Dr. Sr. Y. Philomena Vs. St. Ann's Convent and Ors. (21.01.1993 - APHC) - Court Judgment

Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - the provision added by the amendment in 1976 says that the high court shall not vary or reverse any order except where- (a) xxx xxx (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. so, an order can be interfered with if it occasions failure of justice. the learned 6th assistant judge who is faced with two orders referred to above was unable to proceed with the matter and i feel that it amounts to failure of justice because the court is not able to proceed one way or the other with the matter.ordern.d. patnaik, j.1. the petitioner herein filed a suit o.s.4030/1992 in the court of the 6th asst. judge, city civil court, hyderabad for certain reliefs. in that she had filed two petitions la. nos. 1603 and 1604 of 1992 for grant of temporary injunctions. the learned 6th assistant judge has granted an interim injunction in la. 1603/92. against that an appeal c.m.a.318/92 is filed before the chief judge, city civil court, hyderabad.2.the respondents filed a suito.s.1209/1992 in the court of the iv additional judge, city civil court, hyderabad against the plaintiff. they have filed a petition o.p.1076/1992 in the court of the chief judge, city civil court to transfer the suit o.s.4030/1992 in the court of the 6th asst. judge, city civil court, hyderabad to the 4th addl. judge's court to be tried along with o.s.1209/92. in that they have filed an application i.a.2498/1992 for stay of proceedings in the court of the 6th assistant judge pending disposal of the o.p. the learned chief judge granted an ex parte interim stay of all the proceedings in o.s.4030/1992 in the court of the 6th asst. judge. subsequently he modified the said order by confining the stay to the trial of the suit and not to the i.as. pending before the 6th assistant judge and also dismissed c.m.a.318/1992 with a direction to the 6th assistant judge to dispose of i. a.nos. 1603 and 1604 of 1992 in o.s.4030/1992 within a period of 10 days from the date of the receipt of the said orders. two revision petitions have been filed by the respondents against the said two orders i.e., c.r.p.nos. 3638 and 3755 of 1992.3. while so, the respondents have filed two other applications o.p.nos. 1240 and 1241 of 1992 before the chief judge, city civil court, hyderabad to transfer o.s.4030/1992 on the file of the 6th assistant judge and o.s.1209/1992 on the file of the iv additional judge to the court of the chief judge to be tried along with o.p.973/1992 filed by the petitioner herein. they filed an application i.a.2971/92 in o.p.i241 /92 for stay of the proceedings in the court of the 6th asst. judge, city civil court, hyderabad in o.s.4030/92 and i.a.2970/92 for stay of proceedings in o.s.1209/92 in the court of the iv addl. judge, city civil court, hyderabad. the learned chief judge passed an order in i.a.2971/92 in o.p. 1241 /92 directing interim stay of the proceed ings in o.s.4030/92 on the file of the 6th asst.judge, city civil court, hyderabad subject to the orders of this court in c.r.p.no. 3638/92. this revision is filed against the said order.4. mr. satyanarayana prasad, the learned counsel for the petitioner contends that inasmuch as the learned chief judge, city civil court, hyderabad had passed orders in c.m.a.318/92 directing the 6th asst. judge, city civil court, hyderabad to dispose of i.a.1603/92 and i.a.1604/92 in o.s.4030/92 within a period of 10 days, the impugned order passed by the learned chief judge on 17th december, 1992 in i.a.2971/92 granting interim stay of the proceedings is quite contrary to the said order and therefore this order is liable to be set aside.5. sri mohan reddy, appearing for respondents 1, 3 and 5 and mr. cyril reddy, appearing for the respondents 2 and 4 have contended that as transfer petitions are filed before the learned chief judge for consolidation of all the three matters i.e., o.s.4030/92 in the court of the 6th assistant judge and o.s.1209/92 in the court of the iv addl. judge and o.p.973/92 it will be appropriate that the learned chief judge should pass orders in all the matters or this court by exercising its jurisdiction under section 24 of the c.p.c. suo motu may transfer the suits to the chief judge, city civil court so that conflict of decisions should be avoided. but mr. satyanarayana prasad, the learned counsel for the petitioner says that the petitioner is opposing the transfer applications. therefore, since the transfer petitions are pending before the learned chief judge, city civil court, hyderabad which are being contested, 1 feel that it is not desirable at this stage for the high court to invoke the suo motu power under section 24 of the c.p.c. and transfer the suits to the court of the chief judge, city civil court, hyderabad.6. as far as the c.r.p. is concerned, from the facts narrated above it can be seen that there are two orders passed by the learned chief judge, city civil court, hyderabad. one is the order passed in c.m.a.318/92 directing the 6th asst. judge to dispose of i.as.1603 and 1604 of 1992 within 10 days and also modifying the earlier blanket stay granted in i.a.2498/92 in o.p.1076/92 only to the trial of the suit but not to the disposal of the interlocutory applications. the second order is the impugned order in i.a.2971/92 in o.p.1241 /92 whereby the learned chief judge granted interim stay of the proceedings in o.s.4030/92 in the court of the 6th asst. judge subject to the orders of the high court in c.r.p.3638/92. since c.r.ps.3638/92 and 3755/92 are dismissed as withdrawn the orders passed in c.m.a.318/92 and the orders passed in i.a.2498/92 have become final. the impugned order may be considered in two parts i.e., (a) interim stay of the proceedings and (b) subject to the orders of the hon'ble high court in c.r.p.3638/92 since c.r.p.3638/92 is dismissed thereby confirming the order of the learned chief judge in i.a.2498/92 in o.p.1076/92 modifying the stay order to the trial of the suit and not to the i.as., the result of the impugned order is that the interim stay granted by the learned chief judge in i.a.2971/92 only applies to the disposal of the suit o.s.4030/92 and not to the disposal of the i.as.7. the learned counsel for the respondents have also taken a preliminary objection that the revision is not maintainable since it is only against an interlocutory order in view of the amendment made in 1976. mr. mohan reddy has relied upon three decisions reported in k. venkateswara rao v. savera labs. ltd., : 1991(2)alt98 venkataratnam v. sravanti devi, 1979 (1) alt 396 and m/s. vandana cylinders (p) ltd. v. state bank of india, : 1992(1)alt392 in support of his contention. the provision added by the amendment in 1976 says that the high court shall not vary or reverse any order except where-(a) xxx xxx(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.so, an order can be interfered with if it occasions failure of justice. from what i understand from the statements made by the learned counsel on either side, a petition has been filed before the 6th asst. judge to advance the hearing of the i.as., 1603 and 1604 of 1992 immediately after the disposal of the c.r.ps. by this court on 18-12-1992 and that was opposed. the learned 6th assistant judge who is faced with two orders referred to above was unable to proceed with the matter and i feel that it amounts to failure of justice because the court is not able to proceed one way or the other with the matter. in this view of the matter, i am unable to agree with the objection taken by the learned counsel for the respondents regarding the maintainability of the c.r.p.8. as i have stated above, the order of the learned chief judge in i.a.2971 /92 in o.p.1241 /92 is only restricted to the trial of the suit o.s.4030/92 and not to the interlocutory applications. the c.r.p. is disposed of with the said direction. the learned chief judge is also directed to dispose of the o.ps.1240 and 1241 of 1992 expeditiously preferably within two weeks and both the parties are directed to co-operate in the disposal of those o.ps. any observations made in this order shall not in any way affect the discretion of the learned chief judge, hyderabad in disposing of the o.ps.1240 and 1241 of 1992.9. the revision petition is disposed of accordingly. no costs.

Judgment:
ORDER

N.D. Patnaik, J.

1. The petitioner herein filed a suit O.S.4030/1992 in the Court of the 6th Asst. Judge, City Civil Court, Hyderabad for certain reliefs. In that she had filed two petitions LA. Nos. 1603 and 1604 of 1992 for grant of temporary injunctions. The learned 6th Assistant Judge has granted an interim injunction in LA. 1603/92. Against that an appeal C.M.A.318/92 is filed before the Chief Judge, City Civil Court, Hyderabad.

2.The respondents filed a suitO.S.1209/1992 in the Court of the IV Additional Judge, City Civil Court, Hyderabad against the plaintiff. They have filed a petition O.P.1076/1992 in the Court of the Chief Judge, City Civil Court to transfer the suit O.S.4030/1992 in the court of the 6th Asst. Judge, City Civil Court, Hyderabad to the 4th Addl. Judge's Court to be tried along with O.S.1209/92. In that they have filed an application I.A.2498/1992 for stay of proceedings in the court of the 6th Assistant Judge pending disposal of the O.P. The learned Chief judge granted an ex parte interim stay of all the proceedings in O.S.4030/1992 in the court of the 6th Asst. Judge. Subsequently he modified the said order by confining the stay to the trial of the suit and not to the I.As. pending before the 6th Assistant Judge and also dismissed C.M.A.318/1992 with a direction to the 6th Assistant Judge to dispose of I. A.Nos. 1603 and 1604 of 1992 in O.S.4030/1992 within a period of 10 days from the date of the receipt of the said orders. Two revision petitions have been filed by the respondents against the said two orders i.e., C.R.P.Nos. 3638 and 3755 of 1992.

3. While so, the respondents have filed two other applications O.P.Nos. 1240 and 1241 of 1992 before the Chief Judge, City Civil Court, Hyderabad to transfer O.S.4030/1992 on the file of the 6th Assistant Judge and O.S.1209/1992 on the file of the IV Additional Judge to the Court of the Chief Judge to be tried along with O.P.973/1992 filed by the petitioner herein. They filed an application I.A.2971/92 in O.P.I241 /92 for stay of the proceedings in the court of the 6th Asst. Judge, City Civil Court, Hyderabad in O.S.4030/92 and I.A.2970/92 for stay of proceedings in O.S.1209/92 in the court of the IV Addl. Judge, City Civil Court, Hyderabad. The learned Chief Judge passed an order in I.A.2971/92 in O.P. 1241 /92 directing interim stay of the proceed ings in O.S.4030/92 on the file of the 6th Asst.Judge, City Civil Court, Hyderabad subject to the orders of this Court in C.R.P.No. 3638/92. This revision is filed against the said order.

4. Mr. Satyanarayana Prasad, the learned counsel for the petitioner contends that inasmuch as the learned Chief Judge, City Civil Court, Hyderabad had passed orders in C.M.A.318/92 directing the 6th Asst. Judge, City Civil Court, Hyderabad to dispose of I.A.1603/92 and I.A.1604/92 in O.S.4030/92 within a period of 10 days, the impugned order passed by the learned Chief Judge on 17th December, 1992 in I.A.2971/92 granting interim stay of the proceedings is quite contrary to the said order and therefore this order is liable to be set aside.

5. Sri Mohan Reddy, appearing for respondents 1, 3 and 5 and Mr. Cyril Reddy, appearing for the respondents 2 and 4 have contended that as transfer petitions are filed before the learned Chief Judge for consolidation of all the three matters i.e., O.S.4030/92 in the court of the 6th Assistant Judge and O.S.1209/92 in the Court of the IV Addl. Judge and O.P.973/92 it will be appropriate that the learned Chief Judge should pass orders in all the matters or this Court by exercising its jurisdiction under Section 24 of the C.P.C. suo motu may transfer the suits to the Chief Judge, City Civil Court so that conflict of decisions should be avoided. But Mr. Satyanarayana Prasad, the learned counsel for the petitioner says that the petitioner is opposing the transfer applications. Therefore, since the transfer petitions are pending before the learned Chief Judge, City Civil Court, Hyderabad which are being contested, 1 feel that it is not desirable at this stage for the High Court to invoke the suo motu power under Section 24 of the C.P.C. and transfer the suits to the court of the Chief Judge, City Civil Court, Hyderabad.

6. As far as the C.R.P. is concerned, from the facts narrated above it can be seen that there are two orders passed by the learned Chief Judge, City Civil Court, Hyderabad. One is the order passed in C.M.A.318/92 directing the 6th Asst. Judge to dispose of I.As.1603 and 1604 of 1992 within 10 days and also modifying the earlier blanket stay granted in I.A.2498/92 in O.P.1076/92 only to the trial of the suit but not to the disposal of the interlocutory applications. The second order is the impugned order in I.A.2971/92 in O.P.1241 /92 whereby the learned Chief Judge granted interim stay of the proceedings in O.S.4030/92 in the court of the 6th Asst. Judge subject to the orders of the High Court in C.R.P.3638/92. Since C.R.Ps.3638/92 and 3755/92 are dismissed as withdrawn the orders passed in C.M.A.318/92 and the orders passed in I.A.2498/92 have become final. The impugned order may be considered in two parts i.e., (a) interim stay of the proceedings and (b) subject to the orders of the Hon'ble High Court in C.R.P.3638/92 since C.R.P.3638/92 is dismissed thereby confirming the order of the learned Chief Judge in I.A.2498/92 in O.P.1076/92 modifying the stay order to the trial of the suit and not to the I.As., the result of the impugned order is that the interim stay granted by the learned Chief Judge in I.A.2971/92 only applies to the disposal of the suit O.S.4030/92 and not to the disposal of the I.As.

7. The learned counsel for the respondents have also taken a preliminary objection that the revision is not maintainable since it is only against an interlocutory order in view of the amendment made in 1976. Mr. Mohan Reddy has relied upon three decisions reported in K. Venkateswara Rao v. Savera Labs. Ltd., : 1991(2)ALT98 Venkataratnam v. Sravanti Devi, 1979 (1) ALT 396 and M/s. Vandana Cylinders (P) Ltd. v. State Bank of India, : 1992(1)ALT392 in support of his contention. The provision added by the amendment in 1976 says that the High Court shall not vary or reverse any order except where-

(a) xxx xxx

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

So, an order can be interfered with if it occasions failure of justice. From what I understand from the statements made by the learned counsel on either side, a petition has been filed before the 6th Asst. Judge to advance the hearing of the I.As., 1603 and 1604 of 1992 immediately after the disposal of the C.R.Ps. by this court on 18-12-1992 and that was opposed. The learned 6th Assistant Judge who is faced with two orders referred to above was unable to proceed with the matter and I feel that it amounts to failure of justice because the Court is not able to proceed one way or the other with the matter. In this view of the matter, I am unable to agree with the objection taken by the learned counsel for the respondents regarding the maintainability of the C.R.P.

8. As I have stated above, the order of the learned Chief Judge in I.A.2971 /92 in O.P.1241 /92 is only restricted to the trial of the suit O.S.4030/92 and not to the interlocutory applications. The C.R.P. is disposed of with the said direction. The learned Chief Judge is also directed to dispose of the O.Ps.1240 and 1241 of 1992 expeditiously preferably within two weeks and both the parties are directed to co-operate in the disposal of those O.Ps. Any observations made in this order shall not in any way affect the discretion of the learned Chief Judge, Hyderabad in disposing of the O.Ps.1240 and 1241 of 1992.

9. The Revision petition is disposed of accordingly. No costs.