Dayaram Kundanmal Firm and Others vs The Additional Collector, Amravati and Others

Z.A. Haq, J.—Heard Shri S.V. Purohit, the learned Advocate for the petitioners, Shri N.R. Patil, the learned Assistant Government Pleader for the respondent No. 1 and Shri A.B. Patil, the learned Advocate for the respondent No. 2(i) to 2(iv).

The petition is filed by the partners of the firm (tenant) challenging the order passed by the Additional Collector granting permission to the original respondent No. 2-landlord to terminate the tenancy of the petitioner-firm under Clause 13(3)(ii), (iii) and (vi) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as the "Rent Control Order, 1949"). The petitioners have also challenging the order passed by the Additional Collector rejecting the application filed by the petitioner-firm seeking review of the order granting permission to terminate the tenancy of the petitioner-firm.

The landlord filed application under Section 13(3)(ii), (iii), (iv), (v) and (vi) of the Rent Control Order, 1949 seeking permission to terminate the tenancy of the tenant-firm. The House Rent Controller had rejected the application and the appeal challenging the order passed by the House Rent Controller was also dismissed. The landlord had filed writ petition before this Court which came to be allowed and the matter was remitted to the House Rent Controller for deciding afresh. The House Rent Controller again rejected the application filed by the landlord. In appeal filed by the landlord, the learned Additional Collector granted permission to the landlord to terminate the tenancy of the tenant-firm under Clause 13(3)(ii)(iii) and (vi) of the Rent Control Order, 1949. The tenant-firm had filed review application which also came to be dismissed. The petitioners being aggrieved by the above mentioned order have filed this writ petition.

It is the case of the landlord that M/s. Dayaram Kundanmal Firm was inducted as tenant. According to the landlord, the tenant was not paying the rent regularly and was paying at irregular intervals and the chart showing the details of the payments made by the tenant-firm was also annexed as schedule to the application filed before the House Rent Controller. The landlord pleaded that the tenant-firm had sub-let the shop premises to another firm M/s. Punjwani Kirana Stores without seeking permission of the landlord. The landlord pleaded that the suit shops were required by the landlord for his bona fide need. Under these circumstances, the landlord sought permission to terminate the tenancy of the tenant-firm under Clause 13(3)(ii), (iii) and (vi) of the Rent Control Order, 1949. The pleadings of the respective parties in respect of the claim of the landlord for permission under Clause 13(3)(iv) and (v) of the Rent Control Order, 1949 are not being dealt with as the subordinate authorities have rejected the claim of the landlord on these counts.

The tenant-firm pleaded that the rent was being paid as per advice of the landlord, for certain months together. It is submitted that the practice regarding the payment of rent was never objected to by the landlord. The tenant pleaded that M/s. Punjwani Kirana Stores was a partnership firm constituted by the members of the family of Shri Dayaram Kundanmal and the partners in M/s. Dayaram Kundanmal Firm and M/s. Punjwani Kirana Stores were same and therefore, it cannot be said that there was sub-letting. The tenant firm denied the claim of the landlord for permission under Clause 13(3)(vi) of the Rent Control Order, 1949 contending that the tenant was residing in the rented premises and it was not pleaded by the landlord that the owner of the premises in which the landlord was residing had asked the landlord to vacate the premises. The tenant-firm prayed that the application filed by the landlord be dismissed.

Shri S.V. Purohit, the learned Advocate for the petitioners has submitted that the schedule filed by the landlord along with the application shows that the tenant paid the rent at intervals and whenever the rent was paid, all the arrears of rent were paid. It is submitted that the payment of rent at regular intervals was as per the advice of the landlord. It is submitted that the landlord had never taken any objection to this practice of payment of rent and therefore, it cannot be said that the tenant was habitual defaulter as contemplated by Clause 13(3)(ii) of the Rent Control Order, 1949. In support of his submission, the learned Advocate has relied on the judgment given in the case of Swami Ratanbabu Vs. Wamanrao Shankarrao Deshmukh, (1994) 3 SCC 738 Supp .

It is submitted that the two firms-M/s. Dayaram Kundanmal and M/s. Punjwani Kirana Stores were constituted by the members of the family. It is submitted that though the two firms had different identity, as the partners of the two firms were same, it cannot be said that there was any sub-letting. The learned Advocate emphasized on the fact that Dayaram Kundanmal was having control over both the firms and he was managing the business of both the firms in the suit shops and therefore, the claim as made by the landlord that M/s. Dayaram Kundanmal Firm had sub-let the premises to M/s. Punjwani Kirana Stores, is unacceptable. In support of this submission, the learned Advocate has relied on the judgment given in the case of Madras Bangalore Transport Co. (West) Vs. Inder Singh and Others, AIR 1986 SC 1564 : (1986) 1 SCALE 989 : (1986) 3 SCC 62 : (1986) 2 UJ 498 .

It is submitted that the claim made by the landlord for permission under Clause 13(3)(vi) of the Rent Control Order, 1949 could not have been accepted by the learned Additional Collector inasmuch as the landlord had not even pleaded that the owner of the house where the landlord was residing and carrying on his business, had asked him to vacate the house. It is further submitted that the landlord was residing at Ner and was also carrying on the business at Ner and therefore the claim as made on behalf of the landlord was not bona fide. It is submitted that the case tried to be made out by the landlord for permission under Clause 13(3)(vi) of the Rent Control Order, 1949 was not proved by the landlord. It is further submitted that the landlord had sought permission under Clause 13(3)(vi) of the Rent Control Order, 1949 on the ground that in addition to the alleged need of carrying out business, the suit shops were also required for residence of the landlord as the children of the landlord were taking education at Amravati and therefore, the landlord wanted to shift to Badnera. It is submitted that the application was filed by the landlord in 1981 and the need as pleaded by the landlord does not subsist inasmuch as the education of the children might have been completed long ago.

Shri A.B. Patil, the learned Advocate for the respondent Nos. 2(i) to 2(iv) has pointed out the pleadings of the tenant in the written statement and also the evidence of Shri Mansaram Kundanmal Punjwani and has submitted that it is admitted on behalf of the tenant that the tenancy was monthly and the rent was to be paid on 1st day of the month. It is submitted that the learned Additional Collector has considered the material on the record and has rightly concluded that the tenant was habitual defaulter.

Shri A.B. Patil, the learned Advocate has submitted that the tenant had come out with the false plea in the written statement that the tenancy was created in favour of Dayaram Kundanmal Punjwani and not in favour of M/s. Dayaram Kundanmal Firm and after trial it is found that the tenancy was created in favour of M/s. Dayaram Kundanmal Firm as pleaded by the landlord. It is submitted that the false plea was raised by the tenant to raise the defence that there is no sub-letting in favour of M/s. Punjwani Kirana Stores. The submission is that the original tenant M/s. Dayaram Kundanmal Firm had vacated the suit shops and M/s. Punjwani Kirana Stores had been conducting its business in the suit shops and this is admitted by the tenant in its written statement and therefore, the grant of permission under Clause 13(3)(iii) of the Rent Control Order, 1949 is proper. It is submitted that the judgment relied upon on behalf of the tenant given in the case of Madras Bangalore Transport Co. (West) Vs. Inder Singh and Others, AIR 1986 SC 1564 : (1986) 1 SCALE 989 : (1986) 3 SCC 62 : (1986) 2 UJ 498 , considers the situation where the tenant continues to occupy the premises, however, in the present case, admittedly the tenant has left the premises and the premises are occupied by M/s. Punjwani Kirana Stores and therefore, the findings recorded by the learned Additional Collector regarding sub-letting cannot be faulted with. The learned Advocate has submitted that Shri Dayaram Kundanmal and the other partners of the firm tried to create a camouflage that M/s. Punjwani Kirana Stores is sister concern and both the firms are constituted by the members of the family and therefore, it cannot be said that there is sub-letting. It is submitted that the present case is covered by the proposition laid down in the judgment given in the case of Parvinder Singh Vs. Renu Gautam and Others, AIR 2004 SC 2299 : (2004) 1 JT 180 Supp : (2004) 4 SCALE 867 : (2004) 4 SCC 794 : (2004) 1 SCR 610 Supp : (2004) AIRSCW 2647 : (2004) 3 Supreme 707 and the judgment given in the case of Vinaykishore Punamchand Mundhada and Another Vs. Shri Bhumi Kalpataru and Others, (2010) 8 JT 108 : (2010) 7 SCALE 761 : (2010) 9 SCC 129 : (2010) 9 SCR 963 : (2010) AIRSCW 5082 : (2010) 6 Supreme 153 .

As far as the permission granted on the ground of bona fide need is concerned, Shri A.B. Patil, the learned Advocate has submitted that the original landlord has died, however the need for the suit shops in respect of the family members of the original landlord subsists. It is further submitted that the son of the original landlord is carrying on business and he requires the suit shops for carrying the business and this has been brought on the record in the evidence of the son recorded in the civil suit which was filed against the petitioners. In support of the submissions, the learned Advocate has relied on the judgment given in the case of M/s. Inland Carriers (Bombay) Transporters and another Vs. Smt. Jamilabegum and others, AIR 1995 Bom 351 : (1995) 4 BomCR 632 : (1995) 97 BOMLR 204 : (1996) 1 MhLj 795 and the judgment given in the case of Madhusudansingh Laxmansingh Chouhan and another Vs. Bhaskar Govind Deshpande, (1987) MhLj 487 . It is further submitted that the tenants have not been paying any rent or occupation charges since last twenty-five years and though this fact is not on the record, the submission made at bar may be accepted and judicial notice may be taken of the conduct of the tenant.

In reply Shri S.V. Purohit, the learned Advocate has submitted that the reliance placed on the judgment given in the case of Vinaykishore Punamchand Mundhada and Another Vs. Shri Bhumi Kalpataru and Others, (2010) 8 JT 108 : (2010) 7 SCALE 761 : (2010) 9 SCC 129 : (2010) 9 SCR 963 : (2010) AIRSCW 5082 : (2010) 6 Supreme 153 is misdirected. It is submitted that in the above referred case, the premises were occupied by a firm with similar name having no nexus with the original firm which was the tenant in the premises. It is submitted that in the present case, it has been established on the record that the family members of Shri Dayaram Kundanmal are the partners in the two firms and that both the firms are carrying on business in the suit shops. The learned Advocate has relied on the judgment given in the case of Shalimar Tar Products Ltd. Vs. H.C. Sharma and Others, AIR 1988 SC 145 : (1987) 4 JT 440 : (1987) 2 SCALE 1114 : (1988) 1 SCC 70 : (1988) 1 SCR 1023 , to support the contentions.

After examining the material on the record and considering the submissions made by the learned Advocates for the respective parties, the claim made on behalf of the landlord under Clause 13(3)(ii) of the Rent Control Order, 1949 cannot be accepted. Though the tenant paid the rent at intervals, the schedule filed by the landlord along with the application filed before the House Rent Controller shows that the tenant had paid the rent for the months preceding the month in which the amount was paid. This shows that the tenant had not kept any arrears of rent whenever the payment was made to the landlord. Further the landlord had not objected to the payment of rent in the lumpsum at intervals. The issue is covered by the judgment given in the case of Swami Ratanbabu Vs. Wamanrao Shankarrao Deshmukh, (1994) 3 SCC 738 Supp . Applying the ratio laid down in the above referred judgment, it cannot be said that the tenant committed habitual default as contemplated by Clause 13(3)(ii) of the Rent Control Order, 1949. The learned Additional Collector has not appreciated the facts properly and has committed an error in not considering the settled proposition of law as referred above. Therefore, the findings recorded by the learned Additional Collector and the permission granted under Clause 13(3)(ii) of the Rent Control Order, 1949 is set aside.

As far as the claim of the landlord under Clause 13(3)(iii) of the Rent Control Order, 1949 is concerned, the tenant has pleaded and proved that the two firms i.e. M/s. Dayaram Kundanmal Firm and M/s. Punjwani Kirana Stores were constituted by the members of the family and the names of the partners are also on the record as shown in the impugned order passed by the learned Additional Collector on 16-12-1997. The landlord has not been able to show that the partners of the two firms are not the family members. Though it is submitted on behalf of the landlord that M/s. Dayaram Kundanmal Firm which was inducted as tenant has parted with the possession of the suit shops and that the suit shops are in possession of M/s. Punjwani Kirana Stores, there is nothing on the record on the basis of which the submission as made on behalf of the landlord can be accepted. The learned Advocate for the respondent/landlord has relied on the pleadings of the tenant in paragraph 2 of the written statement to substantiate that M/s. Darayam Kundanmal Firm has parted with the possession of the suit shops. However, the pleadings of the tenant in paragraph 2 of the written statement do not show that M/s. Dayaram Kundanmal Firm has parted with the possession of the suit shops. On the contrary, the tenant has pleaded that Shri Dayaram Kundanmal Punjwani is the partner in both the firms from the very beginning of the business. In such situation, it cannot be said that the tenant has created sub-tenancy which makes it liable for eviction under Clause 13(3)(iii) of the Rent Control Order, 1949. The learned Advocate for the petitioners-tenants has rightly relied on the judgment given in the case of Madras Bangalore Transport Co. (West) Vs. Inder Singh and Others, AIR 1986 SC 1564 : (1986) 1 SCALE 989 : (1986) 3 SCC 62 : (1986) 2 UJ 498 and the judgment given in the case of Shalimar Tar Products Ltd. Vs. H.C. Sharma and Others, AIR 1988 SC 145 : (1987) 4 JT 440 : (1987) 2 SCALE 1114 : (1988) 1 SCC 70 : (1988) 1 SCR 1023 . The judgment given in the case of Parvinder Singh Vs. Renu Gautam and Others, AIR 2004 SC 2299 : (2004) 1 JT 180 Supp : (2004) 4 SCALE 867 : (2004) 4 SCC 794 : (2004) 1 SCR 610 Supp : (2004) AIRSCW 2647 : (2004) 3 Supreme 707 does not assist the landlord as in the present case it cannot be said that there is an attempt on the part of the tenant to cover or conceal any transaction not permitted by law. Similarly, the judgment given in the case of Vinaykishore Punamchand Mundhada and Another Vs. Shri Bhumi Kalpataru and Others, (2010) 8 JT 108 : (2010) 7 SCALE 761 : (2010) 9 SCC 129 : (2010) 9 SCR 963 : (2010) AIRSCW 5082 : (2010) 6 Supreme 153 also does not assist the landlord as in that case the firm in whose favour the sub-tenancy was created, was totally different entity and it was misrepresented that there was semblance of identity between the tenant and the sub-tenant. The present case is covered by the ratio laid down in the case of Madras Bangalore Transport Co. (West) Vs. Inder Singh and Others, AIR 1986 SC 1564 : (1986) 1 SCALE 989 : (1986) 3 SCC 62 : (1986) 2 UJ 498 and the ratio laid down in the case of Shalimar Tar Products Ltd. Vs. H.C. Sharma and Others, AIR 1988 SC 145 : (1987) 4 JT 440 : (1987) 2 SCALE 1114 : (1988) 1 SCC 70 : (1988) 1 SCR 1023 . The findings recorded by the learned Additional Collector upholding the claim of the landlord for grant of the permission under Clause 13(3)(iii) of the Rent Control Order, 1949 suffers from patent illegality and are not in consonance with the law laid down by the Hon''ble Supreme Court in the matter. Hence, the permission granted to the landlord under Clause 13(3)(iii) of the Rent Control Order, 1949 is set aside.

However, I find no illegality or infirmity in the findings recorded by the Additional Collector for grant of permission under Clause 13(3)(vi) of the Rent Control Order, 1949 is concerned. The landlord pleaded that he required the possession of the suit shops for his bona fide occupation. Out of the four blocks, one block which is on the rear side, is in possession of the landlord and the three blocks which are on the front side are in possession of the tenant. The landlord pleaded that he required the possession of the suit shops for his residence and also to carry on his business. It is undisputed that the landlord is residing at Ner in Yavatmal district in a rented house. The landlord pleaded and proved that he was doing the business at Ner. The landlord further pleaded that he wanted to occupy the suit shops for residence also, as his children were taking education at Amravati. Now after the period of about 34 years, the education of the children might have been over. The learned Advocate for the landlord has submitted that the original applicant has died and his widow and sons are brought on the record. Though the subsequent events are required to be taken into consideration, the burden would be on the tenant to show that the need as pleaded by the landlord does not subsist due to subsequent events. Shri A.B. Patil, the learned Advocate has rightly submitted that the landlord had been residing in the rented premises at Ner and they want to shift to Badnera and reside in their own premises. Though the need as pleaded in the application was that the original landlord wanted to reside at Badnera for education of his children does not survive, it cannot be said that the bona fide need of the landlord to occupy the suit shops for residence does not subsist. The petitioners have not been able to show that the bona fide need of the landlord does not exist due to subsequent events. Shri A.B. Patil, the learned Advocate has rightly relied on the judgment given in the case of M/s. Inland Carriers (Bombay) Transporters and another Vs. Smt. Jamilabegum and others, AIR 1995 Bom 351 : (1995) 4 BomCR 632 : (1995) 97 BOMLR 204 : (1996) 1 MhLj 795 . The petitioners have not filed any affidavit, even on the record of the writ petition contending that the bona fide need of the landlord does not subsist. In view of the above, the findings recorded by the learned Additional Collector and the order granting permission under Clause 13(3)(vi) of the Rent Control Order, 1949 is maintained.

Shri A.B. Patil, the learned Advocate for the landlord has stated that the son of the original applicant has stated in his evidence recorded in the civil suit that he wants possession of the suit shops to conduct his business. The submission made at bar cannot be accepted. Similarly, the submission made on behalf of the respondents that the tenant has not been paying the rent/occupation charges for last twenty-five years also cannot be accepted as there is nothing on the record to substantiate the contention.

In view of the above, the order passed by the learned Additional Collector is modified. The permission granted under Clause 13(3)(ii) and (iii) of the Rent Control Order, 1949 is set aside. The permission granted under Clause 13(3)(vi) of the Rent Control Order, 1949 is maintained.

The writ petition is partly allowed. In the circumstances, the parties to bear their own costs.