SHAMA PRASHANT RAJEversusGANPATRAO AND ORS.

A                             SHAMA PRASHANT RAJE
                                                                                       ....
                                            v.
                               GANPATRAO AND ORS.

                                 SEPTEMBER 27, 2000

B                [G.B. PATTANAIKAND SHIVARAJV. PATIL, JJ.]


           Constitution of India, 1950-Artic/es 226 & 227-Findings of inferior
    Tribunal-Interference by High Court-Justification of-Held, the jurisdiction
C   of High Court is supervisory and not appellate-However, if the High Court
    comes to a conclusion that (i) the Tribunal has committed manifest error by
    mis-construing certain documents; or (ii) that on the materials it is not
    possible for a reasonable man to come to a conclusion arrived at by the
    inferior Tribunal; or (iii) the inferior Tribunal has ignored to take into
    consideration certain relevant materials; or (iv) has taken into consideration
                                                                                        -
D   certain materials which are not admissible, then it would be fully justified
    in interfering with the findings of the inferior Tribunal.

            Rent Control and Eviction :

            Central Provinces and Berar Letting of Houses and Rent Control Order,
E   1949.

           S. 13(3) (ii), (iii) and (iv)-Landlord-Application for permission to -
    determine tenancy on the ground of habitual default in payment of rent,
    subletting and for bona fide personal need-Allowed by Rent Controller-On
    appeal, Appellate Authority by misreading and misconstruing certain
F   documents, set aside the Order of Rent Controller-Writ petition-Single
    Judge of High Court by re-appreciating the evidence, setting aside the Order
    of Appellate Authority-Validity of-Held, High Court fully justified in
    interfering with and correcting the error in the Order ofAppellate Authority-
    Constitution of India, 1950-Artic/es 226 and 227.
G         S.13(3) (iii)-Subletting-Proof of-Held, the two ingredients parting
    with the possession and some consideration therefore have to be established

            Words & Phrases

            "habitually" Meaning and connotation of in the context of S. 13 (3) (ii)
H
                                          448
                       SHAMA PRASHANT RAJE v. GANPATRAO                            449
 ...   of the Central Provinces and Berar Subletting of Houses and Rent Control           A
       Order, 1949.

           , Respondent landlord filed an application before the Rent Controller
       u/s. 13 (3) (ii), (iii) and (iv) of the Central Provinces and Berar Letting of
       Houses and Rent Control Order, 1949 for determining the tenancy of the             B
       appellant inter a/ia on the grounds of habitual default in payment of rent,
       subletting and for bonafide personal need. Accepting the said grounds, the



..
       Controller granted permission for determining the tenancy. However, on
       appeal, the Appellate Authority set aside the findings of the Controller.
       Aggrieved, respondent landlord filed a writ petition in the High Court. Single
       Judge of the High Court held that the Appellate Authority erred in setting         C
       aside the findings of the Rent Controller and affirmed the order of the Rent
       Controller. Appellant-tenant unsuccessfully filed an appeal before the Division
       Bench of the Hf~h Court. Hence the present appeal.

             On behalf of appellant-tenant it was contended that the High Court           D
       exceeded its jurisdiction under Articles 226 and 227 of the Constitution in
       interfering with the fmdings of fact arrived at by the Appellate Authority under
       the Rent Control Order by re-appreciating the evidence, and therefore, the
       judgment of the High Court was liable to be set aside; that the conclusion of
       the High Court that the plea of sub-letting has been established was contrary
       to the decisions of this Court in as much as to establish sub-letting it must      E
       be found that the tenant has parted with the possession of the premises and
       such possession must be backed by some consideration.

              On behalf of the respondent-landlord it was contended that since the
       conclusion of the Appellate Authority was based on mis-construction of certain     F
       documents and on mis-reading of relevant materials by a cryptic order without
       even noticing the detailed reasons given by the Rent Controller, the Single
       Judge of the High Court was fully justified in interfering with the conclusions
       of the Appellate Authority.

             Dismissing the appeal, the Court                                             G

             HELD: 1.1. Appellate Authority by misreading and misconstruing certain
       documents set aside the findings of the Rent Controller. High Court was
       therefore, fully justified in interfering with the conclusion of the Appellate
       Authority and correcting the error of the said Authority. (455-H; 456-A}           H
      450                      SUPREME COURT REPORTS (2000] SUPP. 3 S.C.R.
                                                                                         r··
 A         1.2 In a proceeding under Articles 226 and 227 of the Constitution, the
     High Court cannot sit in appeal over the findings recorded by a competent
     Tribunal. The jurisdiction of the High Court, therefore, is supervisory and
     not appellate. But notwithstanding the same, on a mere perusal of the Order
     of an inferior Tribunal if the High Court comes to a conclusion that such
 B   Tribunal has committed manifest error by mis-construing certain documents,
     or the High Court comes to the conclusion that on the materials it is not
     possible for a reasonable man to come to a conclusion arrived at by the inferior
     Tribunal or the inferior Tribunal has ignored to take into consideration certain
     relevant materials or has taken into consideration certain materials which
     are not admissible, then the High Court will be fully justified in interfering
C    with the findings of the inferior Tribunal. [454-D, E, F)

           2. The two questions on which the Tribunal under the Rent Control
     Order were required to give finding, namely, habitual defaulter and subletting
     are not pure questions of fact but can be held to be mixed questions of fact
     and law. Thus, it cannot be held that the High Court exceeded the parameters
D    prescribed for interference with the findings of an inferior Tribunal. [454-H]

            3. Under Clause 13(3) (ii), Rent Controller has to be satisfied that the
      tenant is habitually in arrears with the rent. The expression "habitually"
      would obviously connote some act of continuity. In the instant case, it was
E     agreed between the parties that it would be obligatory for the tenant to pay
      the rent before 10th day of each English Calendar month, and in the event of
     arrears of rent over 3 months is not paid then the landlord was entitled to
     give notice and then if the matter is not settled within one month from the
     date of the notice then the landlord is entitled to terminate the tenancy. This
     being the position, the fact that the rent for September to November 1984
F    was paid in December only after the Distress Warrant was issued and that
     again from December 1984 to March 1985 the rent had not been paid and
     were not deposited within the 10th of next month, as stipulated in the lease
     agreement would constitute the tenant to be "habitually" in arrear within the
     meaning of Section 13(3)(ii) of the Control Order. Thus, the Appellate
     Authority erred in interfering with the well reasoned conclusion of the Rent
G    Controller on this score, and the High Court was fully justified in corr~cting
     the said error by interfering with the finding of the Appellate Authority.
                                                              [454-H; 455-A-C-D-E)

            4. On the question of subletting, there is no dispute with the proposition
H that the two ingredients namely, parting with the possession and some
          SHAMA PRASHANT RAJE v. GANPATRAO [PATTANAIK, J.]                      451

    consideration therefor, had to be established. The conclusion of the Appellate      A
    Authority on this score was obviously on a mis-construction of the document
    Exhibit N2 and the High Court, therefore, was entitled to correct the error
    which was based upon a construction of the aforesaid document The different
    Clauses of the lease deed unequivocally indicate that the sum of Rs. 1,500
    p.m. was the consideration money for parting with the possession of the             B
    premises and allowing the Singer Sewing Machine firm to do business in the
    premises. Thus, in the instant case, the plea of subletting has been established.
                                                                     [455-E, F, G, H]

          Dipak Banerjee v. lilabati Chakraborty, [1987] 4 SCC 161; Jagan Nath
    (deceased) through lrs. v. Chander Bhan and Others, [1988) 3 SCC 57; Gopa/          C
    Saran v. Satyanarayana, [1989] SCC 56; Delhi Stationers and Printers v.
    Rajendrc. Kumar, [1990] 2 SCC 331 and United Bank of India v. Cooks and
    Kelvey Properties (P) limited, [1994] 5 SCC 9, cited.

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5450of2000.
                                                                                        D
          From the Judgment and Order dated 7. I 0.99 of the Bombay High Court
    in L.P.A. No. 99of1998.

          M.L. Verma, Ms. Vibha D. Makhija and Sanjay R. Hegde for the Appellant.

          V.A. Mohta and Shivaji M. Jadhav for the Respondents.                         E

-         The Judgment of the Court was delivered by

          PATT ANAIK, J. Leave granted.

           This appeal is by the tenant assailing the order of the learned Single       F
     Judge of the Bombay High Court, at Nagpur Bench, as well as the judgment
     of the Division Bench affirming the same. The Single Judge of the High Court
    in a Petition under Articles 226 and 227 of the Constitution interfered with the
    judgment of the Appellate Authority under the Central Provinces and Berar
    Letting of Houses and Rent Control Order, 1949. The question for consideration      G
    is whether in the facts and circumstances of the present case the High Court
    was justified in interfering with the findings of the Appellate Court under the
    Control order? The respondent-landlord filed an application before the Rent
    Controller under Section 13(3) (ii), (iii) and (vi) of the Rent Control Order
    seeking permission to determine the tenancy of the appellant, inter alia on
    the ground that the tenant is a habitual defaulter and has sub-let the premises     H
     452                    SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

 A and further, the landlord needs the premises for bona fide use. The Controller,
    on the basis of the pleadings of the parties formulated five issues and came
    to the conclusion that the tenant is a habitual defaulter; the tenant has sub-
    let the premises to the Sewing Machine firm and the need of the landlord is
    bona fide. With these conclusions the Controller granted permission for
B determining the tenancy of the tenant under Section 13(3) (ii), (iii) and (vi) of
    the Control Order. On an appeal, being carried under Section 21 of the
    aforesaid order, the Collector and Additional District Magistrate, who is the
    Appellate Authority, under the Control Order set aside the findings of the
    Controller on all the three issues and came to hold that the tenant cannot be
   held to be a habitual defaulter, that the landlord has failed to establish that
C the tenant has sub-let the premises and that the bona fide need has vanished
   as the need indicated in-the application being for the business of his son and
   the son died in the meantime. Consequently, the appeal was allowed and the
   permission granted by the Controller was set aside. The landlord assailed the
   legality of the order of the Appellate Authority by filing a Writ Petition in the
D High Court. The learned Single Judge by judgment dated 26th February, 1998,
   came to the conclusion that the Appellate Authority committed error apparent
   on the face of the order in setting aside the finding of the Controller on the
   question of habitual default by taking into consideration that a sum of Rs.
   2,000 had been sent by the tenant to the landlord by money order and the
   said money order was refused. Though the money order form itself do not
E indicate the period for which the money was being sent. The learned Single
   Judge also came to hold that the default rent for the period September 1984
   to November 1984 was paid in December only after the landlord obtained
   Distress Warrant from the Civil Court and not on his own, and therefore, the
   conclusion of the Appellate Authority under the Control Order is, on the face
   of it, erroneous. So far as the finding of sub-letting is concerned, the learned
F Single Judge considered the so-called agreement between the tenant and the
   Singer/Merit Company, and on construction of the terms of agreement it was
  found that the agreement though nomenclatured as a consignment dealership,
  but is nothing but a subletting, particularly when the tenant/respondent stays
  at Dombivali and it is the company which is in exclusive possession of the
G premises and transacting the business giving the tenant a rent of Rs. 1,500
  p.m. terming the same to be c!>mmission. With these conclusions the learned
  Single Judge of the High Court interfered with the order of the Appellate
  Authority and affirmed the order of the Controller thereby granting permission
  to the landlord under Clause 13(3) (ii) and (iii) of the Rent Control Order. The
  tenant being aggrieved by the order of the learned Single Judge, approached
H the Division Bench in appeal when the Division Bench agreed with the
       SHAMA PRASHANT RAJE v. GANPATRAO [PATTANAIK, J.]                      453
reasonings of the learned Single Judge and did not find any reason to               A
interfere with the same. The Division Bench, however, took into consideration
an additional factor that the premises are under lock and key and not being
used for 2 to 4 years.

         Mr. M.L. Verma, learned senior counsel, appearing for the tenant-
 appellant vehemently contended that the High Court exceeded its jurisdiction       B
 under Articles 226 and 227 of the Constitution in interfering with the findings
 of fact arrived at by the Appellate Authority under the Control Order by re-
appreciating the evidence, and therefore, the judgment of the High Court is
 liable to be set aside. He also further contended that the conclusion of the
High Court that the plea of sub-letting has been established is contrary t~         C
 the several decisions of this Court in as much as to establish sub-letting it
 must be found that the tenant has parted with the possession of the premise
 and such possession must be backed by some consideration. In support of
the aforesaid contention the learned counsel placed reliance on the decision
of this Court in Dipak Banerjee v. Lilabati Chakraborty, [1987] 4 Supreme
Court Cases 161, Jagan Nath (deceased) through Lrs. v. Chander Bhan and             D
Others, [1988] 3 Supreme Court Cases 57, Gopal Saran v. Satyanarayana,
[1989] Supreme Court Cases 56, Delhi Stationers and Printers v. Rajendra
Kumar, [ 1990] 2 Supreme Court Cases 33 l and United Bank ofIndia v. Cooks
and Kelvey Properties (P) Limited, [1994] 5 Supreme Court Cases 9. So far
as the question of habitual default is concerned, Mr. Verma contends that the       E
rent for the months of September to November 1984 had been paid in December
 1984 and Clause 9 of the agreement of tenancy between the appellant and
respondent entitles the tenant to pay the rent within one month from the date
of the notice received from the landlord, and authorises the landlord to
approach the Court of Law if the rent over 3 months is not paid within one
month of the notice in question, and this being the position, the Lower             F
Appellate Authority was fully justified in holding that the tenant cannot be
said to be a habitual defaulter and the High Court committed serious error in
interfering with the said finding. So far as the default in payment of rent for
the months of December 84 to March 85 is concerned, Mr. Verma contends
that the Lower Appellate Authority was justified in .taking into consideration      G
the refusal of the landlord to the two money orders sent, and the High Court,
therefore, was in error in interfering with the conclusion on fact of the
Appellate Authority under the Control Order by interfering with the same in
exercise of its discretionary jurisdiction under Article 226 of the Constitution.

      Mr. Mohta, the learned senior counsel appearing for the respondent, on        H
     454                     SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

 A the other hand contended, that the parameter for exercise of jurisdiction by
     the High Court in respect of the orders of an inferior Tribunal is well settled
     by catena of decisions of this Court. Since the conclusion of the Appellate
     Authority in the case in hand was based on mis-construction of certain
     documents and on mis-reading of relevant materials by a cryptic order without
     even noticing the detailed reasons given by the Controller, the learned Single
 B   Judge of the High Court was fully justified in interfering with the conclusions
     of the Appellate Authority, and as such, there is no error so far as the orders
     of the High Court are concerned. According to Mr. Mohta, a bare reading of
     the judgment of the learned Single Judge would indicate the apparent errors
     found by the High Court with the Appellate Order of the District Collector,
C    and therefore, the High Court was well within its jurisdiction in interfering
     with the same.

          In view of the rival submissions we have carefully scrutinised the
    orders of the Controller, that of the Appellate Authority under the Control
    Order and the order of the learned Single Judge which has been affirmed by
D the Division Bench. Undoubtedly, in a proceeding under Articles 226 and 227
    of the Constitution the High Court cannot sit in appeal over the findings
    recorded by a competent Tribunal. The jurisdiction of the High Court, therefore,
   is supervisory and not appellate. Consequently Article 226 is not intended to
   enable the High Court to convert itself into a Court of Appeal and examine
E for itself the correctness of the decision impugned and decide what is the
   proper view to be taken or order to be made. But notwithstanding the same
   on a mere perusal.of the order of an inferior Tribunal ifthe High Court comes
   to a conclusion that such Tribunal has committed manifest error by mis-
   construing certain documents, or the High Court comes to the conclusion that
   on the materials it is not possible for a reasonable man to come to a conclusion
F arrived at by the inferior Tribunal cir the inferior Tribunal has ignored to take
   into consideration certain relevant materials or has taken into consideration
   certain materials which are not admissible, then the High Court will be fully
  justified in interfering with the findings of the inferior Tribunal. Then again
   the two questions on which the Tribunal under the Rent Control Order were
G required to give finding, namely, habitual defaulter and subletting are not pure
  questions of fact but can be held to be mixed questions of fact and law. In
  this view of the matter, on going through the Appellate order passed by the
  District Collector as well as the order of the learned Single Judge, we are not
  in a position to hold that the High Court exceeded the parameters prescribed
  for interference with the findings of an inferior Tribunal. Under Clause 13(3)
H (ii) Controller has to be satisfied that the tenant is habitually in arrears with
            SHAMA PRASHANT RAJE v. GANPATRAO [PATTANAIK, J.]                   455
     the rent. The expression "habitually" would obviously connote some act of A
     continuity. Under the Lease Deed dated 8.4.1982 between the landlord and the
     tenant Clause 4 made it obligatory for the tenant to pay the rent before I 0th
      day of each English Calendar month, and under Clause 9 in the event of
      arrears of rent over 3 months is not paid then the landlord was entitled to give
      notice and then if the matter is not settled within one month from the date
      of the notice then the landlord is entitled to terminate the tenancy. Reading B
      the aforesaid two Clauses it would not be correct, as contended by Mr. Verma,
      learned senior counsel appearing for the appellant, that under the agreement
     itself 4 months period has been provided to enable the tenant to pay the rent.
     If a tenant, notwithstanding the obligation of paying the rent by 10th day of
     each English calendar month continuously makes a default of paying the rent C
     for the first month by two months thereafter, and pays the rent in similar
     manner, then he must be held to be habitually in arrear with the rent in
     question. This being the position, the fact that the rent for September to
     November 1984 was paid in December only after the Distress Warrant was
     issued and that again from December 1984 to March 1985 the rent had not
     been paid and were deposited within the 10th of next month, as stipulated in D
     the lease agreement would constitute the tenant to be habitually in arrear
     within the meaning of Section 13(3) (ii) of the Control Order. The Appellate
     Authority under the Control Order was obviously in error in interfering with
     the well reasoned conclusion of the Controller on this score, and the High
     Court was fully justified in correcting the said error by interfering with the E
     finding of the lower Appellate Authority on the question of applicability of
     Section 13(3) (ii) to the case in hand. Similarly, on the question of subletting,
     there is no dispute with the proposition that the two ingredients; namely,
     pary:ing with the possession and some consideration therefor, had to be
     established. The conclusion of the lower Appellate Authority on this score
.,   was obviously on a mis-construction of the document Exhibit N2 and the F
     High Court, therefore, was entitled to correct the error which was based upon
     a construction of the aforesaid document. The different Clauses of the lease
     deed unequivocally indicate that the sum of Rs. 1,500 p.m. was the
     consideration money for parting with the possession of the premises and
     allowing the Singer Sewing Machine firm to do business in the premises.           G
           In the aforesaid premises, we are unable to accept the contention of Mr.
     Verma, learned senior counsel appearing for the appellant that the High Court
     committed error in interfering with the finding of the Appellate Authority
     under the Control Order by way of re-appreciating the evidence. In our
     considered opinion, the High Court was fully justified in interfering with the   H
    456                    SUPREME COURT REPORTS [2000) SUPP. 3 S.C.R.

A conclusion of the Appellate Authority and correcting the error of the said
    Authority, as already stated. In the premises, as aforesaid, this appeal is
    devoid of any merits and the same is dismissed accordingly.· There will be no
    order as to costs.

    S.V.K.I.                                                  Appeal dismissed.