S.V. Kedari and Co. and Another vs Mohammad Ibrahim and Others

Dhabe, J.—All the parties including the added parties were heard by us at length on merits and hence the instant letters patent appeal can be conveniently disposed of at this stage only. Hence, Rule, Heard forthwith.

The proceedings in this letters patent appeal arise out of the orders passed under the provisions of the C.P. & Berar Letting of Houses and Rent Control Order, 1949 (for short "the Rent Control Order"). The respondents Nos. 1 to 3 filed an application before the Rent Controller under clauses 13(3)(i), (ii) and (vi) of the Rent Control Order seeking permission to give quit notice to the appellant No. 1, which was the tenant in the suit premises. The appellant No. 1 is a registered partnership firm. By its written statement the appellant No. 1 denied the allegation made by respondents Nos. 1 to 3 in their application. After the written statement was filed, the respondents-londlords filed an application for amendment to add to the original application, Shri S. Narsingrao Kedari, as non-applicant No. 2 on the ground that it was necessary to sue the firm through one of its partners in view of the decision of this Court. The said application for amendment was allowed and S. Narsingrao Kedari, one of the partners of the firm, was added as non-applicant No. 2 in the proceedings.

The parties led evidence. The learned Rent Controller on the basis of the evidence on record held that the respondents landlords have not proved their case in regard to any of the grounds raised by them. He, therefore, dismissed the said application. The respondents-landlords preferred an appeal and in the appeal as regards the permission sought under Clause 13(3)(ii) the learned Additional District Magistrate Nagpur, set aside the order of the learned Rent Controller, Nagpur, holding that the respondents landlords have proved their case about the habitual default under Clause 13(3)(ii) of the Rent Control Order. He accordingly granted permission to the land-lords thereunder to determine the lease of the appellant. He, however, maintained the order of the learned Rent Controller, Nagpur, as regards the permission sought under Clauses 13(3)(i) and (vi) of the Rent Control Order. Feeling aggrieved the tenant preferred a writ petition in this Court, but the same was dismissed. Against the judgment of this Court in the writ petition, the appellants have preferred the instant letters patent appeal.

When this letters patent appeal came up for admission, the principal ground urged on behalf of the appellants was that according to the judgment of the Supreme Court in Chhotelal Pyarelal, The Partnership Firm and Others Vs. Shikarchand, , since the CPC was not applicable to the rent control proceedings, it was necessary for the respondents landlords to join all the partners of the firm as parties to the proceedings. Notice before admission was issued to the respondents landlords, who after appearance in this Court filed an application for joining the remaining partners as parties to the original application under Clause 13(3) of the Rent Control Order. After notice to the persons to be added as parties and after hearing all the parties, this Court allowed the said Civil Application No. 1531 of 1987 as a result of which the original application is amended and the remaining partners stand joined as parties to the original application excluding the partner S.G. Kedari, who is reported to be dead. It is thereafter that this letters patent appeal is being heard on merits as well as on the question whether it would be necessary to remand the proceedings to the Rent Controller, Nagpur, with a view to give an opportunity to the added parties to meet the case of the respondents landlords.

As regards the merits, the principal question which is urged by the learned counsel for appellants is that the schedule of defaults filed along with the application under clause 13(3) of the Rent Control Order is not proved. It is also further urged that even if the schedule of defaults is held to be proved, it does not show that the appellants are habitual defaulters within the meaning of clause 13(3)(ii) of the Rent Control Order. As regards the question of proof of the schedule, it is urged on behalf of the respondents landlords that the said schedule is not denied by the appellants in their written statement and hence it was not necessary to prove the said schedule. Perusal of para 4 of the written statement would show that apart from the tact that the schedule is not denied by the appellants, they have relied upon the schedule to show that several payments in advance were made before the rent was due to the landlords. The learned appellate authority has held that when the schedule of defaults is not specifically denied in the written statement, it would be deemed to have been admitted by the appellants. The learned counsel for the appellants has however urged that the CPC is not applicable to the proceedings under the Rent Control Order and therefore the principle therein in relation to the requirements of written statement cannot be made applicable to the written statement filed in the rent control proceedings.

In our view, there is no merit in the above submission. Although the CPC may not be applicable in terms to the proceedings under the Rent Control Order, the basic principles of judicial procedure have to be followed by the Rent Control authorities who are discharging quasi-judicial functions under the Rent Control Order. It is a basic principles of judicial procedure that evidence would be led on the questions upon which the parties are at issue or which are in dispute. That is the purpose of the written statement itself. It is, therefore, necessary for the answering non-applicants to reply to each and every material allegations and to state whether they admit or deny those allegations; otherwise each fact including the question of identity of the applicant may be required to be proved, if ultimately the answering non-applicants were to dispute the same. The above contention on behalf of the appellants, therefore, deserves to be rejected. However, as regards the question of proof, it may be seen from the evidence of the respondent No. 2 Abdul Majid (A.W. 1) that the schedule of payment of rent is prepared on the basis of payments made by the appellants, although it is true that the respondents have not filed any counter-foils or accounts in regard thereto. As regards the evidence on behalf of the appellants, it shows that although the schedule is denied in the evidence no rent receipts, which are in possession of the appellants and which constitute the best evidence in their possession, are filed to indicate that the rent was being paid regularly. It may also be seen that if the appellants wanted to challenge the schedule or the above statement in the evidence of the respondent No. 2 Abdul Majid (A.W. 2) that the schedule was prepared on the basis of the counter-foils, they could have asked the respondents landlords to produce the counter-foils of the rent receipts. The submission urged on behalf of the appellants that the schedule is not proved is therefore rejected.

Perusal of the schedule, which is for the period from March, 1978 to September, 1981 would show that on more than one occasion the rent is paid by the appellants after two months, three months or four months and that the rent is not paid by them before the 5th of each succeeding month as per the agreement of lease. The learned, counsel for the added parties sought to urge the last entry about the arrears of rent from March, 1981 to Sept. 81 is not correct, inasmuch as it is shown therein that only Rs. 250/- is paid on 28-9-1981 against the rent of Rs. 910/- due for the period from March to September, 1981. According to him, actually the amount paid is Rs. 520/- on that date as per the receipt produced by him today and shown to us. In our view, there is no merit in this submission firstly because the original schedule on record correctly shows the figure of Rs. 520/- as paid on 29-9-1981. Obviously the figure of Rs. 520/- shown in the copy of the schedule filed in writ petition is a typographical error, which needs to be ignored. The submission is also devoid of merit because in the column regarding the date on which payment is made, it is made, it is clearly stated that the amount of Rs. 520/- is paid on 28-9-1981 leaving unpaid the rent for July and August, 1981. It may be seen that the application is actually filed on 13-10-1981 and therefore the rent for the month of September, 1981 was due on the date of the application. It may also be seen that the rent for the months of March to June, 1981 is paid in lump sum on 28-9-1981 and on the date of application, it appears that the rent for the months of June to September, 1981 was due.

The learned counsel for the appellants has however submitted that on some occasions the rent is paid in advance also. In our view, the said submission is in genious, but is hardly true. Even otherwise such instances are few and cannot negative the inference of habitual default. For instance, the rent for the two months of March and April, 1979 is paid on 26-4-1979 and the submission is that the rent of April, 1979 is paid in advance it is paid on the same tenancy month. It must be seen that the rent is said to be paid in advance when it is paid at the beginning of the tenancy month and not when it is coming to a close as is clear from the schedule of defaults such payment cannot therefore be characterised as advance payment of rent.

The schedule of defaults thus clearly shows that the appellants were in the habit of remaining in arrears of rent and/or paying the rent irregularly within the meaning of Clause 13(3)(ii) of the Rent Control Order, It may be emphasised that the tenant is obliged to pay rent either on the expiry of the tenancy month, when there is no agreement of lease and in case there is an agreement of lease, on or before the agreed date. If no such payment is made for a long period from March, 1978 to September, 1981 the finding of the learned appellate authority that the appellant firm is a habitual defaulter within the meaning of Clause 13(3)(ii) of the Rent Control Order cannot be said to be perverse and cannot be disturbed in the instant letters patent appeal. As regards the plea about the practice of paying the rent in lump sum for a period of more than one month, the learned appellate authority has rightly observed that there is no such plea raised by the appellants and no such plea therefore could have been taken into consideration in the instant proceedings. On the contrary the plea raised is that the appellants were paying the rent on due date or even in advance. The contention in regard to the plea of practice was rightly rejected by the learned appellate authority and by the learned single Judge in the writ petition preferred by the appellants. The impugned order, therefore, cannot be successfully challenged on this ground.

The next question to be considered is, whether it is necessary to remand the proceedings to the Rent Controller, Nagpur because the partners who were not originally parties before the Rent Controller, were added as parties in the instant letters patent appeal, It is urged on their behalf that in view of the judgment of the Supreme Court (cited supra), it is necessary to remand the proceedings to the Rent Controller to enable the added partners to file their written statement and to allow them to lead evidence, if they so desired. In this regard it may be seen that a review petition was filed in the aforesaid appeal before the Supreme Court and as per the order dated 7-11-84 the Supreme Court modified its earlier order and remanded the proceedings to the High Court instead of the Rent Controller. It is stated in the aforesaid order of the Supreme Court dated 7-11-1984 that if the learned single Judge of the High Court before whom the matter was pending thought that the case should go back to the Rent Controler, he should remand the case to the Rent Controller.

In view of the above judgment of the Supreme Court in review proceedings, we asked the learned counsel for the appellants as well as the learned counsel for the added parties whether there, is a new material or any new case on merits so that the remand to the Rent Controller is not a mere empty formality. It is necessary to notice in this regard that the procedure for eviction of the tenants in Vidarbha Region of the State is a two tier procedure because first the permission to give notice has to be obtained from the Rent Controller under the Rent Control Order and then after giving notice to quit under the Transfer of Property Act the suit for eviction before the ordinary court of law has to be filed. The above two-tier procedure for eviction with appellate jurisdiction in each is thus cumbersome and time consuming for which reason, according to us, the remand to the trial Court should be made only if it is a must.

In the instant case the question is only about habitual default, which is solely based upon the schedule of defaults filed by the respondents. We therefore particularly inquired from the learned counsel for the added parties to show whether the schedule of rent filed on record showing defaults was wrong. In that regard he has only produced the rent receipt dated 28-9-1981 referred to above to show that the rent paid on 28-9-1981 is Rs. 520/- and not Rs. 250/- as shown in the schedule. As already pointed out, the rent paid is correctly shown in the schedule as per the aforesaid receipt. No other fault is found with the schedule. No purpose would therefore be served by remanding the case to the learned Rent Controller, except the harassment to the respondents landlords due to protracted litigation causing further delay in getting the suit premises vacated, if they succeed, if the schedule of defaults cannot be disputed, the inference, as pointed out above, is irresistible, that the appellants are habitual defaulters within the meaning of Clause 13(3)(ii) of the Rent Control Order, We do not therefore think that any useful purpose would be served by remanding the proceedings to the learned Rent Controller.

So far as the question of opportunity of hearing to be given to the added partners before the Rent Controller or the appellate authority is concerned, we may point out that in para 2 of the judgment of the Supreme Court Chhotelal Pyarelal, The Partnership Firm and Others Vs. Shikarchand, the Supreme Court has treated the case of non-joinder of individual partners as parties, as a case of misdescription of the non-applicants to the application under Clause 13(3) of the Rent Control Order. It is therefore observed by the Supreme Court that if it is a case of misdescription, there cannot be any doubt that the partners of the firm would be before the Court, though in the wrong name. It cannot, therefore, be said that the added parties were not represented by the firm, which was a party to the proceedings. In fact in the name of the firm one of the partners, presumably one who was managing its affairs has actually appeared and contested the proceedings. Moreover one partner was individually added as a party in the original proceeding itself. In these circumstances, the added partners were thus adequately represented by the original petitioners. It cannot therefore be said that no opportunity of any hearing was given to them in the present proceedings. Had there been any new material brought on record or any new case made out, we would have surely remanded the proceedings to the Rent Controller. However, in the face on the facts narrated above, we do not think that it is a fit case for remand.

There is also a technical objection that the added partners who are joined as parties in the original proceedings, are not joined in the appellate proceedings in which permission is granted, for the reasons given in the above para, and in particular since it is a case of misdescription of the parties and since the firm which is the tenant and against which permission is granted was adequately represented in appeal also, we cannot accede to the above technical objection raised on behalf of the appellants. Moreover, they are heard in this letters patent appeal fully.

In the above view on the question of remand, we are supported by the decision of the Supreme Court in the case of Bal Niketan Nursery School Vs. Kesari Prasad, (See paras 13 and 22 of the said judgment). It is held by the Supreme Court in the above judgment that Order I, Rule 10 of the CPC has been expressly provided to meet with such situations so that rendering of justice is not hampered If the Court is satisfied that a bona fide mistake has occurred in the filing of the suit in the name of the wrong person, then the Court should set right matters in exercise of its powers under Order I, Rule 10 and promote the cause of justice. In fact the order of remand made by the High Court on this ground was not sustained by the Supreme Court which held that the High Court should have exercised the power under Order I, Rule 10 and disposed of the writ petitions on merits. Although the provisions of Order I, Rule 10 of the CPC are in terms not applicable to the proceedings under the Rent Control Order, the principles underlying therein would be applicable to the said proceedings. We thus reject the contention urged on behalf of the appellants and the added parties that the proceedings should be remanded to the learned Rent Controller for a fresh decision on merits because some of the partners are added as parties to the original application in this Court.

In the result, the instant letters patent appeal fails and is dismissed. However, there would be no order as to costs.