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PETITIONER: SHAMA PRASHANT RAJE

       Vs.

RESPONDENT: GANPATRAO & ORS.

DATE OF JUDGMENT:       27/09/2000

BENCH: G.B.PATTANAIK , & SHIVARAJ V. PATIL

JUDGMENT:

PATTANAIK, J.

Leave granted.

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   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 Section 13(3) (ii), (iii) and (vi) of  the Rent  Control  Order  seeking permission  to  determine  the tenancy  of the appellant, inter alia on the ground 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 the 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 Section 13(3) (ii), (iii) and (vi) of  the Contrtol  Order.  On an appeal, being carried under  Section 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 being for the business of his son and the son 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  26th  February,   1998,  came  to   the conclusion  that  the  Appellate Authority  committed  error

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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.2,000/-  had  been sent by the tenant to the landlord  by money  order  and the said money order was refused.   Though the  money order form itself do 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 the Singer/Merit Company,  and  on construction of the terms of agreement  it was  found  that  the agreement though  nomenclatured  as  a consignment  dealership,  but is nothing but  a  subletting, particularly  when the tenant/respondent 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.1,500/-  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 Clause 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.

   Mr.   M.L.  Verma, learned senior counsel, appearing for the tenant-appellant vehmently contended that the High Court exceeded  its jurisdiction under Articles 226 and 227 of the Constitution  in  interfering  with  the  findings  of  fact arrived  at  by  the Appellate Authority under  the  Control Order  by  re-appreciating the evidence, and therefore,  the judgment  of  the High Court is liable to be set aside.   He also further contended that the conclusion of the High Court that  the  plea  of  sub-letting  has  been  established  is contrary  to the several decisions of this Court in as  much as to establish sub-letting it must be found that the tenant has  parted  with  the possession of the  premise  and  such possession must be backed by some consideration.  In support of  the  aforesaid  contention the  learned  counsel  placed reliance on the decision of this Court in Dipak Banerjee vs. Lilabati  Chakraborty   (1987) 4 Supreme Court  Cases  161, Jagan  Nath  (deceased) through LRs.  Vs.  Chander Bhan  and Others    (1988) 3 Supreme Court Cases 57, Gopal Saran  vs. Satyanarayana  -  (1989)   Supreme Court  Cases  56,  Delhi Stationers  and  Printers  vs.  Rajendra Kumar    (1990)  2 Supreme  Court Cases 331 and United Bank of India vs.  Cooks and  Kelvey Properties (P) Limited - (1994) 5 Supreme  Court Cases  9.   So  far as the question of habitual  default  is concerned,  Mr.  Verma contends that the rent for the months of September to November 1984 had been paid in December 1984 and  Clause  9  of  the agreement  of  tenancy  between  the appellant and respondent entitles the tenant to pay the rent within  one month from the date of the notice received  from the  landlord,  and authorises the landlord to approach  the Court  of  Law if the rent over 3 months is not paid  within

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one  month  of  the notice in question, and this  being  the position,  the Lower Appellate Authority was fully justified in  holding that the tenant cannot be said to be a  habitual defaulter  and  the  High Court committed serious  error  in interfering with the said finding.  So far as the default in payment of rent for the months of December 84 to March 85 is concerned,  Mr.   Verma  contends that the  Lower  Appellate Authority  was  justified in taking into  consideration  the refusal  of  the landlord to the two money orders sent,  and the  High Court, therefore, was in error in interfering with the  conclusion on fact of the Appellate Authority under the Control  Order  by interfering with the same in exercise  of its  discretionary  jurisdiction  under Article 226  of  the Constitution.

   Mr.  Mohta, the learned senior counsel appearing for the respondent,  on the other hand contended, that the parameter for exercise of jurisdiction by the High Court in respect of the orders of an inferior Tribunal is well settled by catena of  decisions  of this Court.  Since the conclusion  of  the Appellate  Authority  in  the  case in  hand  was  based  on mis-construction  of certain documents and on mis-reading of relevant  materials by a cryptic order without even noticing the  detailed  reasons given by the Controller, the  learned Single  Judge  of  the  High Court was  fully  justified  in interfering with the conclusions of the Appellate Authority, and  as such, there is no error so far as the orders of  the High  Court are concerned.  According to Mr.  Mohta, a  bare reading  of  the judgment of the learned Single Judge  would indicate  the  apparent errors found by the High Court  with the   Appellate  Order  of   the  District  Collector,   and therefore,  the High Court was well within its  jurisdiction in interfering with the same.

   In  view  of  the rival submissions  we  have  carefully scrutinised  the  orders  of  the Controller,  that  of  the Appellate Authority under the Control Order and the order of the  learned  Single  Judge which has been affirmed  by  the Division Bench.  Undoubtedly, in a proceeding under Articles 226 and 227 of the Constitution the High Court cannot sit in appeal  over the findings recorded by a competent  Tribunal. The   jurisdiction   of  the   High  Court,  therefore,   is supervisory  and not appellate.  Consequently Article 226 is not intended to enable the High Court to convert itself into a  Court of Appeal and examine for itself the correctness of the  decision impugned and decide what is the proper view to be  taken or order to be made.  But notwithstanding the same on  a  mere perusal of the order of an inferior Tribunal  if the  High Court comes to a conclusion that such Tribunal has committed   manifest   error   by   mis-construing   certain documents, or the High Court comes to the conclusion that on the  materials  it is not possible for a reasonable  man  to come  to a conclusion arrived at by the inferior Tribunal or the inferior Tribunal has ignored to take into consideration certain  relevant materials or has taken into  consideration certain  materials  which are not admissible, then the  High Court  will  be  fully  justified in  interfering  with  the findings  of  the  inferior Tribunal.  Then  again  the  two questions on which the Tribunal under the Rent Control Order were  required  to give finding, namely, habitual  defaulter and  subletting  are not pure questions of fact but  can  be held to be mixed questions of fact and law.  In this view of the  matter, on going through the Appellate order passed  by the  District Collector as well as the order of the  learned Single Judge, we are not in a position to hold that the High

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Court  exceeded  the parameters prescribed for  interference with  the  findings of an inferior Tribunal.   Under  Clause 13(3) (ii) Controller has to be satisfied that the tenant is habitually   in  errors  with   the  rent.   The  expression habitually would obviously connote some act of continuity. Under the Lease Deed dated 8.4.1982 between the landlord and the tenant Clause 4 made it obligatory for the tenant to pay the rent before 10th day of each English Calendar month, and under Clause 9 in the event of arrears of rent over 3 months is  not  paid then the landlord was entitled to give  notice and  then if the matter is not settled within one month from the  date  of  the notice then the landlord is  entitled  to terminate the tenancy.  Reading the aforesaid two Clauses it would  not  be correct, as contended by Mr.  Verma,  learned senior  counsel appearing for the appellant, that under  the agreement itself 4 months period has been provided to enable the  tenant  to pay the rent.  If a tenant,  notwithstanding the  obligation  of  paying  the rent by 10th  day  of  each English  calendar  month  continuously makes  a  default  of paying   the  rent  for  the   first  month  by  two  months thereafter,  and  pays the rent in similar manner,  then  he must  be  held to be habitually in arrear with the  rent  in question.   This being the posititon, the fact that the rent for  September  to November 1984 was paid in  December  only after  the  Distress Warrant was issued and that again  from December  1984 to March 1985 the rent had not been paid  and were  deposited within the 10th of next month, as stipulated in  the  lease agreement would constitute the tenant  to  be habitually  in  arrear within the meaning of  Section  13(3) (ii)  of  the Control Order.  The Appellate Authority  under the Control Order was obviously in error in interfering with the  well  reasoned  conclusion of the  Controller  on  this score,  and the High Court was fully justified in correcting the  said error by interfering with the finding of the lower Appellate  Authority  on  the question of  applicability  of Section  13(3) (ii) to the case in hand.  Similarly, on  the question  of  subletting,  there  is  no  dispute  with  the proposition  that the two ingredients;  namely, parting with the  possession  and some consideration therefor, had to  be established.    The  conclusion  of   the  lower   Appellate Authority  on this score was obviously on a mis-construction of  the  document Exhibit N2 and the High Court,  therefore, was  entitled  to correct the error which was based  upon  a construction  of  the  aforesaid  document.   The  different Clauses  of the lease deed unequivocally indicates that  the sum  of  Rs.1,500/-  p.m.  was the consideration  money  for parting with the possession of the premises and allowing the Singer Sewing Machine to do business in the premises.

   In  the aforesaid premises, 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  re-appreciating  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.   In  the   premises,   as aforesaid,  this appeal is devoid of any merits and the same is  dismissed  accordingly.   There will be no order  as  to costs.