Whether fair rent fixed by Rent Controller exceeding the upper limit of jurisdiction of Rent controller fixed under Section 32 of the Act from the date of petition under Section 4(1) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, takes away the jurisdiction that conferred on the Rent Controller in a petition filed under Section 10 of the Act, subsequent to filing of petition under Section 4(1) of the Act?. = The fixation of fair rent is only an incidental issue of the matter and therefore the same is of no avail and would not impact the eviction of the tenant if the landlord has been found to be in need of the premises and the tenant is found to have own premises as well as the tenant having defaulted in payment of rents as has been found on all three grounds in the present matter. 30. In view of the above, we hold in the present reference that, the Rent controller Court would continue to have jurisdiction, in spite of fixation of fair rent of the premises at any amount more than Rs.3,500/-, if the rent of the premises when eviction proceedings were filed was less than Rs.3,500/-

HONBLE SRI JUSTICE SURESH KUMAR KAIT AND HONBLE SRI JUSTICE D.V.S.S.SOMAYAJULU                 

C.R.P No.6465 OF 2016 

10-11-2017

Smt Radhi Raney and another  Petitioners 

Mrs. Nanki Feroze....   Respondent 


Counsel for the Petitioners: R.A. Achuthanand

Counsel for the Respondent:  Mohd. Imran Khan

<Gist :

>Head Note :

? Cases referred  :    1.  2007 (4) ALT page 348
2.2004 (1) ALD page 296 of JCB
3.2007(4) ALD 137
4.AIR 1988 SC 2031 
5.AIR 1982 SC 1230 
6.2012 (3) ALD 155
7.2004 (1) ALD 296
8.AIR 1918 (Madras) 998
9.2013 (5) ALD 223

HONBLE SRI JUSTICE SURESH KUMAR KAIT       
AND 
                 HONBLE SRI JUSTICE D.V.S.S.SOMAYAJULU 
CIVIL REVISION PETITION No.6465 OF 2016   
ORDER: 
     (Per Honble Sri Justice SURESH KUMAR KAIT) 
        Vide the present petition, the petitioners have challenged
the order dated 16.08.2016 passed in R.A.No.176 of 2013 by
the Chief Judge, City Small Causes Court, Hyderabad,
whereby, the appeal filed by them against the order passed in
RC No.69 of 2011, dated 31.07.2013  by the Additional Rent
Controller, Secunderabad, has been dismissed.
        2.  When the present petition was listed before the
learned Single Judge, Sri Justice M. Satyanarayana Murthy, on
01.08.2017, an order was passed, which reads as under:
      In view of present anomalous situation, I am unable to
express any view with regard to correctness of either of the
judgments.  Hence, the following question is formulated to answer
by Division Bench:
      Whether fair rent fixed by Rent Controller exceeding the
upper limit of jurisdiction of Rent controller fixed under Section 32
of the Act from the date of petition under Section 4(1) of the A.P.
Buildings (Lease, Rent and Eviction) Control Act, takes away the
jurisdiction that conferred on the Rent Controller in a petition filed
under Section 10 of the Act, subsequent to filing of petition under
Section 4(1) of the Act?.

      3.  Thus, the present petition is listed before this Court to
answer the reference.
      4.  The facts of the case are that:
             The respondent is a landlady who filed RC No.68 of
2011 on 11.07.2011 for fixation of fair rent of premises from
Rs.2,600/-per month to Rs.15,000/- per month.  Meanwhile,
the respondent/landlady filed R.C.No.69 of 2011 for eviction of
tenants on 14.11.2011 on various grounds.  The fixation of fair
rent application i.e., RC No.69 of 2011 was allowed on
31.07.2013 enhancing the rent to Rs.5,000/- per month.
Being aggrieved by the aforesaid order, the petitioners/ tenants
had filed R.A. No.176 of 2013 on the file of Chief Judge, City
Small Causes Court, Hyderabad and the same was dismissed   
on 16.08.2016 confirming the order of the lower Court.
      5.  Being aggrieved again, the tenants preferred present
CRP and canvassed that the Rent Control Court has no
jurisdiction to pass an order of eviction as the rent is enhanced
beyond the pecuniary jurisdiction of the Rent Controller.
      6.  Learned counsel for the petitioners/tenants argued
that prior to amendment Act No. 17/2005, the pecuniary
jurisdiction of the Rent Control Court was if rent is up to
Rs.1,000/- per month.  In view of the Government having
issued G.O.Ms.No.636 dated 24.12.1983 the operation of the
provisions of the Act on all the newly constructed buildings
were exempted, irrespective of date of construction, for a
period of 10 years from the date on which their construction
was completed and those premises where the rent was more 
than Rs.1,000/- per month, from the provisions of Rent
Control Act.  The application for fixation of fair rent was filed on
11.07.2011 and an eviction petition was filed in the same year,
but on a later date.
      7.  Learned counsel for the petitioners/tenants submits
that the judgment rendered in 2012 Law Suits AP Page 8 or
2013 (3) ALT page 421 of JCB para 7 of the judgment also
refers to an identical question which fell for consideration by
the Court in Anil Kumar R. Kamdar (died per LRs) Vs.
Dasari Vaikuntam (died per LRs) in CRP No.5025 of 2009
dated 21.07.2010.  The learned Single Judge by the aforesaid
judgment dated 21.07.2010 repelled the submissions and held
that since the Rent Controller has jurisdiction to entertain the
eviction on the date of filing the petition, subsequent event of
fixation of fair rent albeit with retrospective effect will not oust
the jurisdiction of the Court and a reliance was made by
learned judge relying on a Full Bench of this Court in Ram
Vilas Bajaj Vs. Ashok Kumar .  Similarly, the judgment cited
in 2012 Law Suit AP 45 also refers to the said judgment.  The
reference is confined to the judgments of Justice Sri C.V.
Nagarjuna Reddy and Dr.Justice Sri B. Siva Sankara Rao.  The
aforesaid two judgments are conflicting judgments.  The
judgment rendered by justice C.V. Nagarjuna Reddy relies
upon the other judgments relied upon wherein the learned
judge has observed that change in the pecuniary jurisdiction
will not oust the jurisdiction that the suit was lawfully
instituted.  The judgment relied upon deals with the payment of
Court fee act which was changed during pendency of the suit.
It does not directly deal with Section 4(1) of the Act.
      8.  Learned counsel for the petitioners submits that the
judgment in Sai Kiran General Stores, Secunderabad Vs. Sai
Anand Prasad  has been referred to, wherein Justice Surya
Rao, had observed that the Rent Control Court has jurisdiction
to fix the fair rent exceeding the jurisdiction.  The said
judgment also deals with issues arising from the
G.O.Ms.No.636 dated 18.12.1983 when the Government   
issued Gazette after Section 32 (b) (Act was not applied to any
building constructed on or after 26.8.1957) was struck down
by the Honble Supreme Court holding that it is
unconstitutional and the Government issued the said
G.O.Ms.No.636, wherein all the buildings, which were
constructed 10 years were exempted from the purview of the
Rent Control Act and if the rent is more than Rs.1,000/-, the
Act will not apply to those buildings.
      9.  As per the said G.O., a question raised, before the
then Justice Surya Rao was that the Rent Controller has no
jurisdiction to fix the fair rent beyond its pecuniary
jurisdiction. It was argued there that once the rent is fixed
beyond Rs.1,000/-, the property comes out from the
jurisdiction of the Rent Control Act.  Justice T.Ch.Surya Rao
negatived the said contention and held that the Rent Controller
does not lose jurisdiction over the case even if the fair rent is
fixed above the limits prescribed.  The said judgment was also
relied upon by the learned Justice C.V.Nagarjuna Reddy in the
matter mentioned above.
      10.  Learned counsel for the petitioners submits that Sri
Justice C.V.Nagarjuna Reddy did not deal with Section 4 (1) of
the Act correctly and the fixation of fair rent relates back to the
date of application.  As such, the Rent control Court would lose
its jurisdiction once the rent is fixed beyond Rs.3,500/- per
month.
      11.  Learned counsel for the petitioners further submits
that in the judgment referred by Dr.Justice B. Siva Sankara
Rao in CRP Nos.3516 and 3570 of 2016, the learned judge has
dealt with the issue relying upon the judgments of the Apex
Courts and relied upon a case in Boolchand and Company 
Vs. Qamarunnisa Begum.  The Division Bench of this Court
has observed that : invariably if the premises, rent was
Rs.9,000/- per month, the provisions of the Act invariably
applied to it, since the stipulated rent was Rs.1,000/- or
below at a relevant point of time.  If during the pendency
of the proceedings, the rent is determined either with the
agreement of parties or through a determination of the
Court at Rs.1,500/-, the act will cease to exist.
      12.  As submitted by the learned counsel for the
petitioners that the aforesaid observation directly deals with
Section 4(1) of the Rent Control Act.  However, Justice
C.V.Nagarjuna Reddy and other learned judges do not deal
with the effect of Section 4 (1) of the Act.
      13.  It is pertinent to mention here that the judgment
passed by Dr.Justice B. Siva Sankara Rao in CRP Nos.3516 
and 3570 of 2016 dated 07.11.2016 is conflicting with the
decision of Justice C.V.Nagarjuna Reddy passed in CRP 
No.5842 of 2011, dated 09.02.2012, as reported in 2012 (3)
ALD at page No.155.  Hence, the reference is made before this
Court.
      14.  Justice C.V. Nagarjuna Reddy has concluded in
para-14 of the above mentioned judgment, as follows :
      14. On the analysis as above, I hold that as the Rent
Controller had pecuniary jurisdiction to entertain the eviction
petition when it was instituted, the subsequent fixation of fair rent,
even with effect from the date of application, would not bar the
jurisdiction of the Rent controller to decide the eviction petition.

      15.  The said matter has been dealt with exactly same
situation as is being attempted to be projected in the present
matter.  It is held that the Rent Controller has pecuniary
jurisdiction to entertain the eviction petition when it is
instituted and the subsequent fixation of fair rent, even with
effect from the date of application, would not bar the
jurisdiction of Rent Controller to decide the eviction petition.
      16.  The learned counsel for the respondent submits that
the judgment in CRP Nos.3516 and 3570 of 2016 dated 
07.11.2016 does not refer to the prior decision as reported in
2012 (3) ALD 155.  Thus, the later decision is per incuriam,
and hence, liable to be totally ignored.
      17. He relies upon the principles of per incuriam and
relies on Dr Reddys Formulations case (5 supra), where it
was held in para 23, as under:
      23.  Also both the decisions in Panyam Cements
Employees Union (5 supra) and I Srinivasa Rao (3 supra)
have been rendered in ignorance of the decision of O.
Chinnappa Reddy, J in HMT Employees Union (7 Supra) and 
the decision in All India Reserve Bank Employees
Federation (8 Supra) and have therefore to be held to be per
incuriam.

      and in para 34, as under:
      34. In Union of India v. R.P. Singh (9) 2014 (3) ALT 55
(SC) = 2014 (5) SCJ 28 = (2014) 7 SCC 340, the Supreme 
Court held that if a decision has been rendered per incuriam,
a Court can ignore it.  It followed the seven Judge Bench
judgment of the Supreme Court in A.R. Antulay v. S.R Naik
(10) AIR 1988 SC 1531 and the decision in Siddharam
Satilingappa Mhetre v. State of Maharashtra and others (11)
2011 (1) ALT (Crl.) 69 (SC) = 2011 (1) SCJ 36 = (2011) 1 SCC
694.  Several judgments of the apex court have been
considered in the latter judgment and it was reiterated that a
decision of the Supreme Court which did not consider a
Constitution Bench judgment of the said Court would be per
incuriam and the Constitution Bench judgment should be
followed and not the decision which ignored it.
Accordingly, it is held that the decision rendered in
ignorance of a prior judgment can be treated as per
incuriam and when a decision is rendered per incuriam,
court can ignore the same.  It need not be referred to a
larger bench.  Subsequently, another case law reported in
Lanka Babus case (6 supra) para Nos. 81 and 82, as
under:
   81. In State of U.P. v. Synthetics and Chemicals Ltd.,
(1991) 4 SCC 139, the Supreme Court declared:
 Incuria literally means carelessness.  In practice per
incuriam appears to mean per ignoratium.  English Courts
have developed this principle in relaxation of the rule of Stare
decisis.  The quotable in law is avoided and ignored if it is
rendered, in ignoratium of a statute or other binding
authority. (Young v. Bristol Aeroplane Co. Ltd (Supra). Same
has been accepted, approved and adopted by this Court
while interpreting Article 141 of the Constitution which
embodies the doctrine of precedents as a matter of law.  In
Jaisri Sahu v. Rajdewan Dubey, AIR 1962 SC 83, this Court
while pointing out the procedure to be followed when
conflicting decisions are placed before a Bench extracted a
passage from Halsburys Laws of England incorporating one
of the exceptions when the decision of an appellate court is
not binding.
      82. The exception to the doctrine of binding nature of
precedent referred to in the above decision from its earlier
decision in Jaisri Sahu v. Rajdewan Dubey, AIR 1962 SC 83,
is:
       The court is not bound to follow a decision of its own
if given per incuriam.  A decision is given per incuriam when
the court has acted in ignorance of a previous decision of its
own or of a Court of a co-ordinate jurisdiction which covered
the case before it, or when it has acted in ignorance of a
decision of the House of Lords.  In the former case it must
decide which decision to follow, and in the latter it is bound
by the decision of the House of Lords.

      18.  The said decision rendered by Justice Siva Shankar
Rao relies on an earlier decision rendered by a Division Bench
(2013 (5) ALD 223).  The decision of the Division Bench was
delivered without reference to an earlier decision on the same
point.  There is no reference to any case law in the Judgment
2013 (5) ALD 223.  The operative finding in the said judgment
i.e., 2013 (5) ALD 223(DB), whereby it is held in para 17, as
under:
      "17.  Before parting with the appeals, we intend to
make an observation about the impact of the determination in
IA No.1582 of 2000 about the question of jurisdiction.  Even
where the provisions of the Act apply to the premises, but the
fair rent is determined under Section 4 of the Act at an
amount, that exceeds the one stipulated for bringing the
premises under the Act, the provisions of the Act cease to
apply.  For instance, if the rent of the premises was Rs.900/-
per month, the provisions of the Act invariably apply to it,
since the stipulated rent, in this regard was Rs.1,000/- or
below at the relevant time.  If during the pendency of any
proceedings,  the rent is determined either with the agreement
of the parties or through a determination by the Court at
Rs.1,500/-, the premises ceased to be under the purview of
the Act.  From this point of view, with the determination of the
rent at Rs.4,000/- per month, with periodical enhancement,
even the remote possibility of the provisions of the Act being
made applicable, ceases to exist,  This finding is not
supported by any case law at all.
      19.  After perusal of the aforesaid para, in respect of the
order passed in I.A.No.1582 of 2000 whereby mesne profit at
Rs.4,000/- per month was fixed, the said judgment of Division
Bench was in fact dealing with fixation of mesne profit and
categorically held that if during the pendency of any
proceedings rents are fixed, in such an eventuality, the Rent
control Act would not be applicable.  In other words, once the
fair rent of any property have been fixed at a rate more than
Rs.3,500/- per month, thereafter an application seeking
eviction or any other relief in respect of the property could not
be filed before the Rent Controller.  But in the present matter,
as on date of filing of the eviction petition, no fair rent had been
fixed.  Therefore, the judgment of a Division Bench is not at all
applicable to the facts of the present case.
      20.  Be that as it may, the said matter also having been
decided on 19.06.2013 i.e., later than Case Law  2012 (3) ALD
155 supra.  Thus case law 2013 (5) ALD 223 (DB) supra also
would be per incuriam, as it did not consider earlier case law
albeit that of a Single Judge.
      21.  In fact the case law as reported in 2013 (5) ALD at
page 223 (DB) never arose out of the Rent Control Act and the
same pertains to two appeals vide CCCA Nos.23 of 1997 and 
331 of 2003, which originated out of a suit for partition (O.S.
No.38 of 1964 and O.S No.901 of 1985).
      The case law as reported in 2004(1) ALD 296 in para 29,
categorically held as under:
      29.  From the above, it is obvious that the Rent
controller who has undoubtedly the inherent jurisdiction to fix
the fair rent and has the initial jurisdiction to entertain the
petition, while in the process of fixation of fair rent comes to
the conclusion that the quantum might exceed the limit of
Rs.1000/-; which limit is prescribed under the statute for
convenience sake and on account of the policy of the
Government and is susceptible of change; will not cease to
have jurisdiction and cannot at that stage direct the petitioner
to approach the Municipal Courts.
        22.  On a perusal of the said para, it holds that even by
the consent of parties if the rent of premises is increased
beyond the statutory limit, still the Rent Controller would
continue to have jurisdiction.  Hence, in view of the aforesaid
case law, the Rent Controller Legislation continued to hold
sway over and upon the petition schedule premises in spite of
the fair rent of the petition schedule premises having been fixed
at Rs.5,000/- per month and therefore this Court as well as
Appellate Authority and the Primary authority under the Rent
Control Legislation  would have the jurisdiction to continue to
try the matter.  This aspect was not considered at all by the
learned Single Judge in CRP Nos.3516 of 2016 and 3570 of
2016.
        23.  Insofar as even subsequent legislation is concerned,
the same would also not take away the jurisdiction of the Court
in which the matter was instituted, subject to the condition that
as on the date of such institution the particular court had
jurisdiction over the matter as held in a judgment dated
18.10.2016 deferred by the Honble Supreme Court of India in
Civil Appeal No.8194 of 2016.
        24.  It is well settled principle that right of parties
crystallizes to the date of institution of the suit, as held in AIR
1998 SC at page No.2031.  The said decision speaks about the
weightage that has to be given to the meaning of words,
language, back ground and context of the legislation in seeking
to interpret any statute.
        25.  Apart from the above, it is also important to note that
a Full Bench of this Court in a decision reported in Ramvilas
Bajaj v. Ashok Kumar and Another  was called upon to
decide an issue under the Andhra Pradesh Building (Lease,
Rent and Eviction) Control Act, 1973, wherein the validity of
Section 32 of the said Act was called into question.  The said
Bench was dealing with the applicability of the above said
Section and was called upon to decide whether the same was 
prospective or retrospective.  In the context, while deciding the
said issue, the Full Bench clearly relied upon the settled
position of law, whereby it is clarified that the rights of the
parties as on the date of the institution of the proceedings are
important.
        26.  In para 24 of the Full Bench decision, the judgment
of the Honble the Supreme Court reported in Atmaram
Mittal v. Eswar Singh  was considered.  In that case, the
land lord filed a suit for recovery of possession of a building
within the exemption period.  During the pendency of the suit,
the period of 10 years expired.  The tenant then moved an
application for disposal of the suit on the ground that the
exemption period expired and consequently, the jurisdiction of
the civil Court is barred.  The Supreme Court clearly negatived
the contention and stated that it is well settled that the rights of
the parties will have to be determined on the basis of the rights
available to them on the date of the suit.  Similarly, the Full
Bench of this High Court also reiterated the findings of the
Supreme Court in various cases that when a lis commences, 
all the rights get crystallized on the date of filing of the case.  In
addition, Om Prakash Gupta v. Dig Vijendrapal Gupta
was also considered by the Full Bench of this Court.  Although
reference to the Full Bench was on the question of the
prospective/retrospective application of a particular Section,
still the important pronouncement is about the rights of parties
which get crystallized on the date of which lis or a suit is
commenced.  Both the single Judges in the judgments reported
in  Mohammadiya & Co. v. Uma and others  and Sai 
Krishna General Stores vs B. Sai Anand Prasad
considered earlier Full Bench decision of the Madras High
Court  reported in Putta Kannayya v. Venkata Narasayya
and held that :
       We are therefore of the opinion that
in every case, when the Court is seized of
jurisdiction, it can not and does not lose it
by any change in the value of the subject
matter of the suit after the institution of the
suit or by the precise ascertainment of its
value in cases which do not admit of such
ascertainment at the time of institution,
except when the plant is allowed to be
amended; and that is not really an
exception.   On the same principle we think
that the Court can award such a sum as it
finds due to the plaintiff, although such a
sum is above the pecuniary limits of its
jurisdiction   

      27.  This Full Bench judgment of the Madras High Court
was not considered by the learned single Judge in
CRP.Nos.3516 and 3570 of 2016.  Neither the principle that
the rights get crystallized on the date of the  lis nor the Full
Bench of the Madras High Court reported in Putta
Kannayya case was considered by the Division Bench in the
judgment reported in Bulchand and company v.
Khamrunnisa Begum and others .   Hence, we are 
constrained to hold that Bulchand and companys case is a
judgment rendered per incuriam and does not lay down good
law.
      28.  For both these reasons, we hold that the judgment of
the learned single Judge dated 07.11.2016 in CRP.Nos.3516
and 3570 of 2016 are per incuriam and does not laid down
correct law.
        29.  In the case in hand, dual purpose of the Rent
Control Legislation is on one hand to safeguard the unlawful
eviction of the tenants and on the other hand the same has to
see to it that tenants do not exploit the landlords by defaulting
in payment of rents and occupying the property when they
have the property of their own.  The fixation of fair rent is only
an incidental issue of the matter and therefore the same is of
no avail and would not impact the eviction of the tenant if the
landlord has been found to be in need of the premises and the
tenant is found to have own premises as well as the tenant
having defaulted in payment of rents as has been found on all
three grounds in the present matter.
        30.  In view of the above, we hold in the present reference
that,  the Rent controller Court would continue to have
jurisdiction, in spite of fixation of fair rent of the premises at
any amount more than Rs.3,500/-, if the rent of the premises
when eviction proceedings were filed was less than Rs.3,500/-
.
      31.  The reference is answered accordingly.
      32.  List the petition before the Roster Bench for disposal
as per law.
___________________________________     
JUSTICE SURESH KUMAR KAIT.     
__________________________________     
JUSTICE D.V.S.S.S.SOMAYAJULU.     
Date :  10 -11-2017