Madhusudansingh Laxmansingh Chouhan and another vs Bhaskar Govind Deshpande

H.W. Dhabe, J.—This is a writ petition arising out of the proceedings under the C. P. & Berar Letting of Houses and Rent Control Order, 1949 (for short the Rent Control Order). The petitioners purchased the house in question on 9-6-1978. Immediately thereafter on 7-8-1978 they filed an application against the respondent under Clauses 13(3)(ii) and (vi) of the Rent Control Order, seeking permission to evict him from the tenanted premises. It is worthwhile to notice that in the house purchased by the petitioners one room was already taken on rent by the father of the petitioner for his office as a lawyer. It was the case of the petitioners that the respondent tenant had been irregular in payment of rent for a period from August, 1974 to June 1978, which was a period when he was a tenant of the previous owner of the premises. As regards the permission under Clause 13(3)(vi), it was the case of the petitioners that they were residing in a rented premises and that the landlord of the house, in which they were residing wanted them to vacate the premises. The petitioners, therefore, desired to shift to the house purchased by them. The family of the petitioners consisted of four persons, which besides them included the father and the two brothers of the petitioner No. 1.

Before the Rent Controller the evidence of petitioner No. 1 and the son of the landlady in whose premises the petitioners were residing as tenants was recorded. So far as the evidence on behalf of the respondent tenant is concerned, he examined his son only.

The Rent Controller on the basis of the above material on record held that the petitioners have failed to prove the case of habitual default under Clause t3(3)(ii) of the Rent Control Order. As regards the habitual default the respondent tenant raised the plea that he used to pay the rent to the previous landlord according to his convenience which the landlord accepted without any protest. In this regard the petitioners did not examine the previous landlord to show that there was no such practice of payment of rent according to the convenience of the tenant. The learned Rent Controller, therefore, accepted the plea raised by the tenant that he used to pay the rent according to his convenience and the previous landlord accepted the same without any protest. Since the default complained of related to the period of the previous landlord, the Rent Controller in view of the above facts rejected the case of the petitioners for permission on the ground of habitual default.

As regards the case of the petitioners under Clause 13(3)(vi) of the Rent Control Order, the learned Rent Controller held that there was no reliable evidence to show that the landlady of the rented house of the petitioners asked them to vacate her house. He further found that the premises occupied by the respondent were not suitable for the petitioners, considering their social status. He laid emphasis on the fact that the petitioners had not examined the landlady to prove that she asked them to vacate the said premises. He, therefore, rejected the ground under Clause 13(3)(vi) of the Rent Control Order.

The petitioners preferred an appeal before the Resident Deputy Collector, who affirmed the above findings of the Rent Controller rendered under Clauses 13(3)(ii) and 13(3)(vi) of the Rent Control Order. Being aggrieved, the petitioners have preferred the instant writ petition in this Court.

The learned counsel for the petitioners has seriously pressed before me the ground of habitual default under Clause 13(3)(ii) of the Rent Control Order. The findings arrived at by the Courts below in regard to the same are concurrent findings of fact which cannot be said to be perverse on the basis of the material on record. It is not, therefore, open to me to disturb the same in my writ jurisdiction. The contention as regards the ground under Clause t3(3)(ii) must, therefore, fail and is rejected.

As regards the ground under Clause 13(3)(vi), it is the contention on behalf of the petitioners that the said finding of the courts below is perverse and is not according to law laid down by this Court. The submission is that both the Courts have acted in excess of their jurisdiction in examining the case of the landlord under Clause 13(3)(vi) of the Rent Control Order. It is not in dispute that the petitioners with their family members are residing in the rented premises. It is further not in dispute that the petitioners purchased the suit premises on 9-6-1978 and immediately thereafter made an application before the Rent Controller that they need the suit house for their bona fide residence. It is also not in dispute that one of the rooms in the suit house is already in occupation of the father of the petitioner No. 1 as a tenant from the previous landlord, which room is being used by him as his (lawyer''s) office. In its several decisions, this Court has taken a view that primarily the landlord is the judge of his own needs and the evidence, which is given in regard to his need should not be rejected, unless the tenant brings on record the circumstances to show that the need pleaded by the landlord is not genuine or bona fide. In the face of the above undisputed facts in the instant case the burden lay upon the tenants to prove how the need pleaded by the landlord was not genuine or bona fide. In arriving at the findings, the Courts below have put a heavy burden upon the landlord in regard to his bona fide need which is against the settled view of this Court (vide 1979 Maharashtra Law Journal Note No. 3 Premabhai Patel vs. Jagatram Bhagdewani).

The learned Courts below have rejected the case of the landlord under Clause 13(3)(vi) of the Rent Control Order on the basis of their twin findings. The first is that the petitioners failed to prove that the landlady of their rented premises had asked them to vacate her rented premises. The second finding is that the suit house is not suitable to the petitioners looking to their social status. Both the findings arrived at by the Courts below are perverse.

The petitioners have examined the son of the landlady, who has stated in his evidence that their family needs require the rented premises in occupation of the petitioners. The Courts below have laid much stress upon the fact that the landlady has not been examined by the petitioners on this question and that the quit notice is not actually given by the landlady to the petitioners. In my view, both the reasons given by (he Courts below are untenable. When the son of the landlady was living with her, it was open to the petitioners to examine him or the landlady and unless factually his evidence is shown to be unreliable, his evidence could not be rejected on the ground that the landlady was not examined by the petitioners. As regards the question of giving notice, it would arise, if the tenant would not vacate the premises on his own. In the instant case the petitioners were taking steps to get their own premises vacated from the tenant in occupation viz. the respondent. Apart from this when the petitioners are living in a rented house and have purchased the house of their own, the presumption should be in favour of the petitioners that they want to occupy their own house. So apart from the question whether the landlady of the rented premises asked them to vacate the premises or not, even without being asked to do so, it was open to the petitioners to choose to occupy their own premises. The need to live in one''s own house of a person living in a tenanted premises must be held to be genuine and bona fide unless the tenant by cogent evidence proves that it is not so. (See Bhalchandra vs. Laxman and another, 1983 Maharashtra Law Journal 198) The respondent in this case has not shown by cogent evidence that the need pleaded by the petitioners is not genuine or bona fide. The above finding of the Courts below is, therefore, perverse.

As regards the second finding that the suit premises are not suitable for the social status of the petitioners, the said finding is also perverse. The learned counsel for the petitioners has drawn my attention to the evidence on record which I have perused. The petitioner No. 1 in his evidence has stated that he would shift to the suit premises after effecting the necessary repairs and after remodelling the same. So far as the evidence on behalf of the tenant is concerned, the evidence is that he does not know whether the petitioner would shift to the suit premises after repairing or remodelling the same. The witness on behalf of the tenant also states that he does not know whether the rented premises, in which the petitioners were residing were suitable for their status or not. In the face of such evidence on behalf of the tenant, no finding can be rendered by any Court that the suit premises were not suitable looking to the social status of the petitioners, in rendering such finding for which there is no material on record, the learned Courts below have acted in excess of their jurisdiction.

Both the reasons on the basis of which the Courts below have denied the permission to the landlord under Clause 13(3)(vi) thus do not survive as shown above. As pointed out above, the basic facts are that the petitioners with their family are living in a rented house. They purchased the suit house on 9-6-1978. One of the rooms in the suit house, which has already been in occupation of the father of the petitioner No. 1 as tenant is being used by him as his office. The petitioners immediately applied after the purchase of the suit house for permission for their bona fide residence. All the above facts without anything more prove the bone fide need of the landlord as contemplated by Clause 13(3)(vi) of the Rent Control Order. In view of these undisputed facts the burden was heavily upon the tenant to show how the need of the landlord was not "genuine, which he failed to do in the instant case. The petitioners are, therefore, entitled to permission under Clause 13(3)(vi) of the Rent Control Order.

The learned counsel for the respondent has urged before me on the basis of a recent decision of the Supreme Court in the case of Mohd Yunus vs. Mohd. Mustaqim, AIR 1984 Supreme Court 38 that the High Court in its supervisory jurisdiction under Article 227 has no jurisdiction to interfere with the orders of the inferior Courts or Tribunals even to correct an error apparent on the face of the record much less an error of law. So far as the limits of the writ jurisdiction of the High Court under Article 226 are concerned, they are well settled by several decisions of the Supreme Court. The jurisdiction of the High Court in exercising its supervisory jurisdiction under Article 227 of the Constitution in regard to the judicial or quasi-judicial orders of the Subordinate Courts or Tribunals is more or less like its jurisdiction, which it exercises in issuing writs of certiorari under Article 226 of the Constitution. (See Nagendra Nath Bora vs. The Commissioner of Hills Division, AIR 1958 SC 308 and AIR 1975 1297 (SC) ) A leading decision of the Supreme Court upon the scope of the certiorari jurisdiction of the High Court under Article 226 of the Constitution is in the case of Syed Yakoob Vs. K.S. Radhakrishnan and Others, in which it is held that if the findings of the Subordinate Courts are based upon no material on record or are perverse, it is open to the High Court to interfere with such findings arrived at by the Subordinate Courts.

It is well settled that the High Court under Article 227 is not exercising an appellate jurisdiction. Therefore, it is not open to the High Court to review normally the findings of the inferior Courts or Tribunals. However, when the High Court finds that there is no material or evidence on record at all to support the finding of the Courts below, it is not merely an error of law but it is an error of jurisdiction because no Court or Tribunal has jurisdiction to arrive at findings, which are not supported by any material or evidence on record. That the findings must be based upon the evidence on record is the procedure established by law in our country and if the findings are not in consonance with the said procedure, the High Court under Article 227 of the Constitution can interfere with the said findings even as per the ratio of the decisions of the Supreme Court relied upon on behalf of the petitioner. (See Mohd. Yunus Vs. Mohd. Mustaqim and Others, ) The inferior courts or Tribunals also must apply the law as interpreted by the Supreme Court or the High Court. So far as Clause 13(3)(vi) is concerned, its interpretation is well settled by the decisions of this Court.

In the instant case as already held by me the findings of the Courts below are perverse and they have failed to apply law laid down in regard to Clause 13(3)(vi) of the Rent Control Order. As such the impugned orders are liable to be interfered with the exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. There is, therefore, no merit in the above contention raised by the counsel for the respondent.

In the result, the writ petition is partly allowed. The impugned orders of the Courts below are set aside so far as the permission under Clause 13(3)(vi) is concerned. The petitioners are granted permission to give quit notice to the respondents under Clause 13(3)(vi) of the Rent Control Order. Rule made absolute in the above terms. No order as to costs.