SUREKHABAI Vs. MOTILAL S O PRABHUDAYAL SHARMA

JUDGEMENT

(1.) This is a Letters Patent Appeal by the landlord against the judgment of the learned Single Judge of this Court setting aside the order of the learned Appellate Deputy Collector, Nagpur who has granted permission to her to give quite notice to the respondent-tenant under clause 13(3)(vii) of the C.P. & Berar Letting of Houses and Rent Control Order, 1949 (for short, "Rent Control Order").

(2.) Briefly the facts are that the appellant/landlord purchased the suit house for a consideration of Rs. 35,000/- by sale-deed dated 15-6-1978. On 14-9-1978 she filed an application under Clause 13(3)(vi) and (vii) of the Rent Control Order seeking permission to give quit notice to the respondent/tenant who was occupying the whole of the suit house. The respondent/tenant resisted the said application by filing his written statement. The parties led evidence before the Rent Controller. The learned Rent Controller after considering the evidence on record dismissed the application filed by the appellant/landlord. The appellant/landlord preferred an appeal before the Appellate Deputy Collector, Nagpur who maintained the order of the Rent Controller under Clause 13(3)(vi) of the Rent Control Order. He, however, set aside the order of the Rent Controller as regards the permission sought under clause 13(3)(vii) of the Rent Control Order. He held that the appellant/landlord was entitled to permission under clause 13(3)(vii) of the Rent Control Order. Being aggrieved, the respondent/tenant preferred a writ petition in this Court which it appears was heard ex parte. The learned Single Judge of this Court set aside the order of learned Appellate Deputy Collector and, therefore, the application filed by the appellant/landlord stood dismissed wholly. Being aggrieved, the appellant/landlord has preferred the instant Letters Patent Appeal against the aforesaid judgment of the learned Single Judge of this Court.

(3.) The learned Counsel appearing for the respondent/tenant has raised a preliminary objection that the instant Letter Patent Appeal is not maintainable because the judgment of the learned Single Judge, according to him is in a writ petition under Article 227 of the Constitution of India, in support of the above contention he has relied upon the judgment of the Supreme Court in the case of (Umaji v. Radhikabai) A.I.R. 1986 S.C. 1272. In particular he has relied upon paragraph 106 of the said judgment. On reading para 106 it is clear that according to the Supreme Court where a petition is filed both under Articles 226 and 227 of the Constitution of India then if the facts justify a party in filing an application either under Articles 226 and 227 of the Constitution and if the party chooses to file an application under both these Articles, in fairness and justice to such party and in order not to deprive him of the valuable rights of appeal the Court ought to treat the application as being made under Article 226 of the Constitution and thus allow the party aggrieved a right of intra-Court appeal if provided by the Letters Patent of the said Court. It is clear from the said judgment that it is held that if a petition is exclusively under Article 227 no Letters Patent Appeal would lie under clause 15 of the Letters Patent of this Court.