Amareswari, J.:-

(1) Ccc a no 111 of 198]: - this is a defendant's appeal against the judgment and decree of the first additional judge, city civil court, hyderabad dated 27 - 6 - 1981 in o s no 1 of 1977.

(2) Plaintiff is the owner of the premises bearing no 10 - 1 - 175/1, masab tank, hyderabad. He let out the same to the defendant in 1977 under an oral agreement on a monthly rent of rs. 900/ -. On the allegations that the defendant was not paying rents regularly and he became due in a sum of rs. 10,800/ - and he let out the premises without permission, the plaintiff terminated the tenancy by notice dated 4 - 10 - 1975 and thereafter filed the suit, out of which this appeal arises for recovery of possession and mesne profrts.

(3) The defendant resisted the suit contending inter alia that he is not the tenant that he is one of the directors of m/s. Maya strap private limited and the suit premises was given on rent to the said company. He also took the plea that the rents were in fact, paid and there were no arrears. He admitted about receiving the notice, but took the stand that since he is not the tenant, he has nothing to do with the notice, the tenancy of the company had not been terminated and the same is subsisting and neither he nor the company is in unlawful possession.

(4) On these pleadings, the trial court framed as many as 9 issues, out of which the following are relevant:

1. Whether there is no valid notice as contemplated under section 106 of the transfer of property act? (issue no 4). 2. Whether the tenancy is not determined by the plaintiff at all? (issue no 6).

(5) Both sides adduced oral and documentary evidence. The court found on all the issues in favour of the plaintiff and against the defendant and decreed the suit for possession and mesne profits by judgment and decree dated 27 - 6 - 1981.

(6) Aggrieved thereby, the defendant preferred the above appeal. During the pendency of the appeal, the supreme court struck down section 32 (b) of the andhra pradesh buildings (lease, rent and eviction) control act, 1960 by which all buildings constructed on and after 26 - 8 - 1957 were exempted from the operation of the rent act as violative of article 14 of the constitution of india in motor general traders vs. State of andhra pradesh (1) air 1984, supreme court, page 121. While striking down the section, the supreme court observed that it was open to the state government to grant exemption for a limited period of time either by amending the act or by issuing a notification under section 26 of the act. Pursuant to the said observations, the state government issued g o ms no 636 dated 29 - 12 - 1983 exempting all buildings from the operation of the rent act for a period of 10 years from the date of their construction.

(7) When the matter first came before us. Mr. J. Eswara prasad, the learned counsel for the appellant contended that the civil court has no jurisdiction to entertain the suit and pass a decree in view of the fact that the period of exemption for 10 years had expired during the pendency of the suit. In support of his contention, he relied upon a judgment of the supreme court in vineetkumar vs. Mangal sain (2) air 1985 supreme court page 817, and also two judgments of this court in kerala transport co vs a. Kumar agarwal (3) 1985 (ii) alt page 352 and k d j vithalani vs b. Kameswara rao (4) 1986 (i) alt page 83 in which it was held that the suit lapses after the expiry of the exemption period" and the provisions of the rent control act would be attracted.

(8) On the other hand, mr c. Poornaiah, the learned counsel for the respondent contended that since the suit was filed during the period of exemption, any decree obtained in such suit is free from the fetters of section 10 and the parties are governed by the law as existing on the date of the institution of the suit. For this proposition, he relied upon a judgment of the supreme court in nand kishore vs. Samundri devi (5) air 1987, supreme court, page 2284.

(9) In view of different shades of opinion expressed by the supreme court as well as this court, we referred the case for a decision to a full bench in the first instance on 5 - 8 - 1988. But subsequently, the supreme court in another judgment in atma ram vs ishwar singh (6) air 1988, supreme court; page 2031 reiterated the view taken by them in nand kishore vs samundri devi. (5) in view of these two decisions the case is again posted before us for appropriate orders. Having regard to the latest decision of the supreme court, we thought it was unnecessary to place the matter before a full bench. We discharge the order dated 5 - 8 - 1988 and propose to decide the appeal ourselves.

(10) In the plaint it was averred that the suit premises was constructed in 1968. There is no denial in the written statement about this fact. The trial court also referred to this fact in the judgment even in this appeal, there is no allegation to the contra. There is no application for amendment of the written statement. Therefore, we have take it that the premises was constructed in 1968. The learned counsel for the appellant no doubt submitted that there is no finding on this aspect and the allegation was not denied in the original affidavit as it was not necessary at that time. But as we observed supra, even in this appeal there is no application for amendment of the written statement.

(11) By g o ms no 636 the government exempted all buildings for a period of 10 years from the date of their construction. For the appellant it is contended that this g o is only prospective and applies to buildings constructed subsequent to the date of the g o i. E. , 29 - 12 - 1983 and does not apply to buildings constructed prior thereto. We do not find any force in this submission. Interpreting a similar provision in the utter pradesh urban buildings (regulation of letting, rent and eviction) act, the supreme court in om prakash vs dig vijendrapal (7) air 1982, supreme court, page 1230. Held that the exemption would embrace all buildings irrespective of the date of construction i. E, whether the building was constructed prior or subsequent to the act. The same view was taken by a division bench of this court in sr. Administrative and a o. , amd. Department vs e p b. Manian (8) air 1985, andhra pradesh, page 96.

(12) It is therefore clear that all buildings are exempt for a period of ten years from the date of construction irrespective of the fact whether they are constructed prior to g o ms no 636 dated 29 - 12 - 1983 or subsequent thereto. The suit premises was constructed in the year 1968. Hence the exemption operates till 1978. The suit was filed in 1976 during the period of exemption. Now the question for consideration is what happens to the suit after the exemption period expires.

(13) In vineet kumar vs. Manga sain (2) , the supreme court held that the premises which was not 10 years old on the date of the suit and was exempt from the operation of the new rent act can be governed by it if 10 years period expired during the period of litigation and the moment a building becomes 10 years old from the date of completion, the rent act would become applicable. As per the ratio of this decision, the rent act would become applicable to the building from the date of expiry of the ten years period.

(14) Following this decision one of us (amareswari, j) in k d j. Vithalani vs b. Kameswara rao (4) 1986 (1) alt page 83 held that the civil court has no jurisdiction to deal with the suit as the building is no longer covered by exemption and referred the parties to ssek redress before the rent controller.

(15) A similar view is taken by a division bench of this court in kerala transport co. Vs a. Kumar agarwal. (3) 1985 (ii) alt page 352. This decision undoubtedly support the contention of the learned counsel for the appellant.

(16) But, later the supreme court had taken a different view in nand kishore vs. Samundri devi (5) air 1987, supreme court, page 2284. In this case, the suit for eviction was filed during the period of exemption which expired during the pendency of the suit. The tenant raised the contention that the decree for eviction could be passed only on the grounds mentioned under the new rent act. Reliance was placed on vineet kumar vs. Mangal sain (2) air 1985, supreme court page 817. But the landlord contended that the rights of the parties will be governed on the basis of the date on which the suit was filed and if on the date on which the suit was filed the provisions of the rent act were not applicable, then merely because the proceedings have been pending for 10 years, it cannot be said that the decree cannot be passed. The landlord relied upon firms amar nath basheshar dass vs. Tek chand (9) air 1972,suprerne court, page 1548. It was also contended that vineet kumar's case does not refer to this decision which is a decision by a bench of three judges. In para 13 of the judgment, after considering the rival contentions, the supreme court held as follows :

" it is well settled that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit."

The supreme court referred to vineet kumar's case and observed that the said decision had not taken note of the earlier decision of the supreme court in om prakash gupta vs. Dig vijendrapal gupta (7) air 1982, supreme court, page 1230. The court finally held that if a suit is filed during the period of exemption and if the 10 years of exemption expired, the suit will be governed by the rights of the parties as available to them on the date of the institution of the suit. So holding, the tenant's contention that he should be given the advantage of the provisions of the new act was rejected and the decree of eviction was upheld. Thus the supreme court departed from the view expressed in vineet kumar's case.

(17) The same view is reiterated with greater emphasis in atma ram vs. Ishwar singh. (6) the facts in this case are almost identical with the facts of the case before us. This case arose under the haryana urban (control of rent and eviction) act (11 of 1973). The landlord filed a suit for recovery of possession after terminating the lease. The building was exempt for a period of 10 years from the date of construction. Section 13 of the haryana act says that the tenant in possession of a building shall not be evicted therefrom except in accordance with the pro\isions of the section. The section thereafter enumerates the grounds upon which eviction is permitted which are more or less similar to the grounds of eviction in the andhra pradesh rent act. The period of exemption expired during the pendency of the suit and the defendant filed a petition to dismiss the suit on the ground that it is not maintainable after the expiry of the period of exemption and the jurisdiction of the civil court stands barred. The civil court held that it was not necessary for a decree to be passed within 10 years and dismiss the tenant's application. The tenant carried the matter in revision to the high court. The high court allowed the tenant's revision holding that since ths building came within the operation of the act, the civil court has no jurisdiction. The tenant's application was allowed and the suit was dismissed

(18) Then the matter came up to the supreme court at the instance of the landlord. After referring to vineet kumar's case and nand kishore's case the supreme court held that the rights of the parties crystalised on the date of the institution of the suit and that exemption would apply for a period of 10 years and will continue to be available until suit for eviction is disposed of or adjudicated. When once the rights crystalised the adjudication must be in accordance with law. The court referred to broom's maxim "actus curia nominem gravibit" i. E. , that no man should suffer because of the fault of the court or delay in procedure. Having regard to the time normally consumed for adjudication, the 10 years exemption or holiday from application of the rent act would become illusory if the suit has to be filed within that time and disposed of finally.

(19) Reference was made to vineet kumar's case and the same was explained saying that vineet kumar's case had not noted the earlier decision reported in om prakash vs. Dig vijendrapal (7). Air 1982, supreme court, page 1230. This decision clearly lays down that the provisions relating to eviction would not be applicable to a suit instituted within the 10 years period of exemption.

(20) Following this decision of the supreme court we reject the contention that the civil court has no jurisdiction to continue the suit. The two decisions of this court in k. D. J. Vithalani vs. B. Kameswara rao (4) 1986 (1) a l t page 83 and kerala transport co. Vs. A. Kumar agarwal (3) 1985 (ii) alt page 352 taking a contrary view following the decision of the supreme court in vineet kumar's case no longer represents the correct legal position in view of the two later decisions of the supreme court which are binding on us.

(21) Mr. Eswara prasad, streneously contended that the decision in atma ram vs. Ishwar singh (6) air 1988, supreme court, page 2031. Is rendered on the basis of the provisions contained in the haryana urban (control of rent and eviction) act which is different from section 10 of the andhra pradesh rent act. He argued that section 10 of the andhra act is more drastic in asmuch as it says that even in execution of a decree the tenant cannot be evicted otherwise than in accordance with the provisions of the act. No doubt section 10 uses the word "decree". But section 13 of the haryana act also says that the tenant in possession of a building shall not be evicted therefrom except in accordance with the provisions of that section. The only difference is that the words "either in execution of a decree or otherwise" are absent in the haryana act. But in our opinion that would not make any difference in principle namely, that parties are governed by the rights which accrued to them on the date of institution of the suit. Section 13 would not apply to a case which was instituted during the period of exemption and such suits would be governed by the law existing on the date of the suit. The position would be that if a suit is filed within the period of exemption, any decree passed in that suit would be a valid decree, and the provisions of section 13 would not be applicable to such decrees.

(22) In ram saroop rai vs. Lilavati (10) a i r. 1982, supreme court, page 945. Krishna iyer, j. , observed as follows : -

"the legislature found that rent control law has a chilling effect on new building construction, and so, to encourage more building operations, amended the statute to release, from the shackle of legislative restriction, "new constructions" for a period of ten years. So much so, a landlord who had let out his new building could recover possession without impediment if he instituted such proceedings within ten years of completion. "

(23) If we take stock of suits filed in this state against tenants for recovery of possession of the buildings we find that very few suits are disposed of within 10 years. Even if they are disposed of within 10 years, they are pending in appeals. No suit is finally decreed within a period of 10 years. The very case before us is an illus. Tration. The suit was filed in the year 1977 and we are now in 1988. Though the suit is disposed of the appeal is pending in 1988. The appeal is a continuation of the suit and if the immunity from the operation of the act is made dependant upon the ultimate disposal of the case within a period of 10 years, it will be an impossibility in reality. The meaningful construction would therefore be that the exemption would apply for a period of 10 years and will continue to be available until the suit is disposed of or adjudicated finally and the decree passed in such a suit is free from the fetters of section 10. We therefore, reject the contention of the appellant that the civil court has no jurisdiction to entertain the suit.

(24) The second submission of mr. Eswara prasad is that there was no valid notice as contemplated under section 106 of the transfer of property act. According to him, the defendant is not the tenant of the suit premises and it has been let out to m/s. Naya strap private ltd. , of which he is only a director,

(25) D w 1 deposed that before the building was taken on lease, he started his factory at pattancheru and he was in need of a house for residence as well as for his registered office. Under ex. B - 16 receipt, he paid rs. L,000/ - as advance and the plaintiff passed the receipt. D w. 1 was paying the rents since the date of occupation. But d. W. 1 did not intimate the plaintiff that the premises is required for the registered office of the company. Ex. B - 20 (a) pertain to the minutes dated 14 - 9 - 1973. There is a reference about the suit building being suitable to locate the registered office. In the minutes, it was mentioned that the rent agreed was rs. 900/ - per month. But it was not mentioned that d w. 1 paid an advance of rs. 2,000/ - under ex. B - 16. D w. 1 did not intimate the plaintiff that the board resolved to take the premises for the registered office of the company. He did not inform the plaintiff that the terms were confirmed by the board of directors. The talks with the owner and the payment of advance was prior to the board's meeting. Exs. A - 4 and a - 5 are suit notices sent by the plaintiff to the defendant. Ex. A - 6 is the postal acknowledgment. Exs. A - 4 and a - 5 are addressed in person. The defendant did not give any reply clarifying that he is not ths tenant, but the company is the tenant. There is no evidence to show that the board is aware that an eviction case is pending against them in rcspect of the suit house and d w. 1 did not bring it to the notice of the company about the notices exs. A - 4 and a - 5. There is absolutely no material to show that even prior to the filing of the suit also, he informed the plaintiff that the company is the tenant and not he in his individual capacity. Tenancy was started in october, 1973. Ex. B - 14 is the receipt for october, 1975. The plaintiff addresses d w. 1 in person and he did not refer to him as the managing director of the company. Ex. B - 15 is the reply sent to ex. B - 14 which was sent by the defendant in his name r k. Gupta and not in his capacity as the managing director of the company. If really the company was the tenant, the defendant would have sent ex. B - 15 that the company is the tenant and the plaintiff should not address him personally in that regard. The defendant as d w. 1 admits that in ex. A - 7 he did not state that the company is the tenant. He also admitted that ex. A - 9 was on the company's letter - head, but was addressed by him in his individual capacity. Ex. A - 10 was addressed by him in his individual name. He wrote ex. A - 12 to the plaintiff as managing director, but he did not sign it as managing director. He admits about having sent exs. A - 7 to a - 9, a - 12 to a - 14 and a - 16 and they were signed by him. He received the original of ex. A - 15, but he did not send any reply.

(26) The plaintiff as p w. 1 stated that the premises was given to the defendant for his residence. Ex. A - 4 is the termination notice dated 6 - 5 - 76. Ex. A - 5 is another notice dated 4 - 10 - 1,976, ex. A - 6 is the postal acknowledgment for ex. A - 5. Ex. A - 7 is a letter by the defendant accepting the rent paid and giving the account position. Ex. A - 8 is the statement enclosed to ex. A - 7. Ex. A - 9 is another letter by the defendant dated 1 - 9 - 1974 admitting certain dues and explaining the delay. Ex. A - 10 is the office copy of the plaintiff's letter dated 3 - 9 - 1974. Ex. A - 11 is the telegram by the defendant that he apologis for inconvenience caused to the plaintiff. Ex. A - 12 is the letter by the defendant dated 6 - 12 - 1974 enclosing a draft for rs 6,000/ -. Ex. A - 13 is a letter by the defendant dated 17 - 2 - 1975 sending cheques for 2 months rent. Ex. A - 14 dated 1 - 4 - 1975 is a letter by the defendant written in his personal capacity. Ex. A - 15 is the office copy of the reply dated 1 - 4 - 1976 by the plaintiff. Ex. A - 17 is the office copy of the letter by the plaintiff dated 14 - 7 - 1977. Ex. A - 18 is the office copy of the letter by the plaintiff dated 20 - 9 - 1977. Ex. A - 19 is the letter by his advocate about the correct position of the dues to which ex. A - 20 was the reply given. P w. 1 stated that he did not let out the suic building to m/s. Naya strap pvt. Ltd. Though ex. A - 16 and other letters were written on the letter - head of m/s. Naya strap pvt. Ltd. , the defeendaat signed them in his personal capacity and not as company director. Before the legal notice was issued he did not protest officially. It might be that the cheques were issued from the account of the company and not from the personal account of the defendant. Even though the defendant had taken the premises for his residential accommodation in 1973, no material was placed to show that rs. 1,000/ - was paid as advance from the funds of the company. The mere fact that the subsequent rents have been paid from out of the funds of m/s. Naya strap pvt. Ltd , is not by itself sufficient to hold that the defeadant was not the tenant. Even if the company has been paying the rents, there is nothing unnatural because the defendant happens to be the managing director of the company and that by itself is not sufficient particularly when it transpired from evidence that it was the defendant that took the premises on lease. The documentary evidence establishes that the tenancy took place between the plaintiff and the defendant and the premises was let out for residential occupation. The fact that subsequently m/s. Naya strap pvt. Ltd. , registered office has been located in the suit premises does not mean that the defendant is not the tenant. The defendant is estopped by his conduct from taking the plea that he is not the tenant in not giving any reply to exs. A - 4 and a - 5 that the termination notice issued in his personal name is bad in law as he is not the tenant.

(27) We agree with the trial court in this regard and hold that it was the defendant that took the suit premises for his residential purpose and the plaintiff did not let out the suit premises to the company of which the defendant is one of directors. The termination notice is in - conformity with the provisions of section 106 of the transfer of property act. Hence, we have no doubt in rejecting the contention of the appellant - defendant that the notice is bad in law or that there was no notice to the real tenant.

(28) In the result, we confirm the decree and judgment of the court balow and dismiss this appeal. In the circumstances, each party to bear its owa costs.

(29) W a no 983 of 1986: - we next come to the writ appeal. Daring the pendency of the appeal, the plaintiff - respondent filed an application before the government for exempting the suit building from the provisions of the act. The government after issuing a show - cause notice to the plaintiff - landlord and the defendant - tenant, granted exemption observing that the request of the landlord is bonafide and genuine. We have no doubt in our mind that the impugned g o. Dated 15 - 7 - 1986 exempting the building from the provisions of the act is wholly without jurisdiction. The g o merely recites that the landlord is adversely affected by virtue of the various proceedings in the court. The reason given is unsustainable. The learned single judge has not dealt with this aspect of the case at all. We therefore, allow this writ appeal and quash the impugned g o. The dismissal of the writ appeal does not in any way affect the decree and judgment in the appeal or in the suit.

(30) In the result, c c c a no. Iii of 1981 is dismissed and writ appeal no. 983 of 1986 is allowed. Each party to bear its own costs in both the proceedings.

(31) Having regard to the fact that the defendant is doing business in the premises for over 15 years, we grant him six months time to vacate the premises.