Dr. I.D.Kurhekar vs Shri Bhaskar Krishnarao Gauri ...
2009 Latest Caselaw 133 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
                       NAGPUR BENCH: NAGPUR




                                                                            
                    WRIT PETITON NO.2138 OF 2002




                                                    
PETITIONER:
     Dr. I.D.Kurhekar, aged about48 years, occupation : business, r/o
     Samadhi ward Now Laxminagar, Wadgaon Wad,Chandrapur




                                                   
                                 VERSUS
RESPONDENTS:




                                            
1]   Shri Bhaskar Krishnarao Gauri Shettiwar, aged about 46 years,
                            
     occupation : teacher & LIC Agent, resident of Samadhi Ward,
     Chandrapur, tahsil and District : Chandrapur
                           
2]   The Additional Collector, Chandrapur
3]   The Rent Controller, Chandarapur.
            

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Shri Anjan De, advocate for the petitioner
Shri Rohit Sharma, advocate for respondent no.1
Shri S.B. Ahirkar AGP for respondent no.2 & 3





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CORAM: SMT. VASANTI A. NAIK, J.

DATE: DECEMBER 17, 2009

ORAL JUDGMENT

By this petition, the petitioner challenges the order passed by the Rent

Controller on 7.9.2000 as also the one passed by the appellate authority -

Additional Collector, Chandrapur on 28.3.2002 dismissing the appeal filed by

the petitioner and upholding the order of the Rent Controller dated 7.9.2000.

2] The respondent is the landlord. He had filed an application before the

Rent Controller for grant of permission under clause 13(3)(i)(ii) & (vi) of the

C.P. & Berar Letting of Houses and Rent Control Order 1949. It was the case

of the landlord that the petitioner was a habitual defaulter. The landlord had

pleaded that the tenant had not paid the rent after 31.10.1983. The landlord

claimed the premises for his bonafide occupation. The tenant had denied the

case of the landlord and had pleaded that the landlord had refused to accept

the money orders. The petitioner pleaded that the landlord had not issued any

notice to the petitioner before institution of the suit. According to the tenant,

the need of the landlord for opening a LIC office was also not genuine. It was

pleaded that 3 rooms were vacated in the year 1984 and the landlord could

have conveniently opened the office in one of those rooms. Certain other

pleas were also raised by the tenant and the tenant sought for the dismissal of

the application. The Rent Controller without recording any reason for

granting permission under clause 13(3)(ii) & (vi) granted the same by merely

reproducing certain statements made by the witnesses in their cross

examinations. The order passed by the Rent Controller was challenged in

appeal by the tenant. By a similar cryptic order the appellate authority

dismissed the appeal filed by the petitioner. The petitioner has challenged

both these orders by this petition.

3]

Shri A.K.De, the learned counsel for the petitioner submitted that both

the authorities have committed a serious error in not appreciating the

evidence on record and recording a finding without recording a single reason

for the same. The learned counsel for the petitioner submitted that the Rent

Controller had merely recorded the cross examination of the witnesses and

then abruptly held that the landlord was entitled to grant of permission under

clause 13(3)(ii) & (vi) of the Rent control Order. According to the learned

counsel for the petitioner, this approach was extremely unreasonable. The

learned counsel for the petitioner submitted that the appellate authority also

did not appreciate the evidence tendered by the parties on record and after

recording the submissions made on behalf of both the parties, abruptly

recorded the finding without recording any reason for the same. According to

the learned counsel for the petitioner both these orders cannot be sustained.

The learned counsel for the petitioner relied on the decision reported in 1975

Mh.L.J. Page 746 to substantiate his submission .

4] Shri Rohit Sharma, the learned counsel for the respondent/ landlord

supported the orders passed by both the authorities and submitted that the

writ petition may be dismissed.

5] I have considered the submissions made on behalf of the parties and

have perused both the orders. It is necessary to note that the Rent Controller

has merely recorded the evidence tendered by both the parties, in their cross

examination and then abruptly recorded a finding that the landlord was

entitled to grant of permission under clause 13(3)(ii) & (vi) of the Rent

Control Order. Similar is the case with the appellate authority. The appellate

authority recorded the submissions made on behalf of the parties and has

recorded the finding without recording a single reason for doing so. The first

appellate authority as a final fact finding authority was duty bound to

consider the evidence tendered by the parties on record and record the

reasons for arriving at the findings. The orders in the instant case do not

indicate that the evidence had been dealt with by the authorities. Even the

appellate authority was duty bound to properly appreciate the evidence on

record, apply its mind independently and then pass the order indicating that

the evidence has been fairly and properly dealt with. It would be necessary to

refer to the judgment reported in 1975 Mh.L.J. 746, relied upon by the

counsel for the petitioner, in this regard. Though both the authorities have

failed in their duty to appreciate the evidence on record and record the

reasons for passing the order, it would be necessary in the facts and

circumstances of the case and in the interest of justice to remand the matter to

the first appellate authority as the first appellate authority can independently

apply its mind to the facts of the case and the evidence on record and decide

the appeal in accordance with law.

6] In the result, the writ petition is partly allowed. The impugned order

passed by the appellate authority on 28.3.2002 is hereby quashed and set

aside. The matter is remanded to the appellate authority to decide the appeal

afresh on merits and in accordance with law. The appellate authority is

directed to decide the appeal as early as possible and positively within a

period of 6 months from the date of the appearance of the parties before the

appellate authority. The parties undertake to appear before the appellate

authority on 11.1.2009 so that issuance of individual notices to the parties

could be dispensed with. Rule is made absolute in the aforesaid terms with no

order as to costs.

JUDGE

SMP.