possession of the schedule premises. 11. In support of his contentions, reliance has been placed on decisions of this Court in Amrutlal Vs. Principal Rent Controller[1]; Binodlal Sagarmal, Hyderabad Vs. Prem Prakash Gupta[2] and decisions of Madras High Court in A.A.Nadar Vs. S.P.Rathinasami[3] a n d Anjuman-E-Palh-Millan-Dharul Hifiz Vs. Mohammed Obaidulah[4]. 12. In Amrutlal case (1 supra), a Division Bench of this Court held that Section 10 C.P.C cannot be availed of by the Rent Controller to stay the proceedings before him. Rent Controller cannot even stay the suit invoking Section 151 CPC. The Rent Controller is not a Civil Court though he performs the functions similar to Civil Court and belongs to a judicial cadre and is not open to him to follow procedure laid by C.P.C by passing the Act or Rules made, except to the extent indicated in the proviso to Rule 22. 13. In Binodlal Sagarmal’s case ( 2 supra), a learned Single Judge of this Court placing reliance on the decision rendered in Amrultal case (1 supra) held that unless the Tribunal constituted under the relevant Act is specifically vested with the powers of the Civil Court and provisions of CPC are made applicable, the Rent Controller has no power to stay the proceedings under Section 10 CPC. In A.A.Nadar’s case (3 supra), the Madras High Court held that a Civil Court has no power of restoration of property to a tenant after reversal of eviction order in the absence of statutory provision express or implied. In Anjuman-E-Palh-Millan-Dharul Hifiz’s case (4 supra), the Madras High Court held that in the absence of impleadment of a new tenant as a party to the proceedings, it would not be equitable to disturb his possession when the new tenant has been in possession since 3 years. 14. Learned counsel appearing for the tenants submit that the question as to whether the tenants are entitled for restitution of the schedule premises is no more res integra, in view of dismissal of Civil Appeal No.511 of 2008 filed by the landlord. The learned counsel referred the judgment of this Court passed in the earlier round of litigation between the same parties, which is the subject matter in Civil Appeal No.511 of 2008 filed by the landlord. Much emphasis has been made by the learned counsel on para 23 of the judgment passed by this Court in C.R.P.No.4953 of 2006 and batch. [ Bansilal Yadav v. Suraj Chand Bhagat and others 2007(2) ALT 491]. Learned counsel further submits that once the ex parte orders in Rent Control cases are set aside, the tenants are to be put back in possession of the property, and the Rent Controller has inherent power either to recall or rectify such acts of the parties who intend to take advantage of such acts perpetrated by them, by exercising the method of fraud. In support of his submissions, reliance has been placed on the decision of this Court in Amtul Quayyum Humsira v. Munawar Fathima[5]. Para 14 of the cited judgment needs to be noted and it is thus:- “ It may not be out of context if I state that wherever fraud is detected the Courts repeatedly had observed that perpetration of such fraud cannot be permitted by Courts and the Courts have inherent power either to recall or to rectify such acts of the parties who intend to take advantage of such acts perpetrated by them by exercising the method of fraud. In the case cited supra, the Apex Court had observed that where an order was obtained by practicing fraud, every Court or Tribunal has power to recall such an order by exercising power under Section 151 CPC. In the case cited supra, the Apex Court observed that the restitutionary jurisdiction is inherent in every Court”. 15. In response, Sri P.Gangaiah Naidu, learned Senior Counsel submits that in view of deletion of para 24 from the common order of this Court passed in C.R.P.No.4593 of 2006 and batch by the Supreme Court in Civil Appeal No.511 of 2008, it is impermissible for the tenants to seek for restoration of the property pending the rent control case. 16. In view of the rival contentions of the parties, two issues that arise for consideration are:- 1. Whether the tenants are entitled for restitution of the schedule premises ?; 2. Whether the schedule premises lost its identity and thereby, making it impracticable to put the tenants back in possession of their respective rented premises? 17. ISSUE NO.1: Virtually this is the third journey of the landlord to this Court. In the first journey of the landlord to this Court (in C.R.P.No.4953 of 2006 and batch) his contention that the tenants are not entitled for restitution of the premises consequent on ex parte orders being set aside, came to be rejected. Paras 23 and 24 of the judgment passed by this Court in the above referred batch of C.R.Ps have been extracted supra. What is deleted by the Supreme Court is paragraph 24. A reading of para 23 of the order passed by this Court in C.R.P.4953 of 2006 and batch gives an indication in unmistakable terms that the tenants are entitled for restoration of possession. Such is the adverse finding received by the landlord in his first journey to this Court. It is impermissible for the landlord to contend that the tenants are not entitled for restitution of the schedule premises consequent on setting aside of the ex parte orders passed in Rent Control Cases. At this juncture, let me reiterate the operative portion of the order passed by the appellate authority on 22.10.2009 in R.A.59 of 2009 and batch. “ In the result, the appeal is dismissed. The impugned order dt.25.6.2009 rendered in I.A.425/2006 in R.C 4 of 2004 by learned I Additional Rent Controller, Hyderabad is hereby confirmed. The appellant/landlord shall follow the directions given in the impugned order within one month from the date of this judgment, failing which, the respondent/tenant is at liberty to take assistance of the court by filing the execution petition and get the interior walls constructed for partitioning the petition schedule property from the other property at his own expenses and take possession of the petition schedule property. The expenses incurred by him are to be deducted from the rents payable by him to the appellant/landlord, accounting the same before the trial Court.” 18. A close reading of the penultimate paragraph of the order of the appellate authority indicates that the tenant has to levy execution petition for implementation of the restoration order. Section 15 of the Act deals with execution of orders passed by the Rent Controller, appellate authority or revisional authority. Section 15 of the Act reads as hereunder: 15. Execution of orders:- Every order made under Section 10, Section 12, Section 13 or Section 14 and every order passed on appeal