Atul Kumar Gupta vs Dilip Kumar Khurana And Others

Subrata Talukdar, J

The above mentioned two appeals have been filed by the appellant/landlord before this Court under Regulation 27 (for short R27 only) of the Andaman and Nicobar Islands Rent Control Regulation, 1964 (for short the 1964 Regulation).

The substantial questions of law sought to be placed by the appellant under R27 (2) of the 1964 Regulation can be summed up from the following grounds of SMAT 002 of 2019:

I. For the First Lower Appellate Court Committed substantial error of law by directing the Ld. Trial Judge to convert and treat the purported application under section 28 of the Andaman & Nicobar Rent Control Regulation 1964 under section 151 of the Code of Civil Procedure, 1908.

II. For that the First Lower Appellate Court committed error of law in failing to appreciate that the suit one which has been filed by the respondent herein having not been filed under the provisions of the Andaman & Nicobar Rent Control Regulation 1964, there cannot be any scope under law to consider application under section 151 of the Code of Civil Procedure, 1908 since it has been held by the said Court that the suit has been filed under section Specific Relief

Act and under the said act there is specific provision for effecting repair of the suit land.

III. For that the First Lower Appellate Court committed error of law by directing the trial court to treat the purported application under section 28 of the Andaman & Nicobar Rent Control Regulation 1964 to be one under Section 151 of the code of civil procedure, 1908 thereby exceeded jurisdiction as an application under section 151 cannot be exercised in contravention of, or in conflict with or upon ignoring express provision of law.

IV. For that judgment and Decree of the Lower First Appellate Court is otherwise bad in law and same is liable to be set aside in so far as directing the Ld. Trial Court to treat the purported application filed under Section 28 of the Regulation under section 151 of the Code of Civil Procedure, 1908.

Mr. Jayapal, learned counsel for the appellant/ landlord, who is common to both the appeals, submits that the learned District Judge, Andaman & Nicobar Islands erroneously exercised jurisdiction by permitting the learned Trial Court to treat the applications for repair filed by the respondent/plaintiff/ purported tenant dated 18th January, 2018 and 1st October, 2018 as applications under Section 151 of the Code of Civil Procedure in place and stead of R28 of the 1964 Regulation. The dispute therefore, according to the appellant, is one of nomenclature only.

It would be relevant to mention that the suit filed by the respondent/ purported tenant is for declaration of tenancy and permanent injunction from eviction. The suit, being Other Suit No. 91 of 2017 (for short OS 91 of 2017) was considered only on the question of the applications of the respondent dated 18th January, 2018 and 1st October, 2018 for repairs under R28 of the 1964 Regulation. By the order dated 7th December, 2018 the learned Trial Court, being the Court of the learned Civil Judge (Junior Division) at Port Blair, permitted the respondent to carry out the repairs.

The order dated 7th December, 2018 in OS 91 of 2017 was challenged by the appellant before this Court by way of a Civil Revisional Application being CO 002 of 2019.

The moot contention of the revisionist/present appellant in C0 002 of 2019 is that the learned Trial Court lacked jurisdiction to entertain the applications for repair of the suit premises under R25 of the 1964 Regulation. The stand was taken that the learned Trial Court overstepped its jurisdiction by permitting the plaintiff to carry out the repairs under R28.

The Hon'ble Single Bench disposed of CO 002 of 2019 by order dated 11th January, 2019 permitting the revisionist/present appellant to file an appeal before the learned District Judge under R26 of the 1964 Regulation. The Hon'ble Single Bench permitted the parties to take all points, including the point of jurisdiction, before the learned District Judge.

Accordingly, Misc. Appeal No. 02 of 2019 came to be decided on the 28th of March, 2019.

The learned District Judge was of the view that R28 would lie only if the relationship of tenant and landlord was not in dispute. From a reading of the plaint in OS 91 of 2017, the learned District Judge found that a declaration has been sought by the purported tenant/the plaintiff of his tenancy. The relief of permanent injunction has been sought for protection against illegal eviction.

Therefore, the learned District Judge held that since the primary relief is for the tenancy itself to be declared, no application can lie by the purported tenant against a purported landlord under R28. However, the learned District Judge also held that under R25 it would be open for any Civil Court in the Andaman & Nicobar Islands to hear and decide a suit for recovery of possession of any premises within the scope and ambit of the 1964 Regulation provided such Civil Court possesses the pecuniary jurisdiction and is otherwise competent to hear the case.

Accordingly, while upholding the jurisdiction of the learned Trial Court being the Court of the learned Civil Judge (Junior Division) at Port Blair, the learned District Judge converted the nomenclature of the said applications for repair from that of R28 to that of Section 151 of the CPC.

Mr. Jayapal, learned counsel for the appellant, relies heavily on (2013) 11 SCC 296 to argue that the inherent power under Section 151 of the CPC is merely in the nature of a procedural provision and cannot be exercised or allowed to be exercised in conflict with or ignoring the express and specific provisions of law, i.e. in this case the Code of Civil Procedure.

Mr. Jayapal submits that the appellant is only prejudiced by part of the order of the learned District Judge which permits conversion of the application under R28 to one under Section 151 of the CPC. Therefore, in the appeal the prayer is made for stay of operation of the impugned judgement and order dated 28th March, 2019 passed in Misc. Appeal No. 02 of 2019.

Mr. Khan, learned Counsel, appearing for the respondent/the tenant/the plaintiff submits that the appellant/landlord is preventing repairs repeatedly on the pretext of the questioning the jurisdiction of the respective Courts. Mr. Khan also submits that the present appeals are not maintainable under R27.

Having heard the parties and considering the materials placed, this Court is of the following view:-

A) That the Hon'ble Single Bench by order dated 11th January, 2019 in CO 002 of 2019 had permitted the petitioner/the landlord/the present appellant to file an appeal before the learned District Judge under R26. Against an order in an appeal under R26 a second appeal under R27 (1) and 27(2) shall lie before the High Court. Thus the question regarding lack of maintainability of the present appeals under R27 raised by the respondent/the tenant is no more res integra.

B) That admittedly under R25 the Civil Court is competent to hear a suit for recovery of possession. Therefore, learned District Judge correctly held that OS 91 of 2017 being a suit for declaration of tenancy and permanent injunction or, in other words, a suit seeking protection from recovery of possession or unauthorised eviction is maintainable before the learned Civil Judge (Junior Division)/the learned Trial Court.

C) The learned District Judge was nuanced in holding that R28 contemplates a situation when there is no dispute with regard to the relationship of landlord and tenant. Therefore, an application for repairs under R28 would lie in a situation where a bona fide tenant seeks repairs against a bona fide landlord.

D) In the facts of this case the learned District Judge was correct in holding that since the relationship itself has been disputed by the landlord/the present appellant on the evidence which is sought to be brought on record, R28 is not directly attracted. Accordingly, the learned District Judge, following the salutary pronouncement of the Hon'ble Apex Court in AIR 1959 SC 93, permitted the proceedings for repair to be conducted under the nomenclature of Section 151 of the CPC.

E) Again, to the mind of this Court, the validity of the proceedings before the learned Civil Court following the provisions of R25 is not under challenge and the issue is only one of nomenclature of such proceedings.

F) Arguably, the issue of Order 39 Rule 7 being attracted in the facts of the case, as argued by learned counsel for the appellant, is not a pari materia provision at par with R28 of the 1964 Regulation. Therefore, the learned District Judge did not err by allowing conversion of the application under R28 to one under Section 151 CPC in the absence of any other corresponding provision in the Code of Civil Procedure.

Accordingly, this Court finds the two appeals to be meritless.

SMAT No. 002 of 2019 and SMAT No. 001 0f 2019 along with their connected applications, CAN 088 of 2019 and CAN 089 of 2019, stand dismissed.