MANGALBHAI AND ORS. versus DR. RADHYSHYAM S/0 PARISCHANDRA AGARWAL

Citation: [1992] 3 S.C.R. 537 · Decided: 17-07-1992 · Supreme Court of India · Bench: N.M. KASLIWAL · Disposal: Disposed off

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Judgment (excerpt)

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 
_j_ 
case for examination of actual need for residence and clinic/dispensary--Jus-
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 E 
circumstances indicating order under Article 226-Letters Patent Ap-
-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 G 
Singh Judge held that the tenants were habitual defaulters, and that the 
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 
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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 
B 
c 
D 
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 
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 
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. 
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] 
G 
1.2 In view of the fact that the litigation is going on for nearly a 
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. 
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MANGALBHAI v. DR. RADHYSHY AM 
539 
Sushilaba

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