RAMSEVAK DURGAPRASAD TIWARI Vs. RAMESH DULLABHJI

JUDGEMENT

(1.) THIS is a petition by tenant Ramsevak challenging an order passed by the Rent Controller, Murtizapur in Rev. Case No. 23/71/70 -71 of Murtizapur on an application filed by respondent Ramesh, landlord, for permission to terminate the tenancy of petitioner. This order of Rent Controller was challenged by the petitioner in Rev. Appeal No. BRA. 13 (3) Murtizapur /5/75 -76 before the Resident Deputy Collector, Akola but without success. According to the petitioner both these orders deserve to be set aside.

(2.) IT will be sufficient to point out that the original application filed by Ramesh was for grant of permission to terminate the tenancy of Ramsevak under the provisions of sections 13 (3)(i)(ii)(iv) of the C.P. & Berar Letting of Houses and Rent Control Order 1949 (for short referred to hereinafter as Rent Control Order) in respect of one block on the eastern side bearing Municipal House No. 196 of the building situated on Nazul plot No. 1 in ward No. 16 of Murtizapur town, district Akola. Prayer for grant of arrears of rent pertained to period from March 1970 to November, 1970 and it was claimed that the rent was payable at Rs. 20 per month. On the basis of evidence of previous landlord Bajirao from whom respondent Ramesh purchased the house, the learned Rent Controller came to a conclusion that the rent per month of the block in question was neither Rs. 10 as alleged by tenant Ramsevak nor Rs. 20 as alleged by the landlord Ramesh but was Rs. 15 per month. On that basis arrears were worked out at Rs. 135 only and deducting an amount of Rs. 10 which was sent by money order by tenant Ramsevak immediately after the purchase of house by Ramesh from previous owner Bajirao on 22 -2 -1970, a direction to pay Rs. 125 towards arrears of rent within 3 months was given. Ramesh did not challenge this order with the result that it has become final. Prayer for need to occupy the house was also rejected. The learned Rent Controller, however, felt that applicant Ramesh had established a case of habitual defaulter in payment of Rent and in that view of the matter he was pleased to grant permission to terminate the tenancy of Ramsevak under section 13 (3)(i)(ii) of the Rent Control Order. All the findings of the learned Rent Controller were maintained in appeal. During the course of appeal an application was filed on behalf of the appellant Ramsevak on 24 -9 -1975 and it is at page 28 of the original appellate record. It was stated in this application on behalf of the appellant that certain important documents being the documents in the nature of public documents remained to be filed in the trial Court on account of inadvertence and, therefore, permission to file the said documents at appellate stage should be granted. This application was not rejected on the ground that there were no sufficient grounds made out for not filing the documents at an early stage in the trial Court but it was rejected on the ground that "the filing of documents at appellate stage would cause prejudice to respondent as no opportunity would be there to explain the same". The documents along with this application are 7 copies of assessment list disclosing that assessment of rent of the relevant block was at Rs. 10 per month, the copy of assessment order alongwith the statement by landlord Ramesh that tenant Ramsevak be assessed at Rs. 144 per year and 10 money order coupons pertaining to the relevant period between March, 1970 to November, 1970 indicating that tenant continued to send Rs. 10 per month as rent to landlord Ramesh. Out of these coupons, endorsement of refusal to accept money order appears on only one and, therefore, it is not known whether all these money orders were accepted or refused. Shri Madkholkar, learned counsel for the petitioner submitted that clause 21 (2) of the Rent Control Order makes it necessary that the appellate Court is not only to peruse the record but also to make 'such further enquiry' as the appellate Court deems lit either personally or through Rent Controller before deciding the appeal and rejection of application to file additional documents on record merely on the ground that it would result in prejudice to the respondent was nothing but refusal to exercise jurisdiction under clause 21 (2) of the Rent Control Order by the appellate Court. Clause 21(2) of the Rent Control Order is as under : - -

(3.) THE proceedings are pending from the year 1970 -71 as pointed out by Shri Phadnis, learned counsel for the respondent Ramesh. It can be argued that even sending of an amount of Rs. 10 per month as rent would amount to a habitual default in certain specified circumstances. But, I am not prepared to examine this question which is a pure question of facts in these proceedings. I feel that the matter should be remitted back to the appellate Court with a direction to consider the application of the petitioner for filing additional documents on record or for recording of additional evidence in terms of clause 21(2) of the Rent Control Order and in case the Appellate Court decides to hold further enquiry, as ordinarily, it should, it should give opportunity to respondent Ramesh to adduce evidence in rebuttal. The appellate Court may, if it so decides, record additional evidence either by itself or get it recorded through Rent Controller within a period of 3 months from the date of receipt of records.