1994 ALLMR ONLINE 192
BOMBAY HIGH COURT
V.S. SIRPURKAR, J.
Gopalsing Vs. Mumtaz Hussain Shamsuddin Bohra and others
Writ Petn. No. 1607 of 1989
18th February, 1994
Respondent Counsel: P. N. Kothari and Sajjad Hussain, .
C.P. and Berar Letting of Houses and Rent Control Order (1949),Cl. 13(3)(ii) C.P. and Berar Letting of Houses and Rent Control Order (1949),Cl. 13(8) C.P. and Berar Letting of Houses and Rent Control Order (1949),Cl. 13(3)(ii)
ORDER :-The present Writ Petn. No. 1607/89 is filed by the tenant against the order passed by the Resident Deputy Collector, Buldana by which the Resident Deputy Collector has allowed the applications filed by the landlords for permission to issue a quit notice under the provisions of clause 13(3)(ii) and (iv) of the C. P. and Berar Letting of Houses
and Rant Control Order, 1949 (hereinafter referred to as "the Rent Control Order" for the sake of brevity). By the instant order, the Resident Deputy Collector, Buldana has also disposed of the applications made by the tenant and the landlords for fixation of fair rent. In view of this, this judgment shall govern the Writ Petn. No. 1490/89 also.
2. The subject matter of the dispute is a house in Ward No. 31, Malkapur which is tenanted to the present petitioner Gopalsing at the monthly rent of Rs. 16/-. This was a fairly old tenancy and the tenant was in the house for about 40 years. An application came to be made by the landlords - the three brothers who are respondents Nos. 1, 2 and 3 herein on the allegation that they had purchased the suit house on 4-12-1976 by 3 different sale-deeds. They contended that the petitioner had become habitual defaulter inasmuch as the tenant had not paid the rent from 1-10-1977 up to May, 1978. It was also pointed out in the application that the tenant did not pay the rent regularly as per the agreement. In the application a schedule was given covering the period of 1-12-1975 to 30-9-1977 and it was pointed out that the rent was irregularly paid, prior to the filing of the application. It was also pleaded, therefore, that the tenant had fallen in arrears of more than 3 months of rent. It was also contended that the applicants were the real brothers and all the brothers owned the house. It was pointed out that the applicant No. 2, namely, Makbul Hussain was serving as a Teacher in Zilla Parishad and was transferred to Malkapur and at the same time the applicant No. 2 had also got married and had a son from this marriage. It was pointed out, therefore, that the applicant No. 2 was in great difficulty in so far as the house accommodation was concerned and, therefore, the whole house was required by the landlords for the residence of the applicant No. 2 and his family. It is significant to note that now the family consists of not only the applicant, his wife and their son but other children also.
3. This application was contested by the petitioner. However, it was contended that the house was purchased in three parts. A plea was raised that the applicants were not the real owners but it was their father who had purchased this house in the name of the applicants. As regards the habitual default and the arrears of rent, it was pointed out that though the tenant was in arrears of rent from 1-10-1977, yet it could not be said that the tenant had fallen in arrears of more than 3 months of rent. It was denied that there was an agreement to pay the rent every month. By way of specific pleadings, it was pointed out that the applicants were not the real owners of the property and it was in fact their father who had purchased the property in the name of three applicants in part. It was pleaded that the purchases were made in the name of the three brothers separately and, therefore, it was not known as to which brother owned which part and, therefore, it could not be said that they were the real landlords and their application was not tenable on that count. As regards the habitual default, it was stated that in September, 1976 half of the portion of the house had fallen down and the previous landlord was requested to repair the same. However, without carrying out those repairs he sold the said land to Shamsuddin the father of the applicants and even he had promised to effect the repairs and seeing that Shamsuddin was not keeping his promise, the tenant had offered the rent at the rate of Rs. 8/- per month. In that view of the matter, it was pointed out that the tenant was not responsible for the arrears. It was further pleaded that all the applicants lived along with their father and their house was sufficient. On the basis of these pleadings, the parties went for the evidence. On behalf of the landlords, applicant No. 1 Mumtaz Hussain and applicant No. 2 Makbul Hussain were examined while on behalf of the tenant, the tenant himself entered the witness-box.
4. During the pendency of this application, one more application came to be filed for habitual default covering the subsequent period from June, 1978 to July, 1980 while the third application was filed by the tenant for fixation of fair rent. According to the tenant, the rent of Rs. 16/- was excessive and in view of the falling down of the house, the rent was liable to be reduced. Even these applications
were tried along with the first application mentioned above. A composite order came to be passed by the Rent Controller. By this order, the Rent Controller rejected the application filed by the landlords firstly on the ground that the applicants had failed to prove their ownership itself. The learned Rent Controller also rejected the application on the ground that the need on the part of the applicant No. 2 was not proved as he was in a transferrable job and was likely to be transferred and in that event he would not need the house in question. It was, therefore, held that the need was temporary and, therefore, on that ground the permission could not be granted. The Rent Controller held the tenant to be a habitual defaulter but strangely held that the present respondents were not the landlords and on that count alone rejected the plea of landlords. On the application of the tenant for fixation of fair rent, the learned Rent Controller passed the order that the rent of Rs. 16/- per month for the house was excessive as part of the house had collapsed and, therefore, on that ground he reduced the rent from Rs. 16/- to Rs. 8/- per month.
5. Appeals came to be filed against these orders at the instance of the landlords which though registered separately were disposed of by common order. The Resident Deputy Collector allowed all the appeals and thereby allowed the applications filed by the landlords and rejected the application by the tenant. The Resident Deputy Collector held that the applicants were landlords and the finding by the Rent Controller that the applicants were not the owners and landlords was ridiculous. He further held that the tenant had become habitual defaulter. It was also held that the landlord had proved his need and on both the counts the permission was liable to be granted to the landlord to terminate the tenancy of the tenant. Regarding the fair rent, the Resident Deputy Collector held that the rent could not be reduced from Rs. 16/- to Rs. 8/- and, therefore, restored that rent. This composite order is challenged in the present petitions.
6. Shri F. V. Vaidya, the learned counsel for the petitioner, challenged the appellate order predominantly on two points. According to him, the joint application made on behalf of the landlords was not maintainable. He pointed out that the house was divided in three parts and those three parts were purchased by the 3 applicants by separate sale deeds, so that a part purchased by one of the applicants had no nexus with the other two applicants. He further contends that, therefore, the tenancy would also be split in 3 parts and the 3 applicants would be entitled to recover the rent in the same proportion. It was for this reason that, according to Shri Vaidya, the composite application was not possible. Taking the argument further Shri Vaidya contends that in such composite application the need of one landlord could not be made the basis of the application. He contends that if the whole house was being sought for the residence of only one of the landlords, then it would be as if the two totally unconnected landlords would be asking for the permission. According to him, therefore, the permission could have been asked only by applicant No. 2 whose need was pleaded. The second question argued by Shri Vaidya is that even if it is granted that the landlords or as the case may be any of them had established their or his need, the enquiry under clause 13(8) of the Rent Control Order was a must at the instance of the Authorities. He contends that in the absence of any such enquiry, the orders are rendered nullity.
7. Shri P. N. Kothari, the learned counsel for the respondent/landlords, contends that though the properties were purchased by 3 separate sale deeds, yet the said property was always treated to be the joint property of the three brothers and indeed that is the tenor of the application. His further contention is that even if the properties appear to be purchased by separate sale deeds, yet it was an admitted fact that all the three brothers were living in the same house which was that of their father. His further contention is that if that house became insufficient for the four families than the 3 brothers who were the landlords of the house could plead on behalf of one of the brothers inasmuch as if one brother was accommodated in the tenanted house, then they themselves would not face the shortage of accommodation in the house of joint
8. Considering the rival contentions, it will have to be seen as to whether such joint application is possible or not. If we look at the application itself, the applicants specifically pleaded that all the three brothers are the landlords. It has also come in the application that all the applicants are living to one and the same house which belongs to their father and that they were short of the accommodation. It is also a pleading that it is now that the applicant No. 2 has got married and has a son also. In this view of the matter, it was pleaded that the house in question was required for the residence of the applicant No. 2. There is no doubt that prima facie it appears as if the need is only on the part of applicant No. 2 but considering the application as a whole it cannot be said that this was a need only on the part of the applicant No. 2. Undoubtedly if the applicant No. 2 was accommodated in the suit house that would case the situation in the house where the remaining two brothers were living. What is pleaded in the application is the need for all the 3 brothers. All the 3 brothers were living and facing the acute shortage of space. If the 3 brothers had acquired the whole house and if that whole house could be given to the applicant No. 2, the difficulty of all the 3 brothers would be automatically solved. This indeed appears to be the tenor of the application. It, therefore, cannot be said that the need which is pleaded is only on behalf of one of the landlords. Indeed there have been separate sale-deeds as would be evident from the deposition of the witnesses, yet the fact remains that the 3 brothers have not demanded the rent separately. The rent admittedly is being paid on their behalf to their father. The tenant also, it seems, has not taken any exception to the attornment notice which has been sent on behalf of the 3 brothers. It has come in the evidence that the 3 brothers have sent an attornment notice and thereafter the rent was being paid to the father of the 3 brothers on their behalf. If this is so there is a clear intention not to split the tenancy. The reasons for effecting the separate purchases by 3 separate sale-deeds may not be necessary particularly in view of the fact that the 3 brothers have not treated these to be the separate transactions. They may have their own reasons for making separate purchases. Again the fact remains that there has been no partition by metes and bounds nor has there been any assertion of the separate rights by any of the brothers. It is, therefore, clear that all the 3 brothers have though purchased the property separately by 3 separate sale-deeds have treated it to be a joint property. The argument, therefore, that the brothers had separate ownership and, therefore, one brother had no nexus and connection with the part owned by another brother is essentially incorrect. Shri P. V. Vaidya tried to rely on the entries in the Index Register to show that these entries are separately made in respect of the house and the 3 brothers are shown to be the owners. He also tried to show that in the Index Register it is only in the part of the house that the tenant is shown to be living. He, therefore, contends that, it is not certain as to which brother owns which part and, therefore, the 3 applications should have been made by each brother in respect of his own part. Now the argument has to be rejected on the simple logic that if it is the contention of the tenant that it is not known as to which part is owned by which landlord then certainly the composite application would be the only application which would be tenable. Shri Vaidya points out that the parts are separately defined. but the fact remains that the whole house is in possession of the tenant in so far as its first floor is concerned. There is no evidence brought on record by the tenant that even in respect of the other tenants who are on the ground floor, the landlords had asserted their separate rights. If the landlords had asserted their separate rights, the tenant would not have failed to bring them on record in respect of the other tenants. In short, the whole house has been treated to be a composite house and it seems that it is only for the sake of, convenience that the house has been shown to be devided into 3 parts and the said 3 parts came to be purchased in 3 different
names. As I have already stated earlier, there could be many reasons for doing it. It is not for this Court to go into those reasons. The fact, however, remains that the 3 brothers have treated this to be a composite house and have not in any manner asserted their individual rights. If the 3 brothers who have purchased the property in 3 parts joined together and filed a joint application, there is nothing illegal about it. Such application could always be made more particularly in view of the fact that the landlords have not asserted their separate rights in the attornment notice. The attornment notice is also on behalf of the 3 brothers and they have simply stated that they have become the owners of the house. The purchase by 3 separate sale-deeds may be a private arrangement between the 3 brothers but in so far as the tenant is concerned, so long as the 3 brothers treated themselves to be joint which indeed is the tenor of their notice, then it could not be said that any illegality was committed in making a joint application. The argument of the learned counsel for the tenant that the composite application was not maintainable must, therefore, be rejected.
9. If the finding is that the 3 landlords treated this to be the joint house, then the other leg of the argument of the learned counsel must automatically fail. His argument was that then one landlord cannot assert his rights in respect of the part with which he is unconnected. It is probably to avoid this situation that the composite application has been made in this case. Shri Kothari relied upon the reported decision in Pandit Sakharampant v. K. L. Lodhi, E. A. C., 1953 NLJ 235 : (AIR 1953 Nag 265) wherein the Court had come to the conclusion that the tenancy of a tenant cannot be split up. It was held in that case that what is contemplated under the order is the termination of the entire lease and not a portion thereof. The words 'portion thereof' which occur in clause 13(3)(vi) of the Rent Control Order refer only to the needs of the landlord and nothing else. Under the law, as it stands, it is open to the landlord to terminate the tenancy of the entire house and not a portion thereof. When the landlord's needs are genuine as to the portion of the house, the Rent Controller is bound to grant him permission to terminate the tenancy of the tenant of the entire house. It is not necessary for me to go into the ratio of this case particularly in view of my finding that in this case on facts the tenancy is not treated to be separate and it is treated to be a joint tenancy.
"When a landlord applies to the Controller under Item (vi) of sub-clause (3), the Controller shall enquire into the needs of the landlord and if on enquiry the Controller is satisfied that the needs of the landlord will be met by the occupation of a portion of the house he shall give permission in respect of such portion only."
Relying on the language of this clause, Shri Vaidya contends that there has been no enquiry whatsoever by the Appellate Authority and, therefore, his order has suffered an illegality on that count. In order that this clause should be attracted the permission should be granted only on the ground of the bona fide personal need to occupy the house. Firstly in the present case permition is granted on two counts - the tenant has been held to be a habitual defaulter and it has also been held that the landlord requires the house for his bona fide personal occupation. That apart even if in this case the permission could be granted only on the question of cl. 13(3)(vi), even then the argument that there has been no finding on clause 13(8) and hence the appellate order is rendered illegal is incorrect. It will be seen that the Appellate Authority had before it the complete picture of the house. It knew about the measurements of the house. It also had before it the number of rooms. The Resident Deputy Collector had a complete idea as to the availability of the space and the need of the landlord. In that view of the matter, if the Resident Deputy Collector did not go to the question of clause 13(8), it could not be said that the whole order suffered on that count.
11. The question of clause 13(8) was considered by the Supreme Court in a reported decision in Rahman Jeo Wangnoo v. Ram Chand, AIR 1978 SC 413. Shri Vaidya has very heavily relied upon this case. The Supreme Court in the reported decision was considering the provisions of J. and K. Houses and Shops Rent Control Act. The following pas5age was heavily relied upon by Shri Vaidya :
"We are satisfied that the proviso aforesaid mandates the court to consider whether partial eviction as contemplated therein should be ordered or the entire holding should be directed to be evicted. This aspect, therefore, requires judicial exploration after giving opportunity to both sides to lead evidence in this behalf."
This decision came to be considered by the Division Bench of our Court in a reported decision in Sheshrao Raghoba Suryawanshi v. Sonchand Sobhagmalji Darda, 1986 Mah LJ 445 : (AIR 1986 Bom 54). The Division Bench in paragraph 14 referred to the case aforementioned and observed as follows :
"We have examined the relevant provisions of the Jammu and Kashmir Houses and Shops Rent Control Act (34 of 1966), upon which the directions came to be made by the Supreme Court and they are materially different from the C. P. and Berar Letting of Houses and Rent Control Order, 1949. It, however, appears to us that the Rent Controller had taken note of the fact that the respondent was in possession of one very small room which was used for sleeping purposes and was unsuitable for opening a shop. He had also inspected the premises, before granting permission to the landlord to issue notices determining the leases of the appellants. The Appellate Authority had before it the dimensions of the three premises and the findings of the Rent Controller, and that was why it observed that the question of inspecting the premises did not arise ........."
Observing further that the facts were bare open before the Authorities therein, the Court observed that it was not necessary, therefore, to consider the question of clause 13(8) and even if it was considered, it would be in favour of the landlord and not the tenant. If we apply the ratio of the Division Bench ruling, it will tie seen that here in this case also all those facts were bare open before the Resident Deputy Collector. The Resident Deputy Collector had the complete idea about the measurements, also about the number of persons occupying the said premises as also the number of persons needing the house in dispute.
12. Even if we consider the matter from another angle, in order to initiate an enquiry under clause 13(8), it will be first necessary for the tenant to place some facts and to lead some evidence in that behalf. The words used in clause 13(8) are "if on enquiry, the Controller is satisfied". For enabling the Rent Controller to enquire into the matter, unless a factual basis is provided by the parties or the tenant, as the case may be, such enquiry would not be possible. Indeed in this case no such effort seems to have been made by the tenant. It has nowhere been pleaded by the tenant that the part of the house would be sufficient for the landlords. There are no pleadings nor the evidence led in support of those theories. It will be, therefore, futile on the part of the tenant to raise for the first time this question suggesting that there has to be an enquiry under clause 13(8) of the Rent Control Order. The tenant in this case has clearly failed to offer any such factual basis to enable the Authorities concerned to enquire into the partial need on the part of the landlords. In that view of the matter, this argument of Shri Vaidya that the Resident Deputy Collector had not enquired into the matter and had not given the finding and, therefore, his order is rendered illegal must be repelled. That leaves the question of the habitual default.
13. The finding given by the Resident Deputy Collector in respect of clause 13(3)(ii) of the Rent Control Order is correct. If we see even the pleadings of the tenant it would be seen that the tenant had stopped paying the rent on the specious ground that half of the house had fallen down. He had no business to do so. He has in futility pleaded that there was
an oral agreement between him and Shamsuddin that Shamsuddin would construct the premises or at any rate repair the same and since Shamsuddin had not repaired the premises, he stopped paying the rent. Such course could not be adopted. The tenant in this case seems to have offered less rent, i.e. at the rate of Rs. 8/- per month. If the short rent was offered, the landlord was perfectly justified in denying the same and indeed thereafter also, the tenant did not pay the rent and fell in arrears. The schedule appended to the application and the contentions raised in the second application amply prove that the tenant had fallen in the habit of defaulting the rent. The order passed by the Resident Deputy Collector is absolutely correct. In this behalf, if we go to the order of the Rent Controller it will be seen that even the Rent Controller has held the tenant to be the habitual defaulter but the Rent Controller had not granted the permission as he recorded a finding that the applicants are not the owners. I have already held that the applicants are not only the owners but have also been accepted to be the owners. The Appellate Court was absolutely right in setting aside the finding regarding the ownership and confirming the finding regarding the habitual default.