Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • G.A Pauntkar
  • Patel, JJ.
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • G.A Pauntkar
  • Patel, JJ.
See more information ...
Smart Summary

Factual and Procedural Background

The landlord filed an application on 4-10-1975 before the Rent Controller, Wani, seeking permission to terminate the tenant's tenancy under Clauses 13(3)(i), (ii) and (vi) of the Rent Control Order, 1949. The landlord's pleaded grounds included an agreement that rent was payable every three months in advance and that the tenant was in arrears of Rs. 192 on the date of the application; he also alleged habitual default in payment of rent and asserted a need to occupy the premises for his bona fide use on account of impending retirement and lack of other accommodation.

The tenant denied that rent was payable every three months in advance, contending rent was monthly but paid later (sometimes every six months) and that the landlord's brother collected rent. The tenant also denied the alleged arrears and disputed the landlord's need for occupation.

At trial the landlord testified as AW 1 and the tenant as NA. The Rent Controller, by order dated 31-7-1976, granted permission under Clauses 13(3)(ii) and (vi). The Resident Deputy Collector, Yeotmal, on appeal, confirmed that order on 31-10-1977. The tenant challenged those concurrent orders by Special Civil Application No. 548 of 1978 before the Single Judge of this Court, who on 1-4-1982 set aside the concurrent findings and dismissed the landlord's application. The present appeal by the landlord challenges that Single Judge judgment. The landlord's counsel before this Court limited the appeal to the question under Clause 13(3)(ii) (habitual default).

Legal Issues Presented

  1. Whether the tenant is a "habitual defaulter" within the meaning of Clause 13(3)(ii) of the Rent Control Order, 1949.
  2. If the tenant is a habitual defaulter under Clause 13(3)(ii), whether the landlord is entitled to permission to terminate the tenancy under that clause.

Arguments of the Parties

Appellant (Landlord)'s Arguments

  • There was an agreement that the tenant would pay every three months' rent in advance at Rs. 32 per month.
  • On the date of the application the tenant was in arrears of Rs. 192.
  • The tenant was a habitual defaulter in payment of rent as evidenced by the landlord's schedule(s) of payments.
  • The landlord asserted bona fide need under Clause 13(3)(vi) (age 56, due to retire soon, no other house) — though this ground was not pressed before this Court.

Respondent (Tenant)'s Arguments

  • Rent was payable monthly but was often paid later (in practice at the end of the following month or in lump sums every six months).
  • The landlord's brother, Pundalik (alias Nanaji), used to collect rent and instructed the tenant on the timing of payments.
  • The landlord had, at times, asked the tenant to remit rent by money order directly to the landlord (and later again asked payment to be made to his brother), showing inconsistency by the landlord in demanding strict monthly payments.
  • The tenant filed a schedule of payments and denied the alleged arrears; he also denied the landlord's claimed requirement of the premises as the landlord occupied several rooms and had leased out some rooms after the application.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
S.P. Deshmukh v. Shah Nihalchand Waghajibhai, 1977 Mah LJ 710; AIR 1977 SC 1985 Where a monthly tenant pays at intervals (e.g., every 3–4 months) but, on payment dates, pays the full amount due up to that date and the landlord accepts without protest over many years, a contract to the contrary (i.e., a different payment practice) may be inferred from conduct. The court observed that the Single Judge had this case in mind but distinguished the instant facts: unlike in Deshmukh, the tenant here did not consistently clear all arrears on payment dates, so the Deshmukh principle did not support the Single Judge's conclusion of acquiescence to a practice contrary to monthly payment.
Shormax Watch Co. v. Mahant Amardas, 1977 Mah LJ (Notes) 67 Non-regular monthly payment does not by itself make a tenant a habitual defaulter; habitual default was found where payments on payment dates did not clear accumulated arrears and such instances were numerous (eight or more). The court relied on this precedent to support the proposition that failure to clear arrears on payment dates, repeated sufficiently often, can indicate habitual default — a feature the court found present on the record here.
Shah Gokuldas Waghjibhai v. Standard Trading Company, Spl. Civil Appln. No. 240 of 1974 (unreported, decided 23-1-1980) Acceptance by a landlord of whatever amount is paid by a tenant without protest does not necessarily constitute acquiescence such that a practice contrary to the tenancy agreement is established. The court used this authority to reject the argument that the landlord's acceptance of partial payments, without protest, conclusively established acquiescence to a non-monthly payment practice.

Court's Reasoning and Analysis

The Court proceeded in a stepwise manner:

  1. It identified the governing legal starting point: in a monthly tenancy the default rule is that rent is payable at the close of each tenancy month unless there is a clear contract to the contrary that can be inferred from the parties' conduct over a fairly long period.
  2. It reviewed the factual findings below: the Rent Controller and the Deputy Collector had granted and confirmed permission under Clauses 13(3)(ii) and (vi); the Single Judge set aside those concurrent findings, concluding that the landlord had acquiesced to a practice of payments every six months.
  3. The Court examined the written schedules of payments filed by both parties. It found that the tenant's schedule did not consistently support the alleged practice of lump-sum six-month payments. The Court extracted specific payment instances (dates and periods) from the record showing that on various payment dates the tenant did not clear all arrears and in some instances withheld rent for considerable months.
  4. The Court considered precedent: it acknowledged S.P. Deshmukh (where the practice was acceptable because full amounts were paid on payment dates and the tenant was not in arrears on the date of the application) but distinguished it on the facts here because, in this case, the tenant sometimes did not make full payments up to the payment dates.
  5. The Court relied on Shormax Watch Co. to highlight that repeated failures to clear arrears on payment dates point to habitual default; and it relied on the unreported Shah Gokuldas decision to observe that mere acceptance by a landlord of whatever amount is paid does not itself establish acquiescence to a changed contractual practice.
  6. Applying these principles to the payment schedule and other evidence, the Court concluded that the tenant either had formed a habit of defaulting or lacked the ability to discharge liabilities on due dates, even when measured against the practice the tenant alleged. The Court found that the Single Judge overlooked these important aspects of evidence when setting aside the concurrent findings of the Rent Controller and appellate authority.
  7. On that basis the Court held the Single Judge's judgment could not be sustained and that the orders granting permission under Clause 13(3)(ii) should be restored.

Holding and Implications

APPEAL ALLOWED.

Holding: The judgment of the Single Judge dated 1-4-1982 setting aside the Rent Controller's and Deputy Collector's orders was set aside; the orders granting the appellant landlord permission under Clause 13(3)(ii) of the Rent Control Order, 1949 to terminate the respondent's tenancy were restored.

Direct consequences and implications:

  • The appellant's (landlord's) permission to terminate the tenancy under Clause 13(3)(ii) is restored and the Rent Controller's and Resident Deputy Collector's orders granting such permission stand revived.
  • There will be no order as to costs.
  • The opinion does not state or purport to lay down any new broad legal precedent beyond applying existing authorities to the facts; its effect is to reverse the Single Judge's factual-and-evidence-based interference with concurrent findings of the revenue authorities and to vindicate those authorities' conclusions in this case.
Appeal allowed.
Show full summary ...

    Pandurang Tukararm Rajkondawar v. Balaram Madhaorao Chavan .

    Paunikar, J.:— This appeal is filed by the appellant-landlord challenging the judgment dated 1-4-1982 passed by the Hon'ble Single Judge of this Court in Special Civil Application No. 548 of 1978.

    2. The landlord filed an application on 4-10-1975 against the tenant respondent for permission to terminate the tenancy of the tenant under Cl. 13(3)(i), (ii) and (vi) of Rent Control Order, 1949 before the Rent Controller, Wani. His case under Cl. 13(3)(i) was that the tenant had agreed to pay rent of every three months in advance at the rate of Rs. 32/- p.m On the date of the application, the tenant was in arrears of rent of Rs. 192/-. Under Cl. 13(3)(ii) he has filed a schedule of payment of rent to show that rent was never paid as per agreement and submitted that the tenant was a habitual defaulter in payment of rent Under Cl. 13(3)(vi) he contended that he was 56 years old and was due to retire shortly. He has no other house to reside except the suit house in the city of Wani and hence he wants the premises in occupation of the tenant for his bona fide occupation.

    3. The tenant vide his written statement denied that every, three months' rent was payable in advance. He submitted that rent was payable monthly but it was to be paid in next month. He further submitted that landlord's brother Pundalik alias Nanaji used to recover rent Despite tenant's request to accept rent every month, he told the tenant that rent should be paid as and when demanded, or at the end of six months. This practice of paying rent of every six months was followed till the filing of the application by the landlord. The landlord vide his letter dt. 6-7-1969 informed the tenant that he should not pay rent to Nanaji, his brother and the amount should be paid to him directly by money order or a bank draft and the tenant accordingly started remitting rent by money order without deducting money order commission. However when he started sending rent deducting money order commission, the landlord again asked him to pay rent to his brother Nanaji as before. He also filed a schedule of payment of rent with the return in LPA. The, tenant denied that the landlord required the premises for his own use and occupation and contended that the landlord is in occupation of 8 big rooms of the said house and 2 rooms put of 8 big rooms in his possession were leased out by him after the filing of this application. He submitted that even 6 rooms in his possession are sufficient to meet his needs. He denied the arrears alleged on the date of the application.

    4. The parties went on trial. The landlord examined himself as AW 1 and the tenant examined himself as NA. The Rent Controller vide his order dt. 31-7-1976 granted permission to the landlord under Cl. 13(3)(ii) and (vi) of the R.C.O, 1949. On appeal preferred by the tenant against this order, the appellate authority, Resident Deputy Collector, Yeotmal vide his order dt. 31-10-1977 confirmed the findings of the Rent Controller and dismissed tile appeal. These orders were challenged in Special Civil Application preferred by the tenant before the Hon'ble Single Judge of this. Court and the Hon'ble Judge vide his judgment dt. 1-4-1982 set aside the concurrent findings of facts and thus quashed and set aside the orders of the Rent Controller as well as the appellate authority and dismissed the application of the landlord for permission to terminate the tenancy of the tenant on both the grounds. It is this judgment of the Hon'ble Single Judge which is challenged in this appeal.

    5. The learned counsel for the appellant Shri J.N Chandurkar restricts himself to the case of the landlord under Cl. 13(3)(ii) and does not press his case under Cl. 13(3)(vi) of the R.C.O Hence we propose to deal only with respect to the issue whether the tenant is a habitual defaulter within the “meaning of Cl. 13(3)(ii) of the R.C.O 1949 and if so whether the landlord is entitled to permission to terminate the tenancy of the tenant under the said clause.

    6. The landlord filed application on 4-10-1975 but he filed schedule of payment of rent from the date of commencement of tenancy i.e from 15-6-1966 to 14-3-1972. The tenant filed complete schedule with his return in Special Civil Application. The Hon'ble Single Judge observed that the landlord never called upon the tenant to be regular in payment of rent and hence it appears that the tenant went on paying rent as directed to him from time to time either by Pundalik who inducted him in the tenement or by the landlord. He held that even assuming that the tenant developed his own practice of remitting rent, this practice which extended nearly over 9 years was clearly acquiesced in by the landlord. He held that right from 26-11-1969 to 4-10-1975 i.e date of application, rent was remitted every six months except on-one occasion as shown in the schedules on record. He held that there was a contract to the contrary which relieved the tenant of his obligations to pay rent every month and both the revenue authorities ignored this circumstance. In this view the Hon'ble Single Judge set aside the permission granted to the landlord under Cl. 13(3)(ii) of the R.C.O, 1949 by the Rent Controller and confirmed by the appellate authority.

    7. The issue whether a tenant is a habitual defaulter in payment of rent will have to be decided on the basis of the agreement between him and the landlord. In this case the landlord's case is that it was agreed between him and the tenant that every time 3 months rent was agreed to be paid in advance. The tenant however contended that the rent was not payable monthly but it was to be paid in next month. He also contended that landlord's brother Pundalik leased out the premises to him and he used to recover rent. He told him that it is not necessary to pay rent monthly,” as the monthly amount is small it would be frittered away on small items of expenditure and asked him that rent should be paid as and when asked or at the end of every six months so that it would be convenient for the tenant to remit the rent in lump sum. This is the practice alleged to be continued by the tenant till the date of filing of this application by the landlord.

    8. The case of landlord to the effect that there was an agreement to pay every 3 mouths rent always in advance is disbelieved by both, the Revenue Authorities below. The admitted fact is that the tenancy is monthly. The law in case of monthly tenancy is that the tenant is bound to pay rent at the close of the tenancy month in the absence of any other contract to the contrary. The contract to the contrary pleaded by the tenant is stated by us in the preceding para. In cases under Cl. 13(3)(ii) of R.C.O, 1949 filed by the landlord, the tenants generally take the plea as aforesaid. In our opinion at the outset such a plea is unnatural and inconceivable. No landlord will ever agree to accept rent at the mercy of the tenant and if he has to submit to the dictates of the tenant, no landlord will ever lease out his property. Assuming that the story of practice pleaded by the tenant is acceptable, the payments made by the tenant must support the practice pleaded by him. The schedule of payments filed by the tenant at Annexure-3 to his return at page 42 of the writ petition does not support the practice alleged. Sometimes the tenant paid rent for 2 months, at times for 3 months and also for a month. The tenant also withheld rent for considerable months on the dates of payment as seen from items given below from the schedule.

    Month Date of Payment. 1. 15-5-1969 to 14-9-1969 — 27-11-1969. 2. 15-3-1970 to 14-9-1970 — 23-1-1971. 3. 15-9-1970 to 14-3-1971 — 21-5-1971. 4. 15-3-1971 to 14-9-1971 — 3-11-1971. 5. 15-3-1972 to 14-9-1972 — 20-10-1972. 6. 15-9-1972 to 30-12-1972 — 25-2-1973. 7. 1-1-1974 to 30-6-1974 — 16-9-1974. 8. 1-7-1974 to 31-12-1974 — 9-3-1975. 9. 1-1-1975 to 30-6-1976 — 18-8-1975.

    Thus the dates of payments aforesaid do not prove the practice pleaded by the tenant. It appears from the judgment that the Hon'ble Single Judge had in his mind the ruling of the Supreme Court in S.P Deshmukh v. Shah Nihalchand Waghajibhai reported in 1977 Mah LJ 710:(AIR 1977 SC 1985). In this case the tenant was paying rent at an interval of 3 or 4 months but on the dates of payments he was paying full amount of rent due till the dates of payment and the landlord was accepting rent without protest about the mode of payment for years together, and he was not at all in arrears of rent on the date of application. It I was, therefore, held that though normally a monthly tenant is under an obligation to pay rent from month to month but this obligation I is subject to a contract to the contrary and such a contract can be spelt out from the conduct of the parties spread over a fairly long period of time. In the instant case on the dates of payment, full amount of rent of some months was withheld as will be seen from the instances above pointed out by us. It is held in Shormax Watch Co. v. Mahant Amardas, reported in 1977 Mah LJ (Notes) 67 that-

    “the tenant could not be a habitual defaulter on the ground that he did not pay rent regularly every month in view of the landlord's admission that he used to be away but he was a habitual defaulter because on the date he made payments he did not clear all arrears and such instances were not less than eight and that he could not excuse himself by saying that he being a businessman, he was not expected to be ready with funds every time.”

    9. Even if the tenant does not make full payment of rent accrued due till the date of payment the landlord has no alternative but to accept whatever amount of rent is paid to him by the tenant. It is not necessary for the landlord to give notice of default as the non-issue of notice of default will not absolve the tenant from discharging his liabilities. This circumstance that the landlord has accepted whatever amount of rent paid by the tenant without protest cannot by any stretch of imagination be relied upon in making out the case of acquiescence as held in unreported, decision of this Court in Spl. Civil Appln. No. 240 of 1974, decided on 23-1-1980 in Shah Gokuldas Waghjibhai v. Standard Trading Company. The practice pleaded by the tenant obviously stands disproved Even assuming that the practice pleaded by him is proved, no payment is made as per practice. We are aware of the fact that habitual default under Cl. 13(3)(ii) of the R.C.O, 1949 is different from default under a contract in ordinary law. However, in this case the dates, of payments shown in the schedule and the instances of withholding of rent due without making full payments till the dates of payment do convincingly establish and justify, that the tenant has either formed a habit to commit defaults or he suffered from inherent disability to discharge his liabilities when he is expected and bound to discharge even according to the practice alleged by him. We, therefore, hold that the Hon'ble Single Judge lost sight of and ignored the aforesaid important aspect in the evidence in this case while setting aside the concurrent findings by the Rent Controller and the Rent Control Appellate Authority. The judgment of the Single Judge, therefore, cannot be sustained and deserves to be set aside.

    10. In the result this appeal is allowed. The judgment of the Hon'ble Single Judge rejecting permission granted to the appellant under Cl. 13(3)(ii) of the R.C.O, 1949 by the Rent Controller and confirmed by the Deputy Collector is set aside and instead, the order granting permission under Cl. 13(3)(ii) of the R.C.O, 1949 to the appellant to terminate the tenancy of the respondent both by Rent Controller and the Resident Deputy Collector is restored. However, there will be no order as to costs.

    Appeal allowed.
    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Pandurang Tukararm Rajkondawar v. Balaram Madhaorao Chavan .
    (Dec 5, 1984)