NATHULAL GANGABAKS KHANDELWAL Vs. NANDUBAI

JUDGEMENT

(1.) On 25-7-1973 respondent 1 (herinafter referred to as the landlady') purchased a house consisting of three storeys and situated in the town of Amravati. The ground floor was being used for non-residentail purpose and the first and second floors which consists of several rooms, had been let out to some tenant for residentail purposes. One room on the first floor and three rooms on the second floor were 13-8-1973 the landlady made an applicaiton tothe Rent Controller (respondent 3) under Clause 13(3) of the C.P. and Berar Lettingg of Houses and Rent control Order, 1949 (herinafter referred to as ' the Rent Control Order') for permission to give notice to determine the tenancuy of te petitioners on the grtound that they were habitual defaulters, that she needed the house for the purposes of her bona fide occupation and that the petitioners were committing acts of waste which were likely to impair the value or utility of the house. In short, permission was sought under Clause 13(23) (ii), (vi) and (viii) of the Rent Control Order. The petitioner resisted this applicaiton by filing written statement. Besides the petitioners the landlady had also made similar applications against other three tenants occupying rest of the first and the second floor. Agaisnt them also the she sought permission to give notice to quit on the ground that she needed the whole of the houses for the purposes of bona fide occupation. Both the parties led evidence before the REnt Controller in support of their respective contentions. All the four applicaions were consolidated by the Rent Controller and common evidence was recorded . By his order passed on 7-2-1975 the Rent Controller amongst other findings held that the one room in which the landlady and members of ber family were residing in a farmhouse at Mhasla was inconvenient and insufficient and unsuitable for the purpose of their residence and hat te landlady needed the house in question for her bona fde residence. The Rent Controller consequently granted permission to the landlady to serve notice on the petitioners and other tenants on this ground amongst others with which we are not concerned in the present writ petition.

(2.) The petitioners being dissatisfied with the said order passed by the Rent Controller, preferred an appeal to the REsident Deputy Collector who is designatyed as appellate authoirty under the REnt control Order. This appela came up the for hearing on 23-10-1975. On that day Mr. Malani Advocate appeared before the appellate authority and at about 1 p.m. he filed an application for admitting evidence on affidavit ppurported to have been sworn by petitionrs No. 3 to the effect that during the pendency of the appeal one Narbheram had vacated one rom on the first floor and two on the second floor occupted by him as a tenant. This ......... the appeal the landlady had come in possession of part of the first and second floors. It seems that the appeal could not be called out for hearing till 4 p.m. on that day called out for hearing when sometime thereafter it was called out, petitioneer, No.3 made on application for adjournment on the ground that his counsel, namely Mr. N.S. Agwal waited up to 4 p.m. but left for his house at 4-05 p.m. as he was not feeling well. It seems that the counsel for the landldy had also field an application on that very day for hearing by the appeal since the premises were needed by the landlady urgently. Considering this application the appellate authority rejected the application made by petitioner No.3 for adjournment and preoceeded to hear theappeal. He passed his order on 27-10-1975 confirming the finding of the Rent Controller granting permission of the landlady to give notice to the tenants to determine their tenancies on the ground that she needed the house for her personal occupation. By this writ petition the petitioners are challenge these orders passsed by the Rent Controller and the appellate authority.

(3.) This writ petition came up for hearing before a learned single Judge of this Court on 21-7-1981. One of the submissions advanced by the learned counsel for the petitioners before the learned single Judge was that the REnt Controller should have outright rejected the application of the landlady for permission to determine the tenancy on the ground of her bona fide personal occupation for the simple reason that she had not enteredd the witness box not be taken into comdideration. For this proposition the learned counsel for the petitioners relied on the decision of a single Judge of this Court in Nanlal v. Smt. Samratbai which was a case under Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House RAtes Control ACt, 1947 wherein the learned Judges held that bpona fide requirement of a tenement by the landlord for his personal occupation is a state of his mind and that if he does not step into the witness box for proving this requirement, it cannot be said that he reasonable and bona fide requires the premises as stated in that section. The learned single Judge went further to say that on this ground alsone the suit can be dismissed. The learned single Judge who dismissed.,The learned single Judge who was hearing the present writ petition, did not find himself in agreement with the provision dated 21-7-1981 directed the papers to be placed before the learned Chief Justice for referring the case to a larger Bench and this is how this writ petition has come before us for final disposal.