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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.

L...I...T.......T.......T.......T.......T.......T.......T..J

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.