Harish Nathmal Khetan vs Shamlal Mannalal Bagdia And Another

Heard Shri R.L. Khapre, learned Counsel for the petitioner, Shri U.J. Deshpande, learned Counsel for respondent 1 and Shri N.H. Joshi, learned

Assistant Government Pleader for respondent 2.

Rule. Rule made returnable forthwith by consent of the learend Counsel for the parties.

The petitionerÂlandlord is assailing the order dated 13Â1Â2015 rendered by the Additional Collector, Akola in Revenue Appeal BRAÂ‐

13(3)/Akola/4/2011Â12, by and under which the order dated 26Â4Â1999 passed by the Resident Deputy Collector and House Rent Controller, Akola

granting permission to issue quit notice under Clause 13(3)(i) & (ii) of the C.P. and Berar Letting of Premises and Rent Control Order, 1949

(“Rent Control Orderâ€​ for short), is granted.

The landlord is the owner of a three storied building known as 'Khetan Bhavan' situated in Old Cotton Market, Akola.

The landlord instituted proceedings under Clause 13(3)(i) & (ii) of the Rent Control Order against respondentÂtenant contending that respondentÂ‐

tenant is occupying a shop block comprising two rooms in the said Bhavan as tenant on monthly rent of Rs.150/Â. The landlord contended that the

tenant agreed to pay, over and above the monthly rent, Rs.60/Â per month as municipal taxes and the entire rent and taxes are payable in advance for

the year, in Diwali.

The case of the landlord is that the tenant failed to pay the contractual agreed rent and taxes from 16Â​10Â​1990 onwards. Repeated demands did

not evoke any response from the tenant, and as a consequence the tenant is liable to be held a habitual defaulter, is the contention of the landlord.

Respondent 1 filed written statement, and the substratum of the defence is that respondent 1 is not the tenant, and the tenant is a partnership firm

M/s. Shamlal Mannalal Company of which respondent 1 is one of the partners. Respondent 1 contended that there was no agreement to pay rent at

any particular time and that the landlord used to collect rent from the partnership firm, as and when required. Respondent 1 asserted in paragraph 5

of the written statement that the rent from Diwali 1990 onwards “is not recovered†by the landlord. It is further averred in the written

statement that the partnership firm did send a cheque to the landlord, which the landlord refused to accept.

The landlord examined himself and the deposition is consistent with the pleadings. The landlord stated on oath that the partnership firm is not the

tenant and it is respondent 1 in his individual capacity, who is the tenant. The landlord produced on record rent receipts in order to demonstrate that

the rent receipts are issued in the name of respondent 1 and not the partnership firm. The landlord deposed that respondent 1 used to make the

payment of the rent and the tax for the year to the landlord at the shop of the landlord. The landlord then deposed that he did receive cheque for

Rs.5,250/along with letter dated 27Â4Â1992, and the said cheque was not accepted since the signature was not of respondent 1 and the

accompanying letter was unsigned. In the crossÂexamination, the tenant admits that he is not ready and willing to accept the cheque issued by the

partnership firm.

Respondent 1 stepped into the witness box and contended that it was the partnership firm which was the tenant and that there was a mutually agreed

practice to pay the rent as and when required by the landlord. Respondent 1 deposed that the landlord did not accept the cheque for Rs.5,250/Â. In

the crossÂexamination, respondent 1 admitted that not a single rent or tax receipt is issued in the name of the partnership firm. Respondent 1

accepted that in every rent receipt respondent 1 is shown as tenant. It is further accepted that the cheque for Rs.5,250/ was sent to the landlord

after the institution of the proceedings and that the accompanying letter was not signed by respondent 1. Respondent 1 agreed that he did not make

any attempt to remit the rent by money order or to deposit the rent in the Court.

At this Stage, an important development which has some significance, may be noted. Pending the proceedings before the competent authority

under the Rent Control Order, the landlord instituted Regular Civil Suit 412/1998 against respondent 1 for recovery of rent for the period 16Â10Â1990

to 17Â10Â1998. The suit was instituted against respondent 1 in his individual capacity. Notwithstanding that respondent 1 took a defence in the

Rent Control proceedings that it was the partnership firm which was the tenantrespondent deposited rent for the period 16Â10Â1990 to 04Â11Â1999

(111 months) in the civil Court, albeit without prejudice to the

submission that he is not the tenant. It is, therefore, irrefutable that the rent for 111 months was outstanding and was deposited in the civil Court.

The Resident Deputy Collector (RDC), by order dated 26Â4Â1999 was pleased to hold that respondent 1 is the tenant, is in arrears of rent and is

a habitual defaulter.

The RDC, on appreciation of evidence on record, recorded a finding that respondent 1 did not prove that the partnership firm M/s. Shamlal

Mannalal Company is the tenant. The RDC noted that every rent and tax receipt is in the name of respondent 1ÂShamlal Mannalal Bagdia and that

not a single receipt in the name of the partnership firm is produced on record. The RDC held, and correctly, that merely because certain amounts are

paid from the account of the partnership firm, relationship of tenantÂlandlord between the partnership firm and the petitioner is not established. The

RDC noted the subsequent event, to wit, the deposit of rent by the tenant in the civil Court and rightly held that the subsequent event takes the case of

the tenant no further and indeed, supports the case of the landlord that the tenant is a habitual defaulter.

The well reasoned order of the RDC is reversed by the Additional Collector, Akola (appellate authority) and the reason recorded by the appellate

authority is that since the landlord accepted the amount deposited by the tenant in the civil Court, the tenant cannot be held a habitual defaulter. In

the passing, without elaborating, the appellate authority has held that the landlord could not prove that respondent 1 was tenant in his individual

capacity.

The reasons recorded by the appellate authority are highly unsatisfactory and dangerously border on perversity. The finding of the appellate

authority that the landlord did not prove that respondent 1 is the tenant is contrary to proved facts. Irrefutably, there is absolutely no evidence on

record to prove that it was the partnership firm which was the tenant. It is well settled that the fact that the rent is paid from the account of the

partnership firm is not indicative of the status as tenant. Even if it is accepted, that some payments are made from the account of the partnership

firm, the said payment is not sufficient to prove that the partnership firm is the tenant in the teeth of the evidence on record that there is not a single

rent receipt or tax receipt issued in the name of the partnership firm. The other reason recorded by the appellate authority that the acceptance of

the rent deposited in the civil Court, which is rent for 111 months, would imply that the tenant is not a habitual defaulter, is bereft of jurisprudential

logic. The tenant deposited the rent for 111 months in the civil suit which the landlord instituted for recovery of rent. The fact that the tenant

withdrew the amount of rent deposited, can by no stretch of imagination suggest that the tenant was not a habitual defaulter. Au contraire, the fact

that the tenant made no effort to remit the rent to the landlord by money order or to deposit the rent in rent control proceedings, and permitted the rent

to accumulate 111 months, is the final nail in the coffin of the defence of the tenant. The order impugned is manifestly erroneous and deserves to be

set aside.

Shri U.J. Deshpande, learned Counsel, canvassed a submission which does not appear to have been raised, at least during the course of the

arguments, before the RDC or the appellate authority. Relying on the decisions of the Hon'ble Apex Court in Girijanandan Singh Parashram deceased

by L.Rs. v. New Cotton Ginning and Pressing Co. reported in 1999(2) Mh.L.J. 949 and a decision of a learned Single Judge of this Court in

Vinodkumar Atmaramji Choudhary v. Resident Deputy Collector, Amravati reported in 1998(1) Mh.L.J. 632, Shri U.J. Deshpande would submit that

the tenant cannot be said to be habitual in arrears of rent since rent was being paid as per the practice which had developed between the parties at

intervals of time. The reliance placed by Shri U.J. Deshpande on the decision of the Hon'ble Apex Court and the decision of the learned Single

Judge of this Court, is clearly misplaced. The evidence on record does not suggest that there was a practice which had developed that rent would

be paid as and when demanded or required by the landlord. Moreover, the submission ignores the fact that the moment the landlord instituted the

proceedings seeking permission to issue the quit notice, alleging that the tenant was a habitual defaulter, it was expected of the tenant to pay the

arrears of rent and continue to pay the rent either monthly or annually in advance by remitting the same by money order or depositing the same in the

rent control proceedings. Apart from the fact that the alleged practice of making the payment of rent as and when required by the landlord is not

proved, assuming that any concession was earlier given or indulgence shown by the landlord, which concession or indulgence the tenant may have

considered as an established practice, on institution of the rent control proceedings the tenant was put on notice that the landlord is expecting the

tenant to pay rent from month to month or entire rent for the year in advance as is claimed in the application under Clause 13(3)(i)(ii) of the Rent

Control Order. The final submission of Shri U.J. Deshpande is that this Court ought to follow the course adopted by the Hon'ble Apex Court in

Rajkumar Ramavtar Chourasia v. Mathew Cherian reported in 1990 Mh.L.J. 1284 and direct the tenant to pay enhanced rent and imposed stringent

conditions. In Rajkumar Ramavtar Chourasia v. Mathew Cherian, the Hon'ble Apex Court issued the directions to do complete justice between the

parties in exercise of powers under Article 142 of the Constitution of India. In this view of the matter, and in the facts of the present case, it is not

possible to accept the submission of Shri U.J. Deshpande that similar directions can be issued or need be issued by this Court.

The order impugned is quashed and set aside.

The order dated 26Â4Â1999 passed by the RDC granting permission to issue quit notice under Clause 13(3)(i)&(ii) of the Rent Control Order is

confirmed.

Rule is made absolute in the above terms.