Soloman Jacob vs Resident Deputy Collector And ...
2002 Latest Caselaw 182 Bom

JUDGMENT

R.S. Mohite, J.

1. This Writ Petition impugns a judgment and order passed by the Additional Collector, Amravati on 22-3-1993 in Revenue Appeal No. 18/71(2)792-93 of Amravati, by which judgment and order the Additional Collector has granted permission to the respondent No. 2 landlord to give a quit notice under Clauses 13(3)(i)(ii) and (vi) of Rent Control Order, 1949.

2. The brief facts of the case from which the present petition arises are as follows:--

a) On 4-2-1987, the respondent No. 2--landlord filed an application for grant of permission to issue quit notice to the petitioner-tenant under Clauses 13(3)(i)(ii)(vi) of Rent Control Order, 1949. The substance of contentions in the application was that the respondent No. 2 was the owner of Block No. 5/1 in the Lokmanya Sahakari Gruhanirman Sanstha, Samadhan Nagar, Amravati. That the petitioner was his tenant, who had agreed to pay Rs. 500/- per month by way of rent. The petitioner had not paid rent since September 1986 and thus he was in arrears of more than three months. That the petitioners was habitual defaulter. That the applicant had his wife, daughter and a son. That both his daughter and son had grown up. For their education and also for treatment of the applicant, respondent No. 2 had decided to stay at Amravati. That respondent No. 2 had no other house and thus required the aforesaid premises for his bona fide accommodation.

b) The petitioner-tenant filed written statement on 21-4-1987. His contentions in the written statement were as follows :--

that on the request of landlord, the petitioner-tenant had spent Rs. 1500/-for fitting of water tap. He had also given an advance of Rs. 5000/- to one Shri Deshmukh, who was looking after the construction work of the house in question. The total amount of Rs. 6500/- so given by the petitioner-tenant was adjusted by the respondent No. 2--landlord for rent till the month of February 1986. That when the account was settled in between the parties, an amount of Rs. 2500/- was found due on account of rent till February 1986 and the same was paid by the petitioner-tenant in cash to the applicant. That in December 1986, the petitioner-tenant carried out some additional work and on the incomplete construction work spent additional amount of Rs. 2500/- which the respondent No. 2 landlord had agreed to adjust towards rent. He thus denied that he was in arrears and was of a defaulter. He further denied that the applicant required the premises for his bona fide use and contended that application filed by respondent No. 2--landlord was vexatious and required to be dismissed.

c) Before the Rent Controller, evidence was led by both parties. Respondent No. 2 stepped into witness box. He stated in his evidence that the petitioner-tenant had not paid rent from September 1986. He stated that he required premises for bona fide use, as the same was required for education of his children. He stated that his daughter was aged about 15 years and was studying the Xth Standard and his son was aged about 12 years and was studying in VIIth standard. In his cross-examination, he admitted that in his occupation, transfers did take place and whenever he was transferred, he went with his family. He admitted that till, he retired, he could not settle permanently at Amravati. He admitted that there was potentiality of erecting a first floor on the block. He contended that he required the house till January 1987. He admitted that Rs. 5000/- had been paid to Shri Deshmukh by the petitioner and Rs. 1500/- had been spent for water tap fitting and that the amount of Rs. 6500/- had thus been spent by the petitioner-tenant. He admitted that the petitioner-tenant had conducted some work in the premises. The respondent No. 2 also stepped into the witness box in order to prove his contentions.

d) After taking into account all the evidence led/produced by the parties, by his order dated 28-4-1988, the Rent Controller, relying upon the evidence and admissions given by the respondent No. 2--landlord accepted the contentions of the petitioner that he had in fact spent of Rs. 2500/- for repairing of the premises. He held that the respondent No. 2--landlord was not residing at Amravati and was in fact serving in the Agricultural Department at Tiosa and was residing at Tiosa. He therefore, disallowed the application of the respondent No. 2--landlord.

e) The respondent No. 2--landlord then preferred an appeal before Resident Deputy Collector, Amravati. The Resident Deputy Collector, Amravati, after hearing both sides passed an order dated 9th January, 1989, in which he upheld the finding of the Rent Controller to the effect that the petitioner-tenant was not in arrears of rent and was habitual defaulter. He felt that on the question of payment of Rs. 5000/- to Shri Deshmukh, it was necessary to examine Shri Deshmukh and since Shri Deshmukh had not been examined by the landlord as a witness, the Rent controller had safely relied on the evidence of the tenant-petitioner in rebuttal. He however, found that xerox copy of the order of the Agricultural Department produced by the petitioner-tenant, was not an attested copy. He gave a finding that the evidence on all the counts had not been placed on record by both parties and that the Rent Controller without following procedure of law had considered such evidence. On such reasonings he therefore set aside the order passed by the Rent Controller and remanded the case to the Rent Controller, Amravati, for recording the evidence afresh and for redeciding the matter after rehearing the parties.

f) Aggrieved by the order of remand, the petitioner-tenant preferred Writ Petition in this Court being Writ Petition 1602 of 1989.

g) While the Writ Petition was pending for a final decision in this Court, landlord-tenant, filed nine documents before the Rent Controller, Amravati, with a list dated 4-4-1989. Some of these documents pertained to certain subsequent

events. For example, document at Sr. No. 2 were rent receipt from 1-5-1988 to 28-2-1989 to indicate that the landlord was now occupying rented premises in Amravati, the document at Sr. No. 3 was true copy of a certificate issued by Government Officer to show that the respondent No. 2--landlord had been transferred from Tiosa and had joined at Amravati from 3-5-1988, the document at Sr. No. 4 was a certificate issued by Rural Institute, Amravati, to indicate that the daughter of respondent No. 2--landlord was studying in F.Y.J.C. at the said institute, the document at Sr. No. 8 was the copy of notice given by the landlord to the tenant indicating non-payment of rent from September 1986 to January 1987.

h) On 23-9-1992, this Court decided Writ Petition No. 1602 of 1989 and came to a finding that the remand to the Rent Controller was bad in law as neither parties had sought to adduce further evidence before the Rent Controller. This Court concluded that the appellate authority instead of remanding the case should have looked into the evidence itself and reached its conclusions independently on the basis of the evidence that was already on record. This Court therefore, set aside the order of remand passed by the appellate authority and directed appellate authority to hear the appeal and dispose it on merits, according to law.

i) After decision of the High Court on 16-11-1992, the respondent No. 2--landlord filed a list dated 16-11-1992, enclosing two further documents before the appellate authority i.e. Resident Deputy Collector. The first document was a copy of judgment and order dated 22-12-1989 passed in Small Cause Civil Suit No. 43 of 1987, in which the plaintiffs suit against the defendant for recovery of Rs. 2500/- being arrears of rent from September 1986 onwards had come to be decreed. The second was an uncertified copy of a transfer order dated 13-4-1988 to indicate that the respondent No. 2 landlord had been transferred to Amravati. By the impugned order dated 22-3-1993 Additional Collector, Amravati, relying upon the additional documents filed by the respondent No. 2--landlord along with two lists aforesaid, before the Rent Controller as well as before the Resident Deputy Collector was pleased to allow the application of respondent landlord and to grant him permission to terminate the tenancy by issuing a quit notice under Clauses 13 (3) (i) (ii) and (vi) of the Rent Control Order.

j) Being aggrieved by the order of Additional Collector dated 22-3-1993, the petitioner-tenant has preferred the present Writ Petition.

3. The contentions raised on behalf of the petitioner are that for arriving at his finding, the Additional Collector has referred to and taken into account the additional documents, which had been filed by the respondent No. 2--landlord before the Rent Controller as well as Resident Deputy Collector, without proof of the documents and without giving an opportunity to the petitioner to rebut the same. A bare glance of the order would indicate that it would be correct to say that the finding has been arrived at by the Additional Collector on the basis of the documents produced subsequently by respondent No. 2--landlord. There is a reference to the rent bills produced by respondent No. 2 landlord in respect of the house at Amravati. There is a reference to a copy of posting order indicating that the respondent No. 2--landlord was posted at Amravati. Reliance is also placed upon the certificates indicating that the respondent No. 2 had joined as

Superintendent in the office of Regional Seeds Certificate from 3-9-1988 and that his daughter was learning at Rural Institute at Amravati. The Court has observed that these certificates are placed on record. There is also reference to the subsequent decree passed by the Civil Court, in favour of the respondent No. 2--landlord.

4. I have perused the record. It is absolutely clear that the documents filed in two lists were never proved and no opportunity was given to the petitioner-tenant to rebut these documents. If at all the respondent No. 2 wanted to prove his documents, he could have done so by making an application for leading additional evidence. In fact the first list was not filed before the Additional Collector at all and the said documents had been filed before the Rent controller after remand.

5. It is well settled that though the court can, and in many cases must, take cautious cognizance of the events and development subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. The law in this regard was laid down in the case of Pasupuleti Venkateshwarlu v. Motor and General Traders, of the said judgment. The Apex Court held as under:--

"We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed."

6. This proposition has been quoted with approval in subsequent cases by the Supreme Court like the case of M.M. Quasim v. Manohar Lal Sharma and Ors. , and also in the case of Lekhraj v. Muni Lal and Ors., reported in 2001 (2) SCC Page 762.

7. From the record of this case, it is clear that the impugned judgment has been passed on the basis of documents, merely filed before the Rent Controller and Additional Collector, as aforesaid, without proving the said documents and without giving any opportunity to the petitioner-tenant to rebut the same documents. This is clearly done in breach of rules and procedure, required to be followed. In the result, I pass the following order.

8. Rule is made absolute in terms of prayer Clause (a). However, I make it very clear that this matter is being decided solely on the basis of evidence as led before the Rent Controller prior to rejection of the application dated 28-4-1988.

The respondent No. 2 will be at liberty to file a fresh application on the basis of subsequent events, if he so desires.

In the circumstances, there shall be no order as to costs.