Holding

The Supreme Court held that the writ petition and the Single Judge’s order were under Article 226, rendering the Letters Patent Appeal maintainable; the tenants were not habitually in arrears, so that finding was set aside, but the landlord’s bona‑fide need was upheld and the case remanded for further determination.

Summary

The landlord, Dr. Radhyshyam, sought eviction of the tenants Mangalbhai and others under Clause 13(3)(ii) and (vi) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949, alleging habitual rent arrears and a bona‑fide need for the premises. The Rent Controller and Resident Deputy Collector rejected the application, but the High Court Single Judge set aside those orders, finding the tenants habitual defaulters and the landlord’s need established, and remanded the matter to the Rent Controller for further inquiry. The tenants appealed by Letters Patent, arguing that the writ petition and the Single Judge’s order were filed under Article 226, not Article 227, and that the tenants could not be deemed habitually in arrears given their practice of paying rent in lump sums, often in advance. The Supreme Court held that the petition and the Single Judge’s order were indeed under Article 226, making the Letters Patent Appeal maintainable, and that the tenants were not habitually in arrears, setting aside that finding while upholding the landlord’s bona‑fide need and the remand order. Consequently, the appeal was allowed in part, the habitual‑default finding was reversed, and the case was remanded for determination of the extent of the landlord’s need.

Issues considered

Whether the writ petition and the High Court Single Judge's order were made under Article 226 or Article 227 of the Constitution, affecting the maintainability of a Letters Patent Appeal.
Whether the tenants can be classified as 'habitually in arrears' under Clause 13(3)(ii) of the Rent Control Order given their historical payment practice.
Whether the landlord has satisfactorily established a bona‑fide need for the entire premises for residence and a clinic/dispensary.
Whether the findings of the Single Judge on habitual default should be set aside while retaining the finding on bona‑fide need and the remand direction.

Legislation cited

C.P. and Berar Letting of Houses and Rent Control Order, 1949s. 13(3)(ii), s. 13(3)(vi), s. 13(3)(vii)

Subjects

Article 226Article 227Letters Patent AppealRent ControlHabitual arrearsBona fide needEvictionC.P. and Berar Letting of Houses and Rent Control OrderSupreme CourtJurisdiction

Judgment

MANGALBHAI AND ORS. A
...., v.
DR. RADHYSHYAM S/0 PARISCHANDRA AGARWAL

JUL. Y 17, 1992

[N.M. KASLIWAL AND K. RAMASWAMY, JJ.J B

C.P. and Berar Letting of Houses and Rent Control Order, 1949 :

Clause 13(3)(ii}-Tenant-Eviction of--On ground of habitual default
in payment of rent-Landlord to prove that tenant had been 'habitually in c
a"ears with rent'-Word 'habitually'-Meaning of-Whether includes bona

- fide payment on demand-Notice for eviction-Validity of

Clause 13(3)(vi}-Bona fide need of landlord-High Court remanding
case for examination of actual need for residence and clinic/dispensary--Jus-
_j_
tijication of D
A
Practice and Procedure :

Petition filed under Articles 226 and 227-Single Judge exammmg
matter on merit and setting aside lower courts' orde~Totality of facts and
circumstances indicating order under Article 226-Letters Patent Ap-
E
-f peal-Maintainability of

The respondent-landlord, a doctor by profession, filed an applica-
tion under Section 13 of the C.P. and Berar Letting of Houses and Rent
Control Order, 1949, against the appellants- tenants for permission to F
serve with notice of ejectment, on grounds of bona fide need of entire suit
premises and habitual default in payment of rent. The Rent Controller
dismissed the application. The Resident Deputy Collector. also dismissed
the respondent's appeal. Thereafter, the respondent filed a writ petition
bef~re the High Court under Articles 226 and 227 of the Constitution. A
Singh Judge held that the tenants were habitual defaulters, and that the G
landlord had established his bona fide need, but remanded the case to the
Rent Controller for determining the extent of the need of the respondent
--"' for his residence and clinic/dispensary and also for examining the
respondent's case to reconstruct the house, after giving full opportunity to
the parties to amend the pleadings and lead evidence. H
,.. 537
538 SUPREME COURT REPORTS [1992] 3 S.C.R.

A Aggrieved, the tenants/appellants filed a Letters Patent Appeal
before the Division Bench of the High Court which dismissed the same on \ ...
the ground that since the order passed by the Singh Judge was under
Article 227, Letters Patent Appeal against it was not maintainable.

In the appeals, by special lt:ave, before this Court, against the orders
B of both the Single Judge and the Division Bench, on behalf of the
tenants/appellants it was contended that though the writ petition was filed
by the respondent/landlord under Articles 226 and 227 of the Constitution,
in substance it was a petition under Article 226, that the relief prayed for
was the quashing of the order of the courts below and that the entire tenor
c of th~ order of the Single Judge clearly showed that he was dealing with a
. petition under Article 226 and, therefore, the Division Bench was not
correct in holding that no appeal was maintainable against the order of
·the Single Judge and that he had passed the order under Article 227 of the
Constitution.
-
D Disposing of the appeal, this Court,

HELD 1.1 Both the petition filed in the case and the order of the
Si_ngle Judge were in substance under Article 226 of the Constitution, and
the instant case clearly falls within the ambit of Article 226 of the Con-
E stitution. The Single Judge nowhere mentioned in the Judgment under
challenge that he was exercising the powers under Article 227 of the
Constitution. The Single Judge examined the matter on merit and set aside f
the order of the Rent Controller as well as the Resident Deputy Collector,
on the question of habitual defaulter as well as on the ground of bona fide
need. Thus, in the totality of the facts and circumstances of the case, the
F pleadings of the parties in the writ petition and the Judgment of the Single
Judge leaves no manner of doubt that it was an order passed under Article
226 of the Constitution and, therefore, the Letters Patent Appeal was
maintainable. [542D-E, 543 G-H, 544A]

1.2 In view of the fact that the litigation is going on for nearly a
G
decade and also that even the Single Judge had remanded the case to the
Rent Controller, it would be proper for this Court, in the interest of justice,
to hear the appeal on merits against the Single Judge's Judgment. [544B]

Umaji Keshao Meshram & Ors. v. Smt. Radhikabai and Anr, [1986] 1
H SCR 731, relied on.
MANGALBHAI v. DR. RADHYSHYAM 539

Sushilabai Laxminar:ayan Mudliyar & Ors. v. Nihalchand Waghajibhai A
Shaha & Ors., 1989 Maharashtra Law Journal p. 695, referred to.

2.1 Clause 13 (3) (ii) of the C.P. and Berar Letting of Houses and Rent
Control Order, 1949 provides that in order to seek permission to serve
with notice of ejectment on the ground of default in payment of rent, it
must be proved by the landlord that the tenant w~s "habitually in arrears B
with the rent". The Legislature has clearly used the word "habitually" in
respect of delaying the payment of the arrears of rent, and not to cover a
case of a tenant who bona fide/y paid the rent on demand from the side of
-,..!,
the landlord or as and when his munim came to collect the rent. [544D-G]
c
2.2 In the instant case, there was an established practice to pay rent

- to the landlord's munim who used to come to collect the same as per his
convenience. There was no alternate arrangement for payment of rent. The
tenants were even paying the rent in advance, and such tenants cannot be
-J, considered as habitually in arrears with the rent as contemplated under
D
clause 13(3) (ii) of the Rent Control Order. If such is the practice and
-i course of conduct adopted for receipt of rent for a number of years, the
tenants cannot be taken by surprise by at once resorting to an application
under clause 13(3)(ii) that the tenants/appellants were habitual defaulters.
Thus, it is proved beyond any 'manner of doubt that the parties had
adopted the practice of payment of rent in lump sum and not month by E
month and which continued from 1.1.1972 to the date of filing the applica-
--"f,
tion under clause 13 of the Rent Control Order. Admittedly, even on the
date of filing application, there were no arrears of rent due against the
appellants. [544G-H, 545A-C]
F
2.3 In these circumstances, both the Rent Controller as well as the
Resident Deputy Collector were right in holding that the tenant/appellants
--f.-.... cannot be considered as 'habitual defaulters' in the payment of rent. The
Singh Judge of the High Court was totally wrong in ignoring the past
practice between the parties and in taking the view that the tenancy being
month to month the tenants were bound t.:, pay the rent at the close of the G
tenancy month in the absence of any other contract to the contrary. It is
'\
nowhere established by the respondent/landlord that rent was not paid to
,......_ the Munim even when he had gone to collect the same. The notice given
can be considered as a warning for the first time to pay the rent every
month and it cannot be held that even thereafter the appellants were H
).

540 SUPREME COURT REPORTS [1992) 3 S.C.R.

A making belated payment of rent, inasmuch as the petition itself was filed
before the Rent Controller a month thereafter. (5450-F] ~
Rashik Lal and Others v. Shah Gokuldas, (1989) 1 SCC 542, relied
on.

B 3. As regards the question of bona fide need, the Single Judge was
perfectly right in holding that not only the landlord/respondent had proved
that the suit property came in his share in partition, but the tenants had
also atorned in favour of the landlord/respondi!nt by paying rent to him
for a long number of years. There is nothing .wrong in the direction of the r.
Single Judge, after recording the finding of bona fide need, to remand the
c case. to the Rent Controller for recording a finding on the extent of need
of the landlord/respondent for his residence and clinic/dispensary and also
for examining the case of the landlord to reconstruct the house, by giving
full opportunities to the parties in respect of amending the pleading as
-
well as leading evidence. [546F-H, 547A]
D :--
4. In the circumstances, the finding of the Single Judge in respect of
habitual default as contemplated under clause 13(3)(ii) of the Rent Con- :-
trol Order, is set aside but the finding on the questi(m of bona fide need
and the order of remand, is maintained. [547C]
E CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2588-89
of 1992. r-
From the Judgments and Orders dated 11.12.1987 and 23.10.1989 of
the Bombay High Court in Writ Petition No. 1356/1986 and Letters Patent
F -Appeal No. 109 of 1989.

U.R. Lalit, Dr. N.M. Ghatate, Anand Prasad, S.V. Deshpande and
Ms. Priya Shrivastava for the Appellants.

G.L. Sanghi, Dhruv Mehta, S.K.Mehta and Aman Vachher for the
G Respondents.

The Judgment of the Court was delivered by r

KASLIWAL, J. Special Leave granted. ~

H pr. Radhyshyam, the respondent, filed an application under Section
MANGALBHAI v. DR. RADHYSHYAM [KASLIWAL, J.) 541

13 of the C.P. and Berar Letting of Houses and Ren,t C:_pntrol Order, 1949 A ~
(hereinafter referred to as "The Rent Control Order") against the appel-
lants for permission to serve with notice of ejectment. The application was
based on several grounds, but the eviction was pressed in the High Court
only on the ground ot need_ of the entire house for bona fide occupation
and habitual default in the payment of rent. The matter was -argued only B
on the aforesaid two ground~, before us also. The Deputy Collector and -
Rent Controller, Gondia, decided all the grounds against the landlord and
dismissed the application by his order dated 13.9.1985. The Resident
Deputy Collector, Bhandara dismissed the appeal by order dated 31.3.1986.
Dr. Radhyshyam, the landlord, then filed a writ petition No. 1356of1986

- under Articles 226 and 227 of the Constitution of India before the Bombay C
High Court. Learned Single Judge held that the tenants were habitual
defaulters, and that the landlord had established his bona fide need. The
Learned Single Judge however took the view that it would be proper to
remand the case to the Rent Controller for determining the extent of the
need of the petitioner (respondent in this appeal) for his residence and D
clinic/dispensary and also for examining the case of the petitioner to
re-construct the house. Learned Single Judge of the High Court also
directed that full opportunity be given to the parties to amend the plead-
ings and lead evidence and thereafter to pass such suitable orders under
clauses 13(3)(vi) & (vii) of the Rent Control Order in accordance with law.
- -~ The Learned Single Judge by his order dated 11.12.1987 remanded the E
matter to the Rent Controller with the above directions.

- The tenants/appellants aggrieved against the Judgment of the
Learned Single Judge filed a Letters Patent Appeal before the Division
Bench of the High Court. The Division Bench by order dated 23.10.1989 F
dismissed the appeal taking the view that in truth and substance the order
was passed by the Learned Single Judge under Art. 227 of the Constitution
against which Letters Patent Appeal was not maintainable. The tenants
have come in appeal by grant of special leave in S.L.P. No. 3484 of 1991
against the Judgment of the Learned Single Judge of the High Court dated
11.12.1987 and S.L.P. No. 2980 of 1990 against the Judgment of the Division G
Bench of the High Court dated 23.10.1989.

It was contended on behalf of the tenants/appellants that the Writ
Petition No. 1356 of 1986 was filed by the respondent/landlord under
Articles 226 and 227 of the Constitution. In the relief prayed in the writ H
542 SUPREME COURT REPORTS (1992) 3 S.C.R.

A petition it was clearly mentioned that the order dated 13.9.1985 passed by
the Rent Controller, Gondia, and the orders dated 31.3.1986 passed by the
Resident Deputy Collector, Bhandara be quashed and· set aside by a
suitable writ, order or direction. It was submitted that in the heading of
the petition it was clearly stated that it was a petition under Articles 226
and 227 of the Constitution. It was further argued that even though Art. ,
B 227 was mentioned in the writ petition but in substance it was a petition
under Art 226 and the entire tenor of the order of the Learned Single
Judge clearly showed that it was dealing with a petition under Art. 226. It
was thus contended that the Learned Division Bench was not correct in
talcing the view that no appeal was maintainable against the order of the
C Learne<J Single Judge and in holding that the Learned Single Judge had
passed the order under Art. 227 of the Constitution. It was also submitted
that the Division Bench of the High Court wrongly placed reliance on a
-
Full Bench decision of the High Court in Sushi/abai Laxminarayan Mud-
/iyar & Ors. v. Niha/chand Waghajibhai Shaha & Ors., (1989 Maharashtra
D Law Journal p. 695)

After a perusal of the contents of the writ petition filed before the
High Court as well as the Judgment of the Learned Single Judge, we are
clearly of the view that both the petition filed in the case and the order of
the Learned Single Judge were in substance under Article 226 of the
E Constitution. The Full Bench of the Bombay High Court has wrongly
drawn the deductions from the case of this Court in Umaji Keshao Mesh-
ram & Ors. v. Smt. Radhikabai and Anr., [1986] 1 SCR 731. Where petitions
are·filed under Articles 226 and 227 of the Constitution, this Court in Umaji .......
Keshao Meshram's case observed as under:-
F
"Petitions are at times filed both under Articles 226 and 227 of
the Constitution. The case of Hari Vishnu Karnath v. Syed
Ahmed Ishaque and others, [1955] 1 S.C.R. 1104, before this
Court was of such a type. Rule· 18 provides that where such
petitions are filed against orders of the tribunals or authorities
G specified in Rule 18 of Chapter XVII of the Appellate Side .r

Rules or against decrees or orders of courts specified in that
Rule, they shall be heard and finally disposed of by a Single
Judge. The question is whether an appeal would lie from the
decision of the Single Judge in such a case. In our opinion,
H where the facts justify a party in filing an application either
MANGALBHAI v. DR. RADHYSHYAM [KASLIWAL, J.) 543

uuder Article 226 and 227 of the Constitution, and the party A
chooses to file his application under both these Articles, in
fairness and justice to such party and in order not to deprive
him of the valuable right of appeal the Court ought to treat the
application.as being made under Article 226, and if in deciding
the matter, in the final order the Court gives ancillary directions B
which may pertain to Article 227, this ought not to be held to
deprive a party of the right 0f appeal under clause 13 of the
Letters Patent where the substantial part of the order sought
to be app~aled against is under Article 226. Such was the view
taken by the Allahabad High Court in Aidal Singh and others

- A.l.R. 1957 All. 414 F.B. and the Punjab High Court in Raj C
Kishan Jain v. Tulsi Dass, A.l.R. 1959 Punj. 291 and Barham
Dutt and others v. Peoples Co-operative Transport Society Ltd.,
New Delhi and others, A.l.R. 1961 Punj. 24 and we are in
-·~
agreement with it".

Applying the correct laid down in Umaji Keshao Meshram's case and
D
perusing the writ petition filed in the present case as ~ell as the order
passed by the Learned Single ,Judge we are clearly of the view that the
present case clearly falls within the ambit of Article 226 of the Constitution.
In Umaji Keshao Meshram's case it was clearly held that:
E
"Where the facts justify a party in filing an application either
under Article 226 or 227 of the Constitution, and the party
chooses to file his application under both these Articles, in
fairness and justice to such party and in order not to deprive
him of the valuable right of appeal the Court ought to treat the F
-~ application as being made under-Article 226".

The Learned Single Judge in· his impugned Judgment dated
11.12.1987 nowhere mentioned that he was exercising the powers under
Art. 227 of the Constitution. The Learned Single Judge examined the
matter on merit and set aside the orders of the Rent Controller as well as G
the Resident Deputy Collector on the ground that the aforesaid Judgments
were perverse. The findings of the Rent Controller and Resident Deputy
Collector were set aside on the question of habitual defaulter as well as on
the ground of bona fide need. Thus in the totality of the facts and cir-
cumstances of the case, the pleadings of the parties in the writ petition and H
y

544 SUPREME COURT REPORTS [1992] 3 S.C.R.
\
A the Judgment of the Learned Single Judge leaves _no manner of doubt that 'r
it was an order passed under Art. 226 of the Constitution and in that view
of the matter the letters Patent Appeal was maintainable before the High
Court. After tal<lng the aforesaid view one course open was to set aside
the order of the Division Bench and to · remand the matter for being
disposed of on merits by the Division Bench of the High Court. However,
B taking in view the fact that this litigation is going on for nearly a decade
and also the fact that even the Learned Single Judge in his impugned order
dated 11.12.1987 had remanded the case to the Rent Controller, we con- ~
sidered it proper in the interest of justice to hear the appeal on merits
against the Judgment of the Learned Singh Judge. We have heard learned
c counsel for the parties at length on the merits of the case.

As already mentioned above all the grounds for eviction taken by the
-
respondent/landlord were decided against him by the Rent Controller as
well as the Resident Deputy Controller. In the writ petition before the
D Learned Single Judge the arguments were restricted to clause 13(3)(ii) &
(vi) only. It may be noted that the provision as regards default in the
payment of rent is contained in clause 13(3)(ii) of the Rent Control order
which provides that in order to seek permission to serve with notice of
ejectment on this ground it must be proved by the landlord that the tenant
was "habitually in arrears with the rent". Acc~rding to the respon-
E dent/landlord himself the rents from 1.1.1972 till the filing of the applica- ,...
tion under clause 13 of the Rent Control Order on 24.9.1981 the rent was
accepted without any demur even when the same was paid late by several
months. A perusal of the statement of rents paid and received by the ........
respondent clearly that at several occasions the rent was even paid in
F advance and at ieast after 1978 the payment of rent was never late for more
than two months at any occasion. The contention of the appellants is that
~
it was neither their intention nor to call it a habit of remaining in arrears
of rent. The Legislature has clearly used the word "habitually" in respect
of delaying the payment of the arrears of rent and not to cover a case of
a tenant who bona fidely paid the rent on demand from the side of the
G landlord or as and when his munim came to collect the rent as was done
in the present case. The tenants in the present case were even paying the !

rent in advance and such tenants cannot be considered .as habitually in ;)....
arrears with the rent as contemplated under clause 13(3)(ii) of the Rent
Control order. If such is the practice and course of c:Onduct adopted for
H receipt of rc:nt for a number of years, the tenants cannot be taken by
MANGALBHAI v. DR. RADHYSHYAM [KASLIWAL, J.) 545

surprise by at once resorting to an application under clause 13(3)(ii) that A
the tenants/appellants were habitual defaulters. In the present case the
landlord/respondent had served a notice on 21.8.1981 that he wanted the
rent to be paid every month before the due date and filed the present
petition on 24.9.1981. The tenants also sent a reply to such notice on
29.8.1981 and refuted the allegation of any default in the payment of rent B
and took the plea that the landlord's munim used to collect the rent and
later on passed the receipts. There was no alternate arrangement for
payment of rent. There was an established practice to pay rent to Raghuji
Munim who used to come to collect the same as per his convenience. Thus
it is, proved beyond any manner of doubt that the parties had adopted the

- practice of payment of rent in lumpsum and not month by month and which C
continued from 1.1.1972 to the date of filing the present application under
clause 13 of the Rent Control Order.

Admittedly, even on the date of filing such application there were no
arrears of rent due against the appellants and in these circumstances both D
the Rent Controller as well as the Resident Deputy Collector were right
in holding that the tenani:/appellants cannot be considered as habitual
defaulters in the payment of rent. Learned Single Judge of the High Court
was totally wrong in ignoring the past practice between the parties and in
taking the view that the tenancy being month to month the tenants were
bound to pay the rent at the close of the tenancy month in the absence of E
any other contract to the contrary. It is nowhere established by the respon-
dent landlord that rent was not paid to Raghuji Munim even when he had
gone to collect the same. The notice was given on 21.8.1981 which can be
considered as a warning for the first time to pay the rent every month and
it cannot be held that even thereafter the appellants were making belated
F
payment of rent, in as much as the present petition itself was filed before
the Rent Controller on 24.9.1981.

This Court in Rashik Lal And Others v. Shah Gokuldas, [1989) 1 SCC
542 a took similar view while considering the similar provisions of the Rent
Control Order. In the above case it was observed as under: G

"We do not see any reason for holding that unless the rent was
paid and accepted at a fixed period or interval, no such implied
agreement can be inferred. In the S.P. Deshmukh case the rent
had been paid at the varying interval of 3 or 4 months. The H
546 SUPREME COURT REPORTS [1992] 3 S.C.R.

A crucial test appears to be the conduct of the landlord in
receiving the rent offered belatedly. If he receives the same
under a protest and warns the tenant to be regular in payment
in the future, he cannot be assumed to have agreed to a
modified agreement in this regard. But if he~ without any
objection and without letting the tenant know his thought
B process, continues to receive rent at intervals of several months,
he cannot be allowed to spring a surprise on the tenant by
suddenly starting a proceeding for eviction. Having lulled the
tenant in the belief that things were all right, the landlord was
under a duty to serve him with a notice demanding regular
c payment, if he wished to insist upon it. In the case before \IS
there was no objection whatsoever, raised on behalf of the
landlord against the delayed payments. We, therefore, hold that
the High Court was not right in reversing the concurrent finding
of the two courts below".
D The ration of the above decision fully applies to the facts of the case
before us.

As regards the question of bona fide need the Learned Single Judge
has given detailed reasons that the finding recorded by the Rent Controller
. E and the Resident Deputy Collector was perverse and the evidence ied-'by
the landlord/respondent cannot be overruled or ignored merely on the
ground that the witnesses were related or interested in the respondent.
Learned Single Judge was also right in observing that the Rent Controller
and the Appellant Authority went wrong in holding that the respon-
F dent/landlord had failed to establish the ownership of the suit premises and
on this count the ground for bona fide need must fail. The Learned Single
Judge of the High Court was perfectly right in holding that not only the
landlord/respondent had proved that the suit property came in his share
in partition but the tenants had also atorned in favour of the land-
G lord/respondent by paying rent to him for a long number of years before
the filing of the present application. The Learned Single Judge in this
regard after recording the finding of bona fide need has already given a
direction to remand the case to the Rent Controller for recording a finding
for the extent of need of the landlord/respondent for his residence and
clinic/dispensary and also for examining the case of the landlord to re-con-
H struct the house by giving full opportunities to the parties in respect of
MANGALBHAI v. DR. RADHYSHYAM (KASLIWAL, J.] 547

""T" amending the pleadings as well as leading evidence. We do not find A

-
anything wrong in such direction and uphold the same.

As a result of the above discussion we allc;>w the appeal arising out
of S.L.P. (Civil) No. 2980 of 1990 and set aside the Judgment of the
Division Bench of the High Court dated 23.10.1989. However, we do not
consider it just and proper to remand the case to the Division Bench of B
the High Court for fresh decision for reasons already recorded above. The
appeal arising out of S.L.P. (Civil) No. 3484 of 1991 is allowed in part, the
Judgment of the Learned Single Judge of the High Court dated 11.12.1987
is set aside with regard to the finding in respect of habitual default as
contemplated under clause 13(3)(ii) of the Rent Control order and we C
uphold and maintain the finding on the question of bona fide need and the
order of remand. In. the facts and circumstances of the case the parties to
bear their own costs in this Court.

N.P.V. Appeals disposed of.
....

---