ORDER
V.S. Sirpurkar, J.
1. The unsuccessful tenant against whom both the authorities below have granted permission for terminating his tenancy has come up in this petition.
2. The petitioner is a tenant, while respondent No. 2 is the landlord having become owner of the shop in dispute. The tenancy is monthly tenancy; rent is Rs. 300/- per month excluding the municipal taxes and the tenancy month commences from 1st day of each month and expires by the end of the said month. Respondent No. 2 Purushottam Harichandra Ahuja filed an application wherein he sought the permission to terminate the tenancy on the grounds that the tenant had sublet the premises; that the tenant had the alternate premises and that the shop in question was required for bona fide personal occupation of the landlord. He pleaded therein that he passed B.Com Examination in the year 1984-85 and had also done the Diploma Course. For carrying out the business of Radios, TVs and other electronic goods, he had also an experience and he was an educated unemployed. He pleaded that he had no other house or shop of his own, except the said shop and that the premises were most suitable for doing business of repairs of electrical goods. He also pleaded that he was not in good terms with his mother, and his father having died long back, he wants to settle down business for which the shop would be necessary. These are the
pleadings on the question of Clause 13(3)(vi) of the C.P. & Berar Letting of House and Rent Control Order, 1949 (hereinafter called ‘the Rent Control Order’ for the sake of brevity). As regards the ground under Clause 13(3)(iii) of the Rent Control Order, he claimed that the premises were sublet to the original non-applicant No. 2 Govindram Khushalrao Mahalle, i.e., respondent No. 3 herein. He further pleaded that the sub-tenant was doing business of tailoring in the said shop, as regards the grounds under Clause 13(3)(v) of the Rent Control Order, he pleaded that the tenant had secured an alternate accommodation and did not reasonably need the premises in question. He pointed out that the tenant was doing business in shop No. 27 under the name and style of ‘VIJAY DRESSES’. He also pointed out that the said shop No. 27 was adjoining the shop in dispute and was in Vasantrao Market, Amravati.
3. The application came to be opposed. The tenant firstly denied that the applicant was the landlord and the owner of the premises in question. The tenant also denied the other pleadings including the description of the shop, the month of rent as also the tenancy month. The tenant asserted that the premises were let out to him by one Harischandra Rai, and after his death, by his wife Jankidevi. He, therefore, claimed that it was Jankidevi who is the real landlord of the premises. He pleaded that after the death of Harishchandra, Jankidevi was receiving the rent which initially was Rs. 105/- per month and was increased firstly to Rs. 225/- and thereafter to Rs. 300/- per month. It was further stated that though the applicant was a son of Jankidevi, he was stranger so far as the present proceedings were concerned and had no right to file application posing himself to be a landlord. The other pleadings regarding the strained relationship etc., were also denied. The fact of subletting was also denied and it was claimed that the original non-applicant No. 2 worked on contract basis. He had only one sewing machine which he put outside the shop and his occupation was merely as a licensee and not as a sub-tenant. Lastly, the securing of the alternate accommodation was also denied and it was claimed that the establishment in shop No. 27 was an independent establishment and business and the tenant had no concern with it. It was claimed that the said Vijay Dresses was independent entity and establishment and the tenant had no concern with it. In his additional statement, the tenant pointed out that previously a civil suit was filed without obtaining the permission of the Rent Controller which was registered as Regular Civil Suit No. 272/82 and the prayer of possession in that suit came to be rejected, and the matter was pending in an appeal before the District Judge, Amravati, in Regular Civil Appeal No. 494/86. Thus, it was claimed that there was no relationship of landlord and tenant and that the Rent Control authorities had no jurisdiction.
4. Original non-applicant No. 2/ respondent No. 3 herein, the so-called sub-tenant, also filed his separate written-statement, wherein he also denied the contents of the application and claimed that he was not a sub-lessee and that he was working on the contract basis and had a very small portion, inasmuch as he possessed only one sewing machine and the machine was put on the road touching the shop and not inside the shop and that the said was with the permission of the non-applicant No. 1 and it was non-applicant No. 1’s contract that he usually performed. He pleaded that he was falsely and maliciously impleaded.
5. On the basis of these pleadings, the parties proceeded to file documents and led oral evidence. Amongst the documents filed by the original applicant are the marklists to prove that he had taken the Diploma in Technical Education, a gift-deed in his favour by one Mangirmal Isardas Ahuja, as also a copy of the judgment by the Civil Court in Regular Civil Suit No. 272 of 1983, wherein a decree for Rs. 4050/- was
passed against the tenant Dharamdas on account of the arrears of rent. He has also filed a certificate showing that he was having a Bank balance of Rs. 25,000/-.
It seems that the original non-applicant No. 2 also filed some documents, such as three old rent receipts wherein Smt. Jankidevi Ahuja is described as a landlady. He also filed a certified copy of the cross-objection filed by him before the District Judge, Amravati. The non-applicant No. 2 has also filed a certified copy of the deposition of Dharamdas.
These are all the documents on record.
6. The applicant examined himself and his uncle Mangirmal Ahuja, while the non-applicant No. 1 – tenant examined himself.
7. On the basis of the evidence led before him, the Rent Controller granted the application on all the three counts. The Rent Controller held that the applicant had proved himself to be the landlord, which fact was denied. For this finding, the Rent Controller relied upon the written-statement filed in that suit by the tenant wherein he had admitted the status of the original applicant as a landlord. He also relied upon the admission by the tenant in the reply notice dated 1-6-1983 wherein also it was admitted that he was the tenant of applicant Purushottam. He also took note of the gift-deed executed by Mangirmal in favour of Purushottam and held that the applicant had become the owner because of this gift-deed. The Rent Controller further went on to hold on the basis of the oral evidence and the pleadings that it was amply proved that the sewing machine of the non- applicant No. 2 was kept in the shop and that he operated from that shop. On this basis, he came to the conclusion that the non-applicant No. 2 was a sub-lessee. He accepted the evidence of the applicant/landlord that he had no shop of his own and that he is fully qualified person to undertake repairs of Radios, TVs and VCRs etc. He also found that the shop was a suitable place for carrying on the business, since it was in Prabhat Talkies Chowk. He also noted that there was enough capital with the applicant to start the business and that he had a genuine need to start the business. On that count, he found that the need of applicant was bona fide and genuine. Lastly, he also found that the non-applicant No. 2 had secured alternate accommodation, inasmuch as he had admitted in his evidence that shop No. 27 was being run by his brother and that there was no partition between himself and his brother.
8. An appeal came to be filed against this order before the Resident Deputy Collector, Amravati. During the pendency of the appeal, an amendment was tried to be moved which amendment was considered by the appellate authority only when it disposed of the appeal . It seems that Notes of Arguments were supplied to the Appellate Authority and on the basis of those notes of arguments as also the additional oral arguments, the appellate authority dismissed the appeal. These two orders are challenged herein.
9. It is to be noted that the appeal was filed only by the non-applicant No. 1, the original tenant. The sub-tenant/original non-applicant No. 2 did not file the appeal and did not challenge the order of the Rent Controller by way of an appeal.
10. Shri S.A. Bobde, learned Counsel appearing on behalf of the petitioner/tenant, basically challenged the two orders on their merits. However, his first- and the foremost-argument is against the appellate order. His contention is that the appellate order is passed without application of mind and mechanically. The learned Counsel contended that the very appearance of the appellate order shows as if it is a replica of the notes of argument supplied by the respondent No. 2 before the Appellate Authority and that paragraphs after paragraphs have been bodily lifted from the notes
of argument and patched up in the appellate order to complete the same. The learned Counsel does not restrict himself to the theory of non-application of mind and the mechanical approach on the part of the Appellate Authority, but from this he advances and suggests that such an approach of the Appellate Authority gives a reasonable basis in the mind of the litigants or even a reasonable man to think that the Appellate Authority was biased in favour of the respondent No. 2 and against the appellant/present petitioner. In short, the learned Counsel appears to be relying on the maxim nemo debet esse judex in causa prop/a sua (no one shall be judge in his own cause, as per Wharton’s Law Lexicon). According to the learned Counsel, the very fact that the Appellate Authority has literally picked up the notes of argument and used them in a suspicious manner in the order goes on to suggest that the authority concerned was biased or had any interest either in favour of the respondent or against the appellant. Further learned Counsel goes on to suggest that in this case, it would be unnecessary for this Court to examine as to whether the said bias on the part of the Appellate Authority has really affected the findings given by it because of the principle that justice should not only be done but should manifestly and undoubtedly be seen to be done. The learned Counsel goes on to suggest that from the order itself, it was apparent that in this case justice was not manifestly and undoubtedly seen to be done. The learned Counsel relies heavily on the reported ruling of the Supreme Court in Manak Lal v. Dr. Prem Chand Singhvi, as also on a reported ruling in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lonon A and others, 1968 (3) All England Law Reports 304. Shri Bobde particularly relied on the following paragraph at page 309 in the latter case :
“In R. v. Barnsley Conty Borough Licensing Justices Ex. p. Barnsley & District Licensed Victuallers’ Asson, DEVLIN, L.J., appears to have limited that principle considerably, but I would stand by it. It brings home this point; in considering whether there was a real likelihood of bias, the Court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as he could be, nevertheless, if rightminded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand : see R. v. Huggins; R. v. Sunderland Justices; per Vaughan Williams, L.J. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough; see R v. Comborne Justice, Ex p. Pearce; R v. Nailsworth Justices, Ex p. Bird. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did favour one side unfairly at the expense of the other. The Court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking; The Judge was biased’.”
According to the learned Counsel, the circumstance that the impugned order was a replica of the notes of argument was sufficient for a reasonable mind to think that it was likely or probable that the Appellate Authority favoured one side unfairly at the expense of the other. Shri Bobde also relied upon the reported decision in S.
Parthasarathi v. State of Andhra Pradesh, and more particularly on the observations in paragraph 16 thereof. He has also relied on reported decisions of the Supreme Court in A.K. Kraipak v. Union of India, and Ratan Lal Sharma v. Managing Committee, Dr. Harir Ram (Co. Education) Higher Secondary School, . Lastly, he relies on the decision of the Supreme Court in P.K. Ghosh v. J.G. Rajput, .
11. Shri B.R. Gawai, learned Counsel appearing on behalf of the respondent No. 2, on the other hand, submits that even if it could be said that there were some striking similarities between the notes of argument and the order written, it cannot be said that the order was a replica of the notes of argument supplied by the respondent No. 2 to the Appellate Authority. He points out that there is a definite indication in the order of independent application of mind also. Taking his argument further, Shri Gawai suggests that by these similarities, it cannot be said that there was a real bias on the part of the Appellate Authority. He suggests that there has to be real likelihood of bias and such bias should not be inferred merely on the basis of surmises and inferences. The learned Counsel points out that at no point of time was the integrity of the Appellate Authority ever questioned. He has taken me through the whole order-sheets to suggest that no objection was even taken, nor had the parties ever felt that the Appellate Authority was biased against the appellant before him. His further argument is that not only this question is not even raised in the petition where only a bald statement has been made that the Appellate Authority had mechanically accepted the notes of argument supplied by the respondent before it, but that this is not a case where a reasonable man or litigant could think that the Appellate Authority was biased, unless of course recourse was taken to the surmises or conjectures. According to the learned Counsel, there should be real likelihood of bias and it should be determined on the probabilities to be inferred from the circumstances by Court, objectively. According to him, there must exist cogent circumstances from which reasonable man would think it probable or likely that the Appellate Authority would or was prejudiced. The learned Counsel invited my attention to the findings on merit and pointed out that there was absolutely nothing illegal or perverse with the findings of fact recorded by the Appellate Authority. He suggested that the case of the applicant/landlord was fully proved, and the facts regarding the sub-tenancy created by the tenant, the tenant having secured alternate accommodation and the bona fide personal need of the landlord were fully and completely established and it could not be said that the findings were, in any manner, tainted because of the bias. The learned Counsel has heavily relied upon the observations in the reported decision of the Supreme Court in International Airport Authority of India v. K.D. Bali, , where the Supreme Court emphasises that there must be a reasonable likelihood of bias and that the apprehension must be judged from a healthy, reasonable and average point of view and not on mere apprehension of any whimsical person. The learned Counsel pointed out that in this case, five circumstances, which were put forth to suggest the bias on the part of the arbitrator were not accepted to be sufficient by the Apex Court. Lastly he relied upon the reported decision of the Supreme Court in Bhajan Lal v. M/s. Jindal Strips Ltd., . Shri Gavai also suggested that insofar as the merits are concerned, the order was absolutely correct.
12. Considering the rival submissions, it will have to be seen as to whether in the present impugned order of the Appellate Authority has been hit by the doctrine of bias.
13. It is now a settled law that the doctrine of nemo debet esse judex in causa propia sua has a universal application, not only before the courts below but also before the Tribunals who have to act judicially. The principle has now been further extended even to the administrative enquiries. Courts have vociferously and unanimously abhorred the concept of an interested judge or a leaning judge. The extension of this doctrine was found in Rex. v. Sussex Justices, Ex Parte Mc Carthy, 1924(1) King’s Bench 256, where a rule was evolved that the justice should not only be done but should manifestly and undoubtedly be seen to be done. This principle was accepted in Manaklal’s case (cited supra). There, the Apex Court held-
“It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially; and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the lest always is and must be whether a litigant could reasonably apprehend that a bias is attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done.”
The Apex Court went on further to hold as follows :
“But where pecuniary interest is not attributed but instead a bias is suggested, it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the litigant or the public at large a reasonable doubt about the fairness of the administration of justice. It would always be a question of fact to be decided in each case. ‘The Principle”, says Halsbury, memo debet esse judex in causa propia sua precludes a justice, who is interested in the subject matter of a dispute, from acting as a justice therein’. (Halsbury’s Laws of England, Vol. XXI p. 535, para 952). In our opinion, there is and can be no doubt about the validity of this principle and we are prepared to assume that the principle applies not only to the justices as mentioned by Halsbury but to all tribunals and bodies which are given jurisdiction to determine judicially the rights of parties.”
The Apex Court in this case has quoted with approval the English decision in Rex v. Sussex Justices, Ex Parte McCarthy, 1924(1) K.B. 256 (cited supra), as also the other decision in Rex v. Essex Justices, Ex parte Perkins, 1927(2) K.B. 475. As far as the English Law is concerned, it will be clear from the earlier quoted paragraph in Metropolitan Properties Co. (F.G.C.) Ltd.’s case, that the principle originally enunciated in these cases was limited in the case reported in R. v. Barnsley Country Borough Licensing Justices, Ex parte Barnsley & District Licensed Victuallers’ Assocn, 1960(2) All England Reports 703. However, the decision by Lord Denning in Metropolitan Properties Co. (F.G.C.) Ltd’s case (cited supra) was accepted in S. Parthasarathi’s case (cited supra) in 1973 by Mathew, J., who held that mere surmises or conjectures would not be enough, but there must be a real likelihood of bias. It was held that there must exist circumstances from which a reasonable man would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. It will, therefore, be seen that a further dimension was added to the law laid down in Manaklal’s case. The observation in Manak Lal’s case was, “In such cases the test is
not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the Tribunal. To this, an aspect of real likelihood of bias seems to have been added and it is further reiterated that the reviewing authority, in order to see whether there was a real likelihood of bias, must make a determination on the basis of the whole evidence before it, and then decide whether on the basis of those circumstances, a reasonable man could infer that there was a real likelihood of bias. The Court has also warned that there must exist the circumstances which could give rise to a thought in the mind of the reasonable man that probably or likely, the concerned officer was prejudiced. The same view was expressed in Ratanlal’s case (cited supra), where on taking the stock of the Indian and English cases, the Apex Court accepted the law laid down in Manak Lal’s case. In paragraph 12 of the judgment, the Court has made a significant observation that in the facts of that case, there was not only a reasonable apprehension about the bias of one of the members of the Enquiry Committee, but such apprehension had become real when the said member appeared as a witness to prove the charge and thereafter himself proceeded with the enquiry as a member of the Enquiry Committee and , thus, sat in his capacity as a judge. Thus, the test of real likelihood which was propounded in S. Parthasarathi’s case seems to have been accepted, though the Court has not said so specifically in Ratanlal’s case. Therefore, what becomes essential is not the proof of the fact of the bias but a reasonable apprehension thereof which apprehension is based not only on surmises and inferences but on some tangible facts which would justify an inference that there could be a real likelihood of a bias. It has been suggested in Ratanlal’s case that essentially it is a question of fact which would depend upon the evidence. Thus, though in Metropolitan Properties Co. (F.G.C.) Ltd.’s case (cited supra), Lord Denning had chosen to go only on the impression gathered by a reasonable man, different dimensions have been appreciated by the Apex Court to the doctrine of bias and it is held that a mere apprehension of a reasonable man would not do but such apprehension has to be based not on surmises or inferences but should be supported by tangible facts which would give a reasonable apprehension of a real likelihood of bias.
14. Testing the present case on the basis of these principles, it has to be said that such apprehension of bias is not possible. The matters proceeded before the Appellate Authority almost for about an year when no party even remotely felt that the Appellate Authority was, in any manner, biased. There is nothing to suggest that the parties, or any one of them, had ever complained of the bias. For that matter, the said bias has not been complained of in the present petition. All that has been said in the petition is that the Appellate Authority had fully relied upon the Notes of argument provided by the respondent No. 2’s Counsel. In the strict sense, therefore, the bias has not been pleaded before any of the authorities, including this Court. The bias, being a question of fact, as has been held in Manak Lal’s case (cited supra), this question was bound to be pleaded.
There is an essential difference in all the cases cited by Shri Bobde and the present case, and the difference is that in all the cases right from the beginning there were some such facts present as would have given rise to the apprehension of bias, while in the present case it is only after the case is disposed of by way of a judgment that the bias is being complained of on the basis of language of the judgment. Thus, in the present case, the bias, which was nowhere felt during the pendency of the appeal, is inferred on the basis of the language of the judgment. This is nothing but
a surmise of the bias. According to the learned Counsel for the petitioner, the resemblance between the appellate order and the Notes of argument is so much that such inference of bias is the only inference and the same inference is a natural and the only outcome of the resemblance. It is difficult to say that bias is the only outcome of the resemblance, even if it is conceded that there is resemblance. In the first place, the close examination of the two documents namely, the order and the Notes of argument/though shows that there is a similarity between the two documents to a large extent, it cannot be said that the order is almost a replica of the Notes of argument. Shri Bobde suggested that the similarity is shocking and it only goes to show that the Appellate Authority has not applied its mind at all. I don’t agree. The introductory paragraphs of the Appellate Authority’s judgment are entirely different, where the Appellate Authority has taken a stock of the contentions of the appellant and the respondent before it. Shri Bobde suggests that even the questions for determination, which have been framed by the Appellate Authority are identical as framed in the Notes of argument. I am afraid, they were bound to be identical, though it does seem that the language is different. Shri Bobde then pointed out that in deciding the question No. 1, the same admissions, which have been quoted in the Notes of argument, are quoted in the order, also in the same order and in the same manner. It is really difficult to understand the contention, for the simple reason that if the specific admissions are relied upon, they are bound to be identical. Merely because, the respondent No. 2, in his Notes of argument, had quoted the same, it did not mean that the said could not be reproduced and relied upon by the Appellate Authority. That apart, it does not seem that merely what is stated in the Notes of argument has been lifted bodily and used in the order. Though there is some similarity, it does not appear that the Notes of argument have been bodily lifted and used. Same is the situation regarding the other aspects which have been decided on the question of bona fide need on the part of the landlord.
15. The matters, which have been considered while answering this issue in favour of the respondent No. 2, appear to be altogether different and it cannot be said that there is any similarity in the paragraphs. There does appear to be similarity in some part of the paragraphs but such similarity was only natural, considering the fact that the notes of arguments were prepared and they must have been perused by the Appellate Authority. After all, in this case, after the case was closed, the order came to be passed somewhere after about 7 or 8 months. If, therefore, some similarity lurks in, it cannot be said to be an unnatural feature. Almost similar is the decision regarding the third question decided by the Appellate Authority regarding subletting of the premises. It is really strange that the petitioner should be complaining that the notes of arguments were used when the notes of arguments of both the sides have been supplied to the Appellate Authority with the sole idea to enable it to write an order.
16. Thus, though there is similarity in the notes of arguments supplied by the respondent No. 2 and the resultant order, and though at times the similarity becomes rather more prominent and striking, that circumstance by itself will not give rise to an inference that the Appellate Authority was biased or that it has displayed such impropriety as would invalidate its order. When the matter is considered from the tests laid down by Maniklal’s case and S. Parthasanthi’s case, which are ultimately followed in Ratanlal’s case- (all cited supra) , it cannot be said that there was a bias in the mind of the Appellate Authority, and that the similarity is of such a degree as would give rise to real apprehension that the Appellate Authority was, in any manner, biased. Such similarity, in the absence of any other circumstance either pleaded or shown,
cannot by itself give rise to an inference for bias. The other cases argued include P.K. Ghosh’s case, . I am afraid, the facts in this case are entirely different. In the said case, it was pointed out that the Honourable Judge, who decided the matter had already appeared for one of the parties and , therefore, ii was inappropriate on his part to have taken the case and, therefore, the observations are entirely inapplicable to the present case. Reference was also made to A.K. Kraipa case, , but even that case is of no consequence in view of the difference in facts, which is obvious. It is, therefore, found, as a matter of fact, that in the present case, it could not be said that the Presiding Officer, i.e., the Resident Deputy Collector (Appellate Authority) was, in any manner biased.
17. That leaves me with the merits of the matter. Now, both the authorities below have concurrently found that there existed relationship of landlord and tenant between the parties. In fact, elaborate reasons have been given by both the authorities below supporting the said relationship by, firstly, holding that the respondent No. 2 Purushottam had become the owner of the shop premises and that there existed a relationship of landlord and tenant between him and the petitioner Dharamdas. Reference has been made to the earlier litigation and the judgment in Civil Suit No. 272 of 1983 wherein the matter has been concluded at the appellate stage. There is also a gift-deed by Mangirmal who has himself been examined, which would suggest that the respondent No. 2- Purushottam has become the owner of the premises in question. The contention raised by the petitioner that it was Jankidevi who was the landlady and not her son Purushottam had already been refuted by both the authorities below.
18. As regards the bona fide need, Shri Bobde heavily relied upon the circumstance that Jankidevi had other houses in Rajapeth, which also had some shops and that those shops had been let out after the present application was filed. Now, it cannot be denied that respondent No. 2- Purushottam is the landlord and he does not own any other shop. He has proved his need by examining himself and suggesting that he had obtained a Diploma in repairing Audio and Video instruments. The Diploma is to be seen on the record. He has also proved that the shop in question was near Prabhat Talkies and as such in the main market which was a business area and that he had no other shop of his own. Once it is brought home that the landlord does not have any other shop of his own and once his real need to occupy the shop for doing business is established and once it is further established that the need is bona fide, it should be normally the end of the matter. Here, the landlord has even proved the availability of capital for starting the business. He has also pointed out that he is unemployed and needs shop in question. The authorities below, therefore, have rightly held that there were bona fide need on the part of Purushottam. Even if it is established that the mother of respondent No. 2- Purushottam has a house at Rajapeth, it is the choice of the landlord to start the business at the disputed shop as he is the sole judge of his needs. That apart, if his mother has some shop, that does not mean that he can rightfully occupy those shops. This is quite apart from the fact that the house of Jankidevi is at Rajapeth which is a residential locality and not a business locality. Both the authorities below have correctly appreciated the evidence and have correctly held that the house was required for bona fide personal occupation.
19. As regards the question of sub-letting also, the authorities below have correctly found that respondent No. 3- Govindram had been given a place in the shop. The claim of Govindram that he sits on the road and not in the shop, is difficult to be accepted. The authorities below have correctly taken note of the contradictions in the oral evidence and the pleadings on the part of the tenant. At one place there is a
clearcut admission that Govindram was occupying the shop as a licensee and not as a sub-tenant. That should be the end of the case of Govindram that he sits outside the shop on the road and not in the shop. In paragraph 6 of the written-statement, Govindram had admitted that he possessed one sewing machine only. However, in the evidence, an entirely different story has come to the effect that the machine belonged to the tenant and not to Govindram. All this goes to suggest that Govindram has been allowed to use the shop premises. He is allowed to sit in the shop and that is not gratuitous. It is clearly admitted by the petitioner/tenant that he charged Govindram for that purpose. It that is so, at least a part of the shop has been parted with by the tenant in favour of Govindram and that would clinch the issue insofar as the subtenancy is concerned. The issue of sub-tenancy has, thus, been correctly decided by both the authorities below. Shri Bobde submits that merely because Govindram sits, it cannot be said to be a parting of possession on the part of the tenant because he can any time terminate Govindram’s possession. That does not appear to be so from the record. The authorities below have correctly, therefore, held that the fact of subtenancy has been proved. The finding is correct and is confirmed.
20. Lastly, the question was as to whether the petitioner had secured alternative accommodation. It is an admitted position that the tenant is also doing a business in the other shop, which is shop No. 27 in the same locality. The contention of the petitioner/tenant was that it is a business which was run by his brother. It has also come in the evidence that there is no partition between the petitioner and his brother. It would, therefore, be seen that the petitioner had an interest in that shop and the authorities below were right in holding that the tenant had secured the alternate accommodation. The accommodation was in the same premises. Therefore, it can be deduced that it is an alternate accommodation. Similarly, it seems to have been secured during the pendency of this tenancy and as such it has to be held that the authorities below were correct in holding that the tenant has secured alternate arrangement.
21. Lastly, Shri Bobde contended that the amendment application was not decided by the Appellate Authority. What was sought to be introduced by way of amendment was the fact that the mother of the respondent Purushottam, namely, Jankidevi owned a huge building at Rajapeth and that the said building had about 4 to 5 shops which were let out in the year 1987-88 in favour of about four tenants. From this, it was sought to be introduced that the need on the part of the landlord was fake. Shri Bobde contended that the Appellate Authority did not at all consider the amendment which shows non-application of mind on its part. It does not appear as if the Appellate Authority has not applied its mind to the amendment. It will be seen that while deciding the question of bona fide need, the Appellate Authority, in paragraph 2, has considered the said amendment application. The Appellate Authority has made a specific reference to the same. It has held that these questions would have been raised before the Rent Controller where they were not raised at all. However, the Appellate Authority has considered the amendment on merits also and has refuted the contention raised therein by holding that even if the appellant-tenant was allowed to raise those contentions, they would be of no help to him, because the building was owned by Jankidevi and not by Purushottam and the same was in residential locality and not in the commercial locality. This argument also has to be rejected.
22. In the result, it has to be held that the two concurrent orders are correct orders. The petition has no merits and deserves to be dismissed and it is accordingly dismissed with costs.
23. Petition dismissed.