Skip to content


Jagdishprasad Kesarmal Sabu Vs. Dharamdas Tharumal Hasnani and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1029 of 1974
Judge
Reported inAIR1980Bom42; (1979)81BOMLR536
ActsCentral Provinces and Berar Letting of Houses and Rent Control Order, 1949; Transfer of Property Act - Sections 109; Constitution of India - Article 227
AppellantJagdishprasad Kesarmal Sabu
RespondentDharamdas Tharumal Hasnani and anr.
Appellant AdvocateP.Y. Deshpande, Adv.
Respondent AdvocateS.A. Deshpande and;A.P. Deshpande, Advs.
Excerpt:
.....central provinces and berar letting of houses and rent control order, 1949, he has to satisfy the rent controller that he needs the house for the purpose of his bona fide occupation. item (vi) of sub-clause (3) of clause 13 of the order operates on the personal need of the person who applies for permission to the rent controller. this item takes into consideration the need of a particular person who seeks permission and cannot operate on the house itself. if the person who has applied for permission under this item on the ground that he needs the house bona fide for his occupation transfers the house to somebody else and ceases to be owner thereof during the pendency of the proceedings, the rent controller will have to see whether the subsequent purchaser does need the premises bona..........occupation of that portion of the house as a tenant. respondent no. 2 made an application to the rent controller under the provisions of clause 13 (3) of the central provinces and berar letting of houses and rent control order, 1949 (hereinafter referred to as 'the order') against the three tenants occupying the ground floor and the petitioner for permission to serve quit notices on them. in so far as the petitioner was concerned, respondent no. 2 alleged that the petitioner was in arrears of rent from 6th june, 1969 to 5th nov., 1969 to the tune of rs. 375/-, that he was habitual defaulter, that he (respondent no. 2) wanted the portion of the house in the occupation of the petitioner for his personal occupation and that the house required essential repairs which could not be carried.....
Judgment:
ORDER

1. Respondent No. 2 herein originally owned a house situated in the City of Amravati. This house consists of three storeys. There are a few shops on the ground floor which had been let out to certain persons. The first floor had been let out to the petitioner at a monthly rental of Rs. 75/- and he is in occupation of that portion of the house as a tenant. Respondent No. 2 made an application to the Rent Controller under the provisions of Clause 13 (3) of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as 'the Order') against the three tenants occupying the ground floor and the petitioner for permission to serve quit notices on them. In so far as the petitioner was concerned, respondent No. 2 alleged that the petitioner was in arrears of rent from 6th June, 1969 to 5th Nov., 1969 to the tune of Rs. 375/-, that he was habitual defaulter, that he (respondent No. 2) wanted the portion of the house in the occupation of the petitioner for his personal occupation and that the house required essential repairs which could not be carried out without the tenant vacating it. The four applications which respondent No. 2 had made against his tenants including the petitioner were heard together and disposed of by the Rent Controller by a common order on 4th Dec. 1970. The Rent Controller negatived the contention of respondent No. 2 that the petitioner was a habitual defaulter. However, he upheld his contentions that respondent No. 2 required the portion in possession of the petitioner for his personal occupation and that the said portion also required essential repairs. In this view of the matter the Rent Controller granted permission to respondent No. 2 under Clause 13 (3) (vi) and (vii) of the Order. The petitioner preferred an appeal against this order before the Resident Deputy Collector at Amravati, on 23rd Jan. 1971. In the meanwhile it appears that respondent No. 2 had served the notice to quit in pursuance of the permission he had obtained from the Rent Controller, on 6th Jan. 1971. When the appeal was pending before the Resident Deputy Collector, respondent No. 2 transferred a portion of the house including the portion in possession of the petitioner to respondent No. 1 under a registered conveyance dated 28th Sept. 1971. Respondent No. 1, by his application dated 15th March 1972, moved the Resident Deputy Collector for permission to appear in the said appeal and contest it. In this application respondent No. 1 had averred that he had purchased the house from respondent No. 2 under registered sale-deed dated 28th Sept. 1971 and had thus become landlord of the house in place of respondent No. 2. No order seems to have been passed by the Resident Deputy Collector on his application. However, it appears from the record of the appeal that the Advocate appearing for respondent No. 1 was allowed to argue, the appeal on his behalf. The Resident Dy. Collector by his order dated 27th Nov. 1973, confirmed the finding of the Rent Controller to the effect that respondent No. 2 needed the house in question bona fide for his personal occupation and that the house was in dilapidated condition and required to be repaired after it was vacated by the tenant. Having thus agreed with the findings of the .Rent Controller, the Resident Deputy Collector dismissed the appeal of the petitioner. The petitioner has, therefore, came up to this Court under Article 227 of the Constitution of India for getting the appellate order of the Resident Deputy Collector quashed.

2. Mr. P. Y. Deshpande, the learned counsel for the petitioner, submitted that respondent No. 1 having purchased the house from respondent No. 2 during the pendency of the appeal before the Resident Deputy Collector, the permission granted by the authorities below under Clause 13 (3) (vi) would not inure for the benefit of respondent No. 1. He submitted that the Rent Controller had granted permission to respondent No. 2 on this ground after having taken into consideration his needs and if respondent No. 2 had transferred the house to respondent No. 1, it would be evident that respondent No. 2 did not heed the house for himself and hence the ground on which the permission was granted by the Rent Controller having become nonexistent, the Resident Deputy Collector ought to have revoked this permission in view of this development having been brought to his notice by respondent No. 1 himself, by his application dated 15th March 1972. Mr. Deshpande contended that perusal of the order passed by the Resident Deputy Collector would show that he has not at all considered this aspect of the case which was material.

3. With regard to the permission granted under Clause 13 (3) (vii) of the Order Mr. Deshpande contended that the Resident Deputy Collector had not properly assessed the evidence on record and had come to an erroneous finding that the house needed the repairs. He submitted that before the Rent Controller the petitioner and respondent No. 1 both had adduced evidence of their own experts and the Rent Controller had wrongly chosen to rely on the evidence of the expert examined by respondent No. 2 simply because the Municipal Council had issued a notice to respondent No. 2 for demolition of the house. Mr. Deshpande contended that respondent No. 2 had not adduced any evidence to show that the Municipality had in fact issued such a notice. Hence Mr. Deshpande submitted, that the Resident Deputy Collector ought to have held on the basis of the evidence adduced by the petitioner that the house was in good condition and did not require any repairs. Mr. P. Y. Deshpande, therefore, urged that the orders passed by the two authorities below require to be quashed.

4. As against this, Mr. A. P. Deshpande, the learned counsel for the respondents submitted that even though the Rent Controller had granted permission to respondent No. 2 to serve the quit notice on the ground that he needed the house in the occupation of the petitioner, for his own need, respondent No. 1 who had purchased the said house from respondent No. 2 and had thus stepped in his shoes, could lake advantage of this permission granted to respondent No. 2, particularly when respondent No. 2 had already terminated the tenancy of the petitioner before the appeal was filed and before he sold the house to respondent No. 1. Mr. A. P. Deshpande contended that under Section 109 of the T. P. Act respondent No. 1 as vendee from respondent No. 2 would acquire all the rights which respondent No. 2 had in the property and the permission obtained by him from the Rent Controller would go with this right. As regards the permission granted under Clause 13 (3) (vii) Mr. A. P. Deshpande submitted that the question whether the house required essential repairs or not is purely a question of fact and if the two authorities below have come to a concurrent finding on this point, it would not be open to this Court in exercise of its jurisdiction under Article 227 of the Constitution to go into the merits or demerits of the said finding. Mr. A. P. Deshpande further submitted that even on merits it would not be said that the two authorities below had not properly assessed the evidence on record in this respect.

5. Perusal of the order passed by the Rent Controller would disclose that in so far as the permission under Clause 13 (3) (vi) is concerned, he had taken into consideration the need of respondent No. 2 only for occupation of the house in possession of the petitioner. After scrutinising the evidence on record in this respect the Rent Controller observed, 'I find from the evidence, therefore, that the applicant's need for the suit house is really genuine, convincing and real.' It is needless to say that during the proceedings before the Rent Controller respondent No. 2 alone was applicant and respondent No. 1 was nowhere in the picture at all. In this connection it would be of interest to note that some questions were put to the son of respondent No, 2 who was examined before the Rent Controller on behalf of the latter, with regard to the intention of respondent No. 2 to sell the house after having obtained possession thereof. He made a categorical statement in reply to these questions that he and his father did not want to sell the building in dispute and that there was no talk with regard to the same with certain persons. It would, therefore, appear that the whole case before the Rent Controller on the part of respondent No. 2 was that he needed the house for himself and it was on this averment and the evidence in this connection that The Rent Controller came to the abovesaid finding. As already stated above, respondent No. 2 sold the house to respondent No. 1 on 20th Sept. 1971 i.e. after obtaining the permission from the Rent Controller but during the pendency of the appeal before the Resident Deputy Collector. Now the sale of the house in question by respondent No. 2 to respondent No. 1 soon after having obtained permission under Clause 13 (3) (vi) would itself show that he did not bona fide require the house for his personal occupation. Apart from this, when a landlord seeks permission of the Rent Controller to serve quit notice under Clause 13 (3) (vi) of the Order, he has to satisfy the Rent Controller that he needs the house for the purpose of his bona fide occupation. In other words, in order to secure permission under the said clause, the landlord who applies to the Rent Controller would have to establish his own bona fide need and while granting permission under this clause the Rent Controller will have to judge from the evidence and the facts and circumstances of the case whether the need of that landlord is bona fide or not. In other words, item (vi) of Sub-clause (3) of clause 13 of the Order operates on the personal need of the person who applies for permission to the Rent Controller. This item takes into consideration the need of a particular person who seeks the permission and it cannot operate on the house itself. In other words, if the person who has applied for permission under this item on the ground that he needs the house bona fide for his occupation transfers the house to somebody else and ceases to be owner thereof during the pendency of the proceedings the Rent Controller will have to see whether the subsequent purchaser does need the premises bona fide for his own occupation. In such a situation it would not avail the purchaser by merely asking the Rent Controller to substitute his (purchaser) for the previous owner and to consider the need of the previous owner rather than his own need. It may be that since the previous owner has ceased to have interest in the house, the Rent Controller may dispose of the proceeding as infructuous or he may continue the proceedings calling upon the subsequent owner to establish his own need. But the fact remains that while granting permission to the subsequent owner the Rent Controller would not be within his power to consider the need of the previous owner, since, as stated above, the said clause operates on the landlord and not on the tenanted premises to which the subsequent owner acquires the title. A similar view has been taken by the erstwhile Nagpur High Court in Dwarkanath v. Amarnath 1956 Nag LJ 625.

6. Now in the present case it is true that the transfer was not effected by respondent No. 2 in favour of respondent No. 1 during the pendency of the proceedings before the Rent Controller and hence there was no question of the Rent Controller taking into consideration the need of respondent No. 1. It is also true that the transfer has taken place during the pendency of the appeal before the Resident Deputy Collector and the fact of the transfer had been brought to his notice by no less a person than respondent No. 1 himself. The question then is whether the Resident Deputy Collector should have taken into account this subsequent development for holding whether respondent No. 2 needed the premises for his personal occupation. Now it is well settled that an appeal is a continuation of the original proceedings and the hearing of an appeal is in the nature of rehearing of those proceedings. Hence, in order to grant appropriate reliefs in appeal, the appellate Court would be within its power to take into account the facts and events which have come into existence subsequent to the decree or order against which the appeal has been filed. It may even become its duty to take notice of such events in order to do adequate justice between the parties before it. In this connection reference may usefully be had to the decision of the Federal Court in Lachmeshwar Prasad v. Keshwar Lal . It is not as if the appellate Court has to turn a blind eye and a deaf ear to the events which take place subsequent to the closure of the. proceed- ings before the lower Court and decide the issues before it only on the evidence or the facts as they were obtaining before the lower Court. If the subsequent event has a material bearing on the decision of the matter before it and if such an event is likely to turn the case against any party, it would be open to the appellate Court to take notice of such event provided of course it is properly established. Now in the present case, as has been seen above, the fact that respondent No. 2 bad sold the house to respondent No, 1 and had thus ceased to have any interest in it had been brought on record of the appellate authority by respondent No. 1 himself. The Resident Deputy Collector, therefore, should have considered the effect of this development on the permission granted by the Rent Controller to respondent No. 2 to serve quit notice on the ground that he needed the premises in question for his own personal occupation. After this fact having been bro-ought on record, it would not have been proper on the part of the appellate authority to proceed to decide this on the assumption as if respondent No. 2 was still the owner of the house and continued to need it for his own occupation. The changed circumstances which had material bearing on the issue of personal requirement ought to have been taken cognizance of by the appellate authority, and it should have then proceeded to decide the matter on the basis of this event. As I have pointed out above, the Resident Deputy Collector while considering this aspect of the case has totally lost sight of the fact that the premises had been transferred by respondent No. 2 to respondent No. 1 during the pendency of the proceedings before him and if that was so clearly respondent No. 2 could not need the house for himself as had been held by the Rent Controller, It would, therefore, appear that the Resident Deputy Collector has not properly applied his mind to this aspect of the case and has given his finding on it on an incorrect assumption. As I have already pointed out above, clause 13 (3) (vi) of the Order takes into its wake need of the person who applies for permission and cannot inure for the benefit of his successor in interest. In this view of the matter, therefore, the finding of the Resident Deputy Collector to the effect that respondent No. 2 needed the house for his personal occupation, cannot be sustained.

7. The submission of Mr. A. P. Deshpande, the learned counsel for the respondents that when respondent No. 1 purchased the house from respondent No. 2, he purchased it with all the rights which the latter had cannot hold water in view of the fact that the permission which had been granted by the Rent Controller to respondent No. 2 on this count would become final subject to appeal which had been preferred by the petitioner. Respondent No. 1 would take the premises not only with all the rights which respondent No. 2 had in it but also with all the liabilities. If by transfer respondent No. 2 had lost the efficacy of the permission under clause 13 (3) (vi), there was nothing which respondent No. 1 could get from respondent No. 2 in this respect. The transfer itself deprived respondent No. 2 of the permission or in other words the right to serve the quit notice on this ground and there was nothing in this connection which respondent No. 2 could transfer to respondent No. 1. The fact that respondent No. 2 had terminated the tenancy of the petitioner before the transfer would not be of any material avail to respondent No. 1. The tenancy was terminated on the basis of the permission which had been granted by the Rent Controller on this count. The said order of the Rent Controller was itself subject to appeal filed by the petitioner. If ultimately the permission granted by the Rent Controller on this count is set aside by the appellate authority in appeal, respondent No. 1 cannot take advantage of the termination of the tenancy by respondent No. 2 because the termination itself would be subject to decision of the appeal. Any other interpretation would make the appeals infructuous since a landlord may deprive the tenant of his right of appeal by his hastily terminating the tenancy of the tenant even before he could resort to an appeal. In my view, therefore, the submission of Mr. A. P. Deshpande that the permission which had been granted by the Rent Controller on this count to respondent No. 2 enures to the benefit of respondent No. 1 cannot be upheld.

8. In so far as the second submission of Mr. P. Y. Deshpande is concerned, it has to be said that both the authorities below recorded a concurrent finding that the house was in dilapidated condition and required repairs which could not be carried out without the petitioner vacating the same. It is true that respondent No. 2 and the petitioner each had examined his own expert with regard to the condition of the building and in so far as the Bent Controller was concerned, the balance tilted in favour of respondent No. 2 because the latter relied on the notice served by the Municipal Council on him for demolition of the building. Apart from the admissibility or otherwise of the notice, the fact remains that evidence had been adduced before the Rent Controller and it was open to him to accept that evidence which commended itself best to him. The Resident Deputy Collector also considered the evidence which was on record and particularly the fact that the second storey of the building had fallen and was not fit for human occupation and also that the rear portion of the first floor had fallen down. If that was the state of the building, it is not possible to say that the authorities below have taken a wrong view in holding that it was in a dilapidated condition and required to be repaired after it was vacated by the tenant. Mr. P. Y, Deshpande referred me to the evidence of the son of respondent No. 2 where he said that the room at the back of the portion in occupation of the petitioner had fallen down and that the portion which in his (petitioner's) possession was in a good condition. Mr. Deshpande, relying on this evidence, submitted that if the portion in possession of the petitioner was in good condition, it was not necessary to vacate it in order to carry the repairs to the other part of the building. Now the authorities below, as has been stated above, have found that the building was in a bad state and is falling down bit by bit. There is no saying when the portion in the occupation of the petitioner would come down particularly when the rear portion has already given way. In my view, therefore, it is not possible to say that the authorities below have taken an incorrect view in so far as the permission on the ground mentioned in clause 13 (3) (vii) of the Order is concerned.

9. The result, therefore, is that the order passed by the Resident Deputy Collector will have to be modified in so far as it relates to the permission granted to the respondents under clause 13 (3) (vi) of the Order but will have to be confirmed with regard to the permission granted under clause 13 (3) (vii).

10. In the result, the petition is partly allowed. The order passed by the Resident Deputy Collector on 27th November 1973 is hereby modified by quashing the part of the order under which he has confirmed the order of the Rent Controller granting permission to respondent No. 2 for serving a quit notice on the petitioner on the ground mentioned in clause 13 (3) (vi) of the Order. The rest of the order passed by the authorities below is confirmed. In the circumstances of the case there shall be no order as to costs.

11. Petition partly allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //