Case: Shama Prashant Raje Vs. Ganpatrao

PATTANAIK, J. 1. Leave granted 2. This appeal is by the tenant assailing the order of the learned Single Judge of the Bombay High Court, at Nagpur Bench, as well as the judgment of the Division Bench affirming the same. The Single Judge of the High Court in a petition under Articles 226 and 227 of the Constitution interfered with the judgment of the appellate authority under the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949. The question for consideration is whether in the facts and circumstances of the present case the High Court was justified in interfering with the findings of the appellate court under the Control Order. The respondent landlord filed an application before the Rent Controller under Clauses 13(3)(ii), (iii) and (vi) of the Rent Control Order seeking permission to determine the tenancy of the appellant, inter alia, on the grounds that the tenant is a habitual defaulter and has sub-let the premises and further, the landlord needs the premises for bona fide use. The Controller, on the basis of the pleadings of the parties formulated five issues and came to the conclusion that the tenant is a habitual defaulter; the tenant has sub-let the premises to a sewing machine firm and the need of the landlord is bona fide. With these conclusions the Controller granted permission for determining the tenancy of the tenant under Clauses 13(3)(ii), (iii) and (vi) of the Control Order. On an appeal being carried under Clause 21 of the aforesaid Order, the Collector and Additional District Magistrate, who is the appellate authority under the Control Order, set aside the findings of the Controller on all the three issues and came to hold that the tenant cannot be held to be a habitual defaulter, that the landlord has failed to establish that the tenant has sub-let the premises and that the bona fide need has vanished as the need indicated in the application was for the business of his son and that the son had died in the meantime. Consequently, the appeal was allowed and the permission granted by the Controller was set aside. The landlord assailed the legality of the order of the appellate authority by filing a writ petition in the High Court. The learned Single Judge by judgment dated 26-2-1998 came to the conclusion that the appellate authority committed error apparent on the face of the order in setting aside the finding of the Controller on the question of habitual default by taking into consideration that a sum of Rs. 2000 had been sent by the tenant to the landlord by money order and the said money order was refused. The money order form itself did not indicate the period for which the money was being sent. The learned Single Judge also came to hold that the default rent for the period September 1984 to November 1984 was paid in December only after the landlord obtained distress warrant from the civil court and not on his own, and therefore, the conclusion of the appellate authority under the Control Order is, on the face of it, erroneous. So far as the finding of sub-letting is concerned, the learned Single Judge considered the so-called agreement between the tenant and Singer Merit Company, and on construction of the terms of agreement it was found that the agreement though nomenclatured as a consignment dealership, is nothing but a sub-letting, particularly when the respondent tenant stays at Dombivali and it is the Company which is in exclusive possession of the premises and transacting the business giving the tenant a rent of Rs. 1500 p.m. terming the same to be commission. With these conclusions the learned Single Judge of the High Court interfered with the order of the appellate authority and affirmed the order of the Controller thereby granting permission to the landlord under Clauses 13(3)(ii) and (iii) of the Rent Control Order. The tenant being aggrieved by the order of the learned Single Judge approached the Division Bench in appeal when the Division Bench agreed with the reasonings of the learned Single Judge and did not find any reason to interfere with the same. The Division Bench, however, took into consideration an additional factor that the premises are under lock and key and not being used for 2 to 4 yearsMr. M. L. Verma, learned Senior Counsel appearing for the appellant tenant vehemently contended that the High Court exceeded its jurisdiction under Articles 226 and 227 of the Constitution in interfering with the findings of fact arrived at by the appellate authority under the Control Order by reappreciating the evidence, and therefore, the judgment of the High Court is liable to be set aside. He also further contended that the conclusion of the High Court that the plea of sub-letting has been established is contrary to the several decisions of this Court inasmuch as to establish sub-letting it must be found that the tenant has parted with the possession of the premises and such possession must be backed by some consideration. In support of the aforesaid contention the learned counsel placed reliance on the decisions of this Court in Dipak Banerjee v. Lilabati Chakraborty (1987 SC 467), Jagan Nath v. Chander Bhan (1988 SC 676) , Gopal Saran v. Satyanarayana (1989 SC 815), Delhi Stationers and Printers v. Rajendra Kumar (1990 SC 726) and United Bank of India v. Cooks and Kelvey Properties (P) Ltd. ( 1994 SC 2093) So far as the question of habitual default is concerned, Mr. Verma contends that the rent for the months of September to November 1984 had been paid in December 1984 and clause 9 of the agreement of tenancy between the appellant and the respondent entitles the tenant to pay the rent within one month from the date of the notice received from the landlord, and authorises the landlord to approach the court of law if the rent over 3 months is not paid within one month of the notice in question, and this being the position, the lower appellate authority was fully justified in holding that the tenant cannot be said to be a habitual defaulter and the High Court committed serious error in interfering with the said finding. So far as the default in payment of rent for the months of December 1984 to March 1985 is concerned, Mr. Verma contends that the lower appellate authority was justified in taking into consideration the refusal of the landlord to the two money orders sent, and the High Court, therefore, was in error in interfering with the conclusion on facts of the appellate authority under the Control Order by interfering with the same in exercise of its discretionary jurisdiction under Article 226 of the ConstitutionMr. Mohta, the learned Senior Counsel appearing for the respondent, on the other hand contended, that the parameters for exercise of jurisdiction by the High Court in respect of the orders of an inferior Tribunal are well settled by a catena of decisions of this Court. Since the conclusion of the appellate authority in the case in hand was based on misconstruction of certain documents and on misreading of relevant materials by a cryptic order without even noticing the detailed reasons given by the Controller, the learned Single Judge of the High Court was fully justified in interfering with the conclusions of the appellate authority, and as such, there is no error so far as the orders of the High Court are concerned. According to Mr. Mohta, a bare reading of the judgment of the learned Single Judge would indicate the apparent errors found by the High Court with the appellate order of the District Collector, and therefore, the High Court was well within its jurisdiction in interfering with the same. 3. In view of the rival submissions we have carefully scrutinised the orders of the Controller, that of the appellate authority under the Control Order and the order of the learned Single Judge which has been affirmed by the Division Bench. Undoubtedly, in a proceeding under Articles 226 and 227 of the Constitution the High Court cannot sit in appeal over the findings recorded by a competent tribunal. The jurisdiction of the High Court, therefore, is supervisory and not appellate. Consequently Article 226 is not intended to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or order to be made. But notwithstanding the same, on a mere perusal of the order of an inferior tribunal if the High Court comes to a conclusion that such tribunal has committed manifest error by misconstruing certain documents, or the High Court comes to the conclusion that on the materials it is not possible for a reasonable man to come to a conclusion arrived at by the inferior tribunal or the inferior tribunal has ignored to take into consideration certain relevant materials or has taken into consideration certain materials which are not admissible, then the High Court will be fully justified in interfering with the findings of the inferior tribunal. Then again the two questions on which the Tribunal under the Rent Control Order was required to give finding, namely, habitual defaulter and sub-letting are not pure questions of fact but can be held to be mixed questions of fact and law. In this view of the matter, on going through the appellate order passed by the District Collector as well as the order of the learned Single Judge, we are not in a position to hold that the High Court exceeded the parameters prescribed for interference with the findings of an inferior Tribunal. Under Clause 13(3)(ii) the Controller has to be satisfied that the tenant is habitually in arrears with the rent. The expression "habitually" would obviously connote some act of continuity. Under the lease deed dated 8-4-1982 between the landlord and the tenant clause 4 made it obligatory for the tenant to pay the rent before 10th day of each English calendar month, and under clause 9, in the event of arrears of rent over 3 months is not paid then the landlord was entitled to give notice and then if the matter is not settled within one month from the date of the notice then the landlord is entitled to terminate the tenancy. Reading the aforesaid two clauses it would not be correct, as contended by Mr. Verma, learned Senior Counsel appearing for the appellant that under the agreement itself 4 months period has been provided to enable the tenant to pay the rent. If a tenant, notwithstanding the obligation of paying the rent by the 10th day of each English calendar month continuously makes a default of paying the rent for the first month by two months thereafter, and pays the rent in similar manner, then he must be held to be habitually in arrears with the rent in question. This being the position, the fact that the rent for September to November 1984 was paid in December only after the distress warrant was issued and that again from December 1984 to March 1985 the rent had not been paid and was deposited within the 10th of next month, as stipulated in the lease agreement, would constitute the tenant to be habitually in arrears within the meaning of Clause 13(3)(ii) of the Control Order. The appellate authority under the Control Order was obviously in error in interfering with the well-reasoned conclusion of the Controller on this score, and the High Court was fully justified in correcting the said error by interfering with the finding of the lower appellate authority on the question of applicability of Clause 13(3)(ii) to the case in hand. Similarly, on the question of sub-letting, there is no dispute with the proposition that the two ingredients, namely, parting with possession and some consideration therefor, had to be established. The conclusion of the lower appellate authority on this score was obviously on a misconstruction of the document Exhibit N-2 and the High Court, therefore, was entitled to correct the error which was based upon a construction of the aforesaid document. The different clauses of the lease deed unequivocally indicate that the sum of Rs. 1500 p.m. was the consideration money for parting with the possession of the premises and allowing Singer Sewing Machine Company to do business in the premisesIn the aforesaid premises, we are unable to accept the contention of Mr. Verma, learned Senior Counsel appearing for the appellant that the High Court committed error in interfering with the finding of the appellate authority under the Control Order by way of reappreciating the evidence. In our considered opinion, the High Court was fully justified in interfering with the conclusion of the appellate authority and correcting the error of the said authority, as already stated. In the premises, as aforesaid,

Decision:
0[ds]we are unable to accept the contention of Mr. Verma, learned Senior Counsel appearing for the appellant that the High Court committed error in interfering with the finding of the appellate authority under the Control Order by way of reappreciating the evidence. In our considered opinion, the High Court was fully justified in interfering with the conclusion of the appellate authority and correcting the error of the said authority, as already stated.