ISABELLAJOHNSON Vs. M A SUSAI
SUPREME COURT OF INDIA (FROM: ANDHRA PRADESH)
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Kania, J. -
(1.)This is an appeal by special leave from the decision of a learned single Judge of the Andhra Pradesh High Court in Second Appeal No. 526 of 1977.
(2.)As we are, with respect, in agreement with the conclusions arrived at by the learned single Judge of the High Court, we propose to set out only the bare facts essential for the purposes of our judgment.
(3.)The appellant was the plaintiff and the respondent was the defendant in Suit O.S. No. 789 of 1973 filed in the Court of the Third Assistant Judge, City Civil Court, Hyderabad. The appellant prayed for a decree for recovery of possession of the suit premises from the respondent and for mesne profits till the delivery of possession of the premises. The case of the appellant was that she was the owner of the suit premises and the respondent was in the occupation of the said premises on payment of Rs. 301- per month. The respondent had been irregular in the payment of the said rent and had been a source of perpetual nuisance. It was on this ground that the eviction of the premises was sought by the appellant. In his written statement the respondent took a preliminary objection that the City Civil Court had no jurisdiction to entertain the suit as the suit fell within the jurisdiction of the Rent Controller at Hyderabad. Two petitions had earlier been filed by the appellant before the Rent Controller for eviction of the respondent and the Rent Controller had rejected the same on the ground that the purported tenancy of the respondent was hit by S. 3 of the A.P. Rent Control Act and hence, the eviction suit was not entertainable by the Court of Rent Controller. This conclusion was arrived at on a plea to the said effect taken by the respondent. In the Court of learned Third Assistant Judge of the City Civil Court at Hyderabad the respondent took up the plea that the suit fell exclusively within the jurisdiction of the Rent Controller and hence the City Civil Court ' had up jurisdiction to entertain the suit. Certain pleas were made regarding amendments in the law with which we are not concerned in this appeal. What is material to'note for our purposes is that the learned Assistant Judge took the view that as the respondent had, before the Rent Controller, taken up the plea that it was not the Rent Controller but the City Civil Court which had the jurisdiction to entertain the eviction petition against him, and the said plea was upheld, it was not open to the respondent to take up the inconsistent plea before the City Civil Court that it was the Rent Controller and not the City Civil Court which had jurisdiction to entertain the proceedings. It was held that the respondent could not be allowed to approbate and reprobate and that he was estopped by way of pleading to take up an inconsistent plea regarding jurisdiction.
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