Rajendrakumar Shivnarayan Saraiya vs Dhuribai 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 application filed by the landlord under the provisions of the C.P. and Berar Letting of Premises and Rent Control Order, 1949 (hereinafter referred to as "the Rent Control Order, 1949") seeking permission to terminate the tenancy of the respondent No. 1/tenant.

The landlord filed application under Clauses 13(3)(i)(ii)(iii)(iv)(v) of the Rent Control Order, 1949 seeking permission to terminate the tenancy of respondent No. 1/tenant. The landlord contended that as per the agreement, the tenant was required to pay the rent @ Rs. 25/- per month, however, at the time of filing of the application the tenant was in arrears of rent amounting to Rs. 2,700/-. The landlord contended that whenever the tenant paid the rent he did not clear the entire arrears of rent and paid only part of the amount. The case of the landlord is that the premises were given to the tenant to run kirana shop, however, since about five years prior to filing of the application, the tenant had closed kirana business and had handed over the possession of the premises to respondent No. 2. With these pleadings, the landlord sought permission to terminate the tenancy of the tenant.

The case of the respondent No. 1/tenant is that as per the practice, the landlord used to collect the rent from the tenant in lump sum. The tenant pleaded that the premises were taken on rent not for any specific purpose and the contention of the landlord that the tenant had changed the purpose for which the premises was taken on rent was not correct. The tenant pleaded that the respondent No. 2 is nephew of the respondent No. 1 and they were members of joint family and the premises were being used by the joint family.

The House Rent Controller, by the order dated 1st January, 1996 concluded that the landlord had failed to prove the case and rejected the application. The landlord had filed appeal which came to be dismissed by the impugned order. The landlord, being aggrieved in the matter, has filed this writ petition.

Mr. Kalar, the learned advocate for the petitioner has submitted that the subordinate authorities have committed an error in rejecting the application filed by the petitioner seeking permission to terminate the tenancy of the respondent No. 1/tenant. It is submitted that the facts brought on the record by the petitioner are sufficient to hold that the respondent No. 1 had been in arrears of the rent within the meaning of Clause 13(3)(i) of the Rent Control Order, 1949 as he was in arrears of rent of several years at the time of filing of the application. It is further submitted that the respondent No. 1 had developed the habit of being in arrears of rent and whenever he paid the amount of rent he did not pay the entire arrears of rent and had paid the part of the arrears of rent, and should have been held to be 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 by this Court in the case of Mohanlal Nevadram Bhatia Vs. State of Maharashtra and Others, (2006) 3 ALLMR 131 : (2006) 2 BomCR 787 : (2006) 1 MhLj 467 .

Shri Agrawal, the learned advocate for the respondents has submitted that the findings recorded by the subordinate authorities are based on proper appreciation of the material on the record and the petitioner has not been able to point out any patent illegality or perversity in the findings recorded by the subordinate authorities. The learned advocate has supported the impugned orders. It is submitted that the contentions of the petitioner on the point that the respondent No. 1 had been habitual defaulter cannot be accepted as the respondent No. 1 had been paying the rent in lump sum whenever the petitioner demanded it and this had been the practice. It is submitted that the premises had been used by the respondent No. 1 and other members of the joint family and the petitioner has not been able to show that the respondent No. 1 parted with the possession of the premises and that the respondent No. 2 is in exclusive possession of the premises. The learned advocate has pointed out the findings recorded by the subordinate authorities on this point relying on the observations of the learned House Rent Controller in paragraph 7 of the order which are based on the assessment list which shows the names of the respondent Nos. 1 and 2. The learned advocate has submitted that the subordinate authorities have dealt with all the aspects in consonance with law and has rightly rejected the contentions of the petitioner as far as clause 13(3)(ii)(iv) and (v) of the Rent Control Order, 1949 are concerned. The learned advocate has relied on the judgment given by this Court in the case of Bhairulal Balmukund Verma Vs. Poonamchand Kasturchand Sancheti and Another, (1996) 2 BomCR 267 : (1996) 2 MhLj 866 .

After hearing the learned advocates for the respective parties and examining the record, I find that the landlord has not been able to prove his case for grant of permission under Clause 13(3)(i)(iii)(iv) and (v) of the Rent Control Order, 1949. The findings of fact recorded by the subordinate authorities are in consonance with the pleadings and the evidence on the record and it cannot be said that they suffer from any patent illegality and perversity which requires interference by this Court in the extraordinary jurisdiction.

However, the findings recorded by the subordinate authorities for rejecting the claim of the landlord under Clause 13(3)(ii) of the Rent Control Order, 1949 are unsustainable. It is the case of the landlord that the rent of the premises was Rs. 25/- per month, excluding municipal taxes and electricity charges and at the time of filing of the application, the tenant was in arrears of rent of Rs. 2,700/-. The landlord pleaded that the tenant paid rent in lump sum, however, whenever the rent was paid, the entire arrears of rent were not paid and part of the amount was paid.

According to the tenant, there was practice that the landlord used to collect the rent in lump sum and at no point of time the landlord made any grievance that the rent should be paid every month.

As there is no written agreement of tenancy, the evidence of the parties on the point would be relevant. The presumption would be that the tenancy is monthly and the tenant is under obligation to pay the rent every month. However, there can be a practice by mutual agreement, of paying the rent in lump sum. Considering the meagre amount of rent i.e. Rs. 25/- per month, it can be accepted that the tenant was paying rent in lump sum. Further, the landlord has neither pleaded nor has placed any material on the record to show that he had objected to the mode of payment of lump sum amount of rent by the tenant. However, the contention of the landlord that the tenant had not paid all the arrears of rent whenever the amount of rent was paid has not been controverted by the tenant. The tenant has not pleaded that there was a practice of paying part of the amount of rent whenever the payment was made and that the landlord was asking for only part of the amount of arrears of rent. The fact that the tenant did not pay arrears of the rent whenever he paid the rent in lump sump shows that the tenant had developed the habit of remaining in arrears of rent. Consequently, it has to be held that the tenant is habitual defaulter as contemplated under Clause 13(3)(ii) of the Rent Control order, 1949. The orders passed by the subordinate authorities rejecting the claim of the landlord for permission under Clause 13(3)(ii) of the Rent Control Order, 1949 have to be set aside and the landlord is required to be granted 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 to the extent they reject the claim of the petitioner/landlord under Clause 13(3)(ii) of the Rent Control Order, 1949 are set aside.

ii) The petitioner/landlord is held entitled for permission to terminate the tenancy of the respondent/tenant under Clause 13(3)(ii) of the Rent Control Order, 1949.

iii) The orders passed by the subordinate authorities rejecting the claim of the petitioner/landlord under Clause 13(3)(i)(iii)(iv) and (v) of the Rent Control Order, 1949 are maintained.

Rule is partly made absolute in the above terms with costs quantified at Rs. Ten Thousand to be paid by the respondent No. 1/tenant to the petitioner/landlord within two months.