Kommuru Hazarathaiah Vs. Thadikamalla Anantha Lakshmi - Court Judgment

Excerpt:
tenancy - relief - sections 9, 21 and 151 and order 7 rule 11 of code of civil procedure, 1908, section 8 (5) of andhra pradesh rent control act and andhra pradesh buildings (lease, rent and eviction) control act, 1960 - whether plaint in original suit liable to be rejected or further proceedings in suit can be carried on - defendant filed application under order 7 rule 11 read with sections 9, 21 and 151 seeking dismissal of suit or rejection of plaint - reliefs prayed for in plaint are recovery of money, eviction, damages, costs of suit and any other further relief as court may deem fit and proper - application dismissed - revision petition challenging dismissal of application - only relief relating to eviction referred in plaint alone fall within exclusive jurisdiction of rent control court - held, plaintiff can proceed with rest of suit except relief of eviction prayed for in plaint. - 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]. - suresh kumar, learned counsel for the respondent had contended that the application is a belated one and the matter is a part heard matter and in case ultimately the civil court feels that it has no jurisdiction, at the best the suit will be dismissed and hence at this stage, the application brought up by the tenant only with a view to prolong he matter. she had let out the same to the defendant for composite purpose namely for residence as well as for carrying fair price shop business with effect from 1.9.1986 on a monthly rent of rs. 800/- per month may be granted with effect from 1.3.99; d) for costs of the suit and e) to grant such other and further reliefs as are deemed just and proper' 9. from these reliefs if the allegation in the plaint are taken into consideration, at best the relief relating to eviction in para 11(b) of the plaint alone may fall within the exclusive jurisdiction of the rent control court. we may state that in the context of order 7 rule 11 cpc, a contention that once issues have been framed, the matter has necessarily to go to trial has been clearly rejected by this court in azhar hussain v. ..10. the above said judgment which related to an election petition is clearly applicable to suits also and was followed in samar singh v kedar nath.orderp.s. narayana, j. 1. heard both the counsel and perused the material on record. 2. the short question that falls for consideration in the present c.r.p. is whether the plaint in o.s. no. 178 of 1997 on the file of the principal junior civil judge, nellore is liable to be rejected or the further proceedings in the suit are to be proceeded with. 3. the facts in brief are that the defendant in o.s. no. 178 of 1997 on the file of the principal junior civil judge, nellore filed an application i.a. no. 161 of 1999 under order 7 rule 11 read with sections 9, 21 and 151 of the code of civil procedure requesting the court to dismiss the suit or reject the plaint and pass such further relief as it may deem it fit and proper in the facts and circumstances of the case. the court below had dismissed the said application by order dated 8.11.1999 and aggrieved by the same the revision petitioner had filed the present c.r.p. 4. sri sridhar representing mrs. bhaskara lakshmi had drawn my attention to the affidavit filed in support of the application and the counter filed by the respondent and also respective pleadings of the parties in the specified suit. the learned counsel also had fairly submitted that it is no doubt a part heard matter, but the plaintiff's side alone was closed and the defendant has to enter the witness box. the learned also contended that the specific plea relating to jurisdiction of the court had been taken even in para 7 of the written statement and even on the face of the averments made in the plaint, the plaint is liable to be rejected and hence there is no point in further prosecuting the suit since such remedy is evidently a misconceived remedy. the learned counsel also had submitted that the rent controller under a.p. buildings (lease, rent and eviction) control act, 1960 (hereinafter referred to as 'the act') is evidently having jurisdiction to deal with a case of composite lease also in the light of the decisions in yeshpal roy v. gessulal dinesh kumar mundada, : 1993(2)alt484 and godavari metal rolling mills v. dara satyamalli viswanadha anji prakash, 1997(2) 496. the learned counsel had drawn my attention to i.t.c. limited v. debts recovery appellate tribunal, : air1998sc634 and had drawn my attention to para 13 of the decision of the ape court in particular. sri srinivas representing sri m.v. suresh kumar, learned counsel for the respondent had contended that the application is a belated one and the matter is a part heard matter and in case ultimately the civil court feels that it has no jurisdiction, at the best the suit will be dismissed and hence at this stage, the application brought up by the tenant only with a view to prolong he matter. in para 7 of the written statement the revision petitioner-defendant-tenant, had taken a specific plea that the court has no jurisdiction to entertain the suit. the learned counsel also contended that in the plaint two reliefs had been claimed - one is for recovery of rs. 24,000/- and another is for eviction. the aspect of jurisdiction necessarily need not be tried as a preliminary issue and since it is a part heard matter this aspect also can be decided along with all other issues. 5. at para 4 of the written statement it was also pleaded : 'as a counter blast to r.c.c. no. 23 of 1995 the plaintiff has filed this suit against the defendant with all false allegations, seeking eviction of the defendant from the plaint schedule premises claiming the payment of rs. 24000/- as rent due from 1.9.1994 to 31.3.1997 and damages from 1.2.1997 to 28.2.1997 for 30 months as rs.800/- per month.'6. in the plaint itself at paras 3 and 4 it was pleaded as follows: 'the plaintiff is the owner of the schedule mentioned house. she had let out the same to the defendant for composite purpose namely for residence as well as for carrying fair price shop business with effect from 1.9.1986 on a monthly rent of rs. 450/-. the defendant had executed a rent note in the note book maintained by the plaintiff for a period of two years and also paid an advance of rs.1,350/- as being advance of 3 months rent. similarly he had also obtained rent note from plaintiff in his note book. ...... the defendant having taken possession of the building is residing therein and running a fair price shop in the schedule mentioned building. after expiry of the lease period, it was understood that the rent should be increased at rs. 50/- per year and the defendant had taken back the rent note from the plaintiff. as and when the rents are being paid by defendant he has been obtaining signatures of the plaintiff's husband in the note book maintained by him. accordingly, the defendant had been paying rent at the rate of rs. 450/- per month with effect from 1.9.1986 and then rs. 550/-, rs. 600/- per month and rs. 700/- and rs. 750/- per month and finally at rs. 800/- per month with effect from 1.9.1994. thereafter there was neither increase of rent or any payment of rent. therefore, the defendant is in arrears of rent in a sum of rs. 24,000/- with effect from 1.9.1994 to 28.2.1997 i.e., for a period of 30 months and non-payment of the same is deliberate and willful' 7. it was further pleaded at para 6 as follows: 'the plaintiff further submits that when she contemplated to take action, the defendant filed an application under section 8(5) of a.p. rent control act, on the file of the rent controller, nellore, for permission to deposit rents, as if the plaintiff had refused to receive the same. the plaintiff has filed counter and is opposing the said application. the plaintiff had no notice of any deposit alleged to have been made by the defendant to the credit of the said account. the plaintiff submits that the defendant in his petition in r.c.c.23 of 1995 had admitted that the building was let out to him both for residential and non-residential purpose, with effect from 1.9.1986 and falsely alleged that the building was let out to him on a monthly rent of rs. 250/- and on an advance of rs. 1000/- and the rent was increased to rs. 300/- from 1.9.1989 and then to rs. 350/- p.m. and finally to rs. 450/- p.m. and therefore the monthly rent is rs. 450/-, that the plaintiff had demanded to increase the rent to rs. 800/- from the month of july, 1995 and therefore, he was constrained to remit the rent by money order. the plaintiff submits that the said allegations are false, untrue and incorrect' 8. it is clear in the pleadings of both the parties that both the parties are conscious of the fact that as far as the relief of eviction is concerned, it falls within the exclusive jurisdiction of the learned rent controller. it is no doubt that the following reliefs are being prayed for in the plaint at para 11: 'a) directing the defendant ot pay rs. 24,000/- (rupees twenty four thousand only) together with interest at 12% p.a. on the liability of the person and the property; b) directing the defendant to vacate and deliver vacant possession of the schedule mentioned building, in default thereof, the same may be done through process of court; c) that future damages for use and occupation at rs. 800/- per month may be granted with effect from 1.3.99; d) for costs of the suit and e) to grant such other and further reliefs as are deemed just and proper' 9. from these reliefs if the allegation in the plaint are taken into consideration, at best the relief relating to eviction in para 11(b) of the plaint alone may fall within the exclusive jurisdiction of the rent control court. in yeshpal roy case (1 supra) it was held that under the a.p. buildings (lease, rent and eviction) control act, an eviction petition under the act even when the lease is composite lease and involving residential and non-residential premises is maintainable. in godavari metal rolling mills case (2 supra) it was held that an eviction petition would lie before the rent controller under the provisions of the act even in respect of buildings let out for dual purposes. it is pertinent to note that it is not in dispute that in the present case the rent is rs.800/- and on the admitted facts the civil court cannot grant the relief of eviction. it is no doubt true that the suit is a part heard one. in i.t.c. limited case (3 supra) at page 76 the apex court had observed: 'we may state that in the context of order 7 rule 11 cpc, a contention that once issues have been framed, the matter has necessarily to go to trial has been clearly rejected by this court in azhar hussain v. rajiv gandhi (scc p.324) as follows:(scc para 12) 'in substance, the argument is that the court must proceed with the trial, record the evidence, and only after the trial... is concluded the powers under the code of civil procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. with respect to the learned counsel, it is an argument which is difficult to comprehend. the whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of court...' 10. the above said judgment which related to an election petition is clearly applicable to suits also and was followed in samar singh v kedar nath. we therefore hold that the fact that issues have been framed in the suit cannot come in the way of consideration of this application filed by the appellant under order 7 rule 11 c.p.c.' 11. the revision petitioner could have taken this objection in all fairness at the earliest point of time. in the pleadings itself the pending rent control proceedings had been referred to and hence both the parties are conscious of this problem. in the fitness of things i feel it just to allow the c.r.p. partly so far it relates to the relief of eviction is concerned falling within the exclusive domain of the rent control court. the respondent - plaintiff is at liberty to proceed with the rest of the suit except the relief of eviction prayed for in para 11(b) of the plaint. 12. in view of the foregoing discussion the c.r.p. is partly allowed to the extent indicated above and in the facts and circumstances no order as to costs.

Judgment:
ORDER

P.S. Narayana, J.

1. Heard both the counsel and perused the material on record.

2. The short question that falls for consideration in the present C.R.P. is whether the plaint in O.S. No. 178 of 1997 on the file of the Principal Junior Civil Judge, Nellore is liable to be rejected or the further proceedings in the suit are to be proceeded with.

3. The facts in brief are that the defendant in O.S. No. 178 of 1997 on the file of the Principal Junior Civil Judge, Nellore filed an application I.A. No. 161 of 1999 under Order 7 Rule 11 read with Sections 9, 21 and 151 of the Code of Civil Procedure requesting the Court to dismiss the suit or reject the plaint and pass such further relief as it may deem it fit and proper in the facts and circumstances of the case. The Court below had dismissed the said application by order dated 8.11.1999 and aggrieved by the same the revision petitioner had filed the present C.R.P.

4. Sri Sridhar representing Mrs. Bhaskara Lakshmi had drawn my attention to the affidavit filed in support of the application and the counter filed by the respondent and also respective pleadings of the parties in the specified suit. The learned counsel also had fairly submitted that it is no doubt a part heard matter, but the plaintiff's side alone was closed and the defendant has to enter the witness box. The learned also contended that the specific plea relating to jurisdiction of the Court had been taken even in para 7 of the written statement and even on the face of the averments made in the plaint, the plaint is liable to be rejected and hence there is no point in further prosecuting the suit since such remedy is evidently a misconceived remedy. The learned counsel also had submitted that the Rent Controller under A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter referred to as 'the Act') is evidently having jurisdiction to deal with a case of composite lease also in the light of the decisions in YESHPAL ROY v. GESSULAL DINESH KUMAR MUNDADA, : 1993(2)ALT484 and GODAVARI METAL ROLLING MILLS v. DARA SATYAMALLI VISWANADHA ANJI PRAKASH, 1997(2) 496. The learned counsel had drawn my attention to I.T.C. LIMITED v. DEBTS RECOVERY APPELLATE TRIBUNAL, : AIR1998SC634 and had drawn my attention to para 13 of the decision of the ape Court in particular. Sri Srinivas representing Sri M.V. Suresh Kumar, learned counsel for the respondent had contended that the application is a belated one and the matter is a part heard matter and in case ultimately the Civil Court feels that it has no jurisdiction, at the best the suit will be dismissed and hence at this stage, the application brought up by the tenant only with a view to prolong he matter. In para 7 of the written statement the revision petitioner-defendant-tenant, had taken a specific plea that the Court has no jurisdiction to entertain the suit. The learned counsel also contended that in the plaint two reliefs had been claimed - one is for recovery of Rs. 24,000/- and another is for eviction. The aspect of jurisdiction necessarily need not be tried as a preliminary issue and since it is a part heard matter this aspect also can be decided along with all other issues.

5. At para 4 of the written statement it was also pleaded :

'As a counter blast to R.C.C. No. 23 of 1995 the plaintiff has filed this suit against the defendant with all false allegations, seeking eviction of the defendant from the plaint schedule premises claiming the payment of Rs. 24000/- as rent due from 1.9.1994 to 31.3.1997 and damages from 1.2.1997 to 28.2.1997 for 30 months as Rs.800/- per month.'

6. In the plaint itself at paras 3 and 4 it was pleaded as follows:

'The plaintiff is the owner of the schedule mentioned house. She had let out the same to the defendant for composite purpose namely for residence as well as for carrying fair price shop business with effect from 1.9.1986 on a monthly rent of Rs. 450/-. The defendant had executed a Rent Note in the Note Book maintained by the plaintiff for a period of two years and also paid an advance of Rs.1,350/- as being advance of 3 months rent. Similarly he had also obtained Rent Note from plaintiff in his Note Book. ...... The defendant having taken possession of the building is residing therein and running a Fair Price shop in the schedule mentioned building. After expiry of the lease period, it was understood that the rent should be increased at Rs. 50/- per year and the defendant had taken back the Rent Note from the plaintiff. As and when the rents are being paid by defendant he has been obtaining signatures of the plaintiff's husband in the note book maintained by him. Accordingly, the defendant had been paying rent at the rate of Rs. 450/- per month with effect from 1.9.1986 and then Rs. 550/-, Rs. 600/- per month and Rs. 700/- and Rs. 750/- per month and finally at Rs. 800/- per month with effect from 1.9.1994. Thereafter there was neither increase of rent or any payment of rent. Therefore, the defendant is in arrears of rent in a sum of Rs. 24,000/- with effect from 1.9.1994 to 28.2.1997 i.e., for a period of 30 months and non-payment of the same is deliberate and willful'

7. It was further pleaded at para 6 as follows:

'The plaintiff further submits that when she contemplated to take action, the defendant filed an application under Section 8(5) of A.P. Rent Control Act, on the file of the Rent Controller, Nellore, for permission to deposit rents, as if the plaintiff had refused to receive the same. The plaintiff has filed counter and is opposing the said application. The plaintiff had no notice of any deposit alleged to have been made by the defendant to the credit of the said account. The plaintiff submits that the defendant in his petition in R.C.C.23 of 1995 had admitted that the building was let out to him both for residential and non-residential purpose, with effect from 1.9.1986 and falsely alleged that the building was let out to him on a monthly rent of Rs. 250/- and on an advance of Rs. 1000/- and the rent was increased to Rs. 300/- from 1.9.1989 and then to Rs. 350/- p.m. and finally to Rs. 450/- p.m. and therefore the monthly rent is Rs. 450/-, that the plaintiff had demanded to increase the rent to Rs. 800/- from the month of July, 1995 and therefore, he was constrained to remit the rent by money order. The plaintiff submits that the said allegations are false, untrue and incorrect'

8. It is clear in the pleadings of both the parties that both the parties are conscious of the fact that as far as the relief of eviction is concerned, it falls within the exclusive jurisdiction of the learned Rent Controller. It is no doubt that the following reliefs are being prayed for in the plaint at para 11:

'a) directing the defendant ot pay Rs. 24,000/- (Rupees Twenty four thousand only) together with interest at 12% p.a. on the liability of the person and the property;

b) directing the defendant to vacate and deliver vacant possession of the schedule mentioned building, in default thereof, the same may be done through process of Court;

c) that future damages for use and occupation at Rs. 800/- per month may be granted with effect from 1.3.99;

d) For costs of the suit and

e) to grant such other and further reliefs as are deemed just and proper'

9. From these reliefs if the allegation in the plaint are taken into consideration, at best the relief relating to eviction in para 11(b) of the plaint alone may fall within the exclusive jurisdiction of the Rent Control Court. In YESHPAL ROY case (1 supra) it was held that under the A.P. Buildings (Lease, Rent and Eviction) Control Act, an eviction petition under the Act even when the lease is composite lease and involving residential and non-residential premises is maintainable. In GODAVARI METAL ROLLING MILLS case (2 supra) it was held that an eviction petition would lie before the Rent Controller under the provisions of the Act even in respect of buildings let out for dual purposes. It is pertinent to note that it is not in dispute that in the present case the rent is Rs.800/- and on the admitted facts the civil Court cannot grant the relief of eviction. It is no doubt true that the suit is a part heard one. In I.T.C. LIMITED case (3 supra) at page 76 the apex Court had observed:

'We may state that in the context of Order 7 Rule 11 CPC, a contention that once issues have been framed, the matter has necessarily to go to trial has been clearly rejected by this Court in Azhar Hussain V. Rajiv Gandhi (SCC p.324) as follows:(SCC para 12)

'In substance, the argument is that the Court must proceed with the trial, record the evidence, and only after the trial... is concluded the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of Court...'

10. The above said judgment which related to an election petition is clearly applicable to suits also and was followed in Samar Singh v Kedar Nath. We therefore hold that the fact that issues have been framed in the suit cannot come in the way of consideration of this application filed by the appellant under Order 7 Rule 11 C.P.C.'

11. The revision petitioner could have taken this objection in all fairness at the earliest point of time. In the pleadings itself the pending rent control proceedings had been referred to and hence both the parties are conscious of this problem. In the fitness of things I feel it just to allow the C.R.P. partly so far it relates to the relief of eviction is concerned falling within the exclusive domain of the rent control Court. The respondent - plaintiff is at liberty to proceed with the rest of the suit except the relief of eviction prayed for in para 11(b) of the plaint.

12. In view of the foregoing discussion the C.R.P. is partly allowed to the extent indicated above and in the facts and circumstances no order as to costs.