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PETITIONER: MANGALBHAI AND ORS.

       Vs.

RESPONDENT: DR. RADHYSHYAM S/O PARISCHANDRA AGARWAL

DATE OF JUDGMENT17/07/1992

BENCH: KASLIWAL, N.M. (J) BENCH: KASLIWAL, N.M. (J) RAMASWAMY, K.

CITATION:  1992 SCR  (3) 537        1992 SCC  (3) 448  JT 1992 (4)   208        1992 SCALE  (2)36

ACT:      C.P.  and  Berar  Letting of Houses  and  Rent  Control Order, 1949 :      Clause   13(3)(ii)-Tenant-Eviction  of-On   ground   of habitual  default in payment of rent-Landlord to prove  that tenant  had  been  ‘habitually in  arrears  with  rent’-Word ‘habitually’-Meaning  of-Whether includes bona fide  payment on demand-Notice for eviction-Validity of.      Clause 13(3)(vi)-Bona fide need of landlord-High  Court remanding case for examination of actual need for  residence and clinic/dispensary-Justification of.      Practice and Procedure :      Petition filed under Articles 226 and 227-Single  Judge examining  matter on merit and setting aside  lower  courts’ order-Totality  of facts and circumstances indicating  order under Article 226-Letters Patent Appeal-Maintainability of.

HEADNOTE:      The respondent-landlord, a doctor by profession,  filed an  application  under  Section 13 of  the  C.P.  and  Berar Letting of Houses and Rent Control Order, 1949, against  the appellants-  tenants for permission to serve with notice  of ejectment,  on  grounds  of bona fide need  of  entire  suit premises and habitual default in payment of rent.  The  Rent Controller  dismissed the application.  The Resident  Deputy Collector   also   dismissed   the   respondent’s    appeal. Thereafter, the respondent filed a writ petition before  the High  Court under Articles 226 and 227 of the  Constitution. A   Singh  Judge  held  that  the  tenants   were   habitual defaulters,  and that the landlord had established his  bona fide need, but remanded the case to the Rent Controller  for determining the extent of the need of the respondent for his residence  and clinic/dispensary and also for examining  the respondent’s  case  to reconstruct the house,  after  giving full  opportunity to the parties to amend the pleadings  and lead evidence.                                                        538      Aggrieved,  the  tenants/appellants  filed  a   Letters Patent   Appeal before the Division Bench of the High  Court which dismissed the same on the ground that since the  order passed  by  the Singh Judge was under Article  227,  Letters Patent Appeal against it was not maintainable.

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    In  the appeals, by special leave, before  this  Court, against the orders of both the Single Judge and the Division Bench, on behalf of the tenants/appellants it was  contended that   though   the   writ  petition  was   filed   by   the respondent/landlord  under  Articles  226  and  227  of  the Constitution,  in substance it was a petition under  Article 226,  that  the relief prayed for was the  quashing  of  the order  of the courts below and that the entire tenor of  the order of the Single Judge clearly showed that he was dealing with  a  petition  under Article  226  and,  therefore,  the Division Bench was not correct in holding that no appeal was maintainable against the order of the Single Judge and  that he   had  passed  the  order  under  Article  227   of   the Constitution.      Disposing of the appeal, this Court,      HELD  1.1 Both the petition filed in the case  and  the order  of the Single Judge were in substance  under  Article 226 of the Constitution, and the instant case clearly  falls within  the  ambit of Article 226 of the  Constitution.  The Single  Judge  nowhere  mentioned  in  the  Judgment   under challenge  that he was exercising the powers  under  Article 227  of  the  Constitution. The Single  Judge  examined  the matter  on  merit  and  set aside  the  order  of  the  Rent Controller as well as the Resident Deputy Collector, on  the question  of habitual defaulter as well as on the ground  of bona  fide  need.  Thus, in the totality of  the  facts  and circumstances  of the pleadings of the parties in  the  writ petition  and  the Judgment of the Single  Judge  leaves  no manner  of doubt that it was an order passed  under  Article 226  of the Constitution and, therefore, the  Letter  Patent Appeal was maintainable. [542D-E, 543 G-H, 544A]      1.2 In view of the fact the litigation is going on  for nearly  a  decade and also that even the  Single  Judge  had remanded the case to the Rent Controller, it would be proper for  this  Court, in the interest of justice,  to  hear  the appeal on merits against the Single Judge’s Judgment. [544B]      Umaji Keshao & Ors. v. Smt. Radhikabai and Anr,  [1986] 1 SCR 731, relied on.                                                        539      Sushilabai  Laxminarayan Mudliyar & Ors. v.  Nihalchand Waghajibhai  Shaha & Ors., 1989 Maharashtra Law  Journal  p. 695, referred to.      2.1  Clause 13(3)(ii) of the C.P. and Berar Letting  of Houses  and Rent Control Order, 1949 provides that in  order to seek permission to serve with notice of ejectment on  the ground  of default in payment of rent, it must be proved  by the landlord that the tenant was "habitually in arrears with the  rent".  The  Legislature  has  clearly  used  the  word "habitually"  in  respect  of delaying the  payment  of  the arrears  of  rent, and not to cover a case of a  tenant  who bona  fidely  paid the rent on demand from the side  of  the landlord or as and when his munim came to collect the  rent. [544D-G]      2.2  In  the  instant case, there  was  an  established practice  to  pay rent to the landlord’s munim who  used  to come to collect the same as per his convenience. There was no alternate arrangement for payment of rent. The tenants  were even paying the rent in advance, and such tenants cannot  be considered  as  habitually  in  arrears  with  the  rent  as contemplated  under  clause 13(3) (ii) of the  Rent  Control Order. If such is the practice and course of conduct adopted for  receipt  of  rent for a number of  years,  the  tenants cannot  be  taken  by surprise by at once  resorting  to  an application    under    clause   13(3)   (ii)    that    the tenants/appellants  were  habitual defaulters. Thus,  it  is

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proved  beyond  any  manner of doubt that  the  parties  had adopted the practice of payment of rent in lump sum and  not month by month and which continued from 1.1.1972 to the date of  filing  the  application under clause  13  of  the  Rent Control  Order.  Admittedly,  even on  the  date  of  filing application,  there were no arrears of rent due against  the appellants. [544G-H, 545A-C]      2.3 In these circumstances, both the Rent Controller as well as the Resident Deputy Collector were right in  holding that the tenant/appellants cannot be considered as ‘habitual defaulters’  in the payment of rent. The Singh Judge of  the High  Court was totally wrong in ignoring the past  practice between the parties and in taking the view that the  tenancy being month to month the tenants were bound to pay the  rent at  the  close of the tenancy month in the  absence  of  any other contract to the contrary. It is nowhere established by the respondent/landlord that  rent was not paid to the Munim even when he had gone to collect the same. The notice  given can be considered as a warning for the first time to pay the rent every month and it cannot be held that even  thereafter the appellants were                                                        540 making  belated  payment of rent, inasmuch as  the  petition itself  was  filed  before  the  Rent  Controller  a   month thereafter. [545D-F]      Rashik  Lal and Others v. Shah Gokuldas, [1989]  1  SCC 542, relied on.      3.  As  regards  the question of bona  fide  need,  the Single  Judge was perfectly right in holding that  not  only the  landlord/respondent had proved that the  suit  property came  in  his share in partition, but the tenants  had  also atorned in favour of the landlord/respondent by paying  rent to him for a long number of years. There is nothing wrong in the  direction  of  the Single Judge,  after  recording  the finding  of bona fide need, to remand the case to  the  Rent Controller for recording a finding on the extent of need  of the    landlord/respondent    for    his    residence    and clinic/dispensary  and  also for examining the case  of  the landlord   to   reconstruct  the  house,  by   giving   full opportunities  to  the parties in respect  of  amending  the pleading as well as leading evidence. [546F-H, 547A]      4.  In  the circumstances, the finding  of  the  Single Judge  in respect of habitual default as contemplated  under clause 13(3)(ii) of the Rent Control Order, is set aside but the finding on the question of bona fide need and the  order of remand, is maintained. [547C]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.  2588- 89 of 1992.      From  the  Judgments and Orders  dated  11.12.1987  and 23.10.1989  of  the Bombay High Court in Writ  Petition  No. 1356/1986 and Letters Patent Appeal No. 109 of 1989.      U.R.  Lalit,  Dr.  N.M.  Ghatate,  Anand  Prasad,  S.V. Deshpande and Ms. Priya Shrivastava for the Appellants.      G.L.  Sanghi, Dhruv Mehta, S.K. Metha and Aman  Vachher for the Respondents.      The Judgment of the Court was delivered by      KASLIWAL, J. Special Leave granted.      Dr.  Radhyshyam, the respondent, filed  an  application under Section                                                        541 13 of the C.P. and Berar Letting of Houses and Rent  Control

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Order,  1949 (hereinafter referred to as "The  Rent  Control Order") against the appellants for permission to serve  with notice  of ejectment. The application was based  on  several grounds, but the eviction was pressed in the High Court only on  the  ground of need of the entire house  for  bona  fide occupation and habitual default in the payment of rent.  The matter was argued only on the aforesaid two grounds,  before us  also. The Deputy Collector and Rent Controller,  Gondia, decided  all the grounds against the landlord and  dismissed the  application by his order dated 13.9.1985. The  Resident Deputy  Collector,  Bhandara dismissed the appeal  by  order dated  31.3.1986 Dr. Radhyshyam, the landlord, then filed  a writ petition No. 1356 of 1986 under Articles 226 to 227  of the  Constitution  of India before the  Bombay  High  Court. Learned  Single  Judge held that the tenants  were  habitual defaulters,  and that the landlord had established his  bona fide  need. The Learned Single Judge however took  the  view that  it  would  be proper to remand the case  to  the  Rent Controller  for  determining the extent of the need  of  the petitioner (respondent in this appeal) for his residence and clinic/dispensary  and  also for examining the case  of  the petitioner  to re-construct the house. Learned Single  Judge of  the  High Court also directed that full  opportunity  be given  to  the  parties  to amend  the  pleadings  and  lead evidence  and thereafter to pass such suitable orders  under clauses  13(3)  (vi) & (vii) of the Rent  Control  Order  in accordance  with law. The Learned Single Judge by his  order dated 11.12.1987 remanded the matter to the Rent  Controller with the above directions.      The  tenants/appellants aggrieved against the  Judgment of  the  Learned Single Judge filed a Letters Patent  Appeal before  the Division Bench of the High Court.  The  Division Bench by order dated 23.10.1989 dismissed the appeal  taking the view that in truth and substance the order was passed by the Learned Single Judge under Art. 227 of the  Constitution against  which Letters Patent Appeal was  not  maintainable. The tenants have come in appeal by grant of special leave in S.L.P. No. 3484 of 1991 against the Judgment of the  Learned Single  Judge of the High Court dated 11.12.1987 and  S.L.P. No. 2980 of 1990 against the Judgment of the Division  Bench of the High Court dated 23.10.1989.      It  was contended on behalf of  the  tenants/appellants that  the  Writ Petition No. 1356 of 1986 was filed  by  the respondent/landlord  under  Articles  226  and  227  of  the Constitution. In the relief prayed in the writ                                                        542 petition  it  was  clearly mentioned that  the  order  dated 13.9.1985  passed  by the Rent Controller, Gondia,  and  the orders  dated  31.3.1986  passed  by  the  Resident   Deputy Collector,  Bhandara be quashed and set aside by a  suitable writ,  order  or  direction. It was submitted  that  in  the heading of the petition it was clearly stated that it was  a petition under Articles 226 and 227 of the Constitution.  It was  further argued that even though Art. 227 was  mentioned in  the  writ petition but in substance it  was  a  petition under  Art.  226 and the entire tenor of the  order  of  the Learned Single Judge clearly showed that it was dealing with a  petition under Art. 226. It was thus contended  that  the Learned Division Bench was no correct in taking the view hat no appeal was maintainable against the order of the  Learned Single  Judge and in holding that the Learned  Single  Judge had passed the order under Art. 227 of the Constitution.  It was also submitted that the Division Bench of the High Court wrongly placed reliance on a Full Bench decision of the High Court   in  Sushilabai  Laxminarayan  Mudliyar  &  Ors.   v.

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Nihalchand  Waghajibhai Shaha & Ors., (1989 Maharashtra  Law Journal p. 695)      After  a perusal of the contents of the  writ  petition filed  before the High Court as well as the Judgment of  the Learned  Single Judge, we are clearly of the view that  both the petition filed in the case and the order of the  Learned Single  Judge  were in substance under Article  226  of  the Constitution.  The Full Bench of the Bombay High  Court  has wrongly drawn the deductions from the case of this Court  in Umaji  Keshao  Meshram & Ors. v. Smt. Radhikabai  and  Anr., [1986]  1 SCR 731. Where petitions are filed under  Articles 226 and 227 of the Constitution, this Court in Umaji  Keshao Meshram’s case observed as under:-          "Petitions  are at times filed both under  Articles          226  and 227 of the Constitution. The case of  Hari          Vishnu  Kamath  v. Syed Ahmed Ishaque  and  others,          [1955] 1 S.C.R. 1104, before this Court was of such          a type. Rule 18 provides that where such  petitions          are  filed  against  orders  of  the  tribunals  or          authorities specified in Rule 18 of Chapter XVII of          the  Appellate  Side Rules or  against  decrees  or          orders of courts specified in that Rule, they shall          be heard and finally disposed of by a Single Judge.          The  question is whether an appeal would  lie  from          the decision of the Single Judge in such a case. In          our  opinion,  where the facts justify a  party  in          filing an application either                                                        543          under Article 226 and 227 of the Constitution,  and          the  party  chooses to file his  application  under          both  these  Articles, in fairness and  justice  to          such  party and in order not to deprive him of  the          valuable  right of appeal the Court ought to  treat          the  application as being made under  Article  226,          and  if in deciding the matter, in the final  order          the  Court  gives ancillary  directions  which  may          pertain  to Article 227, this ought not to be  held          to  deprive  a party of the right of  appeal  under          clause   13   of  the  Letter  Patent   where   the          substantial part of the order sought to be appealed          against  is  under Article 226. Such was  the  view          taken  by the Allahabad High Court in  Aidal  Singh          and others A.I.R. 1957 all. 414 F.B and the  Punjab          High Court in Raj Kishan Jain v. Tulsi Dass, A.I.R.          1959  Punj.  291  and Barham  Dutt  and  others  v.          Peoples  Co-operative Transport Society  Ltd.,  New          Delhi  and others, A.I.R. 1961 Punj. 24 and we  are          in agreement with it".      Applying   the  correct  laid  down  in  Umaji   Keshao Meshram’s  case and perusing the writ petition filed in  the present  case  as well as the order passed  by  the  Learned Single  Judge  we are clearly of the view that  the  present case  clearly falls within the ambit of Article 226  of  the Constitution. In Umaji Keshao Meshram’s case it was  clearly held that :          "Where  the  fact  justify a  party  in  filing  an          application either under Article 226 or 227 of  the          Constitution,  and  the party chooses to  file  his          application under both these Articles, in  fairness          and  justice  to  such party and in  order  not  to          deprive  him  of the valuable right of  appeal  the          Court ought to treat the application as being  made          under Article 226".      The Learned Single Judge in his impugned Judgment dated 11.12.1987  nowhere  mentioned that he  was  exercising  the

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powers  under  Art.  227 of the  Constitution.  The  Learned Single Judge examined the matter on merit and set aside  the orders of the Rent Controller as well as the Resident Deputy Collector  on the ground that the aforesaid  Judgments  were perverse.  The findings of the Rent Controller and  Resident Deputy Collector were set aside on the question of  habitual defaulter  as well as on the ground of bona fide need.  Thus in the totality of the facts and circumstances of the  case, the pleadings of the parties in the writ petition and                                                        544 the Judgment of the Learned Single Judge leaves no manner of doubt  that  it was an order passed under Art.  226  of  the Constitution  and  in that view of the  matter  the  letters Patent Appeal was maintainable before the High Court.  After taking  the aforesaid view one course open was to set  aside the order of the Division Bench and to remand the matter for being  disposed  of on merits by the Division Bench  of  the High  Court.  However,  taking in view the  fact  that  this litigation is going on for nearly a decade and also the fact that  even  the Learned Single Judge in his  impugned  order dated   11.12.1987  had  remanded  the  case  to  the   Rent Controller,  we  considered  it proper in  the  interest  of justice to hear the appeal on merits against the Judgment of the Learned Single Judge. We have heard learned counsel  for the parties at length on the merits of the case.      As already mentioned above all the grounds for eviction taken by the respondent/landlord were decided against him by the   Rent  Controller  as  well  as  the  Resident   Deputy Controller.  In the writ petition before the Learned  Single Judge  the arguments were restricted to clause  13(3)(ii)  & (vi)  only.  It may be noted that the provision  as  regards default  in  the  payment of rent  is  contained  in  clause 13(3)(ii)  of the Rent Control order which provides that  in order  to seek permission to serve with notice of  ejectment on  this ground it must be proved by the landlord  that  the tenant was "habitually in arrears with the rent".  According to  the respondent/landlord himself the rents from  1.1.1972 till  the filing of the application under clause 13  of  the Rent  Control  Order  on 24.9.1981  the  rent  was  accepted without  any  demur  even when the same  was  paid  late  by several months. A perusal of the statement of rents paid and received by the respondent clearly that at several occasions the  rent was even paid in advance and at least  after  1978 the payment of rent was never late for more than two  months at any occasion. The contention of the appellants is that it was  neither  their   intention nor to call it  a  habit  of remaining  in arrears of rent. The Legislature  has  clearly used  the  word  "habitually" in  respect  of  delaying  the payment of the arrears of rent and not to cover a case of  a tenants  who  bona fidely paid the rent on demand  from  the side  of  the  landlord or as and when  his  munim  came  to collect  the  rent  as was done in  the  present  case.  The tenant   in  the present case were even paying the  rent  in advance and such tenants cannot be considered as  habitually in  arrears  with  the rent  as  contemplated  under  clause 13(3)(ii)of the Rent Control order. if such is the  practice and   course  of conduct adopted for receipt of rent  for  a number of years, the tenants cannot be taken by                                                        545 surprise by at once resorting to an application under clause 13(3)(ii)   that   the  tenants/appellants   were   habitual defaulters. In the present case the landlord/respondent  had served  a notice on 21.8.1981 that he wanted the rent to  be paid  every month before the due date and filed the  present petition on 24.9.1981. The tenants also sent a reply to such

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notice  on  29.8.1981  and refuted  the  allegation  of  any default  in the payment of rent and took the plea  that  the landlord’s  munim  used  to collect the rent  and  later  on passed the receipts. There was no alternate arrangement  for payment  of rent. There was an established practice  to  pay rent  to Raghuji Munim who used to come to collect the  same as per his convenience. Thus it is proved beyond any  manner of  doubt  that  the parties had   adopted the  practice  of payment of rent in lumpsum and not month by month and  which continued  from 1.1.1972 to the date of filing  the  present application under clause 13 of the Rent Control Order.      Admittedly, even on the date of filing such application there were no arrears of rent due against the appellants and in  these circumstances both the Rent Controller as well  as the Resident Deputy Collector were right in holding that the tenant/appellants   cannot   be   considered   as   habitual defaulters  in the payment of rent. Learned Single Judge  of the  High  Court  was totally wrong  in  ignoring  the  past practice between the parties and in taking the view that the tenancy  being month to month the tenants were bound to  pay the rent at the close of the tenancy month in the absence of any   other  contract  to  the  contrary.  It   is   nowhere established  by  the respondent landlord that rent  was  not paid  to Raghuji Munim even when he had gone to collect  the same.  The  notice  was  given on  21.8.1981  which  can  be considered  as a warning for the first time to pay the  rent every  month and it cannot be held that even thereafter  the appellants  were making belated payment of rent, in as  much as  the  present petition itself was filed before  the  Rent controller on 24.9.1981.      This  Court in Rashik Lal And Others v. Shah  Gokuldas, [1989]  1 SCC 542 a took similar view while considering  the similar  provisions of the Rent Control Order. In the  above case it was observed as under :          "We  do not see any reason for holding that  unless          the rent was paid and accepted at a fixed period or          interval,   no  such  implied  agreement   can   be          inferred.  In the S.P. Deshmukh case the  rent  had          been paid at the varying interval of 3 or 4 months.          The                                                        546          crucial  test  appears  to be the  conduct  of  the          landlord  in receiving the rent offered  belatedly.          If  he receives the same under a protest and  warns          the tenant to be regular in payment in the  future,          he  cannot be assumed to have agreed to a  modified          agreement  in this regard. But if he,  without  any          objection  and without letting the tenant know  his          thought  process,  continues  to  receive  rent  at          intervals  of several months, he cannot be  allowed          to  spring  a surprise on the  tenant  by  suddenly          starting  a proceeding for eviction. Having  lulled          the  tenant  in  the belief that  things  were  all          right,  the landlord was under a duty to serve  him          with  a  notice demanding regular  payment,  if  he          wished  to insist upon it. In the case  before   us          there was no objection whatsoever, raised on behalf          of  the landlord against the delayed payments.  We,          therefore,  hold that the High Court was not  right          in  reversing  the concurrent finding  of  the  two          Courts below".      The  ration of the above decision fully applies to  the facts of the case before us.      As  regards the question of bona fide need the  Learned Single  Judge  has given detailed reason  that  the  finding

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recorded  by  the Rent Controller and  the  Resident  Deputy Collector   was  perverse  and  the  evidence  led  by   the landlord/respondent cannot be overruled or ignored merely on the ground that the witnesses were related or interested  in the  respondent.  Learned  Single Judge was  also  right  in observing  that  the  Rent  Controller  and  the   Appellant Authority went wrong in holding that the respondent/landlord had  failed to establish the ownership of the suit  premises and  on this count the ground for bona fide need must  fail. The  Learned  Single Judge of the High Court  was  perfectly right  in holding that not only the landlord/respondent  had proved that the suit property came in his share in partition but   the  tenants  had  also  atorned  in  favour  of   the landlord/respondent by paying rent to him for a long  number of  years before the filing of the present application.  The Learned  Single  Judge in this regard  after  recording  the finding  of bona fide need has already given a direction  to remand  the  case  to the Rent Controller  for  recording  a finding  for the extent of need of  the  landlord/respondent for  his  residence  and  clinic/dispensary  and  also   for examining  the  case of the landlord  to  re-con-struct  the house by giving full opportunities to the parties in respect of                                                        547 amending  the pleadings as well as leading evidence.  We  do not   find anything wrong in such direction and  uphold  the same.      As a result of the above discussion we allow the appeal arising out of S.L.P. (Civil) No. 2980 of 1990 and set aside the  Judgment of the Division Bench of the High Court  dated 23.10.1989.  However, we do not consider it just and  proper to  remand the case to the Division Bench of the High  Court for  fresh decision for reasons already recorded above.  The appeal  arising  out of S.L.P. (Civil) No. 3484 of  1991  is allowed in part, the Judgment of the Learned Single Judge of the High Court dated 11.12.1987 is set aside with regard  to the  finding in respect of habitual default as  contemplated under  clause  13(3)(ii) of the Rent Control  order  and  we uphold and maintain the finding on the question of bona fide need and the order of remand. In the facts and circumstances of  the  case the parties to bear their own  costs  in  this Court. N.P.V.                            Appeals disposed of.                                                        548