ORDER
S.R.K. Prasad, J.
1. These two revisions are directed against the judgments rendered in R.A.Nos.129 of 2000 and 229 of 2000 by the Additional Chief Judge, City Small Causes Court, Hyderabad.
2. The facts that arise for consideration can be briefly stated as follows:
Eviction Petition in R.C.No.621 of 1998 was presented against the tenant by the landlord before the II Additional Rent Controller, Hyderabad. It is being contested by the tenant. The landlord has claimed that the tenant has committed wilful default in payment of rents and also sought for bona fide requirement of the premises. During the pendency of the petition, I.A.No.500 of 1999 has been presented under Section 11(1) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, (hereinafter referred to as 'the Act') to direct the tenant to pay or deposit arrears of rent from 16.4.1998 to 30.9.1999 at Rs.900/- and also future rents. Thereupon, the lower court marked the written statement of the defendant in O.S.No.2020 of 1998 and allowed the application with a direction to deposit Rs.100/- per month being the admitted rent. Aggrieved by the same, the tenant has carried the matter in appeal before the Additional Chief Judge, City Small Causes Court at Hyderabad. The appellate authority in R.A.No.229 of 2000 has confirmed the order of the Rent Controller. Thereupon, the tenant has preferred C.R.P.No.3975 of 2002 against R.A.No.229 of 2000. In the meanwhile, the landlord has presented I.A.No.136 of 2000 in I.A.No.500 of 1999 in R.C.No.621 of 1998 under Section 11(4) of the Act before the II Additional Rent Controller, Hyderabad to stop all further proceedings and deliver possession. Thereupon, the Rent Controller has directed the tenant to put the landlord in possession of the schedule premises within one month by stopping all further proceedings in R.C.No.621 of 1998. The tenant once again carried the matter in appeal before the Additional Chief Judge, City Small Causes Court, Hyderabad, in respect of the said orders passed in I.A.No.136 of 2000. The appellate authority in R.A.No.129 of 2000 has confirmed the order of the Rent Controller. Aggrieved by the same, the tenant once again preferred C.R.P.No.3928 of 2002. Hence, these two revisions are being disposed of together by a common order.
3. The short point that arises for consideration is whether the order directing the tenant to deposit the alleged admitted rent and also directing the tenant to put the landlord in possession is in accordance with the provisions of Section 11 of the Act.
4. It is noticed by this Court that no documentary evidence is produced. It is an admitted fact that the present landlord purchased the said premises subsequently. Before adverting to the contentions, it is necessary to have a look at provisions of Section 11 of the Act, which reads as follows:
'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 or 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 landlord, 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.'
5. The learned counsel for the revision petitioner Sri Koka Raghava Rao mainly contends that the tenant was depositing the rents before the Rent Controller in earlier proceedings and there is no need to give a direction to deposit once again. Whereas, the learned counsel appearing for the landlord contends that the deposit made in the prior proceedings does not amount to sufficient compliance and it amount to wilful default. In any view of the matter, that has to be adjudicated only in the main application.
6. The only point that has to be considered is whether there is any dispute as to the rent to be paid or deposited and if so whether the court has determined summarily the rent to be so paid. The Rent Controller in his order passed in I.A.No.500 of 1999 has stated as under:
'The quantum of rent is in dispute. There is no evidence to decide this point as such I feel that it can be decided during the enquiry of main R.C.'
Having observed that quantum of rent is in dispute, it went on to consider about the depositing of rent at the rate Rs.100/- per month. It is contemplated under Section 11(3) of the Act that the Rent Controller is bound to make enquiry and determine summarily the rent to be so paid or deposited. If such enquiry is not conducted, it will not amount to sufficient compliance of the provision of Section 11(3) of the Act. It does not contemplate relegating the enquiry to the main application. Moreover, the court itself has observed that the quantum of rent is in dispute and there is no evidence to decide this point as such it can be decided during the enquiry in the main R.C. That means when evidence has not been placed to determine the quantum of rent, he ought to have dismissed the application rather than proceed to fix the rent without any basis. Moreover, the person who presented the application has not produced the sale deed. He is bound to produce his title deed and show that he is landlord. It is a case where the tenant has denied title of the landlord as well as attornment to the new landlord. He has also denied the quantum of rent. Without adjudicating all these things, it cannot be said that the tenant has to pay the said amount. Section 11(3) of the Act contemplates that rent has to be determined in a summary way. Both the Rent Controller as well as the appellate authority, which confirmed the order of the court below, has failed to follow the statutory provision under Section 11(3) of the Act. The ordering of deposit of admitted rent which amount sufficient compliance as mentioned in decisions reported in Ghouse Mohiuddin v. Dr.L.Bhaskar Reddy, : AIR1995AP238 and M.Gopala Krishna v. N.G. Veerabhadra Swamy, : 1994(1)ALT47 will not apply to the facts of this case as there is no admitted rent here since the ownership of the landlord as well as the stipulation of the rent is denied. There cannot be any dispute that notice is not necessary before presenting the rent control application and it has been clearly stated by the Apex Court in V.Dhanapal Chettiar v. Yesodai Ammal, : [1980]1SCR334 . The relevant paras in 11, 13, 14, 15, 16, 18 and 19 read as follows:
'11. The first decision of this Court which is necessary to be noticed on the point of notice is the case of Punjalal v. Bhagwatprasad, : [1963]3SCR312 . The case related to Bombay Rent Act. Raghubar Dayal J. speaking on behalf of the Division Bench of this Court expressed the view at p. 318 thus; -
'We are therefore of opinion that where a tenant is in possession under a lease from the landlord, he is not to be evicted for a cause which would give rise to a suit for recovery of possession under S. 12 if his tenancy has not been determined already. It follows that whenever a tenant acts in a way which would remove the bar on the landlord's right to evict him it is necessary for the landlord to serve him with a notice determining his tenancy and also serve him with a notice under sub-s. (2) of Section 12 of the Act.'
It is true that the Rent Act is intended to restrict the right which the landlord possessed either for charging excessive rents or for evicting tenants. But if within the ambit of those restricted rights he makes out his case it is a mere empty formality to ask him to determine the contractual tenancy before institution of a suit for eviction. As we have pointed out above, this was necessary under the Transfer of Property Act as mere termination of the lease entitled the landlord to recover possession. But under the Rent Control Acts it becomes an unnecessary technicality to insist that the landlord must determine the contractual tenancy. It is of no practical use after so many restrictions of his right to evict the tenant have been put. The restricted area under the various State Rent Acts has done away to a large extent with the requirement of the law of contract and the Transfer of Property Act. If this be so why unnecessarily, illogically and unjustifiably a formality of terminating the contractual lease should be insisted upon? In Punjalal's case, if we may say so with very great respect, the principle of law laid down by this Court in Brij Raj Krishna's case (supra) and by the Punjab High Court in Hem Chand's case was wrongly distinguished. After quoting the passage from the former it was said at page 322: -
'In the present case, S. 12 of the Act is differently worded and cannot therefore be said to be a complete Code in itself. There is nothing in it which overrides the provisions of the Transfer of Property Act.' The difference in the wordings of Sec. 11 of the Bihar Act and Section 12 of the Bombay Act does not justify the conclusion that the provisions of the Transfer of Property Act have not been overridden by Section 12 of the Bombay Act reading it with Section 13 etc. This was the ground given for distinguishing Hem Chand's case also by erroneously pointing out the distinction between Section 13 (1) of the Delhi and Ajmer Merwara Rent Control Act, 1952 and the Bombay Act. In our considered judgment Punjalal's case was not correctly decided.
13. The decision of this Court in the case of Mangilal v. Suganchand, : [1964]5SCR239 , being a decision of a Constitution Bench consisting of five learned and eminent Judges of this Court requires careful consideration. Therein it was held at page 244 with reference to Section 4 of the Madhya Pradesh Accommodation Control Act, 1955 thus: -
'The Accommodation Act does not in any way abrogate Ch. V of the Transfer of Property Act which deals with leases of immovable property. The requirement of S. 106 of the Transfer of Property Act is that a lease from month to month can be terminated only after giving fifteen days' notice expiring with the end of a month of the tenancy either by the landlord to the tenant or by the tenant to the landlord. Such a notice is essential for bringing to an end the relationship of landlord and tenant. Unless the relationship is validly terminated the landlord does not get the right to obtain possession of the premises by evicting the tenant. Section 106 of the Transfer of Property Act does not provide for the satisfaction of any additional requirements. But then, S. 4 of the Accommodation Act steps in and provides that unless one of the several grounds set out therein is established or exists, the landlord cannot evict the tenant.' Section 4 of the Madhya Pradesh Rent Act, 1955 provided that no suit could be filed in any Civil Court against a tenant for his eviction for any accommodation except on one or more grounds set out in that section. The corresponding provision in Madhya Pradesh Accommodation Act of 1961 is contained in Section 12 which starts with a non obstante clause also but the definition of the tenant as in other State Acts includes 'any person continuing in possession after the termination of his tenancy.' How then is it correct to say that a notice is essential for bringing to an end the relationship between the landlord and the tenant? The notice does not bring to an end such a relationship because of the protection given to the tenant under the Rent Act. If that be so then it is not necessary for the landlord to terminate the contractual relationship to obtain possession of the premises for evicting the tenant. If the termination of the contractual tenancy by notice does not, because of the Rent Act provisions, entitle the landlord to recover possession and he becomes entitled, only if he makes out a case under the special provision of the State Rent Act, then, in our opinion, termination of the contractual relationship by a notice is not necessary. The termination comes into effect when a case is successfully made out for eviction of the tenant under the State Rent Act. We say with utmost respect that on the point of requirement of a notice under S. 106 of the Transfer of Property Act Mangilal's case was not correctly decided.14. In Manujendra Dutt v. Purendu Prosad Roy Chowdhury : [1967]1SCR475 , the question of notice came to be considered with reference to the Calcutta Thika Tenancy Act, 1949 and in that connection it was said at page 480 :-
'The Thika Tenancy Act like similar Rent Acts passed in different States is intended to prevent indiscriminate eviction of tenants and is intended to be a protective statute to safeguard security of possession of tenants and therefore should be construed in the light of its being a social legislation. What Section 3 therefore does is to provide that even where a landlord has terminated the contractual tenancy by a proper notice such landlord can succeed in evicting his tenant provided that he falls under one or more of the clauses of that section.' For the reasons already stated we do not agree, and we say so with respect, with the above enunciation of law. This apart there is scope for distinguishing Manujendra's case because Clause 7 of the lease deed therein ran as follows: -
'Provided always and it is hereby agreed and declared that if it be required that thelessee should vacate the said premises at the end of the said term of 10 years the lessee will be served with a 6 months notice ending with the expiry of the said term and it is further agreed that if the lessee is permitted to hold over the land after the expiry of the said term of 10 years the lessee will be allowed a six months notice to quit and vacate the said premises.'Over and above the protection under the Thika Tenancy Act Cl. 7 of the lease deed gave an extra protection of getting six months notice to quit and vacate the premises. In that event one can say that such a clause being not unlawful and giving an extra protection to the tenant against eviction must also be adhered to. But it is not correct to say that S. 106 of the Transfer of Property Act merely providing for termination of a lease either by the lessor or the lessee by giving the requisite notice is an extra protection against eviction. The purpose of this provision is merely to terminate the contract which the overriding Rent Acts do not permit to be terminated.
15. In Ravals' case (supra) the question for consideration was whether Section 4 of the Tamil Nadu Rent Act providing for an application for fixation of fair rent was available both to the tenant and the landlord. The majority speaking through Alagiriswami J. took the view that it was so. A contrary view was expressed by Bhagwati J. speaking for the minority. While discussing this question the relevant passage from the decision of this Court in Brij Raj Krishna's case was quoted at p. 634 and reference was made to the decision of the Punjab High Court in Hem Chand's case. Thereafter the observation of this Court in Punjalal's case to the effect that 'Rent Acts are not ordinarily intended to interfere with contractual leases and are Acts for the protection of tenants and are consequently restrictive and not enabling, conferring no new rights of action but restricting the existing rights either under the contract or under the general law,' were held not to apply to all Rent Acts irrespective of the scheme of those Acts and their provisions. This observation given with reference to the dictum of this Court in Punjalal's case concerned with the question of notice under Section 106. It enabled certain High Courts to make a firm departure and take the view with reference to the scheme of their respective State Acts to say that a notice was not necessary. This happened in Madras, Andhra Pradesh, Kerala, Karnataka and Punjab and Haryana. Alagiriswami J. at page 635 after having made that observation with reference to Bhaiya Punjalal's case has said - 'Be that as it may, we are now concerned with the question of fixation of a fair rent.' In our opinion the majority decision with regard to Section 4 was undoubtedly correct and the minority stretched the law, if we may say so with respect, too far to hold that Section 4 was not available to the landlord. It should be remembered, as we have said above, that the field of freedom of contract was encroached upon to a very large extent by the State Rent Acts. The encroachment was not entirely and wholly one sided. Some encroachment was envisaged in the interest of the landlord also and equity and justice demanded a fair play on the part of the legislature not to completely ignore the helpless situation of many landlords who are also compared to some big tenants sometimes weaker section of the society. As for example a widow or a minor lets out a family house in a helpless situation to tide over the financial difficulty and later wants a fair rent to be determined. Again suppose for instance in a city there is an apprehension of external aggression, severe internal disturbances or spread of epidemics. A man in possession of his house may go to another town letting out his premises to a tenant financially strong and of strong nerves at a rate comparatively much lower than the prevailing market rates. Later on, on the normalization of the situation as against the agreed rate of rent he approaches the Building Controller for fixing a fair rent in accordance with a particular State Rent Act. Why should she or he be debarred from doing so. The Statute gives him the protection and enables the Controller to intervene to fix a fair rent as against the term of contract between the parties. In a large number of cases it is the tenant who gets this protection. But in some as in the case of Raval the landlord needs and gets the protection. But this is not a direct authority on the point of notice.
16. In Isha Valimohamad v. Haji Gulam Mohamad and Haji Dada Trust : [1975]1SCR720 , Mathew J. speaking for a Division Bench of this Court had to consider the question with reference to the Saurashtra Rent Control Act, 1951. In that connection it was observed at page 726 that the High Court was right in the assumption that a notice under the Transfer of Property Act was necessary to terminate the tenancy on the ground that the appellants had sublet the premises. Says the learned judge further that the landlord could not have issued a notice under any of the provisions of the Transfer of Property Act to determine the tenancy on the ground of sub-letting by the tenant. It is not correct to assume that a notice under Section 106 of the Transfer of Property Act as required by clause (h) of Section 111 needs a ground to be made out for the termination of the tenancy. Such a view could be taken only under clause (g). Beg J. as he then was in P. J. Gupta and Co. v. K. Venkatesan : [1975]2SCR401 speaking for himself and Krishna Iyer J. following Raval's case observed at p. 403: -
'In other words, the special procedure provided by the Act displaces the requirements of the procedure for eviction under the Transfer of Property Act and by an ordinary civil suit. Therefore, we need not concern ourselves with the provisions of Transfer of Property Act.... .... ..... ...... ....... ...........
A tenancy is essentially based on and governed by an agreement or contract even when a statute intervenes to limit the area within which an agreement or contract operates, or, subjects contractual rights to statutory rights and obligations.' In Dattonpant Gopalvarao v. Vithabrao Maruthirao, 1975 Supp SCR 67 one of us (Untwalia J.) speaking on behalf of himself and Krishna Iyer J. said at page 71: -
'We do not think that the alternative argument put forward by Mr. Chitaley that no notice was necessary in this case is correct. The appellant was a contractual tenant who would have become a statutory tenant within the meaning of clause (r) of Section 2 of the Act if he would have continued in possession after the termination of the tenancy in his favour. Otherwise not. Without termination of the contractual tenancy by a valid notice or other mode set out in Section 111 T. P. Act it was not open to the landlord to treat the appellant as a statutory tenant and seek his eviction without service of a notice to quit.'
On a careful consideration and approach of the matter in the instant case we think that we cannot approve of the view expressed in the passage extracted above. In Batan Lal v. Vardesh Chander : [1976]2SCR906 , Krishna Iyer J. delivered the judgment on behalf of a Bench of this Court consisting of himself, Chandrachud J., as he then was and Gupta J. The case related to a building in Delhi. The Court was concerned with clause (g) of the Section 111 of the Transfer of Property Act. Tracing the history of the legislation it was pointed out by the Court at page 918 that the requirement as to written notice provided in Section 111 cannot be said to be based on any general rule of quity and therefore forfeiture of lease brought about in terms of Section 111 of the Transfer of Property Act not by notice but on the application of justice, equity and good conscience was held to be good determination of the lease. Quoting from Manujendra's case it was said at page 911:
'We are inclined to hold that the landlord in the present case cannot secure an order for eviction without first establishing that he has validly determined the lease under the T. P. Act.'Why this dual requirement? Even if the lease is determined by a forfeiture under the Transfer of Property Act the tenant continues to be a tenant, that is to say, there is no forfeiture in the eye of law. The tenant becomes liable to be evicted and forfeiture comes into play only if he has incurred the liability to be evicted under the State Rent Act, not otherwise. In many State Statutes different provisions have been made as to the grounds on which a tenant can be evicted and in relation to his incurring the liability to be so evicted. Some provisions overlap those of the Transfer of Property Act. Some are new which are mostly in favour of the tenants but some are in favour of the landlord also. That being so the dictum of this Court in Brij Raj case comes into play and one has to look to the provisions of law contained in the four corners of any State Rent Act to find out whether a tenant can be evicted or not. The theory of double protection or additional protection, it seems to us, has been stretched too far and without a proper and due consideration of all its ramifications. 18. Lastly our attention was drawn to the decision of this Court in Firm Sardarilal Vishwanath v. Pritam Singh : [1979]1SCR111 . The lease in that case had come to an end by efflux of time. A tenant continued in possession and become a socalled statutory tenant. The argument put forward before this Court that a fresh notice under Section 106 of the Transfer of Property Act was necessary was rejected on the ground: -
'Having examined the matter on authority and precedent it must be frankly confessed that no other conclusion is possible on the first principle. Lease of urban immovable property represents a contract between the lessor and the lessee. If the contract is to be put to an end it has to be terminated by a notice to quit as envisaged under S. 106 of the Transfer of Property Act. But it is equally clear as provided by S. 111 of the Transfer of Property Act that the lease of immovable property determines by various modes therein prescribed. Now, if the lease of immovable property determines in any one of the modes prescribed under S. 111, the contract of lease comes to an end, and the landlord can exercise his right of re-entry. This right of re-entry is further restricted and fettered by the provisions of the Rent Restriction Act. Nonetheless the contract of lease had expired and the tenant lessee continues in possession under the protective wing of the Rent Restricting Act until the lessee loses protection. But there is no question of terminating the contract because the contract comes to an end once the lease determines in any one of the modes prescribed under S. 111. There is, therefore, no question of giving a notice to quit to such a lessee who continued in possession after the determination of the lease, i.e. after the contract came to an end under the protection of the Rent Restriction Act. If the contract once came to an end there was no question of terminating the contract over again by a fresh notice.'If we were to agree with the view that determination of lease in accordance with the Transfer of Property Act is a condition precedent to the starting of a proceeding under the State Rent Act for eviction of the tenant, we could have said so with respect that the view expressed in the above passage is quite correct because there was no question of determination of the lease again once it was determined by efflux of time. But on the first assumption we have taken a different view of the matter and have come to the conclusion that determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the Transfer of Property Act.
19. For the reasons stated above we hold that the High Court was right in its view that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the landlady - respondent to get an order of eviction against the tenant-appellant. But we were told by learned counsel for the appellant that he had some more points to urge before the High Court to challenge the order of eviction. We do not find from the judgment of the High Court that the appellant was prevented from supporting the orders of the courts below in his favour by urging any other point. No point of substance could be indicated before us which was worth consideration after a clear and definite finding by the Appellate Court that the respondent required the premises bona fide for a personal necessity. We do not think it advisable to delay the proceeding any further and send back the case to the High Court on this account. We accordingly dismiss the appeal but in the circumstances direct the parties to bear their own costs throughout.'
7. It is also clearly stated in Smt. Arnavaz Rustom Printer, Mumbai v. N.D. Thadani, : 2001(4)ALD652 that Court has got jurisdiction to order eviction of tenant under sub-section (4) of Section 11 of the Act, which is mandatory. It is also clearly stated in Soorampally Venkata Reddy v. New Tirumala Emporium, : 2001(5)ALD311 that the order passed by the appellate authority under Section 20 confirming the order of Rent Controller under Section 11(4) is executable under Section 15 of the Act. The matter has to be looked through a different angle in this case. The lower court has not looked into the provision of Section 11(3) of the Act and did not consider the determination of the rent. Ordering enquiry in the main R.C., is beyond the scope of Section 11(3) of the Act. The order of the Rent Controller directing the tenant to deposit admitted rent and the consequential order to put the landlord in possession of the schedule premises are liable to be set aside and they are, accordingly, set aside. The matter is sent back to the Rent Controller to determine the rent in the application summarily as adumbrated under Section 11(3) of the Act and dispose of the case in accordance with law. It is also stated that the main R.C., is of the year 1998. I am of the considered view that both main case as well as the applications is to be disposed of at one and the same time, which will meet the ends of justice.
8. In the result, the learned II Additional Rent Controller, Hyderabad is directed to dispose of I.A.No.500 of 1999 and I.A.No.136 of 2000 at one and the same along with R.C.No.621 of 1998. Before taking up the case, the Rent Controller is directed to make an effort to bring about settlement through Lok Adalat and soon after receipt of the record from Lok Adalat, he shall dispose of the same within a period of two months.
Both revisions are allowed accordingly. No costs.