1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Letters Patent Appeal No. 88/2010 in WRIT PETITION NO. 3218/2004 [Santoshrao Barkuji Rahate and ors. .vs. The Additional District Magistrate, Nagpur and another. ] ..................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr. S.J.Khandalkar, Advocate for Appellants. Mr. S.B. Mohta, Advocate for Respondent No.2. CORAM : S.A. BOBDE & P.D. KODE, JJ. DATE OF RESERVING THE ORDER : 05.04. 2010. DATE OF PRONOUNCING THE ORDER : 07.05. 2010. 1. Heard. 2. The appellants heirs of the original tenant have preferred this appeal against the judgment and order dated 7.11. 2009 passed by the learned Single Judge upholding the judgment of the appellate authority partly reversing the order passed by the Rent Controller refusing to grant permission to respondent no.2- landlady under Clause 13 (3) (i), (ii) & (vi) of the C.P. & Berar Letting of Houses and Rent Control Order, 1949. 3. The respondent- landlady has sought permission respectively under Clause 13(3) (ii) and (vi) of the Rent Control Order on the count of original tenant having remained in arrears of rent for a period of more than six months, habitually remains in the arrears of rent and she needs the 2 tenanted premises on ground floor let out for her bona fide occupation. The Rent Controller on appreciation of evidence rejected the application of landlady on all the three counts observing that the appellants were depositing amount of rent in the pending recovery proceedings and there was nothing to show that landlady had received the rent under protest. The Rent Controller also came to the conclusion that landlady did not require the premises for bona fide occupation. 4. The appeal preferred by the landlady against the order passed by the Rent Controller was partly allowed vide order dated 25.2.2004 by the Additional Collector, Nagpur reversing the findings recorded by the Rent Controller on the ground of habitual defaulter. However, even the said Appellate Authority confirmed the finding of the Rent Controller regarding the landlady not requiring the premises for bona fide occupation. 5.The Writ Petition No. 3218/2004 preferred by the appellants against the order dated 25.2.2004 passed by the Appellate Authority was dismissed by the learned Single Judge. The appellants have preferred the present appeal against the same. 6. Mr. Khandalkar, the learned counsel for the appellants urged that findings recorded by the learned Single Judge are totally erroneous and hence the judgment and order appealed is liable to be quashed and set aside. He urged that the learned Single Judge failed to appreciate evidence of appellant that dispute between appellant and landlady was in respect of amount of rent which according to the appellant was Rs.115/- per month inclusive of water charges while landlady claimed that it was exclusive of water charges , in spite of there being a decree of Civil Court on the basis that the rent @ Rs.115/- per month was inclusive of water charges. He 3 further urged that the appellants could not be termed as a habitual defaulter as termed by the learned Single Judge overlooking the said aspect and so also overlooking the fact that the Rent Controller had reached to the finding that appellants were paying the amount of rent in a pending suit and it was wrong that appellants were in the habit of keeping the rent in arrears and particularly on failure of the landlady to bring any evidence on record for disturbing the findings arrived by the Rent Controller. He further urged that learned Single Judge failed to take into consideration the findings of Rent Controller that landlady had forced the appellant to keep the rent in arrears. He further urged that learned Single Judge also failed to take into consideration the fact that landlady had not established that either she had received the rent under protest or by filing a schedule to demonstrate that appellants were habitual defaulter as contended by her i.e. for revealing mental attitude of the appellants to commit persistent defaults. He urged that learned Single manifestly erred in holding that appellants were habitual defaulter only on the count of landlady having twice obtained decree from Civil Court and one suit was pending for recovery of rent. The learned counsel thus prayed for allowing the appeal by quashing and setting aside erroneous findings arrived by the appellate authority as well as by the learned Single Judge. 7. The perusal of the orders clearly reveal justification in observations made by the learned Single Judge that the Rent Controller while rejecting the application made by the landlady of the appellants being habitual defaulter and so also on the other counts passed extremely cryptic order without discussing any reason. The same also reveals of the Rent Controller having rejected the application under Clause 4 13 (3)(ii) only on the count of the appellants depositing an amount of rent in the Court where recovery suit was pending and on the count of landlady having not established whether she had received the rent under protest. Having regard to the said facet, there appears all justifications in the observations made by the learned Single Judge that Rent Controller could not have rejected the application under Section 13 (3)(ii) on such a ground as there was no question of landlady having acquiesced in the delay as admittedly she had filed suit for recovery of amount of rent. It was further undisputed that the rent was paid by the appellants in the Court after institution of the said suit. 8. The perusal of the order also justifies the observations made by the learned Single Judge that the appellate authority after considering the evidence adduced by the parties had come to the conclusion of the landlady being entitled for permission under Clause 13 (3)(i) of the Rent Control Order. It also reveals that while coming to the conclusion, the appellate authority on the basis of the admission given by the appellants in the cross-examination, has come to the conclusion that the rent was required to be recovered through the decree of Civil Court on two occasions and one suit was pending before the Civil Court. The order passed by the learned Single Judge duly depicts the relevant admissions given by the appellants. On the basis of the said admissions, appellate authority as well as the learned Single Judge has rightly come to the conclusion of the appellants being habitual defaulter of rent. The order passed by the learned Single Judge clearly points out of there being no necessity of filing the schedule by the landlady for establishing that the appellants were habitual defaulter. The learned 5 counsel for the appellants having not pointed out any circumstances for coming to the conclusion of the said reasoning being either not based on the evidence on record or erroneous much a less being perverse. Similarly the point of rent of Rs.115/- per month being inclusive of water charges is not at all raised before either the learned Single Judge or before the Appellate Authority , no cognizance of the same can be taken at the present stage. Thus after careful examination of the judgment and order appealed , we do not find any error being committed by the learned Single Judge. 9. In this view of the matter, we see no merit in the appeal. In effect there are concurrent findings of the appellate Authority as well as the learned Single Judge based on the correct appreciation of the evidence on record. As such the judgment and order does not call for any interference. The Letter Patent Appeal accordingly stands dismissed. 10. At the request of Mr. S.P. Bhandarkar, Advocate holding for Mr. S.J. Khandalkar, Advocate for appellants, there shall be stay of the order for a period of eight weeks. Order accordingly. JUDGE JUDGE halwai