Voona Rama Rao Died Per Lrs vs Tankala Ragunatham,
2022 Latest Caselaw 9920 AP

       HON'BLE DR. JUSTICE K. MANMADHA RAO

 CIVIL MISCELLANEOUS SECOND APPEAL No.8 of 2022

JUDGMENT :

The present Appeal arises against the judgment and

decree dated 05.07.2022 in CMA.No.2 of 2016 on the file of

the Court of the XIII Additional District Judge, Gajuwaka,

Visakhapatnam District by reversing the judgment and

decree dated 21.09.2012 passed in AS No.16 of 2009 on the

file of the Court of the Principal Senior Civil Judge,

Gajuwaka, Visakhapatnam.

2. A perusal of the record shows that the 2nd

respondent herein filed OS No.208 of 2005 on the file of

Junior Civil Judge, Gajuwaka and the same was decreed

with costs against the appellant herein directing to vacate

the schedule premises by 31.7.2009 and handed over the

vacant possession of the schedule premises to 2nd plaintiff

therein by 31.7.2009 failing which the 2nd plaintiff is at

liberty to take steps against the 2nd plaintiff. Being not

satisfied with the same, the defendant, who is 2 nd

respondent herein has filed AS No.16 of 2009 on the file of

Senior Civil Judge, Gajuwaka. The same was allowed vide

judgment dated 21.09.2012 and set aside the order in OS

No.208 of 2005 and the matter was remanded to the trial

Court for fresh disposal according to law. Thereafter the 2nd

respondent in A.S.No.16 of 2009 has preferred CMA No.2 of

2016 on the file of XIII Additional District Judge, Gajuwaka

and the same was allowed setting aside the judgment and

decree dated 21.09.2012 in A.SNo.16 of 2009 and by

confirming the judgment and decree dated 02.06.2009 in

O.S. No.208 of 2005 and directed the R.7 to R.11 to

handover the vacant possession of the plaint schedule

property to Tankala Ragunatham on or before 15.09.2022.

3. For the sake of convenience, the parties will

hereinafter be referred to as arrayed in CMA.

Brief facts of the case are that initially the suit was

filed by the sole plaintiff Appayyamma in OS No.208 of 2005

for delivery of the plaint schedule property after eviction of

the sole defendant therefrom, for arrears of rent and

damages and also future damages. There is no dispute that

one Ragunatham impleaded himself as 2nd plaintiff in the

suit on the ground that he purchased the plaint schedule

property under a registered sale deed from Appayyamma. It

is also a matter of record that after the demise of the said

Appayyamma, R.3 to R.6 were brought on record as legal

heirs and consequent upon the death of the sole defendant,

R.7 to R.11 were brought on record as his legal heirs.

Appayyamma filed I.A.No.1001 of 2008 on 9.9.2008 under

Section 151 CPC claiming an amount of Rs.16,00,500/- said

to be the unpaid consideration of the sale of the plaint

schedule property from Raghunatham and also pleading

that Ragunatham was not therefore entitled to claim rents

from the defendant. The defendant/tenant has been

continuing in the possession of the plaint schedule priority

without paying rents for years together, and the order of

remand passed by the learned appellate Court is unjustified.

Hence, the present CMSA.

4. This Court vide order dated 19.09.2022 has

granted interim stay as prayed for and it was extended from

time to time.

5. Counter-affidavit has been filed by the respondent

No.1 denying all the allegations made in the appeal and inter

alia contended that even though the suit was decreed in the

year 2009 till now the respondents are not able to enjoy the

fruits of the decree, because of prolonging litigation by the

appellants without there being any right. This Hon'ble

Court as well as Apex Court several times held that, the

tenant cannot dictate the terms of the landlord, however the

appellants herein contrary to the judgements taking false

pleas and technical grounds to deprive the 1st respondent

herein right over the property. This respondent aged about

71 years and the appellants harassing him from the year

2005 without vacating the property.

It is further stated that the appellant herein filed

I.A.No.1 of 2022 seeking to stay of all further proceedings

pursuant to the judgment and decree dated 05.07.2022 in

CMA No.2 of 2016 with false averments. This Court vide

order dated 19.09.2022 granted interim direction. Unless

this Court vacates the interim direction granted in I.A.No.1

of 2022 this respondent will suffer irreparable loss and

injury.

6. Learned counsel for the legal representatives of the

defendant, who are R.7 to R.11 in this appeal, has contended

that I.A. No.272/2006 filed by Appayyamma was not disposed

of, and there was a dispute as to the arrears of rent, which

ought to be decided in accordance with the provisions of Order

under Secom 15A CPC. But without doing so, learned trial

Court decreed the suit, and remanded the matter to the trial

Court to dispose of the same afresh, after deciding the

disputed question of arrears of rent, is justified, and hence the

appeal may be dismissed.

7. In support of his contention, he relied upon a case of

K.Saleem Basha v. K.Zakria Shaik1 , wherein the Hon'ble

High Court Andhra Pradesh was held that :

"This provision came into force with effect from 2005. The purpose underlying the provision is to ensure that the owner of the premises leased to the defendant in a suit pays the rents regularly, together with arrears, if any. The word 'undisputed' occurring before the word 'arrears', assumes significance. If there is a dispute as to the quantum, the Court has to decide the same, duly taking into account, the versions put forward by the parties. In this regard, slightly different approach is needed in respect of a suit in which recovery of arrears is prayed for, as one of the reliefs on the one hand and a suit for eviction simplicitor on the other hand. If the defendant opposes the claim in the suit, as to arrears, the adjudication thereof must take place after trial. An application under Order 15-A of C.P.C. is not the proper mechanism to recover the suit amount, if seriously disputed by the defendant. Under the garb of seeking relief under that provision, plaintiff in a suit cannot pray for recovery of the entire amount, which incidentally is claimed in the suit itself. In such an event, the suit comes to be

2011 (4) ALD 757

virtually decreed to that extent without trial, but through an order under Order 15-A of C.P.C.

If the arrears existed from the date of filing of the suit, a direction can certainly be issued for deposit thereof in an application filed under Rule 15-A of C.P.C. Any direction for deposit of arrears prior to the date of filing of the suit can be issued, only when there is no dispute. If there is divergence of opinion between the parties as to the quantum or liability, the determination thereof has to be relegated to a subsequent stage and a finding has to be given after trial. An exercise contemplated under Order 15-A of C.P.C. is totally inadequate and unsuited for final determination of the arrears of rent for the period anterior to the date of fling of the suit.

And also relied upon a case in M/s. Tanmai Jewels Pvt.

Ltd., represented by its Managing Director v. Ch.Sreesaila

Kumari2.

In another case reported in Chiranjilal Shrilal Goenka

(deceased) through LRs Versus Jasjit Singh and others3,

wherein the Hon'ble Supreme Court held that :

We agree with Mr. Chidambaram that the applicant had consented to refer the dispute for arbitration of dispute in the pending probate proceedings, but consent cannot confer jurisdiction nor an estoppel against statute. The other legatees in the will were not parties to it. In A.R. Antulay VI R.S. Naik, [1988] 2 SCC 602 when a Constitution Bench directed the High Court Judge to try the offences under the Prevention of Corruption Act with

2013 (6) ALD 359

(1993) 2 Supreme Court Cases 507

which the petitioner therein was charged and the trial was being proceeded with, he 'questioned by way of writ petition the jurisdiction of this Court to give such a direction. A Bench of seven judges per majority construed meaning of the word 'jurisdiction', Mukerjee, J. as he then was, speaking per himself. Oza and Natarajan, JJ. held that the power to create or enlarge jurisdiction is legislative in character. So also the power to confer a right of appeal or to take away a right of appeal. The Parliament alone can do it, by law and not Court, whether interior or both combine, can enlarge the jurisdiction of a Court and divest a person of his rights of appeal or revision. Ranganath Misra, J. as he then was, held that jurisdiction comes solely from the law of the land and cannot be exercised otherwise. In this country, jurisdiction can be exercised only when provided for either in the Constitution or in the laws made by the Legislature. Jurisdiction is thus the authority or power of the Court to deal with a matter and make an order carrying binding force in the facts. Oza, J. supplementing the question held that the jurisdiction to try a case could only be conferred by law enacted by the legislature. The Supreme Court could not confer jurisdiction if it does not exist in law. Ray, J. held that the Court cannot confer a jurisdiction on itself which is not provided in the law. In the dissenting opinion Venkatachaliah, J., as he then was to lay down that the expression jurisdiction or prior determination is a "verbal coat of many colours". In the case of a Tribunal an error of law might become not merely an error in jurisdiction but might partake of the character of an error of jurisdiction. But, otherwise, jurisdiction is a 'legal shelter' and a power to bind despite a possible error in the decision. The existence of jurisdiction does not depend on the correctness of its exercise. The authority to decide embodies a privilege to bind despite error, a privilege which is inherent in and indispensable to every judicial function. The characteristic attribute of a judicial act is that it binds whether it be right or it be wrong. Thus this Court laid down as an authoritative proposition of law that the

jurisdiction could be conferred by statute and this Court cannot confer jurisdiction or an authority on a tribunal. In that case this Court held that Constitution Bench has no power to give direction contrary to Criminal Law Amendment Act, 1952. The direction per majority was held to be void. It is settled law that a decree passed by a court without jurisdiction on the subject matter or on the grounds on which the decree made which goes to the root to its jurisdiction of lacks inherent jurisdiction is a corum non judice. A decree passed by such a court in a nullity and is nonest. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party. In Bahadur Singh & Anr. v. Muni Subrat Dass & Anr., [1969] 2 SCR 432, an eviction petition was filed under the Rent control Act on the ground of nuisance.

8. This Court further observed that in a case of

A.Manimanjari v. P. Bhaskara Rao4, the trial Court held that

the applications filed by the defendant/tenant to deposit rents

though he had gone up to the Hon'ble Supreme Court against

the previous directions in the previous applications for the

same relief by the same defendant without complying with

such previous directions. In this back ground the CRP was

allowed setting aside the order in the subsequent applications.

2008 (6) ALT 511

On a reading of the above citation, the facts are different

from those in the present case and it does not helpful to the

case of the appellant.

9. In view of the foregoing reasons and upon perusing

the entire material available on record and catena of

decisions referred to above, this Court is of the opinion that,

the first appellate Court, basing on the evidence available on

record passed the judgment and the same does not suffer

from any illegality or perversity on the face of the record.

Hence, I am of the opinion that there is no question of law

much less substantial question of law in this appeal

warranting interference of this Court while exercising

jurisdiction under Section 100 CPC. The present CMSA

lacks merits and bonafides and hence the same is liable to

be dismissed.

10. Accordingly, the Civil Miscellaneous Second

Appeal is dismissed. Further, appellants/R.7 to R.11 are

hereby directed to handover the vacant possession of the

plaint schedule property to Tankala Ragunatham i.e., 1st

respondent herein on or before 28.02.2023. There shall be

no order as to costs.

     As    a   sequel,   all   the   pending   miscellaneous

applications shall stand closed.

                               ______________________________
                                DR. K. MANMADHA RAO, J.
Date : 30-12-2022
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      HON'BLE DR. JUSTICE K. MANMADHA RAO

CIVIL MISCELLANEOUS SECOND APPEAL No.8 of 2022

Date : 30 .12.2022

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