Gollu Bhavani Sankar Vs. Bhogavalli Rajeswara Rao and Another - Court Judgment

Excerpt:
civil - section 10 of code of civil procedure, 1908 - defendants sold premises to third party - plaintiff tenant in defendants premises - sale deed executed - eviction of plaintiff on grounds of bona fide requirement and specific performance of sale deed sought by third party - application for stay of eviction proceedings filed by plaintiff in rent control court - applicability of section 10 questioned - held, section 10 does not apply as scope suits are different. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - mallikharjuna rao, learned counsel appearing for the respondents has submitted that there is no connection whatsoever between the rent control proceeding and the suit and the scope of enquiry in both the proceedings is altogether different and that there is no question of any prejudice to the petitioner if rcc is not stayed as in the event of his ultimate success in the suit, the petitioner can recover possession of the property. in the rent control proceedings, the main questionsto be decided are whether the respondents have committed wilful default in payment of rent, and whether the suit premises is bona fide required by the landlord for personal occupation, it is well settled that the enquiry in a rent control proceedings is summary in nature and the rent controller has no jurisdiction to go into the questions of title. if on the other hand he is not satisfied about the bona fides of the denial of title raised bythe tenants, then he shall order the tenants to put the landlord in possession of the building.order1. this civil revision petition is directed against the order dismissing an application filed by the petitioner herein under section 10 cpc seeking stay of rcc no.11 of 1995 on the file of the court of the rent controller-cum-principal junior civit judge, tadepalligudem pending disposal of the suit os no.45 of 1995 on the file of the senior civil judge, tadepalligudem.2. the facts leading to this revision petition may be stated briefly:the petitioner herein is the 2nd plaintiff in os no.45 of 1995 which is filed by the petitioner along with his mother for specific preformance of an agreement of sale dated 5-1-1995 alleged to have been executed by one k. kasi viswanatham, who figures as the first defendant in the said suit, in their favour agreeing to sell the plaint schedule property to them for a total sale consideration of three lakhs fifteen thousand. the said suit was filed on the allegations that on the date of the agreement, a sum of rs. 65,000/- was paid by the plaintiffs by way of advance to the vendor and that it was agreed that the sale transaction should be completed by 5-5-1995. even though the plaintiffs were ready and willing to perform their part of the agreement, the vendor colluded with respondents 1 and 2 herein who figure as defendants 2 and 3 in the said suit, and executed a registered sale deed dated 28-3-1995 in their favour. it is also stated that respondents 1 and 2 are not bona fide purchasers for value and they had notice of the prior agreement in favour of the plaintiffs and hence they are bound by the same and are bound to execute a sale deed in favour of the plaintiffs along with the first defendant. the suit was accordingly filed claiming the reliefs of specific performance of the agreement of sale dated 5-1-1995 and for recovery of possession of the plaint schedule property or in the alternative for refund of the advance amount of rs. 65,000/- besides a sum of rs. 75,000/-by way of damages. respondents 1 and 2 herein are contesting the said suit inter alia on the grounds that the alleged agreement of sale dated 5-1-1995 is a rank forgery and that the same was fraudulently brought into existence with an ante date so as to defeat the rights of respondents 1 and 2 who are bona fide purchasers for a valuable consideration.3. after purchase of the property by them, respondents 1 and 2 have filed rcc no.11 of 1995 on the file of the rentcontroller-cum-principal junior civil judge, tadepalligudem against the petitioner herein and three others for eviction from the petition schedule building on the ground that they were originally inducted as tenants by the vendor and that after sale of the property they were attorned to respondents 1 and 2 and they committed wilful default in payment of the rents and also on the ground that the building is bona fide required for personal occupation. the petitioner herein figures as the fourth respondent in the rcc whereas respondents 2 and 3 therein are his father and brother respectively and the first respondent is the firm of which they are the partners. the petitioner herein and the other respondents in rcc no.11 of 1995 are contesting the said eviction petition contending inter alia that respondents 1 and 2 have no title to the schedule building in view of the prior agreement of sale dated 5-1-1995 in favour of the petitioner and his mother which is valid and binding on respondents 1 and 2, that they have not committed any wilful default in payment of the rents and the alleged personal occupation set-up by respondents 1 and 2 is neither true nor bona fide.4. contending that the issues involved in both the proceedings are substantially one and the same and common questions arise for determination, the petitioner herein filed 1a no. 1128 of 1999 in rcc no. 11 of 1995 under section 10 ipc seeking the stay of all further proceedings in the rcc pending the disposal of os no.45 of 1995. the lower court dismissed the said application observing that section 10 cpc has no application since the subsequent proceeding is not a suit and that the parties to both the proceedings are not the same. it also observed that the petitioner has not filed either the plaint and the written statement or issues framed in os no.45 of 1995 to see whether the questions arising in both the matters are substantially the same or not.5. sri c. ramachandra raju, learned counsel for the petitioner sought to assail the order of the lower court by contending that even though both the proceedings are not suits and section 10 cpc may not in terms apply, still there is no legal bar for invoking and applying the underlying principle in as much as the questions substantially in issue in both the proceedings are the same. he also contended that to avoid multiplicity of proceedings and conflicting judgments, it is just and necessary to order the stay of rcc no. 11 of 1995 as sought for. he further contended that it is not necessary that all the parties should be common in both the proceedings.6. on the other hand, sri k. mallikharjuna rao, learned counsel appearing for the respondents has submitted that there is no connection whatsoever between the rent control proceeding and the suit and the scope of enquiry in both the proceedings is altogether different and that there is no question of any prejudice to the petitioner if rcc is not stayed as in the event of his ultimate success in the suit, the petitioner can recover possession of the property. the counsel for the respondent also submitted that the application under section 10 cpc is not maintainable and the rent controller has no jurisdiction to invoke or apply section 10 cpc to stay the proceedings on his file. in support of his contentions, the earned counsel for the respondent has placed reliance on two judgments of this court reported in amrutlal v. the principal rent controller, hyderabad and another, 1978 (2) alt 102, which is a judgment of division bench and in menta subbaramayya and another v. batchu narasimha swamy and another, 1972 an.wr 105, of a learned single judge. in the former decision it is held that section 10 cpc cannot be availed of by the rent controller to stay the proceedings and the rent controller cannot even stay the suit invoking section 151 cpc. the rent controller is not a civil court though heperforms the functions similar to civil court and belongs to a judicial cadre and it is not open to him to follow the procedure laid-down by the cpc bypassing the rent control act or rules made thereunder except to the extent indicated in the proviso to rule 22.7. in the 2nd judgment it is held that section 10 cpc is attracted only when both the proceedings are suits. if one is a suit and the other is not a suit, section 10 cpc is not attracted. it is also held that for the application of section 10 cpc, both the courts in which the suits are pending must be of concurrent jurisdiction.8. the learned counsel for the petitioner, however, sought to rely on the decision of the supreme court reported in p. v. shetty v. b. s. giridhar, : air1982sc83 , for the proposition that even if section 10 cpc does not in terms apply there is no legal impediment for invoking the underlying principle where the questions substantially in issue in both the proceedings are one and the same by invoking the inherent powers under section 151 cpc. the division bench judgment reported in amrutlal v. the principal rent controller, hyderabad and another, : air1982sc83 supra which is directly in point dealing with the power of the rent controller to stay the proceedings before him is binding on me. even assuming that the power under section 151 cpc clan be invoked, i am of the view that on the facts of the present case, there are no valid grounds to stay the rent control proceedings till the disposal of the civil suit as sought for by the petitioner. in the first place, the scope of the enquiry and the questions for determination in both the proceedings are substantially different. the main questions to be decided in the civil suit are whether the agreement of sale dated 5-1-1995 is true and valid and whether respondents 1 and 2 herein are bona fide purchasers for value without notice of the said agreement. in the rent control proceedings, the main questionsto be decided are whether the respondents have committed wilful default in payment of rent, and whether the suit premises is bona fide required by the landlord for personal occupation, it is well settled that the enquiry in a rent control proceedings is summary in nature and the rent controller has no jurisdiction to go into the questions of title. it is true that the petitioner herein and the other respondents in the rcc are denying the title of respondents 1 and 2 for the schedule premises by setting up the prior agreement of sale dated 5-1-1995. under the provisions of the rent control act, the rent controller can only decide whether the denial of title of the landlord by the tenants is bona fide or not. if he comes to the conclusion that such denial is bona fide, the rent controller has to dismiss the eviction petition directing the landlord to establish his title in a competent court of law. on the other hand, if the rent controller comes to the conclusion that the denial of title is not bona fide, on that ground itself, he can order eviction of the tenants without going into the other questions. so the scope of enquiry in the two proceedings is altogether different. in fact in the decision reported in menta suhbaramayya and another v. batchu narasimha swamy and another (supra) it is held:'when a particular procedure is laid down in the rent control act itself, in case of denial of title provisions of civil procedure code i.e., section 10 or 151 are not applicable. the provisions of section 10 (6) of the rent control act are mandatory. the rent controller has no option to proceed in any other manner stated in section 10 (6) in case of denial of landlord's title by the tenants. if the rent controller is of the opinion that the denial of landlord's title is bona fide, then he shall dismiss the eviction petition filed by the landlord. if on the other hand he is not satisfied about the bona fides of the denial of title raised bythe tenants, then he shall order the tenants to put the landlord in possession of the building.'9. further, as rightly pointed out by the learned counsel for the respondent, even if eviction is ordered by the rent controller and subsequently the suit is decreed, the plaintiffs in the suit suit can recover possession pursuant to the decree granted to them. as such, there cannot be any prejudice to the petitioner by not staying the rcc.10. for all the foregoing reasons. i do not find any merit in the crp. it is accordingly dismissed but without costs. interim stay granted on 16-9-1999 stands vacated. no costs.

Judgment:
ORDER

1. This Civil Revision Petition is directed against the order dismissing an application filed by the petitioner herein under Section 10 CPC seeking stay of RCC No.11 of 1995 on the file of the Court of the Rent Controller-cum-Principal Junior Civit Judge, Tadepalligudem pending disposal of the suit OS No.45 of 1995 on the file of the Senior Civil Judge, Tadepalligudem.

2. The facts leading to this revision petition may be stated briefly:

The petitioner herein is the 2nd plaintiff in OS No.45 of 1995 which is filed by the petitioner along with his mother for specific preformance of an agreement of sale dated 5-1-1995 alleged to have been executed by one K. Kasi Viswanatham, who figures as the first defendant in the said suit, in their favour agreeing to sell the plaint schedule property to them for a total sale consideration of three lakhs fifteen thousand. The said suit was filed on the allegations that on the date of the agreement, a sum of Rs. 65,000/- was paid by the plaintiffs by way of advance to the vendor and that it was agreed that the sale transaction should be completed by 5-5-1995. Even though the plaintiffs were ready and willing to perform their part of the agreement, the vendor colluded with respondents 1 and 2 herein who figure as defendants 2 and 3 in the said suit, and executed a registered sale deed dated 28-3-1995 in their favour. It is also stated that respondents 1 and 2 are not bona fide purchasers for value and they had notice of the prior agreement in favour of the plaintiffs and hence they are bound by the same and are bound to execute a sale deed in favour of the plaintiffs along with the first defendant. The suit was accordingly filed claiming the reliefs of specific performance of the agreement of sale dated 5-1-1995 and for recovery of possession of the plaint schedule property or in the alternative for refund of the advance amount of Rs. 65,000/- besides a sum of Rs. 75,000/-by way of damages. Respondents 1 and 2 herein are contesting the said suit inter alia on the grounds that the alleged agreement of sale dated 5-1-1995 is a rank forgery and that the same was fraudulently brought into existence with an ante date so as to defeat the rights of respondents 1 and 2 who are bona fide purchasers for a valuable consideration.

3. After purchase of the property by them, respondents 1 and 2 have filed RCC No.11 of 1995 on the file of the RentController-cum-Principal Junior Civil Judge, Tadepalligudem against the petitioner herein and three others for eviction from the petition schedule building on the ground that they were originally inducted as tenants by the vendor and that after sale of the property they were attorned to respondents 1 and 2 and they committed wilful default in payment of the rents and also on the ground that the building is bona fide required for personal occupation. The petitioner herein figures as the fourth respondent in the RCC whereas respondents 2 and 3 therein are his father and brother respectively and the first respondent is the firm of which they are the partners. The petitioner herein and the other respondents in RCC No.11 of 1995 are contesting the said eviction petition contending inter alia that respondents 1 and 2 have no title to the schedule building in view of the prior agreement of sale dated 5-1-1995 in favour of the petitioner and his mother which is valid and binding on respondents 1 and 2, that they have not committed any wilful default in payment of the rents and the alleged personal occupation set-up by respondents 1 and 2 is neither true nor bona fide.

4. Contending that the issues involved in both the proceedings are substantially one and the same and common questions arise for determination, the petitioner herein filed 1A No. 1128 of 1999 in RCC No. 11 of 1995 under Section 10 IPC seeking the stay of all further proceedings in the RCC pending the disposal of OS No.45 of 1995. The lower Court dismissed the said application observing that Section 10 CPC has no application since the subsequent proceeding is not a suit and that the parties to both the proceedings are not the same. It also observed that the petitioner has not filed either the plaint and the written statement or issues framed in OS No.45 of 1995 to see whether the questions arising in both the matters are substantially the same or not.

5. Sri C. Ramachandra Raju, learned Counsel for the petitioner sought to assail the order of the lower Court by contending that even though both the proceedings are not suits and Section 10 CPC may not in terms apply, still there is no legal bar for invoking and applying the underlying principle in as much as the questions substantially in issue in both the proceedings are the same. He also contended that to avoid multiplicity of proceedings and conflicting judgments, it is just and necessary to order the stay of RCC No. 11 of 1995 as sought for. He further contended that it is not necessary that all the parties should be common in both the proceedings.

6. On the other hand, Sri K. Mallikharjuna Rao, learned Counsel appearing for the respondents has submitted that there is no connection whatsoever between the Rent Control proceeding and the suit and the scope of enquiry in both the proceedings is altogether different and that there is no question of any prejudice to the petitioner if RCC is not stayed as in the event of his ultimate success in the suit, the petitioner can recover possession of the property. The Counsel for the respondent also submitted that the application under Section 10 CPC is not maintainable and the Rent Controller has no jurisdiction to invoke or apply section 10 CPC to stay the proceedings on his file. In support of his contentions, the earned Counsel for the respondent has placed reliance on two judgments of this Court reported in Amrutlal v. The Principal Rent Controller, Hyderabad and another, 1978 (2) ALT 102, which is a judgment of Division Bench and in Menta Subbaramayya and another v. Batchu Narasimha Swamy and another, 1972 An.WR 105, of a learned single Judge. In the former decision it is held that Section 10 CPC cannot be availed of by the Rent Controller to stay the proceedings and the Rent Controller cannot even stay the suit invoking Section 151 CPC. The Rent Controller is not a civil Court though heperforms the functions similar to civil Court and belongs to a judicial cadre and it is not open to him to follow the procedure laid-down by the CPC bypassing the Rent Control Act or Rules made thereunder except to the extent indicated in the proviso to Rule 22.

7. In the 2nd judgment it is held that Section 10 CPC is attracted only when both the proceedings are suits. If one is a suit and the other is not a suit, Section 10 CPC is not attracted. It is also held that for the application of Section 10 CPC, both the Courts in which the suits are pending must be of concurrent jurisdiction.

8. The learned Counsel for the petitioner, however, sought to rely on the decision of the Supreme Court reported in P. V. Shetty v. B. S. Giridhar, : AIR1982SC83 , for the proposition that even if Section 10 CPC does not in terms apply there is no legal impediment for invoking the underlying principle where the questions substantially in issue in both the proceedings are one and the same by invoking the inherent powers under Section 151 CPC. The Division Bench judgment reported in Amrutlal v. The Principal Rent Controller, Hyderabad and another, : AIR1982SC83 supra which is directly in point dealing with the power of the Rent Controller to stay the proceedings before him is binding on me. Even assuming that the power under Section 151 CPC clan be invoked, I am of the view that on the facts of the present case, there are no valid grounds to stay the Rent Control proceedings till the disposal of the civil suit as sought for by the petitioner. In the first place, the scope of the enquiry and the questions for determination in both the proceedings are substantially different. The main questions to be decided in the civil suit are whether the agreement of sale dated 5-1-1995 is true and valid and whether respondents 1 and 2 herein are bona fide purchasers for value without notice of the said agreement. In the Rent Control Proceedings, the main questionsto be decided are whether the respondents have committed wilful default in payment of rent, and whether the suit premises is bona fide required by the landlord for personal occupation, it is well settled that the enquiry in a Rent Control proceedings is summary in nature and the Rent Controller has no jurisdiction to go into the questions of title. It is true that the petitioner herein and the other respondents in the RCC are denying the title of respondents 1 and 2 for the schedule premises by setting up the prior agreement of sale dated 5-1-1995. Under the provisions of the Rent Control Act, the Rent Controller can only decide whether the denial of title of the landlord by the tenants is bona fide or not. If he comes to the conclusion that such denial is bona fide, the Rent Controller has to dismiss the eviction petition directing the landlord to establish his title in a competent Court of law. On the other hand, if the Rent Controller comes to the conclusion that the denial of title is not bona fide, on that ground itself, he can order eviction of the tenants without going into the other questions. So the scope of enquiry in the two proceedings is altogether different. In fact in the decision reported in Menta Suhbaramayya and another v. Batchu Narasimha Swamy and another (supra) it is held:

'When a particular procedure is laid down in the Rent Control Act itself, in case of denial of title provisions of Civil Procedure Code i.e., Section 10 or 151 are not applicable. The provisions of Section 10 (6) of the Rent Control Act are mandatory. The Rent Controller has no option to proceed in any other manner stated in Section 10 (6) in case of denial of landlord's title by the tenants. If the Rent Controller is of the opinion that the denial of landlord's title is bona fide, then he shall dismiss the eviction petition filed by the landlord. If on the other hand he is not satisfied about the bona fides of the denial of title raised bythe tenants, then he shall order the tenants to put the landlord in possession of the building.'

9. Further, as rightly pointed out by the learned Counsel for the respondent, even if eviction is ordered by the Rent Controller and subsequently the suit is decreed, the plaintiffs in the suit suit can recover possession pursuant to the decree granted to them. As such, there cannot be any prejudice to the petitioner by not staying the RCC.

10. For all the foregoing reasons. I do not find any merit in the CRP. It is accordingly dismissed but without costs. Interim stay granted on 16-9-1999 stands vacated. No costs.