Annamalai and anr. Vs. the Official Receiver and anr. - Court Judgment

Excerpt:
- ordergovardhan, j.1. this revision is against the order passed by the rent controller, thiruvannamalai in l.a.no. 10/1995 in rc.o.p.no. 18/1994, in which the learned rent controller has allowed the petitioner in la. 10/95 who is a third party to be impleaded as a party to the proceedings.2. the rent control original petition has been filed by the respondents 1 and 2 in the said interlocutory application, as landlords seeking eviction of the third respondent in the said i.a., on the ground of wilful default in payment of rent and on the ground of denial of title of the landlords by the tenants.3. the learned rent controller, after considering the rival contentions of both parties viz., the petitioner and the respondents 1 and 2 in the interlocutory application, has come to the conclusion that the petitioner is a necessary and proper party to be impleaded in the rent control original petition even though he has observed that in the rent control petition, it cannot be decided who is the owner of the petition-mentioned property.4. section 2(6) of the tamil nadu building (lease and rent control) act, 1960, defines 'landlord' as follows:' 'landlord' includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant'the third respondent in the la., in paragraph 4 of the counter filed by him in the r.c.o.p., has stated that it is no doubt true mat this respondent became a tenant under the petitioners on the basis of the purchase made by the petitioners in court auction sale by their vendors and this respondent has also been regularly paying the rent of rs. 550/- per month from the tenancy. therefore, the tenancy between the petitioners in the r.c.o.p. and himself has been admitted by the tenant. but, in the counter, he has also stated that a notice from the official receiver calling upon him to come and execute a rental agreement in his favour was received by him and on enquiry, he came to know that the sale of the property in court-auction held in favour of the respondent's vendor had been set aside by the high court and he has taken steps to deposit the rent in court. it is also stated by him mat because of the rival claims made by the petitioners on the one hand and the official receiver on the other, he had filed a petition for the deposit of rent and unless it is made clear as to who is the real owner and permitted him to receive the rent, he cannot pay the rent to the petitioners and the denial is a bona fide one. it is in this background, the eviction petition has been sought by the petitioners against the respondent under section 10(7) of the act also. in the interlocutory application filed by the official receiver, the tenant has not chosen to file a counter. the learned counsel appearing for the revision petitioners would argue that the petition for impleading the official receiver has been filed under order 1, rule 10 of the code of civil procedure, and for deciding the question whether the denial of title of the petitioners by the tenant is a bona fide one or not, the presence of the official receiver is not necessary, and therefore, the impugned order passed by the learned rent controller is not correct and therefore, it has to be set aside. the learned rent controller, as already observed by me, has observed that in this rent control original petition, it cannot be decide who is the owner of the premises in question and yet to decide the question whether the denial of title by the tenant is a bona fide one or not, the presence of the official receiver is necessary and on that ground, allowed the application.5. the learned counsel appearing for the first respondent herein has taken a preliminary objection with regard to the maintainability of the civil revision petition under section 115 of the code of civil procedure, contending that the order passed by the rent controller is an appealable one and therefore, no revision would lie. the learned counsel appearing for the revision petitioners would on the other hand contend that in the decision reported in ganapathy ammal v. chandaresan (1994) 2 lw 622, the high court has considered the question of maintainability of a revision under section us of the civil procedure code, even in a case in which an appeal would lie against an order of the rent controller and has come to the conclusion that a revision would lie and therefore, the preliminary objection with regard to the maintainability of the civil revision petition is without merits. the learned judge, who has rendered the above judgment after an elaborate discussion, has held that the correct averment is that the rent controller or the appellate authority is not personal designata., but the court and it follows that it is a court subordinate to high court also. it is clear that the civil revision petition has been rightly entertained. the point that arose for determination before the learned judge in the above case is whether a revision against an order of appointment of a commissioner was maintainable. the learned judge has held that the order in the civil revision petition cannot be said to be one passed without jurisdiction and the said civil revision petition was preferred against the order of the lower court allowing an application for appointing a commissioner and its maintainable. therefore, i am of opinion that the preliminary objection taken by the learned counsel appearing for the first respondent herein with regard to the maintainability of the civil revision petition cannot be entertained in view of the decision reported in ganapathy ammal v. chandaresan (1994) 2 lw 622.6. the next question that arises for consideration is whether the order passed by the rent controller allowing the interlocutory application filed under order 1, rule 10 of the code of civil procedure is valid. order 1, rule 10(2) of the code of civil procedure is as under:'the court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or, whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.'the question involved in the rent control petition is whether the denial of title of the landlord by the tenant is bona fide or not. this question alone has to be completely and effectually adjudicated to pass an order by the rent controller. the question whether the petitioners are owners of the premises in question or the official receiver who seeks to get himself impleaded as a party to the proceeding by virtue of the vesting of the property in him in the insolvency proceedings is the owner of the premises in question cannot be adjudicated by the rent controller much less effectually and completely. the rent controller cannot go deep in deciding the question whether the petitioners have got title to the property or the official receiver who has got title to the property by virtue of the vesting of the property in him since it is beyond the scope of the tamil nadu buildings (lease and rent control) act. any adjudication with regard to the title of an immovable property can be decided only by a civil court, and not by a rent controller functioning under the rent control act. therefore the stand taken by the learned counsel appearing for the revision petitioners that the question involved in this rent control petition whether the petitioners are the landlords or not and whether the denial of title of the petitioners by the tenant can be effectually and completely adjudicated even in the absence of the official receiver and therefore, the impugned order passed by the rent controller is liable to be set aside is convincing and acceptable.7. admittely by the tenant, there is no privity of the contract between him and the official receiver. we have already seen that the tenant has admitted the tenancy which he had entered into with the petitioners. when the tenant who has admitted his tenancy agreement with the petitioners and yet has chosen to deny the title of the petitioners as landlords, on account of the receipt of the notice by the official receiver, the question that arises for consideration is whether such denial of the title of the petitioners in respect of the petition-mentioned property is a bona fide one on the part of the tenant or not. this question can be decided, even in the absence of the official receiver, who wants him to be impleaded as a party to the proceedings. if the tenant had established that there is a rival claim by the official receiver with regard to the rent payable by him, even though he had entered into a tenancy agreement with the petitioners, the question whether the denial of title of the petitioners by him can be answered. for that purpose, the presence of the official receiver is not necessary. the presence of the official receiver may be required if the rent controller is asked to decide who is entitled to the title to the petition- mentioned property. the rent controller has no jurisdiction or powers of decide the question of title in respect of the property and it is the enclusive right and duty of the civil court to decide the title. as per order 1, rule 10(2) of the code of civil procedure, only if a complete and effectual adjudication upon the question of title is to be made, the official receiver can be considered as a necessary or a proper party. when the rent controller cannot adjudicate upon the title much less effectively and completely, the presence of the official receiver cannot be considered as a must to order impleading of the official receiver.8. the learned counsel appearing for the first respondent relies upon the decisions reported in khaja abdul v. mahabub saheb : air1979ap152 and a gyaneswar rao v. mahmood shareef : air1982ap155 and would argue that the empression 'question involved in the suit' has to be liberally interpreted and the question common to parties to suit and third parties can be decided by impleading such third party under order 1 rule 10(2) of the code of civil procedure. it is no doubt true that in the above two decisions, it has been held that the question of addition of parties under order 1, rule 10(2) is generally not one of initial jurisdiction but of a judicial discretion which has to be exercised in view of the facts and circumstances of each case and for effectual and complete adjudication on the question involved in the suit, the presence of the third party even if it is not necessary but if proper should be allowed to be added as a party in applied for. their lordships who have rendered the judgment in khaja abdul v. mahabub saheb : air1979ap152 have held that in the instant case before them by the plaintiffs in a suit for eviction and possession of the disputed property claim to be the owners of the land and the defendant denied the title of the plaintiffs and claims that they were in possession and enjoyment of the property and the first respondent who was not a party to the suit to implead him as the owner of the property, the court has to determine the question of title of the plaintiffs in order to decide the question relating to the ownership of the land, the first respondent must be considered to be a necessary and property without whose presence the question cannot be finally and effectually adjudicated upon. the question that has to be finally and factually adjudicated upon in the said case is the title of the plaintiffs in respect of the property regarding which the first respondent has made a claim and the court was also competent to decide that question. but, in our case, even though the petitioners claim to be the landlords of the petition mentioned property and the tenancy has also been admitted by the tenant, the tenant has denied the title of the petitioners who have inducted him into possession of the property on account of the rival claim to the title made by the official receiver for the rent. the question before the rent controller is whether the denial of the tenant of the right of the petitioners to receive the rent on the ground that there was a rival claim to the title is a bona fide one or not. the rent controller, even if called upon to decide the title of the petition-mentioned property cannot do so and it is only the civil court which can finally and effectually adjudicate upon the question of title to the property. suffice it for the rent controller to give a finding whether the denial of title of the petitioners by the tenant is a bona fide one and the rent controller need not and cannot go into the question as to who is entitled to the title of the the property and finally adjudicate upon the same. the official receiver could be considered as a necessary and property party only if the rent controller had to decide the title of the property in question which he cannot do under the provisions of the rent control act. therefore, i am of opinion that the two decisions relied by the learned counsel appearing for the first respondent are not applicable to the facts of the present case.9. as already observed by me, there is no privity of contract between the official receiver and the tenant and it is enough if the rent controller decides the question whether the denial of tide of the petitioners by the tenant is a bona fide one and or not for which the presence of the petitioner in i.a.no. 10/1995 is not at all necessary. in that view, i am of opinion that the rent controller has passed an order which, if allowed to stand, would cause an irreparable injury to the revision petitioners against whom it has been made and therefore, the order passed by the rent controller is liable to be set aside.10. in the result, the civil revision petition is allowed setting aside the order passed by the rent controller, thiruvannamalai in i.a.no. 10/1995 in r.c.o.p.no. 18/1994. the rent controller is directed to decide the question whether the denial of title of the petitioners landlords by the tenant is a bona fide one or not on the basis of the materials which would be placed by the tenant before him justifying his conduct of denial of title. no costs.

Judgment:
ORDER

Govardhan, J.

1. This revision is against the order passed by the Rent Controller, Thiruvannamalai in L.A.No. 10/1995 in RC.O.P.No. 18/1994, in which the learned Rent Controller has allowed the petitioner in LA. 10/95 who is a third party to be impleaded as a party to the proceedings.

2. The Rent control Original Petition has been filed by the respondents 1 and 2 in the said Interlocutory Application, as landlords seeking eviction of the third respondent in the said I.A., on the ground of wilful default in payment of rent and on the ground of denial of title of the landlords by the tenants.

3. The learned Rent Controller, after considering the rival contentions of both parties viz., the petitioner and the respondents 1 and 2 in the interlocutory application, has come to the conclusion that the petitioner is a necessary and proper party to be impleaded in the Rent Control original petition even though he has observed that in the Rent Control Petition, it cannot be decided who is the owner of the petition-mentioned property.

4. Section 2(6) of the Tamil Nadu Building (Lease and Rent Control) Act, 1960, defines 'landlord' as follows:

' 'landlord' includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant'

The third respondent in the LA., in paragraph 4 of the counter filed by him in the R.C.O.P., has stated that it is no doubt true mat this respondent became a tenant under the petitioners on the basis of the purchase made by the petitioners in Court auction sale by their vendors and this respondent has also been regularly paying the rent of Rs. 550/- per month from the tenancy. Therefore, the tenancy between the petitioners in the R.C.O.P. and himself has been admitted by the tenant. But, in the counter, he has also stated that a notice from the Official Receiver calling upon him to come and execute a rental agreement in his favour was received by him and on enquiry, he came to know that the sale of the property in Court-auction held in favour of the respondent's vendor had been set aside by the High Court and he has taken steps to deposit the rent in Court. It is also stated by him mat because of the rival claims made by the petitioners on the one hand and the Official Receiver on the other, he had filed a petition for the deposit of rent and unless it is made clear as to who is the real owner and permitted him to receive the rent, he cannot pay the rent to the petitioners and the denial is a bona fide one. It is in this background, the eviction petition has been sought by the petitioners against the respondent Under Section 10(7) of the Act also. In the interlocutory application filed by the Official Receiver, the tenant has not chosen to file a counter. The learned counsel appearing for the revision petitioners would argue that the petition for impleading the Official Receiver has been filed under Order 1, Rule 10 of the Code of Civil Procedure, and for deciding the question whether the denial of title of the petitioners by the tenant is a bona fide one or not, the presence of the Official Receiver is not necessary, and therefore, the impugned order passed by the learned Rent Controller is not correct and therefore, it has to be set aside. The learned Rent Controller, as already observed by me, has observed that in this Rent Control Original Petition, it cannot be decide who is the owner of the premises in question and yet to decide the question whether the denial of title by the tenant is a bona fide one or not, the presence of the Official Receiver is necessary and on that ground, allowed the application.

5. The learned counsel appearing for the first respondent herein has taken a preliminary objection with regard to the maintainability of the Civil Revision Petition Under Section 115 of the Code of Civil Procedure, contending that the order passed by the Rent Controller is an appealable one and therefore, no revision would lie. The learned counsel appearing for the revision petitioners would on the other hand contend that in the decision reported in Ganapathy Ammal v. Chandaresan (1994) 2 LW 622, the High Court has considered the question of maintainability of a Revision Under Section US of the Civil Procedure Code, even in a case in which an appeal would lie against an order of the Rent Controller and has come to the conclusion that a revision would lie and therefore, the preliminary objection with regard to the maintainability of the Civil Revision Petition is without merits. The learned Judge, who has rendered the above judgment after an elaborate discussion, has held that the correct averment is that the Rent Controller or the Appellate Authority is not personal designata., but the Court and it follows that it is a Court Subordinate to High Court also. It is clear that the Civil Revision Petition has been rightly entertained. The point that arose for determination before the learned judge in the above case is whether a revision against an order of appointment of a Commissioner was maintainable. The learned Judge has held that the order in the Civil Revision Petition cannot be said to be one passed without jurisdiction and the said Civil Revision Petition was preferred against the order of the lower Court allowing an application for appointing a Commissioner and its maintainable. Therefore, I am of opinion that the preliminary objection taken by the learned counsel appearing for the first respondent herein with regard to the maintainability of the Civil Revision Petition cannot be entertained in view of the decision reported in Ganapathy Ammal v. Chandaresan (1994) 2 LW 622.

6. The next question that arises for consideration is whether the order passed by the Rent Controller allowing the interlocutory application filed under Order 1, Rule 10 of the Code of Civil Procedure is valid. Order 1, Rule 10(2) of the Code of Civil Procedure is as under:

'The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or, whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.'

The question involved in the Rent Control Petition is whether the denial of title of the landlord by the tenant is bona fide or not. This question alone has to be completely and effectually adjudicated to pass an order by the Rent Controller. The question whether the petitioners are owners of the premises in question or the Official Receiver who seeks to get himself impleaded as a party to the proceeding by virtue of the vesting of the property in him in the Insolvency Proceedings is the owner of the premises in question cannot be adjudicated by the Rent Controller much less effectually and completely. The Rent Controller cannot go deep in deciding the question whether the petitioners have got title to the property or the Official Receiver who has got title to the property by virtue of the vesting of the property in him since it is beyond the scope of the Tamil Nadu Buildings (Lease and Rent Control) Act. Any adjudication with regard to the title of an immovable property can be decided only by a civil court, and not by a Rent Controller functioning under the Rent Control Act. Therefore the stand taken by the learned counsel appearing for the revision petitioners that the question involved in this Rent Control Petition whether the petitioners are the landlords or not and whether the denial of title of the petitioners by the tenant can be effectually and completely adjudicated even in the absence of the Official Receiver and therefore, the impugned order passed by the Rent Controller is liable to be set aside is convincing and acceptable.

7. Admittely by the tenant, there is no privity of the contract between him and the Official Receiver. We have already seen that the tenant has admitted the tenancy which he had entered into with the petitioners. When the tenant who has admitted his tenancy agreement with the petitioners and yet has chosen to deny the title of the petitioners as landlords, on account of the receipt of the notice by the Official Receiver, the question that arises for consideration is whether such denial of the title of the petitioners in respect of the petition-mentioned property is a bona fide one on the part of the tenant or not. This question can be decided, even in the absence of the Official Receiver, who wants him to be impleaded as a party to the proceedings. If the tenant had established that there is a rival claim by the Official Receiver with regard to the rent payable by him, even though he had entered into a tenancy agreement with the petitioners, the question whether the denial of title of the petitioners by him can be answered. For that purpose, the presence of the Official Receiver is not necessary. The presence of the Official Receiver may be required if the Rent Controller is asked to decide who is entitled to the title to the petition- mentioned property. The Rent Controller has no jurisdiction or powers of decide the question of title in respect of the property and it is the enclusive right and duty of the Civil Court to decide the title. As per Order 1, Rule 10(2) of the Code of Civil Procedure, only if a complete and effectual adjudication upon the question of title is to be made, the Official Receiver can be considered as a necessary or a proper party. When the Rent Controller cannot adjudicate upon the title much less effectively and completely, the presence of the Official Receiver cannot be considered as a must to order impleading of the Official Receiver.

8. The Learned counsel appearing for the first respondent relies upon the decisions reported in Khaja Abdul v. Mahabub Saheb : AIR1979AP152 and A Gyaneswar Rao v. Mahmood Shareef : AIR1982AP155 and would argue that the empression 'question involved in the suit' has to be liberally interpreted and the question common to parties to suit and third parties can be decided by impleading such third party under Order 1 Rule 10(2) of the Code of Civil Procedure. It is no doubt true that in the above two decisions, it has been held that the question of addition of parties under Order 1, Rule 10(2) is generally not one of initial jurisdiction but of a judicial discretion which has to be exercised in view of the facts and circumstances of each case and for effectual and complete adjudication on the question involved in the suit, the presence of the third party even if it is not necessary but if proper should be allowed to be added as a party in applied for. Their Lordships who have rendered the judgment in Khaja Abdul v. Mahabub Saheb : AIR1979AP152 have held that in the instant case before them by the plaintiffs in a suit for eviction and possession of the disputed property claim to be the owners of the land and the defendant denied the title of the plaintiffs and claims that they were in possession and enjoyment of the property and the first respondent who was not a party to the suit to implead him as the owner of the property, the Court has to determine the question of title of the plaintiffs in order to decide the question relating to the ownership of the land, the first respondent must be considered to be a necessary and property without whose presence the question cannot be finally and effectually adjudicated upon. The question that has to be finally and factually adjudicated upon in the said case is the title of the plaintiffs in respect of the property regarding which the first respondent has made a claim and the court was also competent to decide that question. But, in our case, even though the petitioners claim to be the landlords of the petition mentioned property and the tenancy has also been admitted by the tenant, the tenant has denied the title of the petitioners who have inducted him into possession of the property on account of the rival claim to the title made by the Official Receiver for the rent. The question before the Rent Controller is whether the denial of the tenant of the right of the petitioners to receive the rent on the ground that there was a rival claim to the title is a bona fide one or not. The Rent Controller, even if called upon to decide the title of the petition-mentioned property cannot do so and it is only the Civil Court which can finally and effectually adjudicate upon the question of title to the property. Suffice it for the Rent Controller to give a finding whether the denial of title of the petitioners by the tenant is a bona fide one and the Rent Controller need not and cannot go into the question as to who is entitled to the title of the the property and finally adjudicate upon the same. The Official Receiver could be considered as a necessary and property party only if the Rent Controller had to decide the title of the property in question which he cannot do under the provisions of the Rent Control Act. Therefore, I am of opinion that the two decisions relied by the learned counsel appearing for the first respondent are not applicable to the facts of the present case.

9. As already observed by me, there is no privity of contract between the Official Receiver and the tenant and it is enough if the Rent Controller decides the question whether the denial of tide of the petitioners by the tenant is a bona fide one and or not for which the presence of the petitioner in I.A.No. 10/1995 is not at all necessary. In that view, I am of opinion that the Rent controller has passed an order which, if allowed to stand, would cause an irreparable injury to the revision petitioners against whom it has been made and therefore, the order passed by the Rent Controller is liable to be set aside.

10. In the result, the Civil Revision Petition is allowed setting aside the order passed by the Rent Controller, Thiruvannamalai in I.A.No. 10/1995 in R.C.O.P.No. 18/1994. The Rent Controller is directed to decide the question whether the denial of title of the petitioners landlords by the tenant is a bona fide one or not on the basis of the materials which would be placed by the tenant before him justifying his conduct of denial of title. No costs.