Laxminarayan S/O Shivshankar ... vs Prakash S/O Krupashankar Mehta
2005 Latest Caselaw 1065 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. This is landlord's Writ Petition under Articles 226 and 227 of Constitution of India. The landlord sought permission of a Rent Controller, Nagpur under Clauses 13(3)(i), (ii), (v), (vi) and (vii) of C.P. and Berar House and Rent Control Order 1949 (hereinafter referred to as Rent Control Order). The Rent Controller granted permission only under Clauses 13(3)(i)(ii) and (vi) of Rent Control Order and this permission was challenged by respondent tenant in appeal before Appellate Authority and said authority has maintained permission granted only under Clause 13(3)(i) and has rejected the permission under other two clauses. It is in this background that the controversy needs to be considered. Clause 13(3)(i) contemplates situation in which the tenant was in arrears of rent for any aggregate period of three months on the date of filing of application by landlord before Rent Controller and tenant failed to deposit with Controller the amount of arrears ordered to be deposited by such Controller within such time as fixed by him. Sub-clause (ii) is about tenant being habitually in arrears with rent while Sub-clause (vi) is concerning need for bona fide occupation of landlord. The facts in brief can be stated thus :--

2. On about 10 July, 1986, the petitioner landlord filed proceedings under various clauses mentioned above before Rent Controller against present respondent. In it petitioner contended that monthly rent of tenanted premises is Rs. 100/- and tenancy month starts of from first of each English month and it ends with last day thereof. He contended that the respondent is habitual defaulter and is in arrears from June, 1985 onward. He contended that respondent paid the rent through cheque for Rs. 1000A and he was irregular in payment thereof. He pointed out that on the date of filing of application respondent was in arrears for more than three months and rent was not paid from 1-4-1986 till 9-7-1986. Landlord further stated that at that time he was serving at Jabalpur in Madhya Pradesh from 1-11-1956 as Superintendent and retired from State Government service on 30-4-1986. He stated that he resided at Jabalpur with his family consisting of wife, 5 daughters and a son because of his service in rented house. He had stated that he has no other house of his own anywhere in India except the suit house at Nagpur and he wanted to shift to Nagpur to settle after retirement. He stated that suit house is old constructed about 75 years back and in dilapidated condition and needed complete renovation. He stated that he wanted to make essential repairs and alterations to the roof and walls, and for the purpose portion occupied by respondent needed to be vacated. He stated that his wife Smt. Kusum was about 53 yrs. old, daughter Ku. Chitra 31 years, daughter Ku. Shobha 29 years, daughter Ku. Asha 27 years, Son Prakash 25 years, daughter Ku. Nisha 20 years and daughter Ku. Anita 16 years at the time of filing of application. The respondent tenant denied that there were any arrears or that he was habitual defaulter. He contended that landlord refused the rent and also refused to accept money orders. The bona fide need of the landlords was also denied. It was denied that landlord wanted to shift to Nagpur for the purpose of marriage of his daughters and he stated that because of employment of daughters and son, it was not possible for them to shift to Nagpur. Landlord examined himself and his daughters Chitra and Asha in support of his case while the respondent examined himself. On the basis of this evidence, Rent Controller on 18-1-1989 granted permission only under (3) Sub-clauses mentioned above. Said permission was challenged in appeal under Clause 21 by respondent tenant and on 7-8-1989 his appeal came to be partially allowed. This appellate order was sought to be reviewed by present petitioner by filing review application under Clause 21(2-a) of Rent Control Order but that review is also dismissed on 19-12-1992. Thus the petitioner landlord has questioned the appellate order and the order in review in present writ petition.

3. I have heard Advocate Shri A.V. Khare for petitioner landlord and Advocate Shri Rohit Deo for respondent tenant.

4. The learned Advocate for landlord has taken the Court through the order of Rent Controller which is in favour of landlord and thereafter has pointed out as to how the order of Appellate Authority is erroneous and perverse. He contends that the Appellate Authority has accepted that tenant is in arrears of rent of 20 months and has therefore maintained permission granted under Clause 13(3)(i) but has erroneously set aside the permission granted under Sub-clause (ii). He states that in fact there are 20 defaults and as such the order of Appellate Authority is contrary to settled law on the point. He has further stated that the Appellate Authority has acted under presumption that entire family of landlord is not in position to shift to Nagpur and according to him this is merely a conjecture. He has contended that Appellate Authority cannot expect landlord to live in premises which are in possession of caretaker. He further stated that proceedings for evicting that caretaker Shri Vaidya are also going on. It is his argument that once it is shown that landlord has no house of his own, the permission to occupy suit house on account of bona fide need ought to have been granted. He states that landlord is the best judge of his need and the Appellate Authority cannot dictate landlord in this respect. He argued that in such situation burden to show that bona fide need of landlord is not genuine shifts upon respondent/tenant. He further argued that Appellate Authority has not discharged its obligation as such while reversing the judgment of Rent Controller. He has relied upon judgments reported at between Joginder Pal v. Naval Kishore Behal , R.C. Tamrakar v. Nidi Lekha 2002(4) Mh.L.J. 473, Balwant v. Shantaben 2001(2) SCC 355, M.L. Prabhakar v. Rajiv Singal and 2001(2) Mh.LJ. 786, Santosh Hazari v. Purushottam Tiwari in support of his contentions. He further stated that daughters even if married or in employment at Jabalpur can always come to their parents place at Nagpur and permission could not have been declined on that ground. He has placed reliance upon judgment reported at 2003(12) SCC 127, Ramnath v. Rajendra Prasad. He relied upon the judgment of Hon'ble Apex Court reported at between Mariyam Begum v. Basheerunnisa Begum to contend that obligation of tenant to pay monthly rent continues even during pendency of proceedings and to show how approach of Appellate Authority in the matter of wilful defaults is erroneous. He contended that after the order of Rent Controller, respondent did not deposit the arrears within time specified. He further stated that Appellate Authority of its own while allowing appeal granted further time to respondent to deposit arrears but those arrears were not deposited even during that extended period. He therefore contended that permission under Clause 13(3)(i) is deemed to have been granted to the petitioner. He further pointed out that writ petition has been amended to point out that in fact petitioner has settled at Nagpur with his ailing wife and four daughters and they are residing in rented house at Sitaniwas, Dharampeth, Nagpur. He further pointed out that eldest daughter Chitra has started serving as auditor in Defence Accounts Department at Nagpur. Daughter Nisha has enrolled herself as Advocate with Bar Council of Maharashtra and is practicing legal profession at Nagpur and youngest daughter Anita has secured job as art designer with Vaibhav Glass, Nagpur. The wife of petitioner was patient of hypertension and was always bed ridden. Advocate Khare contended that in such circumstances the order of Appellate Authority and reviewing authority needs to be quashed and set aside.

5. Advocate Deo for respondent tenant contended that the argument about non-compliance with direction under Clause 13(3)(i) issued by Appellate Authority is without any pleading in writ petition and such argument cannot be considered now. He further stated that the theory that landlord is the best judge of his own need is always applied with caution to see that tenant is not made victim and does not lose roof over his head. He has placed reliance upon , M.M. Quasim v. Manoharlal Sharma and , D. Kandaswami Chettiar v. State of Tamilnadu for this purpose. He invites attention to the fact that at Jabalpur entire family was residing only in three rooms each of size of 10 feet X 10 feet for more than 15 years and as such the big suit house is not entirely required by them. He states that suit house ad-measures about 3000 square feet with 1500 square feet of ground floor and 1500 square feet on first floor. He contended that deliberately these details about extent of area used at Jabalpur and claimed at Nagpur are not given in his application filed before Rent Controller by landlord. He has also invited attention to the evidence of landlord and his daughters in this respect to contend as to how story of entire family shifting to Nagpur is misconceived and false. He has further stated that the landlord has improved his story of bona fide need during evidence and such improvement without pleading is always taken as diluting the bona fide need pleaded. In support he placed reliance upon judgment reported at 7974 Mh.LJ. 774. He has further stated that the amendment effected in writ petition by landlord is denied by respondent tenant in his return and said story cannot be accepted. He further argued that wife of petitioner has expired and so also youngest daughter Ku. Anita. He further stated that daughter Nisha is happily married at Nagpur and she's practicing at Nagpur as lawyer. Petitioner son has got permanent employment with Madhya Pradesh State Electricity Board while 3 daughters elder than him are also employed in Madhya Pradesh. He therefore contended that at the most petitioner and 1 daughter may come to Nagpur and they would not require such huge area. He invited attention to Clause 13(8) of Rent Control Order and contended that inquiry mandated thereby has not been held in the matter. He further stated that petitioner has not shifted to Nagpur at all and the address of Dharampeth given by petitioner is fictitious address. He stated that respondent in fact forwarded registered post A/D envelope on that address to show that it is false and postal department has returned that envelop with remark that addressee is not known. He has also invited attention to the pursis placed on record by respondent tenant mentioning therein that the suit structure is of two floors, each consisting of 1500 sq ft. He has expressed readiness and willingness to shift to any one of the floors so as to enable petitioner to occupy the floor of his choice. It is stated that as area of house on first floor is less, petitioner should permit respondent to construct two rooms additionally on first floor at the cost of respondent. He further stated that if the landlord is not ready for any proposal, the entire house can be demolished and respondent can be allotted premises in new structure to be raised in its place. He has also agreed to shift to the block allotted to caretaker and has expressed readiness and willingness to repair the same at his own cost. Insofar as habitual default is concerned, learned Advocate for respondent tenant has pointed out that refused money-order receipts are produced on record but the Rent Controller who allowed its production did not permit the tenant to lead evidence to prove the same. According to him Appellate Authority has correctly considered these documents and has correctly arrived at a finding that respondent is not habitual defaulter. Lastly he argued that considering the extent of area used by petitioner at Jabalpur and area of suit house, inquiry under Clause 13(8) is necessary and as said inquiry has not been done, matter needs to be remanded back. Advocate Khare, the learned Counsel for petitioner contended that respondent did not raise plea of comparative hardship or any plea in written statement warranting holding of inquiry under Clause 13(8) and as the landlord's application before Rent Controller was not even read by respondent, his written statement cannot be looked into. He pointed out that respondent was not aware of even address of petitioner and his contention that money orders were sent, therefore, could not have been accepted by Appellate Authority. He also stated that caretaker Shri Vaidya has filed written statement in civil suit against him on 16-7-2004 only and the matter is still pending. Lastly he contends that the findings recorded by Rent Controller about habitual default are self-speaking and sufficient.

6. Perusal of judgment of Rent Controller reveals that he has answered issue number I in the affirmative and has found that respondent was in arrears of rent for aggregate period of three months on the date of filing of application. The application is filed on 10-7-1986 and Rent Controller has found that landlord has received rent upto March, 1985 and thereafter he did not receive rent for 10 months. It is found that the respondent did not bring anything on record to show that money orders were refused by petitioner and even his address was not known to respondent. The respondent stated that he did not even read the application filed by landlord and he was not aware of contents thereof. In his deposition respondent accepted that he has not paid rent from April, 1985 onwards voluntarily. In view of this evidence, permission is given by Rent Controller under Clause 13(3)(i). Said permission is maintained by Appellate Authority with only modification that Appellate Authority extended the time to deposit said amount of arrears. It is contention of landlord that arrears have not been cleared even during this extended period and order of Rent Controller has not been complied with. That the order is complied with or not is a matter of record which can be proved before appropriate Court by both the parties. If the amount is not paid within time, landlord got permission under Clause 13(3)(i) and he could have proceeded further in the matter. The grievance of respondent that there is no such pleading in writ petition is not relevant because the order on that account is in favour of petitioner. However, in view of finding on Sub-clause (ii) being given below, it is necessary to remand even this issue back to Appellate Authority.

7. Both the parties have tried to show lacunae in case of each other insofar as habitual default is concerned. The Appellate Authority has found that respondent tenant is in arrears of 20 months of rent on the date of passing of order by Rent Controller. From order sheet placed on record by respondent tenant, it appears that tenant filed 3 applications on 6-10-1988 before Rent Controller and sought permission to file documents by first application, second application was for permission to recall respondent tenant for further evidence and last application was for permission to issue notice to postal officials i.e. to summon them as witnesses. By a speaking order dated 28-10-1988, the Rent Controller permitted filing of documents only and rejected remaining two applications. The Appellate Authority has not quashed or set aside this order dated 28-10-1988. The Appellate Authority has relied upon the documents permitted to be filed by Rent Controller as above and has used those unproved and un-exhibited documents against the petitioner. These documents are with list at record page 193 from pages 195 to 211. The Appellate Authority has found that refused money-order coupans pertain to period from 9-4-1985 to August, 1985. It has thereafter considered the admission of landlord that certain money-orders were refused. The inability of landlord to specify for how many months the money-orders were refused is also mentioned. In this background, Appellate Authority has drawn a finding that tenant made efforts to pay rent and therefore he is not habitual defaulter. The finding recorded by Rent Controller in this respect is overlooked. The then Controller on the other hand has found that nothing was brought on record by tenant to demonstrate that money orders were refused by landlord. The Rent Controller found that respondent was not even aware of residential address of landlord and as such he was not in position to forward money orders. Then Controller found that respondent/tenant has no knowledge about the contents of application moved by landlord and further found that tenant admitted that he had not paid rent from April, 1985 onwards voluntarily. However perusal of original deposition on record (page 85) or its copy annexed with the petition does not reveal any such admission. On the contrary respondent has stated that "it is true that I have not paid rent from April, 1986, volunteers that it was being refused." But Rent Controller has found that such refusal of money orders is not proved. This application of mind on behalf of Rent Controller is lost sight of by the Appellate Authority. The Appellate Authority has ignored the fact that it is its duty to consider the findings reached by Rent Controller and if it is not in position to subscribe the same view, to assign reasons therefor. No such exercise is undertaken by the Appellate Authority. On the contrary, Appellate Authority has relied upon unproved documents to reverse the finding of Rent Controller. The honourable Apex Court in 2001(2) Mh.LJ. 786, Santosh Hazari v. Purushottam Tiwari, in para 15 has laid down the duty of appellate Court writing a judgment of reversal and has observed that Appellate Court must come in close quarters with the reasoning assigned by trial Court and then assign its own reasons for arriving at a different finding. Relevant observations are :--

15. A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, moreso when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact (See Madhusudan Das v. Smt. Narayani Bai ). The rule is - and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh ). Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it.

8. It is more than obvious here that Appellate Authority has failed to discharge said obligation and hence the finding in this respect is liable to be quashed and set aside. The matter needs to be remanded back to Appellate Authority in view of the reliance by Rent Controller upon non-existent admission. The learned Counsel for petitioner has also relied upon between Mariyam Begum v. Basheerunnisa Begum to contend that non-payment of rent during pendency of proceedings is also wilful default and can be taken into account by granting permission under Sub-clause (i) or (ii). However, in view of remand of matter to Appellate Authority, it is not necessary for this Court to consider said aspect.

9. Advocate Khare has relied upon between Joginder Pal v. Naval Kishore Behal to contend that although rent control statutes lean in favour of tenants, the Courts must lean in favour of landlord's while interpreting those provisions which take care of landlord interest. He has cited , R.C. Tamrakar v. Nidi Lekha as also 2001(2) SCC 355, M.L. Prabhakar v. Rajiv Singal to substantiate that landlord is the best Judge of his need, and the Rent Controller or Appellate Authority or this Court cannot dictate the landlord as to how he should use his house and has contended that Appellate Authority could not force him to reside in premises of caretaker 2002(4) Mh.L.J. 473, Balwant v. Shantaben - a judgment of learned single Judge of this Court has been cited to contend that when petitioner is residing in tenanted premises and has no other house, permission to terminate tenancy ought to have been granted. He has placed reliance upon judgments reported at 2003(12) SCC 127, Ramnath v. Rajendra Pershad and stated that daughters even if married or in employment at Jabalpur can always come to their parents place at Nagpur and permission could not have been refused on that ground by the Appellate Authority. There can be no quarrel with any of the propositions mentioned above. However, facts at hand must be evaluated in that background. One cannot ignore the fact that the petitioner with his entire family had been residing in three rooms ad-measuring 300 sq ft. at Jabalpur. The area of suit house which is double storied and at Nagpur is 3000 square feet. In such circumstances the petitioner has to justify his need of entire area or at least he has to make a statement that he wishes to reside in entire house. Perusal of his evidence reveals that he desires to raise new structure after evicting respondent. It also appears that he does not have any definite proposal or preparation in this respect. He sought permission from Rent Controller under Clause (vii) on the ground of making necessary repairs and contended that said repairs cannot be done without tenant vacating the suit house. Said permission is denied by Rent Controller and this denial has become final. In this background cognizance must be taken of Clause 13(8) of Rent Control Order which mandates that when landlord is seeking permission for bona fide occupation the Rent Controller must inquire into the needs of landlord and if on inquiry is satisfied that needs of landlord will be met by occupation of portion of house, he shall give permission in respect of such portion only. The Rent Controller has not examined this aspect at all. Though the order of Rent Controller is in favour of petitioner, the Appellate Authority has set it aside by ignoring the above referred rulings on which learned Counsel for petitioner has placed reliance. The said exercise of Appellate Authority therefore shows total non-application of mind to the relevant ingredients and is thus unsustainable. Observations of Hon'ble Apex Court in , M.M. Quasim v. Manoharlal Sharma at paragraph 18 also appear to warrant such scrutiny. However, again the issue cannot be concluded at this stage and here. The Appellate Authority will have to evaluate the evidence available on record in the light of law laid down by Honourable Apex Court and this Court; and will have to arrive at appropriate decision. Hence it is not necessary for this Court to express itself finally in this respect.

10. It is also important to note that the petitioner has retired about 19 years back and there have been some subsequent developments which parties may wish to place for consideration before the Appellate Authority. Though some such events are mentioned above in the body of the judgment, evidence in support thereof is not available on record. Hence, parties are at liberty to take appropriate' steps for this purpose before the Appellate Authority. As the matter is very old, the Appellate Authority is directed to dispose of the appeal finally as early as possible and in any case within the period of six months from the date of communication of this order to it. Parties to assist Appellate Authority in expeditious disposal.

11. Writ petition is thus allowed. Order of Appellate Authority dated 7-8-1989 and the order of reviewing authority dated 19-12-1992 are hereby quashed and set aside. The appeal R. C. Appeal number 184/A - 71(2)788/89 is restored back to the file of Appellate Authority for its expeditious disposal as mentioned above. Rule made absolute in above terms. No costs.