SUGARBAI M. SIDDIQ AND ORS.versusRAMESH S. HANKARE (D) BY LRS.

A                        SUGARBAI M. SIDDIQ AND ORS.
                                            v.
                        RAMESH S. HANK.ARE (D) BY LRS.

                                SEPTEMBER 27, 2001

B        [SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.]


            Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947:

           S.12( 3 )(a)-Suit.for eviction of tenant on ground of non-payment of rent
    within prescribed period after service of notice-Trial Court decreed the suit
c   recording a.finding that anwunt was not paid within permissible period-Order
    1m:1intained by appellate court-High Court exercising jurisdiction under Article
    227 of the Constitution in writ petition .filed by tenant set aside order of
    appellate court-Held, rent in dispute relates to the period from 1.1.1978 to
    30.6.1978-Notice of demand sent 011 14.7.1978-Period permissible to pay
D   rent expired on 14.8.1978-De.fence of tenant that money order was received
    back on 17.7.1978 as re.fused not substantiated-Tenant did not file receipt of
    sending money order-Trial Court rightly drew adverse inference against
    him-Money order coupen containing endorsement "re.fused" was examined
    by trial Court and.found that postal stamp was dated 27.8.1978-These.findings
    were confirmed by appellate Court-High Court misread the money order
E
    coupon as containing the date August 17, 1978-Adverse inference drawn by
    trial court and appellate court remains unrebutted-Finding recorded by High
    Court cannot be sustained-Order of High Court set aside and that ofappellate
    court restored-Constitution of India, 1950-Article 227.

            Constitution of India, 1950 :
F
          Article 227-Held, in an application under Article 227 High Court is
    concerned not with decision but with decision making process-It has to see
    whether the lower court/tribunal has jurisdiction to deal with the matter and if
    so, whether the impugned order is vitiated by procedural irregularity.

G           CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4756-4757 of
    1997.

          From the Judgment and Order dated 17.10.96 of the Bombay High Court
    in W.P. Nos. 3262/89 and 307 of 1991.

H           N.N. Keshwani and Ramlal Roy for the Appellants.
                                      390
                 SUGARBAI M. SIDDIQ v. RAMESH S. HANKARE                    391
      Bhim Rao, Vijay Nagar, S.K. Verma and S.M. Jadhav for the respondents.        A

      The following Order of the Court was. delivered :

       These appeals, by special leave, are directed against the common order
of the High Court of Judicature of Bombay, Bench at Aurangabad, passed in
Writ Petition No. 307 of 1991 and in Writ petition No. 3262 of 1989 on October      B
17, 1996. The appeal arising out of order in Writ Petition No. 3262 of 1989
is not pressed. The facts in the appeal arising out of order in Writ Petition No.
307 of 1991 which are relevant for our purposes, may be noticed here.

       The appellants are the landlords of premises bearing Municipal No. 2573      C
(City Survey Nos. 27 & 27-A) in Mochi Lane Ahmednagar (for short 'the
premises') and the respondents arc the legal representatives of the original
tenant (hereinafter referred to as, 'the respondents'). The appellants filed suit
No. 756 of 1978 in the court of the Joint Civil Judge, Junior Division at
Ahmednagar against the respondents seeking their eviction on two grounds -
the first is non-payment of rent for more than six months even after notice of      D
demand under Section 12(3)(a) of the Bombay Rents, Hotel and Lodging
House Rates (Control) Act, 1947 (for short, 'the Act') and the second is
reasonable and bona fide requirement of the appellants, under Section 13(g) of
the Act. The only ground which now survives is the first ground, namely,
default in payment .of rent for the period exceeding six months from January        E
1, 1978 to June 30, 1978. A notice demanding the rent was sent to the
respondents on July 3, 1978 which was served on July 14, 1978; the demand
in the notice was not fulfilled within the statutory period of one !llOnth. The
respondents contested the suit stating that they did not receive the notice; that
rent was sent by money order but the appellants refused to accept the same;         F
that they had already paid the rent and, therefore, the ground was not available
to the appellants.

       On consideration of the evidence on record, oral and documentary, the
trial court found that the amount was not paid within the permissible period and
decreed the suit for eviction on July 15, 1981. On appeal by the respondents        G
herein the order of eviction was maintained and the appeal was dismissed by
the appellate court on December 23, 1983. That order was assailed by the
respondents herein before the High Court in Writ Petition No. 307 of 1991
which was allowed on October 17, 1996 by. setting aside the order of the
appellate court confirming the order of the trial court. It is against that order   H
    392                   SUPREME COURT REPORTS                  [2001) SUPP. 3 S.C.R.
A   that the present appeal is preferred.

           Mr. N.N. Keshwani, learned counsel for the appellants, contends that
    non-payment of rent by the respondents within the statutory period is a question
    of fact and both the trial court as well as the first appellate court found it against
    the respondents, therefore, the High Court in exercise of the jurisdiction under
B
    Article 227 of the Constitution ought not to have disturbed the finding of fact.
    The High Court, submits the learned counsel, reappreciated the evidence and
    recorded the finding which is unsustainable on merits.

           Shri Bhimrao Naik learned senior counsel for the respondents, on the
C   other hand, submits that inasmuch as the findings recorded by the trial court
    as well as the appellate court are contrary to the evidence, the High Court has
    rightly gone into the question of default and recorded the correct finding which
    does not require interference by this Court.

           There can be !ittle doubt that in an application under Article 227 of the
D
    Constitution, the High Court has to see whether the lower courts/tribunal has
    jurisdiction to deal with the matter and if so, whether the impugned order is
    vitiated by procedural irregularity; in other words, the court is concerned not
    with decision but with decision making process. On this ground alone the order
    of the High Court is liable to be set aside.
E
          Since the order impugned before the High Court was passed under
    Section 12(3)(a) of the Act, it will be apt to quote the relevant provisions of
    Section 12 here :

              "12(1). A landlord shall not be entitled to the recovery of possession
F
              of any premises so long as the tenant pays, or is ready and willing to
              pay, the amount of the standard rent and permitted increases, if any,
              and observes and performs the other conditions of the tenancy, insofar
              as they are consistent with the provisions of this Act.

G             (2). No suit for recovery of possession shall be instituted by a landlord
              against tenant on the ground of non-payment of the standard rent or
              permitted increases due, until the expiration of one month next after
              notice in writing of the demand of the standard rent or permitted
              increases has been served upon the tenant in the manner provided in
              section 106 of the Transfer of Property Act, 1882.
H
                  SUGARBAI M. SIDDIQ v. RAMESH S. HANKARE                       393
         (3). (a) Where the rent is payale by the month and there is no dispute         A
         regarding the amount of standard rent or permitted increases, if such
         rent or increases are in arrears for a period of six months or more and
         the tenant neglects to make payment thereof until the expiration of the
         period of one month after notice referred to in sub-section (2), the
         Court shall pass a decree for eviction in any such suit for recovery of        B
         possession.

         (b) In any other case no decree for eviction shall be passed in any such
         suit if, on the first day of hearing of the suit or on or before such other
         date as the Court may fix, the tenant pays or tenders in Court the
         standard rent and permitted increases then due and thereafter continues        C
         to pay or tender in Court regularly such rent and permitted increases
         till the suit is finally decided and also pays costs of the suit as directed
         by the court.

         (4)   xxx            xxx             xxx             xxx
                                                                                        D
        A perusal of the provisions of Section 12 discloses that it incorporates
the legislative scheme in regard to eviction of a tenant by a landlord for default
in payment of rent by the tenant. We shall now advert to each of the sub-
sections of Section 12. Sub-section (1) of Section 12 places an embargo on the
right of a landlord to recover possession of any premises so long as the tenant         E
: (i) pays or is ready and willing to pay the amount of the standard rent and
where applicable the permitted increases; and (ii) observes and performs the
other conditions of the tenancy not inconsistent with the provisions of the Act.
The mandate of sub-section (2) is that a landlord shall not file a suit for
recovery of possession against the tenant on the ground of non-payment of the
                                                                                        F
standard rent or permitted increases due, until the expiration of one month of
service of notice of demand for the amount due by him in the manner provided
in Section 106 of the Transfer of Property Act. The directions contained in sub-
sections (3) and (4) are addressed to the court. Clause (a) of sub-section (3)
postulates passing a decree for eviction in a suit for recovery of possession by
the court where: (i) the rent payable is month by month; (ii) there is no dispute       G
regarding the amount of standard rent or permitted increases; (iii) rent or
increases are in arrears for a period of six months or more; and (iv) the tenant
has neglected to make payment of arrears until the expiration of one month
after the service of the notice of demand. Clause (b) of sub-section (3) prohibits
the court from passing a decree for eviction of a tenant in such a suit in a case       H
    394                   SUPREME COURT REPORTS                 [2001] SUPP. 3 S.C.R.
A   not covered by clause (a) if on the first date of hearing of the suit or on or before
    such other date as the court may fix, the tenant pays or tenders in court the
    standard rent and permitted increases due and thereafter continues to pay or
    tender in court regularly such rent and permitted increases till the final decision
    of the suit and also pays costs of the suit as directed by the court. Sub-section
B   (4) is not relevant for the present discussion.

           In the instant case, as noted above, the rent in dispute relates to the period
    of six months - from January 1, 1978 to June 30, 1976. Notice of demand in
    respect of the rent in arrears was sent by the appellants (Exh. 29) which was
    received by the respondents on July 14, 1978. The period of one month
C   contemplated in the provision within which the original tenant was entitled to
    pay the rent expired on August 14, 1978. The defence of the appellants is that
    on July 11, 1978, a money order for the amount in demand was sent which was
    received back on July 17, 1978 and, therefore, there has been substantial
    compliance of clause (a) of sub-section (3) of Section 12. Admittedly, the
D   respondents did not file receipt of sending the money order which is direct
    evidence of the fact of sending the money order to the appellants. In his
    deposition in the trial court the original tenant admitted that the receipt of
    sending the money order issued by the postal authorities was with him; however,
    he did not choose to file the same. The trial court drew adverse inference
    against him, in our view rightly. The money order coupon containing the
E   endorsements of the postal authorities "refused" which was returned by the
    postal authorities (Exh. 67) was examined by the trial court and it was found
    that the postal stamp was dated August 27, 1978, if that be so there was no
    material to show that the amount in demand was sent within one month. These
    findings were confirmed by the appellate court. The High Court misread
F   Exh.67 as containing the date August 17, 1978 and from that inferred that the
    money order might have been sent on August 12/13, 1978 and upset the
    concurrent findings of courts below. In view of the divergence of opinion on
    this aspect we ourselves looked into the record and with the help of magnifying
    glass perused Exh.67. The same was also placed before the learned counsel for
G   the _parties. We are unable to agree with the High Court that the postal stamp
    is of August 17, 1978. The adverse inference drawn by the trial court and the
    appellate court remains unrebutted. There was no other material to justify
    interference by the High Court.. Therfore, the finding recorded by the High
    Court cannot be sustained.

H          For the aforesaid reasons, the order under challenge is set aside, the order
                  SUGARBAI M. SIDDIQ v. RAMESH S. HANKARE                     395

of the appellate authority confirming the order of the trial court is restored. The   A
appeal against Writ Petition No. 307 of 1991 is thus allowed. There shall be
no order as to costs.

       In view of the order passed in this appeal I.As. 3 to 6 are dismissed.

      The appeal arising out of the order in Writ Petition No. 3262 of 1989 is        B
dismissed as not pressed. No costs.

R.P.                                                Appeals allowed/dismissed.