Bombay High Court
Dr. Madhao S/O Ramchandra Tarar vs Madhao S/O Pundlik Mahajan on 3 November, 2009
Author: Vasanti A. Naik
Bench: Vasanti A. Naik
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR
BENCH: NAGPUR
WRIT PETITION NO.3043 OF 2001
PETITIONERS:
1] Dr. Madhao s/o Ramchandra Tarar, aged about 57 years, occupation : Medical
Practitioner
2] Padmakar s/o Ramchandra Tarar, aged about 53 years, occupation : Agriculturist
Both residents of Tararwada, Near Gandhi Gate, Mahal, Nagpur.
VERSUS
RESPONDENTS:
1] Madhao s/o Pundlik Mahajan, aged about 68 years, occupation : business, r/o
Tulsibagh, Near C.P. & Berar College, Mahal, Nagpur [dead]
1(a) Smt. Vimaltai wd/o Madhav Mahajan, aged adult
1(b) Madhusudan s/o Madhav Mahajan, aged adult, occupation : business
1(c) Ganesh s/o Madhav Mahajan, aged adult, occupation : service
(a) to (c)residents of Near C.P. & Berar College, Tulsibagh Road, Mahal, Nagpur.
1(d) Suresh s/o Madhav Mahajan, aged adult, occupation : business, r/o 4 Great Nag
Road, Nandanwan Layout, Nagpur.
1(e) Sunil s/o Madhav Mahajan, aged adult, occupation : business, resident of 4, Great
Nag Road, Nandanwan Layout, Nagpur.
2] The Additional Collector [empowered with appellate powers under Clause 21 of
the Rent Control Order, 1949] Nagpur
3] The State of Maharashtra [deleted as per order dated 9.7.2001]
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Shri M.B. Naidu, advocate for the petitioners.
None present for the respondents.
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2
CORAM : SMT. VASANTI A. NAIK, J.
DATE : 3rd November , 2009
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ORAL JUDGMENT
By this petition, the petitioners impugn the order passed by the Additional Collector, Nagpur, on 8.12.2000 reversing the order passed by the Rent Controller on 28.8.1997 granting permission to the petitioners - landlords to terminate the tenancy of the respondent tenant under clause 13(3)(ii) & (vi) of the C.P. & Berar Letting of Houses and Rent Control Order [hereinafter referred to as Rent Control Order]. Few facts giving rise to the petition are stated thus.
2] The petitioners are the sons of the original applicant - Ramchandra Tarar who had filed an application under clause 13(3)(ii) & (vi) of the Rent Control Order 1949 before the Rent Controller, Nagpur seeking permission to terminate the tenancy of the respondent. It was stated by Ramchandra the father of the petitioners in the application that the respondent was a habitual defaulter and was not paying the monthly rent regularly. Schedule showing the default was also annexed to the application. It was pleaded by the original landlord that the tenanted premises admeasuring approximately 575 sq.ft. was required by his ::: Downloaded on - 09/06/2013 15:15:38 ::: 3 doctor son for an orthopedic hospital. At the time of filing of the application, the son of the respondent [present petitioner no.1] was having his clinic on the first floor of the house. Tenanted premises was on the ground floor. The father of the petitioners pleaded that the tenanted premises were required by the petitioner no.1 for having minor operation theater, a waiting room for the patients, consultation room, and the physiotherapy room. It was pleaded that the need of the landlord was bonafide and the landlord was entitled to permission under clause 13(3)(ii) and (vi) of the Rent Control Order.
3] The respondent - tenant filed written statement and denied the claim of the landlord. It was denied that the tenant was a habitual defaulter. The bonafide need of the landlord was also denied. It was pleaded by the respondent that the original landlord had built a new and spacious bungalow in West Nagpur and there was ample accommodation with the landlord to have an orthopedic clinic for his son. It was lastly stated in the written statement that the rent was not accepted by the landlord on many occasions and therefore, there was some interval in making payment of the rent. In that circumstances, according to the tenant, the tenant could not have been branded as a habitual defaulter.
::: Downloaded on - 09/06/2013 15:15:38 ::: 44] Both the parties tendered the evidence and on appreciation of the same, the Rent Controller allowed the application filed by Ramchandra and granted permission to terminate the tenancy of the respondent under clause 13(3)(ii) and (vi) of the Rent Control Order. The order passed by the Rent Controller on 28.8.1997 was challenged by the tenant in an appeal before the Additional Collector, Nagpur. The Additional Collector, Nagpur by the impugned order dated 8.12.2000 reversed the findings recorded by the Rent Controller and dismissed the application filed by the landlord.
5] Shri M.B. Naidu, the learned counsel for the petitioner submitted that the appellate authority erred in reversing the findings recorded by the Rent Controller, without considering the material evidence, which was considered by the Rent Controller. The learned counsel for the petitioner submitted that the order passed by the appellate authority discloses that the appellate authority has not considered the relevant evidence tendered by the parties and has reversed the findings recorded by the Rent Controller specially on the ground of bonafide need on unsustainable reasons. The learned counsel for the petitioner submitted that the appellate authority erred in holding that the petitioner no.1 could not have undertaken orthopedic practice on the basis of his qualifications of M.B.B.S. ::: Downloaded on - 09/06/2013 15:15:38 ::: 5 The learned counsel for the petitioner submitted that the evidence on record clearly demonstrated that the respondent had not paid the rent regularly to the petitioner, though there was an admission by the respondent in his cross-
examination that the rent was payable every month.
6] None appears on behalf of the respondent, though served.
7] On hearing the learned counsel for the petitioners and on perusal of the
impugned order along with the order passed by the Rent Controller and the evidence tendered by the parties on record, it appears that the Additional Collector Nagpur was not justified in reversing the findings recorded by the Rent Controller for the reasons recorded in the impugned order dated 8.12.2000. The evidence tendered by the petitioner no.1 and his father Ramchandra clearly demonstrated that the respondent was a habitual defaulter as he had not paid the rent to Ramchandra regularly. The respondent had admitted in his cross examination that the rent was payable every month, in the last week of the month. The evidence tendered by the petitioners clearly showed that the rent for the month of January 1976 was paid on 26.2.1976, November 1975 was paid on 18.12.1975, and February 1976 was paid on 29.3.1976. It is necessary to note ::: Downloaded on - 09/06/2013 15:15:38 ::: 6 that the tenant had pleaded in his written statement that there was some gap in making the monthly payment since the payment was not accepted by the landlord when it was tried to be tendered by hand delivery. In such circumstances, it was necessary for the tenant to have tendered monthly rent every month by money order. However, this was not done in this case. It is further necessary to note that the rent for the month from June 1983 to April 1987 was tendered by the tenant only on 20.4.1987 as during the relevant time a Civil Suit was pending between the parties. The oral and documentary evidence on record shows that the respondent was a habitual defaulter and the Rent Controller had therefore, rightly held that the landlord was entitled to seek permission under clause 13(3)(ii) of the Rent Control Order. The findings recorded by the Rent Controller are however, reversed by the appellate authority without considering the material evidence on record. The plea of the respondent in the written statement about the non payment of monthly rent every month due to non acceptance of the same by the landlord, the money orders placed on record, the schedule proved by the landlord and the non payment of rent for a period of almost 4 years during the pendency of the suit between the parties, clearly showed that the tenant was a habitual defaulter and the Rent Controller had rightly granted permission to the landlord to terminate the tenancy of the ::: Downloaded on - 09/06/2013 15:15:38 ::: 7 respondent under clause 13(3)(ii) of the Rent Control Order.
8] The Appellate Authority was not justified in reversing the finding granting permission under clause 13(3)(vi) of the Rent Control Order, only by observing that the petitioner no.1 had acquired M.B.B.S. Degree and he was incapable of undertaking orthopedic practice and hence the need was not bonafide. The Rent Controller on considering the evidence of Ramchandra as well as his son Madhao, had considered the fact that the petitioner no..1 was having his clinic on the first floor and required the additional premises on the ground floor for his orthopedic hospital / clinic. In fact the landlord had clearly stated in his application that his son required the premises for minor operation theatre, a waiting room, a consultation room, and a physiotherapy room for the patients. The application did not speak of major surgeries, hence in such a background the appellate authority was not justified in holding that the petitioner was incapable of undertaking orthopedic practice on the basis of his qualification of M.B.B.S. The pleadings as also the evidence tendered by the petitioner no.1 and his father, clearly show that the need of the landlord was bonafide and genuine and the premises were required by the petitioner no.1 for his orthopedic hospital / clinic, so as to locate the minor operation theatre, a ::: Downloaded on - 09/06/2013 15:15:38 ::: 8 waiting room, a consultation room, and a physiotherapy room for the patients. It is stated by the petitioner no.1 in his cross examination that he had taken experience in Great Britain where he had practiced as Doctor. He had also stated in his cross-examination that he was treating about 10-20 patients monthly and required the premises in occupation of the respondent. He had denied the suggestion that he was not practicing as a doctor and was only doing agricultural operations. The appellate authority erred in failing to consider the evidence which was considered by the Rent Controller and reversing the findings recorded by the Rent Controller on the ground of bonafide need, only on the ground that the petitioner was incapable of undertaking orthopedic practice on the basis of his qualification of M.B.B.S. The findings recorded by the Additional Collector are unsustainable and are liable to be set aside.
9] In the result, the writ petition is allowed. The impugned order passed by the Additional Collector, Nagpur dated 8.12.2000 is hereby quashed and set aside. The order passed by the Rent Controller on 28.8.1997 is hereby confirmed.
Rule is made absolute in the aforesaid terms. No order as to costs.
JUDGE SMP.
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