ORDER
S. Ananda Reddy, J.
1. This Transfer CMP is filed by the petitioners, who are respondents in RCC No. 350 of 2000 seeking to transfer the same from the file of the II Additional Rent Controller, Hyderabad to the file of the XIII Additional Chief Judge, CCC, Hyderabad to be tried along with O.S. No. 527 of 2001 filed by the present petitioners against the respondents herein for specific performance of an agreement of sale.
2, It is stated that the respondents 1 and 2 filed RCC No. 350 of 2000 against the Petitioners' father impleading him as the sole respondent when he was alive and eviction was sought for on the ground of wilful default in payment of rents, bona fide requirement of the premises for the petitioners therein and denial of title by the respondent/tenant. Apart from seeking vacant possession from the respondent, it is also sought for direction for arrears of rent in a sum of Rs. 50,704/-, in addition for direction to pay the future rents of Rs. 532/-per month from the date of application till the date of delivery. After entering appearance by the respondent, who is the father of the petitioners, he died. Later the petitioners mother as well as the petitioners herein were impleaded as legal representatives. Subsequently, the petitioners' mother also died on 1-7-2002 and the present petitioners, who are the legal representatives, are the respondents in the rent control petition.
It is further stated that during the lifetime of the petitioners' mother, along with the petitioners she filed O.S. No. 527 of 2001 against the respondents herein in the Court of the Chief Judge, City Civil Court, Hyderabad, which was subsequently transferred to the Fast Track Court i.e., XIII Additional Chief Judge, CCC, Hyderabad. The said suit was for a direction to the defendants to receive the balance sale consideration of Rs. 4 lakhs from the plaintiffs and execute the sale deed in their favour at her expense, in pursuance of the agreement of sale dated 20-3-1993, executed by the 1st defendant in favour of Sri L.K. Narayana Swamy, father of the petitioners. If the 1st defendant failed to execute the sale deed, seeking to execute such sale deed by the Court on behalf of the 1st Respondent in favour of the plaintiffs and further to declare that the sale deed dated 1-5-2000, said to have been executed by the 1st defendant in favour of the 2nd defendant as sham, nominal, fabricated and not binding on the plaintiffs and for other incidental reliefs. It is also stated that the first defendant filed her written statement denying the execution of the agreement of sale dated 20-3-1993 in favour of the petitioners' father and contended that the plaintiffs were not entitled for the relief sought for in the suit. According to the petitioners, the questions of fact and law raised in the Rent Control Case as well as in the suit filed by the petitioners are similar and hence it is expedient in the interest of the justice that both the cases be tried by one Court to avoid conflicting decisions, being rendered. Hence, the present Transfer CMP.
3. A counter has been filed disputing and denying the averments made in the petition. According to the respondents, the petitioners have not stated true and correct facts. It is stated that the 2nd respondent Smt. D. Suvarna purchased Plot No. 275 in Salrjung Colony from Ideal Co-operativeHousing Society Limited, under a registered sale deed, dated 23-11-1978 and constructed a house after obtaining the necessary permission and the said house was given House No. 9-4-86/275. After construction she herself was residing in a portion of the house and let out the other portion of the premises to late L.K. Narayana Swamy, lather of the petitioners herein. After the marriage, the 2nd respondent has shifted to Polavaram in West Godavari District. It is also stated that the 1st Respondent herein purchased the said property from the 2nd Respondent under two registered sale deeds dated 1-5-2000 as Document Nos. 1038 and 1039. After the sale, the house, which was in the possession of the 2nd Respondent, was delivered to the 1st Respondent and insofar as the portion let out to late Narayana Swamy, it was attorned by handing over the letters of attornment to the said tenant. It is stated that subsequently the 2nd Respondent filed O.S.No. 3847 of 1993 on the file of the VII Assistant Judge, CCC, for ejectment of the tenant. But, however, the said suit was not pursued by the 2nd respondent. Hence, the same was dismissed for default on 9-4-1997. Subsequently, late Narayana Swamy filed RC No. 60 of 1991 on the file of the Additional Rent Controller, Hyderabad under Section 8(5) of the A.P. Buildings (Lease, Rent and Eviction) Control Act (hereinafter referred to 'the Act'), stating that the landlord stopped receiving the rents from August, 1990 in order to brand him as a defaulter. As such he has sent the rents through Money Order, which was also returned as refused. Subsequently, a legal notice dated 29-12-1990 was issued calling upon the landlord to furnish her Bank Accounts, so as to enable him to deposit the rents into her account. But the said notice was also refused. It is stated that the said letters were addressed to the 2nd respondent with a wrong name as well as to wrong address and thereafter as per the orders of the Rent Controller the said tenant deposited a sum of Rs. 13,136/-. Subsequently,when the said tenant tried to break the door separating the two portions and was trying to prevent the 1st respondent and his men from using the other portion, he was constrained to file O.S.No. 2473 of 2000 on the file of the V Senior Civil Judge, CCC, for permanent injunction. In the said suit, the tenant filed a written statement alleging that he had entered into an agreement of sale with reference to the suit schedule property and the second respondent received considerable amount. However, since whereabouts of the said lady were not known and also due to the financial stringency, he could not take any steps to get the sale deed. Further, it is stated that the registered sale deeds obtained by the 1st respondent were fabricated and bogus. The petitioners filed W.P.No. 9746 of 2001 without impleading the respondents and obtained separate water and power connections. According to the respondents, the Rent Control Petition pending on the file of the II Additional Rent Controller cannot be transferred to be tried along with O.S.No. 527 of 2001. The relief sought for in the Rent Control petition is totally different and the issues for consideration are also different from the issues framed in O.S.No. 527 of 2001. In addition, it was contended that the Rent Controller is a persona designata and therefore, the provisions of the Code of Civil Procedure, including Section 24, have no application and therefore, the present application is not maintainable under the said provisions. Hence sought for dismissal of the Transfer CMP.
4. The learned Counsel for the petitioners reiterating the contentions made in the petition contended that in the absence of any specific provision under the Act, the provisions of the Code of Civil Procedure are applicable. It is stated that there is no specific provisions under the provisions of the Act and the Rules made therein providing for the transfer of the rent control petition to any other Civil Court. In the absence ofany such provision, it is only Section 24, which is applicable. The learned Counsel also contended that it is not proper to contend that the Rent Controller is a persona designata and therefore, there is no bar for transfer of the rent control petition to any other Court. The learned Counsel also contended that in both the proceedings one of the issue relates to the agreement of sale, said to have been executed by the 2nd Respondent in favour of the father of the petitioners. In order to avoid multiplicity of the proceedings as well as conflict of decisions, it would be proper to try both the proceedings together and render a common judgment.
In support of his contention, the learned Counsel relied upon the following decisions:
Central Talkies Ltd. v. Dwarka Prasad, : 1961CriLJ740 , East India Corporation Ltd. v. Shree Meenakshi Mills Ltd, : [1991]2SCR310 , Mukri Gopalan v. C.P. Aboobacker, : AIR1995SC2272 , G. Satyanarayana v. S. Satyanarayana Murthy, (1967) II An.WR 479, Public Prosecutor (A.P) v. L. Ramayya, (1975) I An.WR 133, Nandanam Construction Co. v. Assistant Commissioner, 1983 (1) ALT 106, Vinod Kumar v. Ravindernath, 1984 (2) ALT 390, Pokuri Venkata Subba Rao v. Vinnakota Reda Nageswara Rao, AIR 2000 AP 235.
5. The learned Counsel for the respondents, on the other hand, contended that the Rent Control Act is a complete Code by itself and insofar as the trying of such proceedings by the Civil Court is impliedly barred, as per Section 9 of the Code of Civil Procedure. The learned Counsel also stated that against the orders of the Rent Controller, Hyderabad, appeal lies to the Chief Judge, City Civil Court, Hyderabad and if the Rent Control Petition is transferred and tried by the Chief Judge, CCC, the respondents would loose their rightof appeal, provided under the provisions of the Act. Similarly, the learned Counsel also contended that the provisions of Section 24 of the Code of Civil Procedure have no application as the Rent Controller is not a Subordinate Court and therefore, the application under Section 24 of the Code of Civil Procedure would not lie.
The learned Counsel relied upon the following decisions, in support of his contention:
Ram Swarup v. Shikar Chand, : [1966]2SCR553 , Jitendra Nath v. Empire of India and Ceylone Tea Co, , S. Mohd. Ali and Sons v. V. Madhava Rao, : AIR1964AP132 , and N.P. Balakrishnan v. P.M.R. Mariyumma, : AIR1997Ker89 .
6. In reply, the learned Counsel for the petitioners contended that as to the delay in filing the present Transfer CMP it is stated that the petitioners have filed Section 10 application before the Rent Controller and the said petition was disposed of only on 20-8-2002 and therefore, the present petition for transfer. The learned Counsel also relied upon a decision of the Delhi High Court in Shriram Pistons and Rings Ltd. v. Manju Awasthy, : 68(1997)DLT112 , where it was held that the loss of right of appeal is not a ground to deny the transfer of a suit or proceeding.
7. From the above, the issue to be considered is whether the provisions of Section 24 of the Code of Civil Procedure would apply to the Rent Control Proceedings and whether the petitioners are entitled for the relief of transfer of the Rent Control Petition to the file of XIII Additional Chief Judge, CCC, Hyderabad to be tried along with O.S.No. 527 of 2001.
8. It is not in dispute that the respondents herein filed RCC No. 350 of 2000, which is pending on the file of the IIAdditional Rent Controller, Hyderabad for eviction of the petitioners from the premises on various grounds that are available under Section 10 of the Act including on the ground of denial of title of the respondents by the petitioners. The petitioners also filed O.S.No. 527 of 2001, which is pending on the file of the XIII Additional Chief Judge, CCC, Hyderabad, which was filed for specific performance of agreement of sale said to have been executed by the 2nd respondent in favour of the father of the petitioners, agreeing to sell the suit schedule property. The Rent Control petition was filed in the year 2000 and as per the material on record, the respondents 1 and 2 were examined in the month of April and the respondents' evidence in that petition is to be recorded. At that stage, it is stated that the petitioners filed application under Section 10 seeking stay of the Proceedings before the Rent Controller on the ground of pendency of the suit filed by the present petitioners, which is pending before the Civil Court. The said petition was dismissed on 20-8-2002 and thereafter, the present Transfer CMP is filed in the month of October 2002. According to the petitioners, similar issues arise out of both the proceedings and in order to avoid conflicting decisions it would be proper that both the Proceedings to be tried by the same Court. Further, it would be convenient to the parties also if both the proceedings are tried by the same Court. The learned Counsel for the petitioners contended that there is no specific provision under the Act and the Rules made thereunder. In the absence of any specific provision for transfer of the rent control petition to the file of the Civil Court, the provisions of the Code of Civil Procedure are applicable. Therefore, the relief of transfer is sought for under Section 24 of the Code.
9. In support of his contention the learned Counsel relied upon the decision of the Supreme Court in the case of CentralTalkies Ltd. v. Dwarka Prasad (supra), wherein the Apex Court was considering the provisions of the Utter Pradesh (Temporary) Control of Rent and Eviction Act and the issue was whether the Additional District Magistrate was empowered to exercise the powers ,of the District Magistrate, under Section 10(2) of the Criminal Procedure Code. Under the provisions of the said Act, the District Magistrate mentioned in Section 3 of the said Act was empowered to grant permission to file eviction proceedings in any Civil Court against a tenant. The issue was whether the Additional District Magistrate referred to under Section 10(2) was empowered to exercise such powers or whether the District Magistrate referred to under Section 3 was a persona designata. The Apex Court held that the District Magistrate mentioned in Section 3 is not a persona designata and the Additional District Magistrate is empowered to exercise all the powers of the District Magistrate under Section 10(2) of the Criminal Procedure Code.
In the case of East India Corporation Ltd. v. Shree Meenakshi Mills Ltd. (supra) the Apex Court was considering the provisions of Tamil Nadu Buildings (Lease and Rent Control) Act, with reference to the bar of jurisdiction of Civil Court. It was held by the Apex Court that there is no express bar, except to the limited extent provided by statute, jurisdiction of Civil Court is impliedly barred. It was held that-
'Section 10 prohibits eviction of a tenant whether in execution of a decree or otherwise except in accordance with the provisions of that Section or Sections 14 to 16. These provisions as well as the other provisions of the Act are a self-contained Code, regulating the relationship of parties, creating special rights and liabilities, and, providing for determination of such rights and liabilities by Tribunals constituted under the statute and whose orders are endowed with finality.
The remedies provided by the statute in such matters are adequate and complete. Although the statute contains no express bar of jurisdiction of the Civil Court, except for eviction of tenants 'in execution or otherwise', the provisions of the statute are clear and complete in regard to the finality of the orders passed by the Special Tribunals set up under it, and their competence to administer the same remedy as the Civil Courts render in civil suits. Such tribunals having been so constituted as to act in conformity with the fundamental principles of judicial procedure, the clear and explicit intendment of the Legislature is that all questions relating to the special rights and liabilities created by the statute should be decided by the Tribunals constituted under it. Although the jurisdiction of the Civil Court is not expressly barred, the provisions of the statute explicitly show that, subject to the extraordinary powers of the High Court and the Supreme Court, such jurisdiction is impliedly barred, except to the limited extent specially provided by the statute.'
In the case of Mukri Gopalan v. C.P. Aboobacker (supra), the Supreme Court had an occasion to consider the provisions of Section 18 of Kerala Buildings (Lease and Rent Control) Act and the issue was whether the appellate authority specified under the above section is a persona designata or as the Court. The Apex Court held that the appellate authority constituted under Section 18 of the said Act functions as a Court and not as a persona designata and hence the provisions of the Limitation Act applies.
In the case of G. Satyanarayana v. S. Satyanarayana Murthy (supra), a single Judge of this Court had an occasion to consider as to the applicability of Order VI, Rule 17 of the Code of Civil Procedure to the proceedings under the Rent Control Act. It was held that both on principle as well as on authority the Rent Controllers (District Munsiffs), who deal with the eviction cases under the Andhra Pradesh Buildings (Lease,Rent and Eviction) Control Act, have power to order amendments of the eviction petition, wherever they are found to be necessary or desirable. In all cases where there is no conflict between the Rent Control Act and the Rules made thereunder and the Code of Civil Procedure or wherever the Act or the Rules made thereunder are silent on matters relating to procedure, the relevant provisions of the Code of Civil Procedure, can certainly be relied upon. As the Rent Control Act is silent as to the procedure to be followed in amending petitions, Code of Civil Procedure, is applicable.
Similar is the view expressed by another learned Single Judge in the case of Pokuri Venkata Subba Rao v. Vinnakota Reda Nageswara Rao (supra). In this case, the Court was considering the validity of a transfer of a decree for execution from one Rent Controller to other. The Court found that Rule 9 provides for transfer of a case from the file of one Rent Controller to that of another by the appellate authority, but there is no other specific provision for transfer of a decree for execution. As the provisions of the Rent Control Act are silent to the transfer of such decrees for execution, this Court held that the provisions of the Code of Civil Procedure are applicable.
In the case of Public Prosecutor (A.P.) v. L. Ramayya (supra) a learned Single Judge of this Court had an occasion to consider with reference to the provisions of the Essential Commodities Act, where matters are referred to the determination of a Court with no further provision, it was held that such matters have to be determined acting as Court. Its jurisdiction is enlarged with all incidents attached to such jurisdiction. Where person is indicated by his official designation in Statute, he acts whether as persona designata or Court depends upon intention of Statute. When Statute, confers power on Judicial Officer, Courts should be slow to say, such officer functions aspersona designata; where nothing has been mentioned about finality of his decision except he should decide according to law, in such a situation, he should act as Court, but not as persona designata.
In the case of Vinod Kumar v. Ravindernath (supra) a Division Bench of this Court was considering the powers of the persons appointed to perform the functions of a Controller under the Rent Control Act by the orders of the Government in G.O. Ms. No. 4, dated 3-1-1966 and G.O. Ms. No. 312, dated 27-5-1983. It was held that when the Government issued G.O. Ms. No. 4, they have taken a decision as to the class of officers, who should thenceforth exercise the powers of a Controller. If the authority answers the description of the class of officers specified in that G.O., he becomes competent to exercise the powers of the Rent Controller in cases arising under his jurisdiction. One cannot restrict that power to only District Munsiffs existing on the date of the G.O. The said G.O., also empowers the District Munsiffs, who have come into existence subsequently. When once the power is conferred on a class of officers, there is no need again for the State Government to have before it a panel of officers and authorities from out of whom the Government may take and choose and confer upon them the power to act as a Controller under the Act, or to issue a separate Notification under the Act as and when a new District Munsiff's Court is constituted. When the District Munsiff is designated as a person to perform the functions of a Controller under the Act, such District Munsiff is acting not as a persona designata but only as Court. When once it is the Court of the District Munsiff that exercises the powers of a Controller, the notification made under G.O. Ms. No. 4 would take in not only the Courts existing on the date of the said Notification but any Court which may have been constituted subsequently from time to time.
In the case of Shriram Pistons and Rings Ltd. v. Manju Awasthy (supra), the Delhi High Court was considering the proceedings of a District Judge transferring a suit for ejectment from the Civil Judge to Additional District Judge. One of the grounds raised was the loss of right of appeal. Another argument advanced was as to the non-compliance of Section 15 of the Code of Civil Procedure. The Delhi High Court rejected both the contentions holding that there is no embargo or impediment for transferring the suit to be tried along with another suit between the same parties.
10. The learned Counsel for the respondents relied upon the following decisions:--
In the case of S. Mohd. Ali and Sons v. K Madhava Rao (supra), a learned Single Judge of this Court had an occasion to consider the application of the provisions of Section 24 of the Code of Civil Procedure to the proceedings under the Rent Control Act and it was held that the Rent Controller under the A.P. Buildings (Lease, Rent and Eviction) Control Act is not a Court falling within the definition of Section 24 and the High Court is not competent to transfer any case pending before the Rent Controller or the appellate authority to a Civil Court or to any other Rent Controller or appellate authority.
In the case of M. Subbaramayya v. B.N. Swamy, : AIR1972AP186 , a learned Single Judge of this Court had an occasion to consider as to the applicability of Section 10 of the Code of Civil Procedure to the proceedings under the Rent Control Act. It was held that-
'On a plain reading of the Section, it is manifest that Section 10 is attracted only when the previously instituted proceedings and the subsequently instituted proceedings are suits. If one is suit and the other not, Section 10, Civil P.C. is not attracted.'
In the case of K. V. Subba Rao v. K. Sarojini, : 1993(2)ALT146 , this Court had an occasion to consider the applicability of Section 10 of the Code of Civil Procedure to the proceedings under the Rent Control Act. This Court held that the proceedings before the Rent Controller under the Act cannot be stayed under Section 10 of the Code, even though a suit was pending between the same parties in a Civil Court.
The learned Counsel for the respondents also relied upon a judgment of the Apex Court in the case of Mukri Gopalan v. C.P. Aboobacker (supra), which was also relied upon by the learned Counsel for the petitioners and referred to earlier.
In the case of N.P. Balakrishnan v. P.M.R. Mariyumma (supra) a Division Bench of the Kerala High Court held that the Rent Control Court is a Court and not persona designata, but however, it was held that it was not a Civil Court for the purpose of Section 115 of the Code and revision against the interim order of the Rent Control Court is not maintainable.
In the case of Ram Swamp v. Shikar Chand (supra), a Constitution Bench of the Apex Court had an occasion to consider the jurisdiction of the Commissioner conferred under Section 3(3) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 and held that-
'The jurisdiction of the Civil Courts to deal with civil causes can be excluded by the Legislature by special Acts which deal with special subject-matters; but the statutory provision must expressly provide for such exclusion, or must necessarily and inevitably lead to that inference. The bar created by the relevant provisions of the statute excluding the jurisdiction of the civil Courts cannot operate in cases where the plea raised before the Civil Court goes to the root of the matter and would, if upheld, lead to the conclusion that the impugnedorder is a nullity. One of the points, which is often treated as relevant in dealing with the question about the exclusion of Civil Courts' jurisdiction, is whether the special statute, which, it is urged, excludes such jurisdiction, has used clear and unambiguous words indicating that intention. Another test, which is applied, is: Does the said statute provide for an adequate and satisfactory alternative remedy to a party that may be aggrieved by the relevant order under its material provisions? Applying these two tests, it appears that the jurisdiction of the Civil Courts is excluded in relation to matters covered by the orders included within the provisions of Section 3 (4) and Section 16. Where, however, a plea seeks to prove that the impugned order is a nullity in the true legal sense, that plea does not come within the mischief of the bar created by Sections 3(4) and 16.'
In the case Jitendra Nath v. Empire of India and Ceylone Tea Co. (supra) the Apex Court had an occasion to consider the scope of Section 9 of the Code of Civil Procedure with reference to the proceedings under the Industrial Disputes Act. It was held that-
'Industrial Disputes Act not only confers the right on a worker for reinstatement and back wages if the order of termination or dismissal is not in accordance with the Standing Orders but also provides a detailed procedure and machinery for getting this relief. Under these circumstances, therefore, there is an apparent implied exclusion of the jurisdiction of the Civil Court to grant such relief. The scheme of the Industrial Disputes Act clearly excludes the jurisdiction of the Civil Court by implication in respect of remedies which are available under the Act and for which a complete procedure and machinery has been provided in the I.D. Act. In view of language of Section 10 read with Section 12(5) of the ID Act adequate remedy is available to the worker under the scheme of the Industrial Disputes Act itself which is the Act which provides for the relief of reinstatement and back wages. The remedy under I.D. Act cannot be saidto be discretionary. The suit for declaration that dismissal of the plaintiff from service was bad and void, for back wages and for injunction preventing the employer from giving effect to the order of dismissal is in substance a suit for the relief of reinstatement and back wages and is therefore not maintainable before Civil Court.'
11. If we examine the facts of the present case, in the light of the above decisions relied upon both the parties, though it was held that the Rent Control Court is a Civil Court, but not in terms of the provisions of the Code of Civil Procedure. Further, though it was held that where the provisions of the Rent Control Act are silent, the provisions of the Code of Civil Procedure are applicable, but, as already held that the Rent Control Act and the Rules made thereunder are complete Code covering the proceedings under the said Act. Even with reference to the transfer of the Proceedings before the Rent Controller as well as before the Appellate Authority, it is provided under the Act and the Rules made thereunder. But, however, there is no provision for transfer of a proceeding from the Rent Control Court to any other Civil Court. In fact, the powers of ordering eviction under the grounds specified under the Act are exclusively conferred on the specified or notified Courts or the authorities. Therefore, such power conferred by Notification under the provisions of the Act, cannot be conferred by this Court by transferring a rent control proceeding pending on the file of the Rent Controller to any Civil Court, as such powers are vested only in Government. Therefore, there is no merit in the contention of the learned Counsel for the petitioners seeking transfer of the proceedings pending before the Rent Controller to the Civil Court.
12. Apart from the above, the rent control petition was pending from 2000 onwards and even as per the version of thepetitioners, the evidence has already been recorded in part. At that stage only the petitioners have come up with the present petition. Therefore, even on merits also, there is no case for ordering transfer as the conduct of the petitioners clearly shows that it is intended only to delay and protract the Proceedings pending before the Rent Controller.
13. Under the above circumstances, the Transfer CMP is liable to be dismissed and the same is accordingly dismissed.