Sabirullakhan s/o Safakatullakhan v. Pramod son of Shankar Bhagat & another
1987-01-07
H.W.DHABE
body1987
DigiLaw.ai
JUDGMENT - H.W. DHABE, J.:---This is a writ petition preferred by the landlord against the concurrent orders of the Rent Control authorities against him. 2. Briefly the facts are that the petitioner filed an application under Items (i), (ii), (vi) and (vii) of Clause 13(3) of the C.P. Berar Letting of Houses and Rent Control Order, 1949 (for short, 'Rent Control Order'), seeking permission of the Rent Controller to give quit notice to the respondent/tenant. The learned Rent Controller dismissed the said application. The appeal preferred by the petitioner was also dismissed by the learned Appellate Court. Being aggrieved, the petitioner has preferred the instant writ petition in this Court. 3. At the outset it must be seen that there is little scope for interference in this writ petition because there are concurrent findings of fact of the courts below upon the grounds under Items (i), (ii), (vi) and (vii) of Clause 13(2) of the Rent Control Order. As regards Clause 13(3)(i) the case of the petitioner is that the respondent was in arrears of rent for a period from 1-12-1976 till the date of the application before the Rent Controller i.e. 15-2-1978. On the same ground the petitioner has claimed that the respondent was a habitual defaulter within the meaning of Clause 13(3)(ii) of the Rent Control Order. In regard to the above grounds the learned Rent Controller has found that since no rent receipts are filed by the landlord the version given by the respondent/tenant should be believed that he has paid the rent for the period in question. In the absence of the rent receipt there is an oath against oath of the landlord and the tenant and, therefore, it is open to the Rent Controller to accept the evidence of either of them since he has watched them in the witness box. If the Rent Controller has believed the evidence of the respondent/tenant no fault can be found with such appreciation of the evidence by the learned Rent Controller. The findings of the Rent Control authorities under Items (i) and (ii) of Clause 13(3) of the Rent Control Order cannot, therefore, be interfered with in writ jurisdiction of this Court. 4. As regards Clause 13(3)(vii) the learned Rent Controller held that except the bare word of the landlord there is no corroborative evidence to show that the walls of the house are in very bad condition.
4. As regards Clause 13(3)(vii) the learned Rent Controller held that except the bare word of the landlord there is no corroborative evidence to show that the walls of the house are in very bad condition. He therefore, held that the landlord had failed to prove the claim under Clause 13(3)(vii) of the Rent Control Order. The above finding cannot be said to be perverse and hence 4 cannot be interfered in the writ with jurisdiction of this Court. 5. As regards the permission sought under Clause 13(3)(vi) it is the case of the landlord that he was learning in Seth Bansidhar High School Telhara and he was, therefore, required to come and go from his residential place at Ghodegaon to Telhara. It is further his case that his maternal uncle was also required to go to Ghodegaon and therefore he wanted to reside in the suit house with his maternal uncle's family. The Rent Controller held that the petitioner was studying in the 7th standard during the relevant time which would mean that for two years prior to that he was coming from Ghodegaon to Telhara for his education. He also found that the distance between Ghodegaon and Telhara is 3 miles. The learned Rent Controller, therefore, found that when in fact the need for claiming the suit house arose two years back no explanation was given by the petitioner why the instant application seeking permission was made by him after a long time. He, therefore, held that the need pleaded by the petitioner was not bona fide. The above finding is affirmed by the learned Appellate Court. 6. It is urged on behalf of the petitioner that for the mere reason that there was delay in filing the application of the petitioner on the ground of bona fide need cannot be thrown out. He was urged that the petitioner who was daily required to go three miles had a genuine need of the suit house where he wanted to stay along with his maternal uncle's family. In this regard it may be seen that the petitioner who was the boy of 15 years during the relevant time was staying with his father. No evidence of the maternal uncle is led to show that the maternal uncle really wanted to reside in the suit house.
In this regard it may be seen that the petitioner who was the boy of 15 years during the relevant time was staying with his father. No evidence of the maternal uncle is led to show that the maternal uncle really wanted to reside in the suit house. The question of delay has a bearing on the question of genuineness of the need. There is, therefore, no merit in the contention that the questions of delay is not relevant at all in considering the bona fide need of the petitioner. 7. However, the most important factor to be considered now is that the need pleaded by the petitioner does not now survive for consideration because it cannot be said now that he is taking education in the Seth Bansidhar High School at Telhara. It is clear from the order of the learned Rent Controller that during the relevant time he was studying in the 9th standard. Now eight years have elapsed after the order of the learned Rent Controller. The need for going to the school at Telhara, therefore, does not survive. It is, however, urged that the subsequent events cannot be taken into consideration by this Court. As regards the question of taking into consideration the subsequent events the view of this Court is that till the decision in appeal the subsequent events can be taken into consideration. The order in appeal is passed on 28-10-1982. Even at that time it cannot be said that the need for going to the school at Telhara survived. 8. It may be seen that in the recent decision of the Supreme Court in (M/s. Variety Emporium v. R.M. Mohd. Ibrahim Naina)1, A.I.R. 1985 Supreme Court 207 it has been held that all the subsequent events till the final order is passed on the question of bona fide need can be taken into consideration (See paragraph 16 of the judgement). In the latest decision of the Supreme Court in the case of (Amarjit Singh v. Smt. Khatoon Quamarain)2, C.A. No. 33789 of 1983 decided on 18-11-1986, an affidavit in relation to the subsequent events was filed in the Supreme Court which showed that some of the events had taken place during the pendency of the appeal before it.
In the latest decision of the Supreme Court in the case of (Amarjit Singh v. Smt. Khatoon Quamarain)2, C.A. No. 33789 of 1983 decided on 18-11-1986, an affidavit in relation to the subsequent events was filed in the Supreme Court which showed that some of the events had taken place during the pendency of the appeal before it. The Supreme Court still took into consideration all the subsequent events observing in paragraph 11 that for making the right or the remedy claimed by the party meaningful as also legal and factual in accordance with the current realities, the Court could and in many cases must take cautious cognizance of events and developments subsequent to the institution of the proceedings. (See paragraphs 5,10 and 11 of the judgement). Therefore, it is open to the this Court to take into consideration the subsequent events, particularly when the permission would be granted for the first time by this Court if the landlord succeeds in this Court because the orders of the courts below are against him. The above contention advanced on behalf of the petitioner under Clause 13(3)(vi), therefore, deserves to be rejected. 9. In the result, the instant writ petition fails and is dismissed. However, in the circumstances there would be no order as to costs. Petition dismissed. ------