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Chunilal Anoopchand Dhoke Vs. Shivprasad S/O Chaganlal Devidan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 392 of 1980
Judge
Reported in1982(2)BomCR625
ActsHyderabad Houses (Rents, Eviction and Lease) Control Act, 1954 - Sections 15, 15(2) and 26
AppellantChunilal Anoopchand Dhoke
RespondentShivprasad S/O Chaganlal Devidan
Appellant AdvocateS.C. Bora, Adv.
Respondent AdvocateP.R. Deshmukh and ;S.V. Chandole, Advs.
DispositionApplication allowed
Excerpt:
.....by his judgment and order dated november 30, 1978 held that the landlord has failed to prove the wilful default of the tenant-petitioner and in the result the suit was dismissed. there may be some reason that the tenant may not be in a position to remit this rent in each month as provided by the said act, but the proviso to section 15 provides that in cases falling under clause (i) of section 15, if the rent controller is satisfied that the tenant is not a wilful defaulter to pay or tender the rent, he may, before making an order as aforesaid, give the tenant a reasonable time, not exceeding 15 days, to pay or tender the rent to the landlord upto the date of such payment of tender. the rent controller has got to be satisfied that default to pay or tender the rent was not wilful and if..........mr. s.v. chandole, the learned counsel appearing for the respondent contended that the money orders have not been sent regularly from month to month, there had been delay in remitting these money orders and accordingly, the lower court was right in holding that there was a wilful default on the part of the tenant to tender the rent.6. the revisional powers of the high court are dealt with under section 26 of the act. section 26 is analogous to section 115 of the code of civil procedure wherein it is stated that only errors of jurisdiction by the lower court can be interfered with in exercise of revisional power and the revisional court has no power to reappreciate the evidence in such cases. in the instant case, the question is as to whether the tenant has committed a wilful.....
Judgment:

M.P. Kanade, J.

1. This civil revision application is filed by the petitioner-tenant against an order of eviction passed by the learned District Judge, Aurangabad dated March 20, 1980.

2. The landlord-respondent filed eviction suit against the petitioner in the Court of Rent Controller, Aurangabad under section 15 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 (hereinafter referred to as 'the said Act) on the ground of default in payment of rent. The said suit under section 15 of the said Act as filed on January 3, 1975. The petitioner was a monthly tenant in respect of premises bearing Municipal No. 2521 (old) 2881 (New) situated at Dana Bazar, Jalna. It is the respondent's case that the petitioner was in arrears of rent for a period of 1 year and 9 months commencing from March 1, 1973 to November 30, 1974. He had committed a wilful default and, therefore, was liable for eviction under section 15 of the said Act. It appears that the notice of termination was issued before the institution of the proceedings on December 31, 1974.

3. The suit filed by the landlord was resisted by the tenant on the ground that he is the tenant of the suit premises for more than 20 years and that he had been regular in payment of monthly rent. The landlord in the year 1973 wanted an enhancement of rent and he refused to receive the amount of rent tendered by the petitioner. It is, therefore, the petitioner-tenant remitted the rent by money order in the name of the landlord. The first money order was sent for an amount of Rs. 120/- covering the rent for the months of March and April, 1973. The said money order was refused by the landlord. It appears that the tenant had remitted the rent by money order at least for 5 to 6 times and every time, it is contended that the money order was refused by the landlord. On some money order receipts there is endorsement of the postman and on some order coupons there is no endorsement. The learned Rent Controller, Aurangabad by his judgment and order dated November 30, 1978 held that the landlord has failed to prove the wilful default of the tenant-petitioner and in the result the suit was dismissed.

4. The landlord feeling aggrieved by the judgment and order passed by the Rent Controller, Aurangabad filed an appeal before the learned District Judge, Aurangabad. The learned District Judge, Aurangabad allowed the said appeal on March 20, 1980 and passed an order of eviction against the tenant-petitioner. That judgment and order is challenged by the petitioner in this civil revision application.

5. Mr. S.C. Bora, the learned Counsel appearing on behalf of the petitioner, contended that there is no wilful default on the part of the petitioner-tenant to pay the arrears of rent. The landlord refused to accept the money order amount tendered by the petitioner-tenant. Mr. S.V. Chandole, the learned Counsel appearing for the respondent contended that the money orders have not been sent regularly from month to month, There had been delay in remitting these money orders and accordingly, the lower Court was right in holding that there was a wilful default on the part of the tenant to tender the rent.

6. The revisional powers of the High Court are dealt with under section 26 of the Act. Section 26 is analogous to section 115 of the Code of Civil Procedure wherein it is stated that only errors of jurisdiction by the lower Court can be interfered with in exercise of revisional power and the revisional Court has no power to reappreciate the evidence in such cases. In the instant case, the question is as to whether the tenant has committed a wilful default, so as to pass an order of eviction under section 15 of the said Act. More or less, it is an admitted position that the tenant had tendered the rent by money order. As many as five money orders were sent for different periods and each of them have been refused. The landlord has admitted that certain money orders have been refused by him and other money orders on which there is no endorsement of the postman, are said to have not been presented to him for acceptance. If a tenant tenders arrears of rent through money order, such a tender will be a valid tender. There is no provision in the said Act to hold that it will not be valid tender. There may be some reason that the tenant may not be in a position to remit this rent in each month as provided by the said Act, but the proviso to section 15 provides that in cases falling under Clause (i) of section 15, if the Rent Controller is satisfied that the tenant is not a wilful defaulter to pay or tender the rent, he may, before making an order as aforesaid, give the tenant a reasonable time, not exceeding 15 days, to pay or tender the rent to the landlord upto the date of such payment of tender. The Rent Controller has got to be satisfied that default to pay or tender the rent was not wilful and if not satisfied that the default was not wilful, he may give relief against forfeiture of the tenancy right. It is the satisfaction of the Rent Controller on the material on record that is necessary in order to show that there was a wilful default. In the instant case, the Rent Controller has come to the conclusion that there was no wilful default and accordingly, he dismissed the suit.

7. The learned District Judge inspite of the remittance of arrears of rent by money orders by the petitioner-tenant, held that the petitioner has committed wilful default. It is further observed by the learned District Judge that refusal of money order has not been proved. He also observed that the postman, who presented money order to the landlord, has not been examined and, therefore, these tenders have not been proved. I am unable to persuade myself to accept the finding recorded by the learned District Judge. To me it appears to be a perverse finding. It must be held that the remittance of arrears of rent by money order is a valid tender and if the landlord refused to accept the same, tenant cannot be said to have committed a wilful default. Once the landlord has refused to accept the money order for the months of March and April, 1973, the refusal by the landlord would be a ground for the tenant to submit that he was not a wilful defaulter, and subsequent money orders will exonerate, him from the clutches of the proviso to section 15 referred to above. The learned District Judge is not right in observing that the postman was not examined by the petitioner to prove that the amount was actually offered by the tenant for payment to the landlord within time. Postman will be deemed to be an agent of the tenant to tender the rent by money order. There is a presumption that the official duties have been properly discharged by the postman, unless it is rebutted by the other side. In the instant case, it was not necessary for the postman to make an endorsement on money orders when they were refused by the landlord. It should be presumed that, in the ordinary course of duties, the postman must have tendered the money orders to the landlord and the same were refused by the landlord. Landlord has categorically admitted that he had certain money orders. It is thus, the observations made by the learned District Judge is not correct in law and the finding based on such incorrect view would amount to an illegal exercise of jurisdiction under section 15 of the Act Mr. S.C. Bora, learned Counsel submitted that the petitioner-tenant had tendered rents and he is not in arrears. The order passed by the learned District Judge on the face of it is erroneous in law and findings recorded by him are perverse.

8. In the result, the revision application is allowed. The judgment and order passed by the learned District Judge dated March 20, 1980 in Misc. Appeal No. 8 of 1975 is set aside and that of the Rent Controller is restored. In the facts and circumstances of the case, there will be no order as to costs.


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