1. This appeal is directed against the judgment and decree dated 30-1-1987 in A. S. No. 29 of 1986 on the file of the first Additional Special Judge for SPE and ACB Cascs-cum-Additional Chief Judge, City Civil Court, Hyderabad.
2. The appellants are the plaintiffs who filed a suit -- O. S. No. 2166 of 1983 -- for eviction of the respondent from the suit premises bearing No. 2-2-1132/6, NewNallakunta, Hyderabad. The appellants sought a further direction to deliver the possession of the same to them and also a further direction for payment of arrears of rent of Rs. 500,00 with interest from the date of the suit till the date of realisation and past and future damages.
3. The suit was contested by the respondent herein refuting the allegations, mainly on the ground that the suit for eviction is not maintainable in the Civil Court in terms of the decision of the Supreme Court in Motor General Traders v. State of Andhra Pradesh, AIR 1984 SC page 121. It was pressed into service on behalf of the respondent herein who figured as defendant in the suit, that Section 32 (b) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act (15 of 1960), hereinafter referred to as 'the Act' was struck down from the purview of the Act and in view of the striking down of Section 32 (b) it is the rent control Courts alone have the jurisdiction to entertain the proceedings. The second ground taken on behalf of the respondent was that a notice as contemplated under Section 106 of the Transfer of Property Act, hereinafter referred as 'the T.P. Act' was not issued and, therefore, it was urged on behalf of the respondent, that the suit has to be dismissed on this ground.
4. The trial court went into these aspects, framed necessary issues and partly decreed the suit only in respect of the recovery of rent while dismissing the suit with regard to the recovery of possession on the grounds of non-maintainability and lack of proper notice as contemplated under Section 106 of the T. P. Act. As against the judgment and decree of the trial Court the appellants-plaintiffs carried the matter by way of appeal -- A. S. No. 29 of 1986 -- before the Court of the first Additional Special Judge for SPE and ACB cases-cum-Additional Chief Judge, City Civil Court, Hyderabad. The lower appellate Court while holding that the notice issued by the appellants-plaintiffs as contemplated under Section 106 of the T. P. Act as valid, dismissed the suit on the ground that the Civil Court has no jurisdiction and confirmed the finding of the trial Court. As against the said finding the matter has been carried to this Court by way of the present appeal.
5. The short and the only substantial question of law that falls for consideration in this appeal is whether the Civil Court has jurisdiction to entertain a suit one for the eviction of tenant who is the respondent herein. A reading of the judgments of both the Courts below discloses that both the Courts have concentrated their energies on the question of jurisdiction of Civil Courts while referring to the date of construction of the building in question and also the Government Order -- G. O. Ms. No. 636, (General Administration) Department dated 29-12-1983. Unfortunately both the Courts below have not come to a conclusion as to when the construction of the building was completed, though there are claims and counter-claims made by both the parties to the suit on the basis of a few documents. However, the fact remains that the provision contemplated under Section 32 (b) of the Act was struck down by the Supreme Court in Motor General Traders v. State of Andhra Pradesh supra, on 26-10-1983. It is interesting to note that the suit was filed in the month of July, 1983. On the basis of this fact it is urged by Shri D. Gopal Rao, learned counsel for the appellants-plaintiffs, that the suit was filed in the month of July, 1983, whereas the jurisdiction of the Civil Court under Section 32 (b) of the Act was taken away in the month of October, 1983. Therefore, it is contended, that as on the date of filing of the suit the appellants had the benefit of Section 32(b) of the Act and they rightly initiated the suit for eviction of the respondent in the Civil Court. Subsequent changes cannot take away the right of a person. It is, therefore, argued that both the courts, below have grossly erred in not examining the effect of this ticklish issue. On the other hand the learned counsel for the respondent contended that when once the Supreme Court in Motor General Traders v. State of Andhra Pradesh supra, struck down the provisions contemplated under Section 32(b) of the Act taking away the jurisdiction of the Civil Court, the Civil Courts have no jurisdiction and, therefore, both the Courts below have rightly held that the Civil Courts cannot entertain the suit for eviction.
6. The effect of Section 32 (b) of the Act consequent upon the striking down by the Supreme Court in Motor General Traders v. State of Andhra Pradesh, supra, has come up before this court on number of occasions. While summarising the principle laid down in various cases of the Supreme Court as well as this Court my learned brother N. D. Patnaik, J., in Morisetti Mohan Rao v. Tata Subbaiah, 1992(1) Andh WR page 183 at para 15 held as under:
'The decisions which are referred to above have uniformly laid down the principle that when once the proceedings are instituted under the law which was in force, the rights of the parties are crystallised according to the law in force and the suit should be disposed of in accordance with the law which was in force as on the date of the filing of the suit. Though Section 32 (b) of the Rent Control Act was subsequently struck down as unconstitutional by the Supreme Court, since the plaintiff had already filed a suit in the year 1977, when the exemption granted under Section 32 (b) was in operation, the rights of the parties have been crystallised as on the date of the filing of the suit. Therefore, I am not able to agree with the contention of the learned counsel for the appellant that the decision rendered by Lakshman Rao J., in S. A. Hakim Saheb v. P.V.K. Setty (supra) requires reconsideration by the Division Bench. I agree with the reasoning given by the learned Judge that since the suit is filed when Section 32 (b) was in force, the suit is maintainable. Therefore, I am unable to accept the contention of the learned counsel for the appellant that the suit is not maintainable in the Civil Court.'
Thus the principle in question has been elaborately dealt with at length by my learned brother N. D. Patnaik, J., referring to various decisions of the Supreme Court as well as this Court. I am inclined to sail with the view expressed by my learned brother N.D. Patnaik, J., that when as on the date of filing of the suit a particular right which is available to a party would be continued to be available till the disposal of the suit though such benefit is later on taken away. Admittedly, in this case the suit was filed in the month of July, 1983 for recovery of possession. The Supreme Court struck down the provisions contemplated under Section 32(b) of the Act on 6-10-1983. Therefore, it is clear that as on the date of filing of the suit the appellants had the right to file the suit in the Civil Court. In my view the appellants are competent to maintain the suit in the Civil Court. It looks to me that this aspect was not urged before both the Courts below and as such the Courts below have also not gone into this aspect. The courts below have only examined the effect of G. O. Ms. No. 636 (General Administration) Department, dated 29-12-1983, issued by the Government of Andhra Pradesh pursuant to the decision of the Supreme Court in Motor General Traders v. State of Andhra Pradesh, supra. Since I have held that the Civil Court has jurisdiction to entertain the suit filed for eviction, I do not think it necessary to go into the other aspect considering the implication of G. O. Ms. No. 636 (General Administration) Department, dated 29-12-1983 and the date of construction of the building in question though arguments were advanced in that behalf. Though the trial Court has dismissed the suit on the grounds of lack of issuance of proper notice contemplated under Section 106 of the T. P. Act and maintainability of the suit, the lower appellate Court, however, held that the notice as contemplated under Section 106 of the T. P. Act was properly issued and there is no illegality in such issuance. However, the lower appellate Court confirmed the view of the trial Court on the question of jurisdiction of the Civil Court.
7. Against the finding of the lower appellate court on the question of issuance of notice under Section 106 of the T. P. Act the respondent did not choose to file either an appeal or a cross-appeal. It is, however, contended by the learned counsel for the respondent that without preferring a separate appeal or a cross-appeal the respondent could urged that aspect in this appeal. In support of his contention the learned counsel for the respondent placed before me few decisions pointing that a separate appeal or a cross-appeal is not necessary. I do not consider it appropriate to give a Finding as to whether or not a separate appeal or a cross-appeal has to be filed as the substantial question of law which falls for consideration in this appeal is whether the Civil Court has jurisdiction to entertain a suit for eviction or not. On a reading of the finding of the lower appellate Court on the aspect of issuance of notice under Section 106 of the T. P. Act and on considering the material placed before me, I have no hesitation in upholding the finding of the tower appellate Court. I accordingly confirm the finding of the lower appellate Court in this regard.
8. In view of the above discussion on the aspect of jurisdiction of the Civil Court for entertaining a suit for eviction, I hold that the Civil Court has jurisdiction to entertain a suit for eviction. The judgments and decrees of both the Courts below in dismissing the suit on the aspect of jurisdiction are, therefore, set aside. Consequently the suit is decreed in the following terms :--
(1) The appellants-plaintiffs are entitled for eviction of the respondent-defendant from the suit premises and,
(2) the appellants are entitled for recovery of arrears of rent for the months of February and March, 1982, at the rate of Rs. 250/- per month as held by the trial Court.
9. The respondent-defendant claims that he is running a hair-cutting saloon in the premises in question. Therefore, I consider it appropriate to grant a reasonable time for the respondent-defendant to vacate the premises and deliver the vacant possession of the premises in question to the appellants-plaintiffs. In my view the reasonable time that could be granted to the respondent is four months from today. I accordingly grant four months time to the respondent-defendant to vacate the premises in question subject to the respondent-defendant paying the arrears of rent, if any, agreed to between them --appellants and respondent -- and the monthly rents regularly till the expiry of four months period from now.
10. The appeal is accordingly allowed in the above terms. No costs.
11. Appeal allowed