SITARAM SHOBHARAM Vs. NANDRAM CHUNILAL

JUDGEMENT

(1.) Respondent No. 1 is the owner of the municipal houses Nos. 9/913 . 9/914 and 9/915 situate within Amraoti Municipal limits. The petitioners are in occupation of the Municipal House No. 9/913. The municipal house No. 9/913 consists of shop premises on the ground floor and three other rooms in the same building. Two rooms are on the first floor and one room is situate on the second floor. Respondent No 1 made an application in the Court of the Rent Controllor. Amroati for permission to terminate the tenancy on four grounds. In that application it was alleged that respondent No. 2 was the tenant and he had sub-let the premises to the petitioners and also to respondent No. 3 Respondent No. 1 claimed that he was entitled to get possession of the entire property on the ground that it was sub-let by respondent No. 2 to the petitioners and respondent No. 3 under clause 13 (3) (iii) of the C. P. and Berar Letting of Houses and Rent Control Order): the other grounds on which the tenancy was sought to be terminated were that the house required essential repairs that the petitioner was a habitual defaulter in payment of rent and that respondent No. 1 bona fide required the premises for opening a kirana shop. Respondent No. 2 had made similar application for permission to terminate the tenancy of the tenants in the adjoining shop premises in possession was Municipal. House Nos. 9/914 and 9/915. The Rent Controller Amraoti, granted permission to respondent No. 1 to terminate the tenancy on the ground of bona fide requirement, essential repairs and also on the ground of habitual arrears in the payment of rent. The prayer of respondent No. 1 for permission to terminate the tenancy on the ground of sub-tenancy was rejected. The cases of the other two tenants in Municipal Houses Nos. 9/914 and 9/915 were tried along with the case of the present petitioners and in those cases also respondent No. 1 was given permission to terminate the tenancy of the tenants in those two cases.

(2.) Against the order made by the Rent Controller, the petitioners filed an appeal being R.A. No. 329/71 (2) /67-68 of Amraoti. The learned Resident Deputy Collector. Amraoti who heard the matter found that respondent No. 1 was entitled to terminate the tenancy on the grounds of bona fide requirement, essential repairs and habitual) arrears in the payment of rent. He confirmed the findings made by the rent Controller that there was no sub-letting and that respondent No.1 was not entitled to terminate the tenancy on the ground. As a consequence of these findings, he dismissed the appeal filed by the petitioners. The petitioners have now filed this writ petition to challenge the order made by the Resident Deputy Collector.

(3.) Mr. Deshpande, the learned advocate for the petitioner, sought to challenge all the findings recorded by the authorities against his clients. He submitted that it was not proved that the house required essential repairs and submitted that the repairs were not of such a nature as to require the petitioners to give possession. He also challenged the finding about the bona fide requirement of respondent No. 1 and contended that it was not established that respondent No. 1 required the shop premises for the purposes of opening a kirana shop. He also submitted that the claim of respondent No.1 that the two shops on the ground were required for the adativas was not established. Lastly, he also challenged the findings that his clients were in habitual arrears of payment of rent. Before I go to these three points which were advanced by Mr. Deshpande I must also take note of one submission made by Mr. Deshpande, that the original application was based on the allegation that only respondent No. 2 was the tenant and the petitioners were his sub-tenants. He contended that in the original application respondent No. 1 sought permission to terminate the tenancy of respondent No. 2 and it was never the case of respondent No. 1 that the petitioners were his tenants. It is therefore submitted by Mr. Deshpande that the relief which is being given to respondent No. 1 about the permission to terminate the tenancy of the petitioners was a relief which could not be given on the original application, which is given to the respondent is in variance with the pleadings in the application . It is not possible for me to accept this submission of Mr. Deshpande. It is true that the original case of respondent No. 1 was that respondent No. 2 was a tenant and he had sub-let the premises to the petitioners. It was the case of the petitioners that they were the tenants. They denied the sub-tenancy and that case has been established. The findings now are that the petitioners are the tenants. Now if those are the findings the relief naturally has to be in consonance with those findings. No prejudice has been caused to the petitioners as they had led evidence with regard to the points of bona fide requirement essential repairs and habitual arrears in the payment of rent. The permission to terminate the tenancy has been granted. When the petitioners had the opportunity to cross-examine the witnesses of respondent No. 1 (sic). It is not the case where the petitioners have been misled or in any way prejudiced. Since the parties were at issue about the main ground on the basis of which permission was sought, there is no merit in the submission of Mr. Deshpande.