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Rukhminibai Amarsingh Thakur and ors. Vs. Bhaiyaji Rawji Bapu Wankhede - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1309 of 1973
Judge
Reported inAIR1978Bom363; 1977MhLJ859
ActsCentral Provinces and Berar Letting of Houses and Rent Control Order, 1949
AppellantRukhminibai Amarsingh Thakur and ors.
RespondentBhaiyaji Rawji Bapu Wankhede
Appellant AdvocateA.B. Oke, Adv.
Respondent AdvocateS.D. Deshpande, Adv.
Excerpt:
.....passed by the rent controller under clause 13 (3) of the c.p. and berar letting of houses and rent control order, 1949 was set aside in appeal - the appellate authority remanded the case with further directed to submit report after recording evidence of parties - the court held that the rent controller was justified in only submitting the report and not deciding the matter himself.;b) the court held that the rent controller and the appellate authority would not constitute 'court' under the c.p. and berar letting of houses and rent control order, 1949, but the jurisdiction exercised by these authorities pertains to the rights of the landlord and tenant over the rented property - therefore indirectly, these authorities have the power to settle disputes relating to the property rights..........the c. p. and berar letting of houses and rent control order, 1949 (hereinafter referred to as the rent control order) granting permission to the respondent-landlord for terminating the tenancy of the petitioners on the ground that the landlord needs the house for his bona fide occupation.2. the house bearing corporation no. 60, situate at subhash road, nagpur, is owned by the respondent and it is in possession of the petitioners. the respondent filed an application under clause 13 of the rent control order seeking permission to terminate the petitioner's tenancy. that application was numbered as rev. case no. 531/a-71 (2) of 1969-70. the grievance of the respondent was that the petitioners had fallen in arrears of rent for more than three months and that they were also habitually in.....
Judgment:
ORDER

1. The petitioner-tenants are challenging the orders of the authorities under the C. P. and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as the Rent Control Order) granting permission to the respondent-landlord for terminating the tenancy of the petitioners on the ground that the landlord needs the house for his bona fide occupation.

2. The house bearing Corporation No. 60, situate at Subhash Road, Nagpur, is owned by the respondent and it is in possession of the petitioners. The respondent filed an application under Clause 13 of the Rent Control Order seeking permission to terminate the petitioner's tenancy. That application was numbered as Rev. Case No. 531/A-71 (2) of 1969-70. The grievance of the respondent was that the petitioners had fallen in arrears of rent for more than three months and that they were also habitually in arrears of rent. On these grounds permission can be obtained under Clause 13 (3) (i) and (ii). The respondent has also alleged that under Sub-clause (vi) he is entitled to have the permission as the house was needed by him bona fide for his occupa-tion. The Rent Controller, by his order dated 27-10-1970 accepted the case of the respondent and passed an appropriate order in favour of the respondent. The petitioners took this matter in appeal to the Additional District Magistrate, Nagpur. That appeal number is 185/A-71 (2)/ 70-71. The appellate authority came to the conclusion that the grounds mentioned in Clauses 13 (3) (i) and (ii) are not available to the respondent. As far as the ground under Clause 13 (3) (vi) is concerned, he felt that the matter should be enquire ed into in more details in order to decide as to whether the provisions of Clause 13 (3) (viii) can be applied. The appellate authority, therefore, sent the case back to the Rent Controller. The order in somewhat clumsy, It reads as follows;

'I, therefore, set aside the order passed by the learned Rent Controller under Clause 13 (3) (vi) of the Rent Control Order and remand the case to the Rent Controller, Nagpur for further enquiry under Clause 13 (8) of the Rent Control Order and then to report the case to me. Both the parties be allowed to adduce evidence for the purposes of the Clause 13 (3) (vi) of the Rent Control Order and particularly Clause 13 (8) of the Rent Control Order.....In the result, the appeal partly succeeds in respect of permission under Clause 13 (3) (ii) and stands allowed. As regards permission under Clause 13 (3) (vi), the case stands remanded to the Rent Controller, Nagpur. .........'

3. After the papers went to the Rent Controller, the parties led evidence and the Rent Controller submitted his report on 19-1-1972 to the appellate authority. In that report he expressed an opinion that the need of the respondent-landlord for entire premises is bona fide and genuine. The appellate authority thereafter heard the appeal again and on 3-4-1972, judgment was delivered granting permission to the landlord-respondent under Clause 13 (3) (vi) of the Rent Control Order. It is this order that is being challenged before me.

4. Mr. Oke for the petitioners submitted that the procedure followed by the Rent Controller after the matter was sent back to him was not correct. His grievance is that it was necessary for the Rent Controller to decide the matter himself as the case was remanded by the appellate authority. I do not think that all this was necessary. As a matterof fact, the appellate authority has directed the Rent Controller to submit his report after recording the evidence that may be led by the parties. It is true that the appellate authority has made a statement in the judgment that the orders passed by the Rent Controller are set aside and the case is remanded to him. These observations, however, will be controlled by the subsequent direction that the Rent Controller was not to decide the case himself but was to submit his report to the appellate authority. There would not have been any necessity of such a report if the appellate authority wanted that the Rent Controller should himself decide the case again. I would, therefore, think that there was no impropriety or illegality in the procedure that has been followed by the Rent Controller in submitting the report to the appellate authority as per the judgment in appeal.

5. The next contention of the petitioners is that the judgment of the appellate authority suffers from an infirmity of a serious nature. The argument is that the Additional District Magistrate (A.D.M.) did not reassess or reappreciate evidence for coming to conclusion about the genuineness or otherwise of the need of the respondent. It seems that there is much substance in this respect. The A.D.M. in para. 4 of the judgment has reproduced the arguments that are advanced on behalf of the landlord as regards his need for getting the possession of the house. Then comes paragraph 5 but it has nothing to do with the present controversy, as that para, mainly deals with the arrears. In paragraph 6 the A.D.M. has considered the question under Clause 13 (3) (vi) in the following words:

'As regards Clause 13 (3) (vi) of the Rent Control Order, I find that the landlord has established his case very well and the findings on all the 3 cardinal points are positive in his favour, i. e. (1) the landlord does need the house (2) that this need is for his bona fide residence and (3) that at present he is not occupying any house of his own at Nagpur....'

6. These were all the observations that can be said to be connected with the ground covered by Clause 13 (3) (vi). The A.D.M. exercises the appellate jurisdiction. It is true that the Rent Controller and the A.D.M. would not constitute 'court' in the strict or technical sense of the term. But one cannot for-get that the jurisdiction exercised by these authorities pertains to the rights of the landlord and tenant over the rented property. The judgments given in exercise of these powers enable the landlord to seek possession after terminating the tenancy. Thus, in a way the Rent Controller and the A.D.M. decide the matters which have a bearing on the property rights of the parties. It is, therefore, expected that while deciding these disputes, the judgments should disclose that the argument for and against the particular contention has been properly discussed and that the evidence led by the parties has been appreciated. These things are wanting in the present case and I think that it will not be proper to allow the judgment of the appellate authority to stand as it is. In the fitness of things, the matter should go back to the A.D.M. for fresh hearing of the appeal and disposal thereof, according to law.

7. The result is that the petition succeeds. The rule is made absolute. The decision recorded by the A.D.M. in Appeal No. 185/A-71 (2)/70-71 is set aside and the matter is remanded to him for further disposal of the appeal, according to law, and in the background of the observations and directions given in this judgment. The parties should appear before the A.D.M. on 22-8-1977, for further hearing of the appeal. It is needless to say that no fresh notices of the appeal are necessary in view of this direction. The parties to bear their own costs of this petition.

8. Rule made absolute.


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