Uttamrao Marotiram Suryawanshi ... vs Resident Deputy Collector And ...
2005 Latest Caselaw 68 Bom

JUDGMENT

Dharmadhikari B.P., J.

1. Heard Shri Deshpande, Advocate for the petitioners and Shri Tathod, Advocate for respondent No. 4. Respondent No. 3 is deleted.

2. By this writ petition filed under Article 226 of the Constitution of India, the petitioner-tenant challenges the order dated 9-5-1991 passed by the Resident Deputy Collector with Rent Control Appellate Powers, Akola, allowing the review preferred by respondent No. 4 landlady and granting permission to landlady to terminate his tenancy under Clause 13(3)(ii) of the C.P. & Berar Letting of Premises and Rent Control Order, 1949, (hereinafter referred to as Rent Control Order). The Rent Controller granted permission under Clauses 13(3)(i) and (ii) of the Rent Control Order. The Appellate Authority reversed the order insofar as permission under Clause 13(3)(i) is concerned the Reviewing Authority has again restored the order the Rent Controller. The petitioner-tenant states that insofar as the permission under Clause 13(3)(i) is concerned, said order is already complied with and said issue does not fall for consideration in this writ petition.

3. Shri Deshpande, Advocate for the petitioner-tenant has made two grievances in this writ petition. The first is that the pendency of earlier two Civil Suits between the respondent/landlady and the petitioner-tenant and its effect has not been appropriately evaluated. He further contends that the reviewing authority has erred in observing that the money order coupons were not filed on record. It is his contention that the appellate judgment which is in favour of the petitioner tenant is well reasoned one and there is no scope for any review in the matter.

4. The controversy arises in this background. The respondent/landlord on 14-4-1987 filed application before the Rent Controller and sought permission under Clauses 13(3)(i) and (ii) of the Rent Control Order, to terminate the tenancy. In the schedule accompanying this application, period of default was mentioned as five months, 36 months and 16 months which are consecutive i.e. from 1-8-1982 to 31-12-1982, from 1-1-1983 to 31-12-1985 and from 1-1-1986 to 31-3-1987. From the judgment of the Rent Controller, it is apparent that the same landlord has filed miscellaneous proceedings against his five tenants and all these five cases were tried together by the Rent Controller. The Rent Controller has recorded a finding that the present petitioner did not forward any rent for 16 months and has found that there are no money order coupons produced on record by the petitioner. It, therefore, found that the petitioner is in arrears of rent for 16 months and as rent was not paid regularly for three months, it has granted permission under Clause 13(3)(ii) of the Rent Control Order. The Appellate Authority has considered the record and has found that the landlady admitted in cross-examination that tenants used to sent rent by money order to Mainabai i. e. one of the landlords and she refused to receive that rent. It thereafter found that there were Civil Suits and in it the rent was recovered. It has found that during pendency of Civil Suits also, the tenant paid the rent through money orders but landlord refused it. It, therefore, held that there is proof that the landlords have refused to accept money orders and hence permission under Clause 13(3)(ii) cannot be granted. In review, the reviewing authority has observed that the present petitioner has not placed on record any money order coupons and as such the finding reached by the Appellate Authority was perverse and there is apparent error in this respect. The Reviewing Authority has, therefore set aside the order of Appellate Authority and has granted permission to the respondent/landlady.

5. Shri Deshpande, Advocate for the petitioner invited attention of this Court to the judgment of this Court in the case of Subhash Sakharam Rokade v. S.N. Bhatkar, reported at 1995(2) B.C.J. 215. In the said judgment, the learned Single Judge of this Court in para 10 has observed that the arrears of rent simplicitor cannot be equated with expression habitually in arrears with rent. It is further observed that once the landlord refused to receive money orders, it is not obligatory on the part of the tenant to send the money orders and the landlord should issue a notice to such tenant that he intends to accept the rent. It is held that once the landlord refuses the rent sent by the tenant, it would be an exercise in futility on the part of the tenant to persuade the landlord. Relying upon these observations, Shri Deshpande stated that there are money order coupons on record and as such it is apparent that tenant has sent the money orders and landlord refused to accepted it. It is further stated that until and unless there is notice from landlord to the tenant that he would be treating non payment of rent as habitual default, the tenant cannot be held to be in default as required by Clause 13(3)(ii) of the Rent Control Order. He further states that there were two suits filed during the period which is mentioned in the schedule. In the first suit i.e. Special Civil Suit No. 827 of 1982, the period of rent claimed was from 1-12-1981 to 31-7-1982 and the suit was for ejectment and possession, after serving notice dated 3-7-1982. He, therefore, contended that the respondent did not accept the petitioner as tenant during this period. The decree for payment of rent has been passed in the above suit on 14-3-1983 while suit for ejectment and possession has been dismissed. In the other Suit No. 29 of 1986, the period involved is from 1-1-1983 to 31-12-1985. This suit is decreed on 26-3-1987.

The Rent Control proceedings are filed in April 1987. Thus, according to him, till the end of March 1987, the respondent/landlord was not treating the petitioner as his tenant and as such there was no question of paying rent regularly as sought to be contended by the respondent. He contends that therefore, the default in payment of rent as alleged for this period cannot be gone into for grant of permission under Clause 13(3)(ii) of Rent Control Order. He also invites attention of this Court to the admission given in his cross-examination of respondent/landlord in which the said landlord accepted that Mainabai refused the money orders. He states that after considering this material, the Appellate Authority has refused to grant permission to the respondent/landlord and the order therefore, could not have been interfered with in review jurisdiction. He contends that the reviewing authority has acted in excess of jurisdiction available to it.

6. As against this, Shri Tathod, Advocate for respondent No. 4/landlord states that a confusion is being created as the proceedings were common proceedings against all the tenants and the Rent Controller has specifically found that the petitioner did not forward any money order. He states that this specific observation in relation to the petitioner has been overlooked by the Appellate Authority and the Appellate Authority has again given importance to the general observations and has relied upon the admission of the landlord which is also of genera-nature. He contends that thus, the Appellate Authority has not recorded any specific finding in relation to any particular tenant and this has resulted in refusal of permission of the respondent/landlord. He states that the Appellate Authority has treated the money orders forwarded by other tenants as money orders forwarded by the present petitioner. He contends that thus there is error apparent on the face of record and this error has been corrected in review by the reviewing authority. The reviewing authority has found that there are no money order coupons and has, therefore, correctly appreciated the situation. He contends that as the approach of the Appellate Authority itself was erroneous, the reviewing authority was justified in exercising its jurisdiction.

7. After hearing both the sides, I find that the first civil suit viz. Civil Suit No. 827 of 1982 was for ejectment and possession and for relief of possession, the tenancy of petitioner was terminated from 31-7-1982 and by legal notice dated 3-1-1982, the said suit was filed after 31-7-1982 and has been decided on 14-3-1983. Thus, insofar as payment of rent from 1-12-1981 to 31-71982 is concerned, the contention of the petitioner that the tenant did not accept him as his tenant cannot be accepted. Similarly, second suit Small Cause Case No. 29 of 1986 which was filed on 13-1-1986 was only for recovery of arrears of rent for the period from 1-1-1983 to 31-12-1985 and decree for ejectment and possession was sought for in it. It will thus be seen that in both the Civil Suits, the landlord was required to recover the arrears through process of Court only. The reliance upon money order coupons is also misconceived because Rent Controller has specifically found that non-applicants No. 3, 4 and 5 have not sent rent for 16 months and non-applicant No. 4 is the present petitioner. It is expressly mentioned that non-applicant Nos. 1 and 2 have filed refused money order receipts. It will thus be seen that money orders are produced by other tenants and not by petitioner. In this background when the admission of landlord given in cross-examination is perused, it is also clear that the admission is of general nature which states that the tenants used to forward money orders in the name of Mainabai and Mainabai used to refuse them. However, this admission does not show that the petitioner forwarded any money orders to Mainabai and Mainabai refused the same. The express observation of Rent Controller that the petitioner has not placed on record any money order coupons clearly goes to show that the petitioner never forwarded rent by money order to Mainabai. Therefore, there was no reason or occasion for Mainabai to refuse such money orders. The Rent Controller was, therefore, granted the permission. The Appellate Authority, however, ignores this specific instance and it has decided all appeals together. The observations made by the Appellate Authority in its order dated 13-6-1990 are all of general nature and no individual case of any tenant has been looked into and considered. The money order coupons filed on record by some of the tenants have been used for the advantage of all by that authority. In such circumstances, it is clear that approach of the Appellate Authority is erroneous. The judgment of this Court on which Shri Deshpande, Advocate for the petitioner has placed reliance also shows that it is the habit of individual tenant which is required to be looked into and ascertained by the authority. The appellate judgment fails to meet that requirement. The reviewing authority has further corrected that error and has applied its mind to the requirement of the case of the petitioner by observing that there are no money order coupons and no rent was forwarded by the petitioner/tenant to the respondent/landlord. It was thereafter mentioned that there is apparent error that respondent has sent rent through money order but landlord refused to accept the same. Thus, it is clear that the erroneous approach and error apparent has been corrected by the reviewing authority through the impugned order. It is, therefore, clear that there is no jurisdictional mistake or perversity in the order dated 9-5-1991 passed by the reviewing authority and impugned by the petitioner in the present writ petition.

8. At this stage, Shri Deshpande, Advocate for the petitioners states that petitioners who have already suffered a decree for ejectment should be given six months time to vacate the premises.

9. Shri Tathod, Advocate for respondent No. 4 has no objection if the undertaking to that effect is obtained from the petitioners.

10. The petitioners, therefore, the directed to furnish an undertaking within two weeks from today that they shall vacate the suit premises by 15th July, 2005 and shall handover the vacant possession to respondent No. 4 landlady.

11. Writ Petition is accordingly fails and dismissed. There shall be no order as to costs.