Ishwardas S/O Damodhardas Sindhi vs Smt. Shantabai W/O Sewakram ...
2005 Latest Caselaw 323 Bom

JUDGMENT

P.S. Brahme, J.

1. Heard learned counsel for the parties. Perused the records.

2. Appellant/tenant of the suit premises has preferred this appeal challenging the judgment and order dt. 8-9-2003 passed by the learned Single Judge in Writ Petition No. 1069 of 2003 dismissing the petition.

3. The facts, in brief, relating to this litigation are stated as under :

Appellant is, admittedly, a tenant of the suit premises which is being used as a godown admeasuring 9 ft. x 20 ft. Respondent No. 1 landlady who has let out the suit premises to the appellant applied for permission to terminate tenancy under Clause 13(3)(i)(ii)(vi) and (vii) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter called for short as "the Rent Control Order, 1949"). The said proceeding was registered as a Revenue Case No. 698/A-71(2)/85-86 in the year 1986 against the appellant. The rent was Rs. 100/- p.m. exclusive of electric and water charges. It was the case of landlady that when she purchased the premises from the erstwhile owner Anant Ramchandra Chitre on 1-5-1979, at that time she was residing on monthly rent of Rs. 125/- in the rented premises of one Mr. Balkrishna. That premises were comprised of one room and in that, four members of respondent No. 1's family were residing. She, therefore, required the suit premises in occupation of appellant for her personal bona fide need for residence. She contended that she has to construct a house on the suit premises for the purpose of residence of her family. It was also contended by respondent No. 1/original applicant that the appellant last paid rent in the month of November, 1984 and thereafter, he did not care to pay the rent. That the appellant was in arrears of rent for more than three months and was, therefore, a defaulter. She issued notice on 31-1-1985 to the appellant. Though the appellant replied her notice, he did not vacate the suit premises and therefore, she was constrained to file application before the Revenue Authority against the appellant as stated earlier.

4. The appellant resisted the claim of respondent No. 1 by his reply. He denied the claim of respondent-land lady that he has committed default in payment of rent and that he was in arrears of rent. As regards the requirement of landlady of the suit premises for her personal use and occupation, he contended that she has no requisite funds to make construction. He further contended that money orders and registered covers containing cheques towards payment of rent sent by him were continuously refused by the landlady on several occasions. That the landlady had already constructed residential house as per the sanctioned plan adjoining suit premises and she has also come to reside in that premises.

5. The Rent Controller on the basis of the evidence that was led before him and also the material documentary evidence, outright rejected the claim of respondent No. 1 vide his order dtd. 19th March, 1996.

6. The Landlady preferred R. C. Appeal No. 21/A-71(2)/95-96 before the Additional Collector, Nagpur. The Appellate Authority by its order dated 31st day of May, 1999 allowed the appeal holding that the Landlady has amply proved her case under Clause 13(3)(i), (ii), (vi) and (vii) of the Rent Control Order thereby setting aside the order passed by the Rent Controller.

7. Being aggrieved by that order, the appellant sought review by preferring R.C. Review Application No. 8/A-71(2)/1998-99 before the Additional Collector, Nagpur. The Landlady also preferred Review Application No. 9/A-71(2)/1998-99 praying for clarification of the order to determine the lease of the tenant under Clause 13(3)(ii), (vi) and (vii). The Additional Collector disposed of both the review applications by common order dtd. 31st day of July, 2002. In that, the review application filed by the tenant/appellant was partly allowed and permission granted under Clause 13(3)(i) on the ground of arrears of rent by the Appellate Authority was set aside. The review application of the landlady was allowed and the permission granted to terminate the lease under Clauses 13(3)(ii)(vi) and (vii) of the Rent Control Order by the Appellate Authority was confirmed. This decision was under challenge before the learned Single Judge in Writ Petition No. 1069 of 2003. As stated earlier, the learned Single Judge confirmed the order passed by the Reviewing Authority by order dated 31st July, 2002.

8. The learned Single Judge after having heard the learned counsel for the parties and also perusing the orders passed by the Authorities under challenge, came to the conclusion that the Appellate Authority has not committed any error of law apparent on the face of record while granting permission to the landlady to terminate tenancy. The Reviewing Authority has rightly interfered with the permission granted under Clause 13(3)(i) of the Rent Control Order, 1949. That the Appellate Authority has granted permission on the basis of cogent material on record as regards the Clauses 13(3)(ii) and 13(3)(vi). The learned Single Judge found that no error of jurisdiction or perversity is shown by the Appellant/Petitioner. Therefore, the learned Single Judge found that it was not a case calling for interference by the Court in its exercise of writ jurisdiction. That is how, the writ petition filed by the Appellant came to be dismissed. This order is under challenge before us in this appeal.

9. Mr. Purohit, Adv. appearing on behalf of the Appellant vehemently submitted that the Appellate Authority was in gross error in setting aside the order of Rent Controller and granting permission to the Landlady to terminate the lease on the ground of habitual default, bona fide personal requirement and requirement of the suit premises for construction and occupation. He submitted that the landlady in her application has not substantiated her claim for possession by making specific plea. That apart, no evidence was led by the Landlady to substantiate her claim. The Landlady has raised construction of one room above the ground floor premises where she was running a flour mill. She has already initiated proceedings against the tenant Bhailal who has occupied one part of the suit house. So, in this background, her requirement of the suit premises does not survive. The Appellate Authority and even the High Court in Writ Petition failed to take into consideration this factual aspect of the matter and as such, committed an error in dismissing the writ petition.

10. In support of his submission, the learned counsel placed reliance on the decision of our High Court in 1974 Mh.L.J. 774, Ganpat v. Rameshwar and Anr., 1975 Mh.L.J. 746, Janba Daulatrao Borkar v. Rajeshkumar Ramjiwan Agarwal and the decision of Apex Court in 2005(2) Mh.L.J. (SC) 5 = (2005) 2 SCC 476, Adil Jamshed Frenchman (Dead) by L.Rs. v. Sardar Dastur Schools Trust and Ors. and (2003) 8 SCC 740, Kashi Nath (Dead) through L.Rs. v. Jagannath, AIR 2003 SC 1905, Bondar Singh and Ors. v. Nihar Singh and Ors., AIR 1987 SC 2179, Vinod Kumar Arora v. Smt. Surjit Kaur, AIR 2002 SC 665, Om Prakash Gupta v. Ranbir B. Goyal. The decision of our High Court in 1996(1) Mh.L.J. 339, Mahendrabhai Purushottam Patel v. Vasant Mahadeorao Sangole.

11. As against that, Mr. Samel, learned counsel appearing for respondent No. 1 supported the decision of the Appellate Authority given in the review application, as also that of the learned Single Judge in dismissing the review application. He submitted that the appeal under Clause 15 of the Letters Patent Appeal is not maintainable against the judgment/order of the learned Single Judge as per the parameters laid down by the Hon'ble Supreme Court in the judgment delivered in the case of Umaji Keshao Meshram and Ors. v. Smt. Radhikabai and Anr. reported in AIR 1986 SC 1272. He also submitted that the appellant has challenged the order passed by the learned Single Judge, as also the order passed by the Appellate Authority granting permission to determine the tenancy of the Appellant under Clauses 13(3)(ii)(vi) and (vii) of the Rent Control Order on various factual and legal grounds that there is no iota of exercise of provisions of Article 226 of the Constitution. That the learned Single Judge while passing the order has exercised the powers of superintendence and has taken into consideration all the material facts placed on record of the lower Court by both the parties to the petition and has taken into consideration the findings of the Court below and has ultimately arrived at the conclusion that there is no error of jurisdiction or perversity to enable the Court to exercise writ jurisdiction. He submitted that as a matter of fact the landlady has proved the persistent wilful default committed by the Appellant in payment of rent. It is agreed by the Appellant that the rent was agreed to be paid every month at the end of tenancy month and that the appellant having not paid the rent, the landlady went to the shop of the appellant to collect the rent. It is again admitted fact that the suit premises are in occupation and use of the Appellant as a godown. The learned Single Judge has rightly upheld the findings of the learned Appellate Authority and it was the ground under Clause 13(3)(ii) of the Rent Control Order. The learned counsel further submitted that the Landlady has categorically pleaded in her application itself that her family consists of four members and three of them are adults and that she is facing problem to stay with her family and in one room is situated flour mill and her son is forced to do business of a vegetable vendor by sitting on the footpath in front of their house. That this state of facts, as has been stated in the evidence by the landlady respondent No. 1 which has been admitted by the other side, has been rightly considered by the learned Single Judge in upholding the decision of the Reviewing Authority. That the respondent has constructed one room admeasuring 9 ft x 20 ft. in vacant shop block and she is running flour mill on the ground floor and residing with her husband and two adult sons in that room only above the flour mill. He further submitted that the Rent Control Appellate Authority while reviewing the order has taken into consideration this admitted fact that the landlady has at her disposal only one room at the ground floor above the flour mill for use and occupation of her family consisting of four members including respondent No. 1. Therefore, the learned Single Judge was right in observing that there was no jurisdictional error on the part of the Additional Collector in reviewing his own order passed in appeal and granting permission to the landlady to terminate tenancy of the appellant.

12. The learned counsel placing reliance on the decision of the Apex Court in (2001) 8 SCC 431, R.C. Tamrakar and Anr. v. Nidhi Lekha, (2002) 1 SCC 610, G.C. Kapoor v. Nand Kumar Bhasin and Ors., (2003) 1 SCC 462, Akhileshwar Kumar and Ors., v. Mustaqim and Ors. and (2004) 8 SCC 490, Pratap Rai Tamwani and Anr. v. Uttam Chand and Anr., submitted that the learned Single Judge has rightly dismissed the writ petition. The Appellant has not made out any ground for interfering with the order passed by the Appellate Authority, so also the order passed by the learned Single Judge. He, therefore, urged that the appeal should be dismissed.

13. The contentions of the landlord in her application before the Rent Controller, the contentions raised by the Appellant in his reply filed before the Rent Controller, the evidence of landlady before the Rent Controller and that of brother of appellant namely Manohar Damodhardas, as also documentary evidence produced at the trial before the Rent Controller certainly reveals that most of the factual position is admitted. When she purchased the suit house in the year 1983, she was residing in the rented premises comprised of single room with her family of four persons including herself. It is admitted that the suit house was comprised of three independent tin sheds. In one of the sheds, the applicant was having her flour mill while remaining two parts were in possession of the appellant-tenant, which he was using as a godown, and other tenant namely Bhailal. The landlady filed the application before the Rent Controller in the year 1986 for seeking possession of the suit premises from the appellant. The situation that was prevailing at that time was that the only premises which was available at her disposal was the ground floor tin shed where she was running a flour mill. As she was occupying the residential premises as a tenant, she needed the suit premises in occupation of the appellant for her personal bona fide occupation. It was in that perspective that the landlady in her application made averment that she wanted to raise construction on the suit premises to bring it in use for residence. There is specific averment in the application that she has obtained sanctioned plan for the construction to be made and she has also secured loan for the construction. There is admittedly subsequent development during pendency of the application that the landlady raised construction on the premises of flour mill and by the time her evidence was recorded before the Rent Controller, she occupied the first floor construction for residence of her family. But then, she insisted for her claim in respect of suit premises for her occupation and obviously for the reason that the construction which was raised by her above the flour mill was consisting of a single room having no independent facility of bathroom and toilet. It is in that premise that the requirement of landlady of the suit premises for her personal use and occupation did subsist and that is how, the Appellate Authority has by its order granted permission on the ground of bona fide requirement of the premises.

14. In that context, the Appellate Authority took into consideration the admission on the part of witness of appellant. This is in the sense it is not disputed that the landlady had no place or premises for her residence except the room constructed above the flour mill premises, since after she vacated the rented premises which she was occupying prior to purchase of suit house. It is also borne out in the evidence on record that the landlady was residing in the premises with her husband and two sons. It was admitted that the landlady had no other premises for her use and occupation besides the premises in occupation of appellant-tenant. The Appellate Authority has observed "from the evidence on record and depositions of witnesses, it is clear that there are four members in the family of the landlady including herself, her husband and two sons. She is presently living with her family members in one room measuring 10ft x 22ft. which she has constructed on the first floor of her flour mill. The respondent says that one room has become vacant and is available to the appellant for her occupation. This room was previously occupied by another tenant Mr. Bhailal who vacated it on termination of his tenancy and the same can be occupied by the appellant and that she does not now require the room measuring 9 ft. x 20 ft. occupied by him. I do not agree with this view. The appellant wants to construct toilet and bathroom as essential need of his family. Only two rooms including one vacated by Bhailal cannot be said to be sufficient for a family of four members. On this count also, the application of the appellant deserves to be considered for her bona fide need."

15. The Appellate Court further observed "nothing on record shows that the appellant-landlady has taken loan of Rs. 80,000/-, out of which she has spent Rs. 40,000/- towards the construction. The respondent's brother Mr. Manohar in his deposition has admitted that it is an old construction and new construction cannot be made unless he vacates the premises". It is pertinent to note that the decision of the Appellate Authority granting permission on the ground of personal requirement and construction has been sought to be reviewed by the Appellant before the Appellate Authority. We have perused the judgment of the Additional Collector in review applications. It is found that he has considered the pleadings of the parties, the evidence on record and found that the view which he has taken as the Appellate Authority for granting permission on these grounds does not call for interference. The learned Single Judge by dismissing the appeal, confirmed the findings recorded by the Appellate Authority as regards grant of permission to the landlady on the ground of bona fide requirement and for construction. In our considered view, when the appellant has admitted factual position as to availability of premises at the disposal of landlady, as also her requirement of the suit premises, we do not think that there is any perversity in the order passed by the Authorities below in granting permission. In the background of the fact that most of the facts including subsequent developments are admitted by the appellant, we do not find that the claim of landlady suffers from the vice of specific pleading as regards her requirement of the suit premises.

16. As regards the habitual default, the learned Single Judge has reproduced the observations of the Additional Collector in the judgment. Perusal of the same would reveal that there were seven instances of default. In that, the rent for the months of March, April, May, 1983 for three months was sent by cheque along with notice dt. 18-5-1983. Then rent for 1-11-1984 to 31-14985 for three months was again sent by cheque with notice dt. 1-2-1985. Then the rent for 1-11-1984 to 31-7-1985 for nine months of Rs. 900/- was sent with cheque with notice dt. 17-7-1985. Then the rent for 1-11-1984 to 31-8-1985 for ten days Rs. 1000/- was sent along with notice dt. 5-8-1985. Again the rent for 12 months was sent by cheque with notice dt. 26-12-1984. Then again the rent for 39 months of Rs. 3900/- was sent with notice. Again the rent for 22 months of Rs. 2,200/- was sent along with notice dt. 6-4-1989. This way the tenant made payment of rent to the appellant sometimes for three months, nine months, 39 months and 22 months etc. In this background, hardly any reasoning is required to hold that the tenant/appellant was a habitual defaulter. To say the least, we do not find that the Appellate Authority as well as the learned Single Judge were right in confirming the order granting permission on the ground of habitual default.

17. The learned Single Judge, while upholding the findings recorded by the Appellate Authority in respect of granting permission on the ground of bona fide requirement, took into consideration the fact that the landlady was presently residing with her family members in one room admeasuring 10 ft. x 22 ft. which she has constructed on the first floor of her flour mill. It is revealed from the judgment of the Rent Controller itself that the respondent's/landlady's son was forced to do business of vegetable vendor in front of her house. In that situation, having regard to the fact that there are four members in the landlady's family including her husband and two sons, the permission has been granted under Clause 13(3)(vi) for bona fide need. Similarly, permission was granted for raising construction on the suit premises as it is found that the landlady was in need of additional premises to satisfy her requirement considering the extent of her family, as also the fact that her sons have no place for business. The learned Single Judge in this background rightly found that the Appellate Authority has granted permission on the basis of cogent material on record and therefore, there was no error of jurisdiction or perversity calling for interference in the order passed by the Appellate Authority. After assessment of the evidence independently by us and having regard to the facts and circumstances of the case, we are also of the view that the Appellate Court has committed no error of law apparent on the face of record while granting permission to the landlady to terminate tenancy.

18. We shall now refer to the decisions of the Apex Court and our High Court relied upon by the counsel for the parties. In the decision in 1974 Mh.L.J. 774 (supra), it has been held that mere statement of landlord that he bona fide requires the accommodation is not enough. That details showing his need must be given. A mere ipse dixit of the landlord that he requires accommodation for his personal occupation is not enough. He must give details as to whether he requires the accommodation for residence or business or godown. The ratio laid down in this case on the basis of facts of that case cannot be disputed.

19. The decision of our High Court in 1975 Mh.L.J. 746 (supra) again relates to the requirement by the landlord to prove the facts which go to prove his need. The need must be reasonable though not absolute. It is observed that although the word 'reasonable' does not appear in the Rent Control Order the question of reasonableness is relevant in deciding the bona fides of the landlord. Gross unreasonableness may in proper circumstances lead the Court to reach a conclusion that the landlord's requirement is not bona fide. As we have found that in the case at hand, the landlady has clinchingly proved her bona fide requirement of the suit premises.

20. The Apex Court in (2005) 2 SCC 476 (supra) has observed that bona fide requirement must be outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any members of his family. The question to be asked by a judge on facts by placing himself in the place of landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. In that case, the landlord's eviction suit based on bona fide need of landlord was decreed. The tenant in appeal sought to produce two documents which came into existence after passing of the said decree and third document relating to correspondence of landlord with third party. The Apex Court held that the documents sought to be produced by the tenant were material and if substantiated, would have a material effect in the case of landlords of their bona fide need of the suit premises and therefore, it was found that the High Court was not justified in interfering with the discretion exercised by the first Appellate Court permitting adducing of additional evidence. The tenant was required to adduce additional evidence so as to bring on record subsequent events that would have materially affected bona fide requirement of the landlord. In the case at hand, no such situation arose nor there was any claim made by the tenant-appellant before the Appellate Authority seeking permission to adduce additional evidence as regards the subsequent event of landlord having raised construction on the flour mill. That apart, as we have observed earlier, the requirement and need of the landlord of the suit premises is neither affected nor lessened because of construction raised on the flour mill.

21. In (2003) 8 SCC 740 (supra), the Apex Court observed that in case of finding of fact, the High Court cannot re-appreciate the evidence and interfere with the concurrent findings of fact of the Court below. It is also held that when there is variance between pleadings and evidence, such evidence cannot be relied upon. However, the adverse inference is to be drawn when the pleadings and evidence are self-contradictory. The ratio laid down in this case, as also in the decision in AIR 2003 SC 1905 (supra) cannot be disputed. But then, in the case at hand, we have found that there is neither any variance in the pleadings and evidence nor there is any error committed by the Appellate Authority in placing reliance on the evidence supporting the claim of the landlord in requirement of the suit premises as the Appellant has not disputed the material facts as to availability of the premises at the disposal of the landlady. That apart, the Appellate Authority has rightly assessed the evidence on record to reach to the conclusion that requirement of landlady of the suit premises was bona fide.

22. The Apex Court in 1987 AIR SC 2179 (supra) held that the High Court is fully justified in rejecting the finding of the Rent Controller and the Appellate Authority, even though it is a finding of fact, when both the Authorities have based their findings on conjectures and surmises and they have lost sight of relevant pieces of evidence which have not been controverted. It is further observed that the rule that when the Rent Controller and the Appellate Authority have rendered concurrent findings of fact, the High Court is not entitled to disregard those findings and come to a different conclusion of its own would apply only when the findings have been rendered with reference to facts and not on the basis of non-existent material and baseless assumptions. Again accepting the ratio laid down in this case, we are of the view that in the case at hand neither the Appellate Authority nor the learned Single Judge has committed any error in confirming the findings recorded by the Appellate Authority. We have already found that the learned Single Judge found that the findings recorded by the Appellate Authority were on the basis of the relevant material and evidence on record. In fact, the learned Single Judge found that there was no justified reason calling for interference in the findings recorded by the Appellate Authority. We have found that the Appellate Authority has recorded a finding which is based on the evidence on record. Therefore, it is not a case that the finding is recorded on conjectures or surmises nor it is a case that the Appellate Authority has lost sight of the relevant pieces of evidence. Therefore, we find justification for the Appellate Court in interfering with the finding recorded by the Rent Controller and also for the learned Single Judge for not interfering with the findings recorded by the Appellate Court.

23. The decision of our High Court in 1996(1) Mh.L.J. 339 (supra) relates to ambit and scope of the Reviewing Authority under the Rent Control Order, 1949. It is observed that in deserving cases it is open to the reviewing authority to exercise review power where gross error of fact or facts apparent. In that case, the Appellate Authority on finding this serious error in its order reversing the order of Rent Controller corrected the same in review application. The order of the Appellate Authority reviewing its earlier finding was challenged on the ground that the Reviewing Authority exceeded its jurisdiction in interfering with the finding of fact recorded by it while deciding the appeal. It is held that exercise of power of review under Clause 21(2-a) of the Rent Control Order, 1949 was fully justified. The power of review under the aforesaid clause cannot be said to be restricted to correction of errors of law apparent on the face of record or such like errors. In deserving cases it is open to the Reviewing Authority to exercise power of review where gross errors of fact or facts are apparent. Such errors of fact may have been occasioned either by misreading of relevant pleadings or evidence or overlooking or ignoring of material pleading or evidence or taking into account extraneous consideration and such error of fact or errors of facts have resulted in manifest injustice. Every error in the garb of review cannot and should not be corrected nor the Reviewing Authority would hear the review application as an appeal against its own order, but at the same time the power of review under this Clause 22(2-a) cannot be confined to correction of errors of law. The power of review under this clause though normally and ordinarily should not be exercised in a routine manner, but there are no limitations and restrictions on the Reviewing Authority to exercise its power to correct its finding of fact which are patently erroneous and have resulted in failure of justice. The learned counsel for the Appellant has placed reliance on these observations so as to support his contention that the Additional Collector before whom the Review Application was filed by the Appellant-tenant for review of the order of the Appellate Authority failed to exercise the power of review. The learned counsel submitted that, as observed in this case, the Reviewing Authority ought to have interfered with the order passed by the Appellate Authority in respect of finding of facts. It is true that this Court has held that power of Reviewing Authority is not restricted to the error of law committed by the Appellate Authority. That it is open to the Reviewing Authority to exercise powers of review when gross errors of fact or facts are apparent. We do not think that the Reviewing Authority in the case at hand has committed any error in not interfering with the finding of fact in respect of the grounds for eviction for which permission has been granted. In the earlier part of the judgment, it is specifically pointed out that the Reviewing Authority i.e. Additional Collector while considering the review application filed by the Appellant did consider his claim for review of the order in respect of grant of permission on the ground of arrears of rent. The Reviewing Authority i.e. the Additional Collector who in fact recorded a finding granting permission on the ground of arrears of rent, reviewed its own order finding that on the evidence on record and particularly, the admission given by the landlord, it is not proved that the appellant was in arrears of rent. But so far as grant of permission by the Appellate Authority on other grounds is concerned, the Reviewing Authority did not interfere with the findings as it was found that on facts and evidence on record the grounds are substantiated. Therefore, there was justification for the Reviewing Authority i.e. Additional Collector in not interfering with the order granting permission on the ground of habitual default, personal bona fide requirement and requirement of suit premises for construction.

24. We have already referred to the decisions on which reliance has been placed by the learned counsel Mr. Samel appearing for the respondent No. 1. We have also gone through the decisions. We have no hesitation in saying that the findings recorded by the Appellate Authority, as also the Reviewing Authority confirming the findings of the Appellate Authority is found to be in tune with the ratio laid down by the Apex Court and this Court in the decisions referred above. Therefore, we do not wish to dilate more on the ratio laid down by the Apex Court and this Court in the decision referred by the learned counsel for respondent No. 1.

25. In the result, in our opinion, the appeal merits no consideration at all. We do not find any reason to interfere with the findings recorded by the Appellate Authority which later on came to be confirmed by the Reviewing Authority as well as the learned Single Judge in the Writ Petition. We also find that the learned Single Judge has rightly dismissed the writ petition holding that no case for interference was made out. We, therefore, dismiss the appeal with no orders as to costs.