KANHAIYYALAL FATTELALJI UPADHYAYA Vs. MAHAVIR TEA COMPANY

JUDGEMENT

(1.) Admit. Heard finally by consent of Shri Bhangde, learned Senior Counsel for the appellant, Shri Purohit, learned Counsel for the respondent nos. 1 to 4, and Shri Fulzele, learned Assistant Government Pleader for the respondent no.5.

(2.) The letters patent appeal is preferred by the landlord against the judgment dated 1.2.2006 passed by the learned Single Judge whereby writ petition filed by the respondent nos. 1 to 4 (tenants) was allowed and order dated 30.4.2001 passed by the Additional Collector, Nagpur as well as order dated 30.10.1998 passed by the Rent Controller, Nagpur were quashed and set aside and the matter was remitted to the Rent Controller for reconsideration for grant of permission to landlord to issue quit notice except under Clause 13(3)(v) of the C.P. and Berar Letting of Premises and Rent Control Order, 1949 with a direction to decide the same within a period of nine months from the date of communication of the order of the learned Single Judge.

(3.) Shri Purohit, learned Counsel for the respondent nos. 1 to 4, raised a preliminary objection about maintainability of the letters patent appeal. It was contended that though the petition was filed under Articles 226 and 227 of the Constitution of India by the respondent nos. 1 to 4, however, in substance it was a petition under Article 227 of the Constitution only. It was submitted that perusal of the judgment of the learned Single Judge shows that the learned Single Judge has exercised jurisdiction under Article 227 of the Constitution while setting aside orders passed by the Rent Controller as well as lower appellate Authority. It was further submitted that it is not in dispute that the Rent Controller acts as a Court, which is subordinate to the High Court and, therefore, jurisdictional error occasioned due to failure to exercise the same by the Rent Controller as well as lower Appellate Authority can be corrected by the learned Single Judge in exercise of jurisdiction under Article 227 of the Constitution. In the instant case, learned Single Judge has held that evidence, which was adduced by the parties and available on record has not been properly considered by the Rent Controller as well as lower appellate Authority and, therefore, they failed to exercise jurisdiction available to them. The learned Single Judge, therefore, remanded the matter back to the Rent Controller for fresh consideration and decision in the light of the observations made by the learned Single Judge in the impugned judgment. It was, therefore, contended that since impugned judgment passed by the learned Single Judge is under Article 227 of the Constitution, the letters patent appeal is not maintainable. In order to substantiate the contentions, reliance is placed on the decisions of the Apex Court in Surya Dev Rai v. Ram Chander Rai and others (AIR 2003 SC 3044) and Kondiba Dhondiba Dalvi since deceased by his L.Rs. Smt. Chandrabhagabai Kondiba Dalvi and others v. Narayan Namdeo Nanware (2001 (2) Mh.L.J. 820).