Case: Shama Prashant Raje Vs. Ganpatrao

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 years

Court's reasoning:
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.