NEESHA Vs. DAMODAR S O RAMRAO MOHAD

JUDGEMENT

(1.) THIS writ petition under Article 227 of the Constitution of India is directed against the judgment and order dated 28-10-1987 passed by the Collector, Akola in Revenue Appeal No. BRA-13 (3) Murtizapur /7/86-87.

(2.) BRIEFLY stated, the petitioner landlord filed application before the Rent Controller on 10-10-1983 purporting to seek permission for taking action against the respondent under Clause 13 (3) (ii) of the C. P. and Berar Letting of Houses and Rent Control Order, 1949, since according to the petitioner, the respondent was habitual defaulter. The reason mentioned in the said application for granting such permission was that the respondent was in arrears in the past for which the petitioner had to file two separate civil suits for recovery of arrears and both the suits were decreed in favour of the petitioner. It is further stated that since January 1983 onwards till filing of the application, the respondent had failed to offer rent for nine months to the petitioner. The respondent resisted the said application by taking specific defence that in so far as the previous suits filed by the petitioner, in view of the concession given by the petitioner that he would not start proceedings before the Rent Controller in respect of the suit premises provided the respondent did not examine any witness including himself and that pursis Exhibit 15 was filed between the parties to that effect. It is, thus, contended that in so far as the arrears for the period prior to 1981 was concerned, the same cannot be looked into in the present proceedings for the simple reason that even assuming that the respondent was in arrears, the default, if any, was condoned by the petitioner and it is therefore not open for the petitioner to rely on the said circumstance to maintain the present application. With regard to the second ground stated in the application that the respondent was in arrears since January 1983 is concerned, the respondent contended that the respondent had offered the rent for the months of January, February and March by money order which was sent to the petitioner but the petitioner refused to accept the same. This averment was specifically made in the written statement. Besides the stand taken in the written statement, the respondent, in his evidence has asserted this position, which has remained unchallenged as no question has been put to the respondent during the cross-examination. In other words, the fact that the petitioner refused the money orders went unchallenged.

(3.) IN view of the rival pleas, the Sub Divisional Officer, by order dated 17-4-1986, allowed the application preferred by the petitioner. The Sub Divisional Officer accepted both the circumstances put forth by the petitioner for granting permission to the petitioner on the ground that the respondent was a habitual defaulter. The respondent took the matter in appeal before the Collector, Akola. The Collector, Akola, on the other hand, reversed the order passed by the Sub Divisional Officer and allowed the appeal by holding that there were enough documentary evidence to show that the landlord was intentionally refusing to accept the money orders and was thus trying to create situation for proceeding against the respondent. It is the aforesaid view taken by the Collector which is subject matter of challenge in the present petition.