SURENDRA KUMAR AMBALAL KHATRI Vs. SUBHASH SITARAM ZANWAR

JUDGEMENT

(1.) SURENDRAKUMAR , the landlord has filed the petition under Articles 226 and 227 of the Constitution of India, challenging the order passed by the Deputy Collector, Amravati dated 16.8.1988 confirming the order passed by the Rent Controller, Amravati dated 30.9.1987, whereby the said authority rejected the application of the landlord seeking permission of the Rent Controller to issue quit notice to the respondent under clause 13(3)(ii) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as the Rent Control Order, 1949).

(2.) THE brief facts of the case are that the petitioner Surendrakumar (hereinafter referred to as the 'landlord'), is the landlord of the premises in occupation of the respondent Subhash, (hereinafter referred to as the 'tenant'). The tenant is occupying the said premises at the rent of Rs. 120/- per month. According to the landlord, the tenant executed a rent note dated 1.5.1982 and agreed to pay rent in advance every month. An application under clauses 13(3)(i) and (ii) under the Rent Control Order, 1949 was filed by the landlord before the Rent Controller, Amravati on 16.9.1986 seeking leave of the Rent Controller, Amravati to issue quit notice to the tenant. It was averred by the landlord in his application that the tenant has not made payment of rent from 1.11.1985 to 30.9.1986 and the rent was outstanding for a period of 11 months amounting to Rs. 1,320/- plus municipal tax Rs. 214/- total amount of Rs. 1,534/-. It was thus stated that not only the tenant was in arrears of rent aggregating more than 3 months and therefore defaulter under clause 13(3)(i) but was also habitual defaulter within the meaning of clause 13(3)(ii) of the Rent Control Order, 1949. It was also averred by the landlord in the application that the tenant has been always irregular in payment of rent and he used to pay rent some time for two months, sometimes for 3 months and the mental attitude of the tenant was to remain in arrears of rent. Registered notice, according to the landlord, was given to the tenant. In reply thereto, the tenant undertook that he would be making payment regularly but still thereafter he did not make payment regularly and he was in arrears of rent of more than 11 months from 1.11.1985 to 30.9.1986. On the basis of the aforesaid facts, as stated above, the landlord sought permission of the Rent Controller to issue quit notice to the tenant under Clauses 13(3)(i) and (ii) of the Rent Control Order, 1949.

(3.) THE Rent Controller held enquiry, recorded the statement of the parties and vide his order dated 30.9.1987 held that the rent of more than 3 months was outstanding and, therefore, under Clause 13(3)(i) of the Rent Control Order, 1949, he granted permission to the landlord to issue quit notice to the tenant, in case the arrears of rent were not paid by the tenant within 3 months from the date of the communication of the order. As regards habitual default under clause 13(3)(ii) of the Rent Control Order, the Rent Controller found that the rent from 1.11.1985 till 30.9.1986 remains unpaid but he has not intentionally remained in arrears and, therefore, he should not be termed as habitual defaulter.