Krishnarao vs The Additional Collector and Others

Z.A. Haq, J.—Heard learned advocates for the respective parties.

The petition is filed by the landlord challenging the orders passed by the subordinate authorities rejecting the application filed by him, seeking permission to terminate the tenancy of the respondent No. 2-tenant under Clause 13(3)(i) and (ii) of the C.P. and Berar Letting of Premises and Rent Control Order, 1949 (hereinafter referred to as "the Rent Control Order, 1949").

The landlord had filed application before the House Rent Controller on 26th August, 1996 seeking permission to terminate the tenancy of the tenant under Clause 13(3)(i) and (ii) of the Rent Control Order, 1949. The landlord contended that the tenant was in arrears of rent from 1st February, 1996 till 31st July, 1996 i.e. till filing of the application. The landlord claimed that as the tenant was in arrears of rent at the time of filing of the application, he was entitled to terminate the tenancy of the tenant under clause 13(3)(i) of the Rent Control Order, 1949.

The landlord pleaded that the tenant was required to pay the rent every month as the tenancy was monthly, however, the tenant was irregular in paying the rent. The landlord pleaded that the tenant paid the rent for few months in lump sum, but, whenever the arrears of rent were paid, the tenant did not pay the entire arrears of rent and remained in arrears of rent for some months. The landlord produced the details of payment of rent by the tenant in the schedule in paragraph 2 of the application to substantiate that the tenant was irregular in paying the rent and the arrears of rent. In these facts, the landlord claimed that the tenant was ''habitual defaulter'' within the meaning of Clause 13(3)(ii) of the Rent Control Order, 1949 and the landlord was entitled to terminate the tenancy of the tenant.

The tenant opposed the claim of the landlord. The tenant pleaded that after the landlord filed application before the House Rent Controller, the tenant had paid all the arrears of rent and therefore, the landlord was not entitled for permission to terminate the tenancy of the tenant under Clause 13(3)(i) of the Rent Control Order, 1949. The tenant pleaded that as per the agreement between the landlord and the tenant, the rent was to be paid as per the convenience, in lump sum for several months. The tenant pleaded that he paid the rent according to the practice and the landlord had not raised any protest in the matter till July, 1996 when the landlord had issued notice calling upon the tenant to pay the rent every month. The tenant submitted that immediately after issuing the notice, the landlord filed application before the House Rent Controller and in these facts it cannot be said that the tenant was habitual defaulter within the meaning of Clause 13(3)(ii) of the Rent Control Order, 1949. The tenant prayed that the application filed by the landlord be dismissed.

The House Rent Controller, after conducting the trial, dismissed the application filed by the landlord. The landlord being aggrieved by the order passed by the House Rent Controller had filed appeal which is also dismissed by the Additional Collector. The landlord being aggrieved by the orders passed by the subordinate authorities has filed this petition.

Shri P.R. Agrawal, learned advocate for the landlord has submitted that the claim of the landlord for permission under Clause 13(3)(i) of the Rent Control Order, 1949 does not survive as the tenant had paid arrears of rent after filing of the application before the House Rent Controller.

The learned advocate for the landlord has pointed out the schedule given by the landlord in paragraph 2 of the application filed before the House Rent Controller and has submitted that though the tenant paid arrears of rent in lump sum for several months, he had not cleared the entire arrears of rent whenever he paid the arrears of rent. It is submitted that the practice of paying part of the arrears of rent is neither pleaded nor any evidence has been led by the tenant in support of such practice. The learned advocate, relying on the judgment given by the Division Bench of this Court in the case of Pandurang Tukaram Rajkondawar Vs. Balaram Madhaorao Chavan, , has submitted that unless the tenant points out the contract to the contrary, it has to be presumed that the tenancy is monthly. It is further submitted that the tenant has admitted in his evidence that the tenancy was monthly and without there being any pleadings and evidence on the point that there was a contract between the landlord and the tenant which enabled the tenant to pay part of the arrears of rent, it has to be held that the tenant is a habitual defaulter within the meaning of Clause 13(3)(ii) of the Rent Control Order, 1949. It is submitted that the Division Bench of this Court in the case of Pandurang Rajkondawar (supra) has further held that if the tenant while paying rent or arrears of rent does not clear the entire arrears of rent, the tenant has to be held as habitual defaulter as per Clause 13(3)(ii) of the Rent Control Order, 1949. It is submitted that the subordinate authorities have committed an error in dismissing the application filed by the landlord under misconception that the tenant had been paying the rent as per the established practice and the landlord never protested. It is prayed that the petition be allowed and the landlord be granted permission under Clause 13(3)(ii) of the Rent Control Order, 1949 to terminate tenancy of the tenant.

Shri V.R. Mundra, learned advocate for the tenant has submitted that the tenant had been paying rent in lump sum as per the convenience and it was as per the practice as pleaded and proved by the tenant in his evidence. It is submitted that the landlord never protested for the lump sum payment of part of the arrears of rent. The learned advocate has submitted that the landlord protested for the first time by the notice dated 3rd July, 1996 calling upon the tenant to pay rent every month and then immediately within a period of 1 1/2 month the tenant filed the application before the House Rent Controller. It is submitted that in these facts, the tenant cannot be said to be habitual defaulter within the meaning of Clause 13(3)(ii) of the Rent Control Order, 1949. In support of the contentions the learned advocate has relied on the following judgments :

i) The judgment given by the Hon''ble Supreme Court in the case of Rashik Lal and Others Vs. Shah Gokuldas, ;

ii) The judgment given by the Hon''ble Supreme Court in the case of Swami Ratanbabu Vs. Wamanrao Shankarrao Deshmukh, .

The learned advocate has submitted that the subordinate authorities have rightly considered the pleadings and the evidence on the record and have rightly rejected the claim of the landlord. It is submitted that the reasons recorded by the subordinate authorities are in consonance with the law laid down by the Hon''ble Supreme Court and the concurrent findings recorded by the subordinate authorities cannot be said to be perverse or suffering from any patent illegality. It is submitted that it would not be proper for this Court to interfere with the impugned orders in the extraordinary writ jurisdiction. It is prayed that the petition be dismissed with costs.

With the assistance of the learned advocates for the respective parties, I have examined the documents placed on the record of the writ petition. In the written statement filed by the tenant before the House Rent Controller, it was pleaded that the landlord used to accept the rent in lump sum for 2-3 months or for more than 2-3 months also. The tenant has stated in his deposition that he was never in arrears of the rent. In the cross-examination, the tenant has stated that the monthly rent of the suit house was Rs. 451/- and initially he paid the rent every month. The tenant admitted the schedule given by the landlord in paragraph 2 of the application. In the cross-examination, the tenant has admitted that he received the notice dated 3rd July, 1996 and after receiving the notice he had paid an amount of Rs. 2,004/- and did not pay the entire arrears and the amount of Rs. 2,506/- was due towards him at the time of filing of the application by the landlord.

Considering the pleadings and the evidence of the tenant, I find that the tenant has not pleaded that there was practice, which enabled the tenant to pay part of the arrears of rent. Though the ratio laid down by the Division Bench of this Court in the case of Pandurang Tukaram Rajkondawar (supra) that the tenant is under obligation to pay the rent every month, unless there is a contract to the contrary, has been impliedly overruled by the Hon''ble Supreme Court in the judgment given in the case of Rashik Lal (supra) and the Hon''ble Supreme Court has laid down that the tenant cannot be termed as ''habitual defaulter'' if the practice of paying rent in lump sum is established, insofar as the proposition laid down by the Division Bench in the case of Pandurang Rajkondawar (supra) that while paying the rent the tenant is under obligation to pay the entire arrears of rent, still continues to hold the field. In the present case, the tenant did not pay the entire arrears of rent and paid part of the arrears of rent and the tenant has neither pleaded about such practice nor has led any evidence that such practice existed. The subordinate authorities have failed to appreciate this aspect and therefore, the impugned orders are unsustainable.

The tenant has admitted that even after the receipt of notice dated 3rd July, 1996 he had paid Rs. 2,004/- only, towards the arrears of rent and had not paid the entire arrears of rent and an amount of Rs. 2,506/- was payable by him at the time of filing of the application.

In these facts, it has to be held that the tenant committed habitual defaults in paying the rent and the landlord is entitled for permission under Clause 13(3)(ii) of the Rent Control Order, 1949 to terminate the tenancy of the tenant.

Hence, the following order :

i) The impugned orders are modified.

ii) The orders passed by the subordinate authorities dismissing the application filed by the landlord under clause 13(3)(i) of the Rent Control Order, 1949 are maintained.

iii) The orders passed by the subordinate authorities dismissing the claim of the landlord under clause 13(3)(ii) of the Rent Control Order 1949 are set aside.

iv) It is held that the landlord is held entitled for permission under Clause 13(3)(ii) of the Rent Control Order, 1949 to terminate the tenancy of the tenant.

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