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CASE NO.:

Appeal (civil) 6888 of 1999

PETITIONER:

A.V.G.P. CHETTIAR & SONS & ORS.

Vs.

RESPONDENT:

T. PALANISAMY GOUNDER

DATE OF JUDGMENT: 08/05/2002

BENCH:

R.C. Lahoti & Ruma Pal

JUDGMENT:

RUMA PAL, J.

This is an appeal filed by tenants against an order

passed by the High Court at Madras upholding the decision

of the Rent Controller ordering the eviction of the appellants

under the Tamil Nadu Buildings (Lease and Control Act) Act,

1960 (hereinafter referred to as 'the Act').

The appellants have assailed the decision of the High

Court primarily on three grounds:

i) that the suit premises belongs to a religious

charitable Trust and, therefore, the

provisions of the Act were not applicable to

the suit premises, and

ii) that there was no relationship of tenants and

landlord between the appellants and the

respondent and

iii) the denial of the respondent's title by the

appellants was bona fide and as such the

Rent Controller had no jurisdiction to try or

determine the suit.

Before considering the submissions of the parties,

the background in which the issues before us arise needs to

be stated.

In 1900, one Mandi Venkata Naicker endowed his

property in Trust for religious and charitable purposes by a

registered deed dated 7th September 1900. A

supplementary deed was executed by the said Venkata

Naicker on 12th April 1911 transferring further properties to

the Trust from the income of which various rituals were to

be carried on. According to the appellants the suit property

was one of such Trust properties. The second appellant was

inducted as a tenant in the suit premises by the Trust in

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1942. Subsequently, the second appellant formed a

partnership firm together with his sons. The firm is the first

appellant before us and the remaining appellants are its

partners. The appellants' case is that they have continued

as tenants under the Trust and the suit premises still

belongs to the Trust.

According to the respondent, the said premises

belonged to S. Gowthaman, an heir of the said Venkata

Naicker. The respondent claims that the appellants had

acknowledged Gowthaman as their landlord and paid rent to

him without protest. Gowthaman sold and conveyed the

suit property to the respondent by a registered deed dated

15th July 1988. This fact was intimated to the appellants by

Gowthaman who attorned the tenancy in favour of the

respondent by letter dated 19th July, 1998. On 5th

December, 1998 the respondent sent a registered notice to

the appellants demanding payment of rent. The appellants

refused to pay rent to the respondent on the ground that

the property belonged to the Trust and that no right, title or

interest could pass under the alleged sale by Gowthaman to

the respondent.

The appellants then filed an application before the

Subordinate Judge at Erode under Section 92 of the Code of

Civil Procedure for leave to institute a suit to obtain a

declaration that the alienation of the suit property by

Gowthaman to the respondent was null and void and not

binding on the trust and for framing of a proper scheme for

the enforcement of the trust. Both Gowthaman and the

respondent were made parties to this application.

While this application was pending the respondent

filed a petition in the Court of the Rent Controller for

eviction of the appellants from the suit premises on four

separate grounds under Sections 10 (2)(i), 10 (2) (vii), 10

(3)(iii), and 14 (1)(b) (2)(b) of the Act. Section 10(2)(i)

provides for eviction on the ground of default in payment of

rent. The proviso to Section 10(2) allows the Controller, if

he is satisfied that the tenant's default is not wilful, to give

the tenant a reasonable time, not exceeding fifteen days, to

pay or tender the up to date rent due by him to the

landlord. If the tenant avails of this opportunity the

application of the landlord "shall be rejected". The

Explanation to the sub section defines wilful default as

default which continues after the issue of two months'

notice by the landlord claiming rent.

Section 10(2) (vii) allows the landlord to ask for

eviction of the tenant on the ground:

"that the tenant has denied the title

of the landlord or claimed a right of

permanent tenancy and that such denial

or claim was not bona fide."

Under the second proviso to Section 10(1) if the

Controller decides that the tenant's denial of the title of the

landlord or the claim to permanent tenancy is bona fide,

then the landlord is entitled to sue for eviction of the

tenant in a Civil Court which would have the jurisdiction to

pass a decree for eviction on any of the grounds mentioned

in Section 10,14,15 and 16 of the Act, "notwithstanding

that the Court finds that such denial does not involve

forfeiture of the lease or that the claim is unfounded". It is

clear from the language of this proviso, that the Rent

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Controller has only to decide whether there is a bona fide

dispute as to the landlord's title and has no jurisdiction to

decide the issue of title himself. That would be within the

exclusive jurisdiction of the Civil Court.

This was also held in J.J. Lal Pvt. Ltd. & Ors v.

M.R. Murali and Anr where this Court having examined

the relevant scheme of the Act construed the second

proviso to sub-Section (1) of Section 10 and clause (vii) of

sub-Section (2) of Section 10, in the following words:

"The legislative intent appears to

be that denial of title can be decided by

the Controller for the limited purpose of

finding out whether a ground of eviction

is made out but the questions of title

should be left to be determined by the

Civil Court. Once a question of title has

arisen between a landlord and a tenant

and such dispute is bona fide, the doors

of Civil Court are let open to the

landlord and therein adjudication, on

grounds of eviction otherwise within the

domain of the Controller, is also

permitted so as to avoid multiplicity of

suits and proceedings. All the disputes

between the landlord and tenant would

be settled in one forum and the need for

prosecuting two separate proceedings

before two fora would be eliminated".

The third ground for eviction was under Section 10

(3) (iii) which allows the landlord to sue for eviction:

"in case it is any other non-residential

building, if the landlord or (any member

of his family) is not occupying for

purposes of a business which he or

(any member of his family) is carrying

on, a non-residential building in the

city, town or village concerned which is

his own".

The fourth ground on which the respondent sought

the appellants' eviction was under Section 14 (1) (b)

which reads:

14 (1) (b) "that the building is bona

fide required by the landlord for the

immediate purpose of demolishing it

and such demolition is to be made for

the purpose of erecting a new building

on the site of the building sought to be

demolished".

According to the appellants none of these provisions

are applicable to the suit property because it was a

religious endowment and religious endowments have been

exempted from the Act. If this question is decided against

the appellants and we hold that the Act is applicable to the

suit property, even so it is not necessary for the purpose of

this judgment to refer to the pleading or the evidence of

the respondent in support of the first, third and fourth

grounds for eviction because the High Court confined its

decision to the second ground namely whether the

appellants could be said to have denied the landlord's title

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and if so was the denial bona fide. Therefore we limit the

narration of facts to those which are relevant to these

issues.

In the eviction petition the respondent claimed that

the suit premises belonged to S.Gowthaman and that the

respondent had purchased the suit premises on 15th July,

1988 from the said S. Gowthaman since which date the

respondent "has become the absolute owner of the said

building". The appellants filed a counter in which, apart

from denying the grounds urged for eviction, it was claimed

that the property belonged to the said Trust and not to the

respondent as Gowthaman could not have sold the

property to the respondent and that in accordance with

G.O.No.2000 dated 16th August, 1976, religious

endowments like the suit property were exempted wholly

from the operation of the Rent Control Act. It was also

stated that an application under Section 92 CPC had been

filed by the appellants for leave to file a suit in respect of

the Trust properties including the suit premises.

By an order dated 21st September, 1990, the

appellants' application under Section 92 CPC was granted

and the appellants' suit was numbered as O.S. No.539 of

1990 before the Subordinate Judge, Erode. The appellants

brought this fact to the notice of the Rent Controller by

filing an additional counter on 17th January, 1991.

The respondent impugned the order granting leave

under Section 92 before the High Court under Section 115

CPC. The High Court allowed the Revisional Application by

an order dated 23rd August, 1991 and held that the trust

was a religious endowment and religious charity within the

meaning of the Tamil Nadu Hindu Religious and Charitable

Endowment Act, 1959 and that Section 92 of the Code of

Civil Procedure had ceased to apply to Hindu Religious

Institutions and Endowments by virtue of Section 5 of that

Act. The order granting leave under Section 92 was

accordingly set aside and the application of the appellants

under Section 92 CPC was dismissed as not maintainable.

On 4th November 1991 the Rent Controller allowed

the petition of the respondent and directed the eviction of

the appellants from the suit premises. He upheld each of

the grounds of eviction urged by the respondent. The

specific issue viz., "whether the respondents (the

appellants before us) are justified in denying the title of the

petitioner (the respondent before us) to the petition

building" was decided against the appellants on four

grounds:

1) The appellants recognised the

said Gowthaman as the owner

of the building and remitted

rents to him.

2) From the decree passed in

O.S.No.311/85 Sub Court,

Erode, it could be understood

that the petition-building had

belonged to the said S.

Gowthaman.

3) The said S. Gowthaman had

written a letter dated 18.7.1988

to the appellants intimating to

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them that he had sold the

building to the respondent and

that future rents might be paid

by the appellants to the

respondent.

4) The said S. Gowthaman had

sold the petition-building on

15.7.1988 to the respondent.

The Rent Controller refused to go into the question

whether Gowthaman had the right to transfer the suit

property to the respondent because:

"This is Rent Controller (sic)

proceeding. In this summary

proceedings it is not necessary to

find whether S. Gowthaman was

previously entitled to the petition-

building".

The appellants preferred an appeal from the Rent

Controller's decision before the Appellate Authority. The

Appellate Authority allowed the appeal. It found prima facie

that the suit property was covered by the trust which was a

religious public trust and that in terms of G.O. No. 2000

dated 16th August 1976 the Rent Controller had no

jurisdiction to entertain the respondent's application under

the Act. It was also held that the Rent Controller erred in

deciding that the property belonged to S. Gowthaman both

as a matter of fact and of jurisdiction. The Appellate

Authority held that the denial of title of the respondent by

the appellant was bona-fide and that the respondent

should have been directed to establish his claim for eviction

before the Civil Court.

The respondent challenged the decision of the

Appellate Authority before the High Court by way of a

revisional application under Section 115 CPC. By its

judgment dated 17th November, 1998 the High Court

reversed the decision of the Appellate Authority and

restored the decision of the Rent Controller solely on the

issues relating to the Rent Controller's jurisdiction. The

judgment then records:

"Learned counsel for the

respondents request time so as to

enable the tenants to vacate the

premises. Accepting the same, six

months' time is granted to the

respondents from this date on condition

that the respondents should file an

affidavit of undertaking stating that they

would vacate and hand over the vacant

possession of the premises to the

landlord on or before the said period,

without making the landlord to go to the

court for taking possession. Such an

affidavit should be filed on or before

30.11.1998. If such an affidavit is not

filed within the said period, the order of

eviction will come into operation with

immediate effect".

The appellants did not file any undertaking. Instead

they impugned the decision of the High Court by filing a

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special leave petition under Article 136 of the Constitution

on 8th December, 1998. By an order dated 18th January

1999, this Court issued notice to the respondent and

passed an interim order protecting the possession of the

appellants. After hearing the parties, leave was granted

on 29th November, 1999 and interim relief granted earlier

was directed to continue pending the disposal of the

appeal.

Before considering the correctness of the decision

of the High Court, we take up for consideration a

preliminary objection raised by the appellants that the

appellants were estopped from impugning the High Court's

decision because they had requested for time to vacate the

suit premises and such request had been granted by the

High Court. The objection is unsustainable. First, an

objection to the maintainability of the appeal, like other

points of demurrer, may be relevant at the time of the

admission of the appeal. Once the appeal is admitted

without reserving the issue of maintainability and the

matter is heard on merits, such a preliminary objection

does not survive. Second, the appellants had no doubt

requested for a stay of the execution of the decree. That

had been granted by the High Court subject to furnishing of

an undertaking by the appellants to vacate the premises

within a period of six months. The appellants did not in

fact give any such undertaking. Even if they had, they

could not be denied the right to appeal to this Court on any

principle of estoppel unless the respondent could show that

the appellants had thereby gained an advantage which was

otherwise not available to them; for example, if the

appellants had given an undertaking and obtained a stay of

the order of eviction beyond the period allowed for

preferring the appeal or if the landlord had consented not

to execute the decree of eviction in consideration of the

appellants' undertaking to vacate . If such or other like

circumstances exist, this Court may have refused to

exercise discretion in favour of the tenant under Article 136

of the Constitution. Otherwise merely giving an

undertaking does not foreclose a tenant from availing of

any statutory remedies available to him by way of appeal

or revision or under the Constitution.

In this case, no undertaking was in fact given by the

appellants. The question of deriving any advantage by the

appellants on the basis of such undertaking therefore did

not arise at all. In fact the application under Article 136

was filed well within the period of limitation. The

preliminary objection raised by the respondent is

misconceived and is accordingly rejected.

On the merits, we are of the view that the decision

of the High Court cannot be sustained. The basic question

to be decided ( and which should have been decided by the

High Court) was whether the Rent Controller could have

determined his own jurisdiction finally not only with regard

to the applicability of the Act to the suit premises but also

with regard to title of the respondent to the premises.

As we have already noted it was and is the

appellants' case that the suit property belonged to and still

belongs to a religious trust. This assertion forms the basis

not only of their contention that the Act does not apply to

the suit property but also of their denial of the respondent's

title to it. In the case before us, the Rent Controller did

not address himself at all to this basic fact. Consequently,

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he did not express any view on the question of the

applicability of the Act to the suit premises. The Appellate

Authority no doubt filled in the lacuna by holding, albeit

prima facie, that the suit property belonged to the Trust

and that the Act did not apply to the suit premises. The

High Court erred in reversing this prima facie view.

The High Court in the impugned judgment has

found that the suit property was covered by the Trust

deeds in the following words: (wherein the appellants are

referred to as the respondents and the respondent as the

petitioner)

"Though the learned Senior Counsel

for the petitioner has initially raised

a dispute that the property in

question is not the subject matter

of the trust deed, after the

clarification by the learned senior

counsel for the respondents that

the property has been included in

the trust deed, the learned senior

counsel for the petitioner is not in a

position to substantiate his stand

with respect to the same."

The Trust deeds in question had been construed by

the Madras High Court itself while allowing the revision

application filed by the respondent against the order

granting leave to the appellants to sue under Section 92 in

respect of the suit property. It had been held that the Trust

deeds showed that "the endowment is a religious

endowment or religious charity within the meaning of the

Tamil Nadu Hindu Religious and Charitable Endowments

Act, 1959".

Under the Endowments Act, the supervision and

administration of "religious endowments" are vested in a

hierarchy of officials consisting of the Commissioner, Joint

Commissioner, Deputy Commissioner and Assistant

Commissioner. The Endowments Act contains elaborate

provisions inter-alia for the maintenance and alienation of

immovable property of a religious endowment. Section 5 of

the Endowments Act provides for certain Acts not to apply

to Hindu Religious Institutions and Endowments. The

excepted enactments include Section 92 of the Code of Civil

Procedure, 1908. Section 108 of the Endowments Act

provides:

"Bar of suits in respect of

administration of management, or

religious institutions, etc. No suit or

other legal proceedings in respect of the

administration or management of a

religious institution or any other matter

or dispute for determining or deciding

which provision is made in this Act shall

be instituted in any Court of Law, except

under, and in conformity with, the

provisions of this Act".

In other words, by Section 5 and 108 of the

Endowments Act, the jurisdiction which would otherwise

have vested in the Civil Courts to grant relief under

Section 92 CPC in respect of public, religious or charitable

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trusts has been taken away and vested in authorities

constituted under the Endowments Act.

Perhaps because of the special procedure to be

followed in respect of religious endowments, a notification

was issued by the State Government in exercise of powers

under Section 29 of the Act to exempt any building or

class of buildings from all or any of the provisions of the

Act. The notification was issued on 16th August, 1976 and

reads as follows:

"(G.O. Ms No.2000, Home, August 16,

1976) No. II(2)/HO/4520/76.- In

exercise of the powers conferred by

Section 29 of the Tamil Nadu Buildings

(Lease and Rent Control) Act, 1960

(Tamil Nadu Act 18 of 1960), and in

suppression of the Home Department

Notification No. II(2)/HO/3811/74,

dated August 12, 1974, published at

page 444 of Part II Section 2 of the

Tamil Nadu Government Gazette,

dated August 12, 1974, the

Government of Tamil Nadu hereby

exempts all the buildings owned by the

Hindu, Christian and Muslim religious

public trusts and public charitable

trusts from all the provisions of the

said Act."

The constitutional validity of this notification has

been upheld by this Court in S. Kandaswamy Chettiar V.

State of Tamil Nadu and Another 1985 (1) SCC 290.

But, say the respondents, this did not mean that the suit

property was exempt from the provisions of the Act,

because there was nothing on record to show that the

Trust created by Venkata Naicker was a Public Trust within

the meaning of the exemption notification. The submission

is unacceptable. There was on record the two Trust deeds

as also the earlier decision intra-partes on the effect and

scope of the deeds. Since the High Court had, on a

construction of the Trust deeds, held that the Trust was a

"religious endowment" or "religious charity", within the

meaning of the Endowments Act, it cannot be said without

more having regard to the definition of those words in the

Endowments Act, that the claim of the appellants to be

covered by the said exemption, notification was patently

wrong or unfounded.

'Religious endowment' has been defined in Section

6(17) of the Endowments Act, as follows:

"'Religious endowment' or 'endowment'

means all property belonging to or

given or endowed for the support of

maths or temples, or given or endowed

for the performance of any service or

charity of a public nature connected

therewith or of any other religious

charity; and includes the institution

concerned and also the premises

thereof; but does not include gifts of

property made as personal gifts to the

archakas, service-holders or other

employees of a religious institution."

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"Religious charity" has been defined in Section

6(16) as:

"religious charity" means a public

charity associated with a Hindu

festival or observance of a religious

character, whether it be connected

with a math or temple or not"

In the judgment impugned before us, the High

Court relying upon three decisions came to the conclusion

that in the earlier decision, no issue had been raised and

therefore no decision had been taken with regard to the

nature of the Trust so as to operate as res judicata

between the parties. According to the High Court:

"The issue raised in the decision in

1992-I-MLJ-109 (supra) is only as to

whether the respondents are entitled

for leave to file the suit, and that was

rejected, and the apex court also

confirmed the said order and so it

cannot be said that the learned Judge

has decided as to whether the trust in

question is a public trust or not".

This conclusion proceeds on a misreading of the

earlier decision. In the revision application, it was the

respondent who had specifically raised the issue that the

Trust was covered by the Endowments Act and, therefore,

Section 92 CPC did not apply. The High Court accepted this

submission. The High Court was of the view that there was

no necessity for any other evidence to be led for the

purpose of deciding the character of the Trust as it was a

pure question of law which depended on the terms of the

Trust deed. It was because the High Court came to the

conclusion that the Trust was a religious endowment or

religious charity within the meaning of the Endowments Act

that it dismissed the application filed by the appellants for

leave under Section 92 of the Code of Civil Procedure. In

fact, the only basis for rejecting leave under Section 92 CPC

was that the Trust documents created a 'religious

endowment' or 'religious charity' within the meaning of

Endowments Act and, therefore, the provisions of the

Endowments Act and not Section 92 of the CPC would

apply. The decision on the construction of the deeds of

Trust is res adjudicata and binds the parties. The three

decisions referred to by the High Court for arriving at a

contrary conclusion are inapposite and do not support the

conclusion reached by the High Court. The first was a

decision of the Full Bench of the Punjab and Haryana High

Court on Article 141 of the Constitution . The second was

the minority view expressed at paragraph 55 of the Report

and the third was not a decision on the principles of res

judicata at all.

In any event and at the very least, the earlier

decision of the High Court on the construction of the Trust

deeds could be said to have established a real possibility of

the suit property being covered by the exemption

notification and, therefore, outside the ken of the Rent

Controller. However, it is also not for us in this appeal to

decide the issue as to the applicability of the Act to the suit

property finally. It is sufficient for the purposes of allowing

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the appeal on this issue to hold that there was prima facie

support for the stand taken by the appellants in the form of

the unimpeached documents relating to creation of a Trust,

the admitted inclusion of the suit property in those

documents and the unchallenged decision intra-partes that

the suit property was part of a religious endowment or

religious charity within the meaning of the Endowments Act.

Our decision on the second and third questions

raised by the appellants relating to the denial of the

respondent's title to the suit property under Section 10

(2)(vii) of the Act follows to a large extent from the

discussion in the previous paragraphs. If the suit property

was covered by the Trust deeds, as the High Court itself has

held, the next step would necessarily be to find out how

the suit property came to be in the hands of Gowthaman.

What the appellants were challenging was not only the

immediate title of the respondent but also the title of his

predecessor-in-interest, Gowthaman, to the suit property.

This they were entitled to do without offending Section

10(2)vii).

This Court has recently held that Section 10(2)(vii)

is based on "the rule of estoppel contained in Section 116

of the Evidence Act which estops the tenant from denying

the title of the landlord at the commencement of the

tenancy and the estoppel continues to operate so long as

the tenant does not surrender possession over the tenancy

premises to the landlord who inducted him in possession.

The tenant is not estopped from denying the title of the

landlord if it comes to an end subsequent to the creation of

the tenancy nor is he estopped from questioning the

derivative title of a transferee of his landlord" .

(Emphasis added)

It is nobody's case that the appellants were

inducted by Gowthaman from whom the respondent

derived his interest in the property. The High Court noted

that "the rent receipts were given originally in the name of

E. Venkata Naicker Trust, Erode/E.V. Krishasami Sons

(management)". Therefore, the appellants were inducted

as tenants by the Trust. If the suit property was part of the

Trust, the appellants could validly raise the questions viz.

how did the property come to be transferred by the Trust

to Gowthaman? What was the validity of the transfer, if

any? What was the nature of the interest which

Gowthaman had in the suit property? Was it qua trustee or

qua owner? If it was that of a trustee, could he have,

legally and in terms of the Trust deed, transferred the suit

property to the respondent? Yet the Rent Controller

refused to go into any of these questions although they

were squarely raised by the appellants before him. Instead

he decided the title of Gowthaman on the basis of a

partition deed between the heirs of Venkata Naicker and

rent receipts granted to the appellants by Gowthaman as

proprietor. The Rent Controller could have only decided (i)

whether there was a dispute regarding the landlord's title

raised by the tenant and (ii) whether the dispute was bona-

fide the bona fides being established prima facie, by

evidence in support of the tenant's stand. The Rent

Controller could not have ignored the questions relating to

the derivative title of the respondent. He could not have

finally decided the issue of title of the respondent to the

suit property, nor could he have, on that basis, find that

the appellants' denial of the respondents title not bonafide.

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"To operate against the tenant as proving a ground for

eviction under Section 10 of the Act, a mere denial of the

title of the landlord is not enough; such denial has to be

"not bona fide". "Not bona fide" would mean absence of

good faith or non-genuineness of the tenant's plea".

The High Court upheld the title of the respondent on

the basis of the definition of "landlord" in the Act which

reads:

" '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

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 impugned judgment is erroneous. It failed to

consider that the appellants had denied the derivative

title of the respondent and that this would not afford a

ground for eviction under Section 10(2)(vii) of the Act.

The High Court also failed to examine the issue from the

perspective and from within the confines of the Rent

Controller's limited jurisdiction.

The High Court found that:

"admittedly, from 1984, accepting the

said Gowthaman as the proprietor of

the property the rent has been paid"

and therefore came to the conclusion that:

"In view of the abovesaid specific

definition under the said act, the said

Gowthaman either as a person who is

entitled to receive the rent or as the

trustee, should be construed as the

landlord, and he issued the notice to

the tenants to pay the rent to the

petitioner, and so notwithstanding the

sale in favour of the petitioner in

respect of the property in question,

the petitioner should be construed as

the landlord as he has been

authorised to receive the rent by a

notice dated 18.7.1988 issued to the

tenants by the said Gowthaman, and

thereby he is entitled to maintain the

eviction petition in the capacity as

landlord".

The High Court's reasoning was far removed from

the pleadings of the respondent. The respondent had

claimed that Gowthaman was the absolute owner of the

suit property and that such absolute interest had been

purchased by the respondent. Given this pleading the

respondent could not be allowed to set up a different case

and take shelter behind the definition of 'landlord' in the

Act. The definition of 'landlord' is an enabling provision in

the sense that it enables persons who are not the owners

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to ask for eviction under the Act. But it does not mean

that a person who has claimed to be the landlord qua

owner can jettison his case as pleaded in his eviction

petition and establish his claim on the basis that he was

otherwise entitled to claim as landlord of the suit

premises. As held in M/s Trojan & Co. V. RM

N.N.Nagappa Chettiar. "It is well settled that the

decision of a case cannot be based on grounds outside the

pleadings of the parties and it is the case pleaded that has

to be found".

To sum up: we hold that there was a bona fide

dispute as to title raised by the appellants and, therefore,

the Rent Controller did not have jurisdiction to hear and

finally adjudicate upon the application filed by the

respondent before it. However we clarify that this finding

is limited to the issue of the Rent Controller's jurisdiction

and shall not preclude the respondent from approaching

a competent Civil Court for determination of the issue

finally and no observations made in this judgment will

prejudice the trial of this or any other issue that the

respondent may raise on merits. Subject to this

observation, for all the reasons stated earlier, we set aside

the impugned decision of the High Court and allow the

appeal. There will be no order as to costs.

J.

(R.C. Lahoti)

..J.

(Ruma Pal)

May 8, 2002