SHAMA PRASHANT RAJE Vs. GANPATRAO

JUDGEMENT

(1.) Leave granted.

(2.) This appeal is by the tenant assailing the order of the learned Single Judge of the Bombay High Court, at Nagpur Bench, as well as the judgment of the Division Bench affirming the same. The Single Judge of the High Court in a Petition under Articles 226 and 227 of the Constitution interfered with the judgment of the Appellate Authority under the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949. The question for consideration is whether in the facts and circumstances of the present case the High Court was justified in interfering with the findings of the Appellate Court under the Control Order The respondent-landlord filed an application before the Rent Controller under Clause 13(3)(ii), (iii) and (vi) of the Rent Control Order seeking permission to determine the tenancy of the appellant, inter alia on the ground that the tenant is a habitual defaulter and has sub-let the premises and further, the landlord needs the premises for bona fide use. The Controller, on the basis of pleadings of the parties formulated five issues and came to the conclusion that the tenant is a habitual defaulter; the tenant has sub-let the premises to the Sewing Machine firm and the need of the landlord is bona fide. With these conclusions the Controller granted permission for determining the tenancy of the tenant under Clause 13(3)(ii), (iii) and (vi) of the Control Order. On an appeal, being carried under Clause 21 of the aforesaid order, the Collector and Additional District Magistrate, who is the Appellate Authority, under the Control Order set aside the findings of the Controller on all the three issues and came to hold that the tenant cannot be held to be a habitual defaulter, that the landlord has failed to establish that the tenant has sub-let the premises and that the bona fide need has vanished as the need indicated in the application being for the business of his son and the son died in the meantime. Consequently, the appeal was allowed and the premission granted by the Controller was set aside. The landlord assailed the legality of the order of the Appellate Authority by filing a Writ Petition in the High Court. The learned single Judge by judgment dated 26th February, 1998, came to the conclusion that the Appellate authority committed error apparent on the face of the order in setting aside the finding of the Controller on the question of habitual default by taking into consideration that a sum of Rs. 2,000/- had been sent by the tenant to the landlord by money order and the said money order was refused. Though the money order form itself do not indicate the period for which the money was being sent. The learned single Judge also came to hold that the default rent for the period September, 1984 to November, 1984 was paid in December only after the landlord obtained Distress Warrant from the Civil Court and not on his own, and, therefore, the conclusion of the Appellate Authority under the Control Order is, on the face of it, erroneous. So far as the finding of sub-letting is concerned, the learned single Judge considered the so-called agreement between the tenant and the Singer/Merit Company, and on construction of the terms of agreement it was found that the agreement though nomenclatured as a consignment dealership, but is nothing but a subletting, particularly when the tenant/respondent stays at Dombivali and it is the company which is in exclusive possession of the premises and transacting the business giving the tenant a rent of Rs. 1,500/- p.m. terming the same to be commission. With these conclusions the learned single Judge of the High Court interfered with the order of the Appellate Authority and affirmed the order of the Controller thereby granting permission to the landlord under Clause 13(3)(ii) and (iii) of the Rent Control Order. The tenant being aggrieved by the order of the learned single Judge, approached the Division Bench in appeal when the Division Bench agreed with the reasonings of the learned single Judge and did not find any reason to interfere with the same. The Division Bench, however, took into consideration an additional factor that the premises are under lock and key and not being used for 2 to 4 years.

(3.) Mr. M. L. Verma, learned senior counsel, appearing for the tenant-appellant vehemently contended that the High Court exceeded its jurisdiction under Articles 226 and 227 of the Constitution in interfering with the findings of fact arrived at by the Appellate Authority under the Control Order by re-appreciating the evidence, and therefore, the judgment of the High Court is liable to be set aside. He also further contended that the conclusion of the High Court that the plea of sub-letting has been established is contrary to the several decisions of this Court in as much as to establish sub-letting it must be found that the tenant has parted with the possession of the premise and such possession must be backed by some consideration. In support of the aforesaid contention the learned counsel placed reliance on the decision of this Court in Dipak Banerjee v. Lilabati Chakraborty, (1987) 4 SCC 161 ; Jagan Nath (deceased) through LRs. v. Chander Bhan, (1988) 3 SCC 57 ; Gopal Saran v. Satyanarayana, (1989) 3 SCC 56 ; Delhi Stationers and Printers v. Rajendra Kumar, (1990) 2 SCC 331 and United Bank of India v. Cooks and Kelvey Properties (P) Ltd., (1994) 5 SCC 9. So far as the question of habitual default is concerned, Mr. Verma contends that the rent for the months of September to November, 1984 had been paid in December, 1984 and Clause 9 of the agreement of tenancy between the appellant and respondent entitles the tenant to pay the rent within one month from the date of the notice received from the landlord, and authorises the landlord to approach the Court of Law if the rent over 3 months is not paid within one month of the notice in question, and this being the position, the Lower Appellate Authority was fully justified in holding that the tenant cannot be said to be a habitual defaulter and the High Court committed serious error in interfering with the said finding. So far as the default in payment of rent for the months of December, 84 to March 85 is concerned. Mr. Verma contends that the Lower Appellate Authority was justified in taking into consideration the refusal of the landlord to the two money orders sent, and the High Court, therefore, was in error in interfering with the conclusion on fact of the Appellate Authority under the Control Order by interfering with the same in exercise of its discretionary jurisdiction under Article 226 of the Constitution.