JUDGMENT
N.P. Chapalgaonker, J.
1. This is tenants’s revision application under section 26 of the Hyderabad Houses (Rent, Eviction & Lease) Control Act, 1954 (hereinafter referred to as ‘Hyderabad Rent Act’ for the purpose of brevity) challenging the decree against him which was passed by the learned Rent Controller, Hingoli, on the ground that he is a wilful defaulter and was confirmed later by the learned District Judge, Parbhani.
2. Petitioner was tenant of shop number 2803 situated at Sadar Bazar in Hingoli town and the landlord filed an application under section 15 of the Hyderabad Rent Act contending that the defendant was a wilful defaulter and has not paid the rent in time and on this ground the eviction was sought. Defendant petitioner in his written statement denied being a wilful defaulter but also mentioned that in an earlier Civil Suit bearing No. 132 of 1975 for the recovery of the rent which was filed by the plaintiff landlord, defendant had challenged the ownership of the plaintiff and since the Rent Controller has no jurisdiction to decide the ownership, the eviction proceedings be stayed till the decision of the Civil Court is available. On these pleadings, the learned Rent Controller framed the issues which included the following two issues:
Issue No. 1: Does the plaintiff prove that the defendants are wilful defaulters?
Issue No. 2: Do the defendants prove that the said premises do not belong to the plaintiff?
The learned Rent Controller and Assistant Collector, Hingoli, was pleased to record a finding that the plaintiff is a wilful defaulter. But really nothing can be made out by the observations made by the learned Rent Controller in his judgment. There is absolutely no discussion about any evidence on record and after some narration of the issues the findings were recorded in the following manner:
Issue No. 1: The Civil Court has proved the execution of the rent notes by the defendants and therefore, since no amount has been paid by the defendants to the plaintiff, knowing fully well that they are tenants of the plaintiff the defendants are obviously wilful defaulters.
Issue No. 3: As rightly pointed out by the Civil Court, the sale-deed of 1344 Fasli in respect of the suit shop proves that the premises do not belong to the plaintiff.
I have checked the wording quoted above from the original record which was called by this Court. If the learned Rent Controller found that the plaintiff was not the owner of the suit premises, the application should have been dismissed. However, Shri Lovekar, learned Counsel appearing on behalf of defendant/petitioners, was fair enough to concede that, in fact, in these proceedings they have admitted the ownership of the respondent landlord. Therefore, this finding by the Rent Controller was unwarranted and is also without jurisdiction.
3. In respect of the point at issue, whether defendant tenant is a wilful defaulter, the learned Rent Controller has not at all discussed any evidence on record and recorded a finding. In this case, plaintiff had examined himself and the son of the defendant was examined on his behalf. Son of the defendant Shivlal had deposed that he is prepared to pay rent since Ugrasen has now been adjudged to be owner of the suit premises. Both these statements were not at all considered by the learned Rent Controller. Except the observations made above, there is no discussion and consideration in the judgment of the learned Rent Controller and he was pleased to order eviction of the petitioners. This order dated 12th December, 1980 in Case No. 1976-RCO-2 was challenged before the learned District Judge, Parbhani, in Rent Civil Appeal No. 1/1981 and the learned District Judge in his order dated 18th August, 1988 was pleased to accept the findings and dismissed the appeal. The learned District Judge was also very cryptic and brief in his judgment and made following observations only:
“While rebutting the aforesaid argument, the learned Counsel Mr. Pohandulkar for the respondent, pointed out to me that the defendant firstly denied the title of the plaintiff. But when the decree in Reg. C.S. No. 132/75 was passed and the present plaintiff was held to be the landlord, then only the defendant alleged to have deposited the arrears of rent in the Court. However, no documentary evidence is brought on record and, therefore, it must be held that the defendant was a wilful defaulter in payment of rent, as he went to the extent of denying the title of the landlord which is not permissible under Order XXXV, Rule 5 of the Code of Civil Procedure. Under such circumstances, he must be held to be a defaulter and it must be held to be a wilful defaulter. I agree with the proposition made by the learned Counsel and proceed to pass the following order.”
This can hardly be said to be proper exercise of the jurisdiction vested in the District Judge under section 25 of the Hyderabad Rent Act. The appellate power includes the power of the reappreciation of the evidence and whatever findings were recorded by the learned Rent Controller should be either confirmed or reversed after appreciation of the evidence. The learned District Judge has not even made single reference to any piece of evidence on record. If the appellate Court fails to consider the evidence on record, same is failure to exercise jurisdiction vested in law and the whole judgment is vitiated because of it.
4. Legislation protecting the tenants against the eviction was passed with a particular intention benevolent to the tenants as a class. Tenants were protected against eviction. Unless the grounds approved by the legislation entitling the landlord for the eviction were present and a finding about the existence of the said ground was recorded by the Rent Controller, no eviction order can be passed. Sub-section (1) of section 15 of the Hyderabad Rent Act prescribes that a tenant shall not be evicted, whether in execution of a decree or otherwise except in accordance with the provisions of section 15. Sub-section (2) of the said section prescribes that the landlord will have to give an application to the Rent Controller and if the Rent Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied about the existence of the grounds mentioned in the said application, then only the order of eviction can be passed against the tenant. Therefore, unless the Rent Controller himself is satisfied about the existence of ground mentioned in the application under section 15 of the Hyderabad Rent Act entitling the landlord to evict tenant, no decree of eviction can be passed. While considering whether a consent decree in a rent proceedings can be acted upon, Supreme Court in the case of K.K. Chari v. R.M. Seshadri, observed thus:
“The true position appears to be that an order of eviction based on consent of the parties is not necessarily void if the jurisdictional fact viz. the existence of one or more of the conditions mentioned in section 10 were shown to have existed when the Court made the order. Satisfaction of the Court, which is no doubt a prequisite for the order of eviction, need not be by the manifestation borne out by a judicial finding. If at some stage the Court was called upon to apply its mind to the question and there was sufficient material before it, before the parties invited it to pass an order in terms of their agreement, it is possible to postulate that the Court was satisfied about the grounds on which the order of eviction was based.”
The same principle was reiterated by the Supreme Court in the case of Smt. Nai Bahu v. Lala Ramnarayan and others, , in which it was observed:
“It is well-settled that where the Rent Control and restrictions Act are in operation, a landlord cannot obtain eviction of the tenant unless he can satisfy the requirements of the provisions in those Acts.”
5. Existence of the grounds of eviction is a sine qua non for the exercise of the jurisdiction vested in the Rent Controller to grant an application under section 15 of the Hyderabd Rent Act and this will have to be decided by the Rent Controller by applying his own mind to the facts of the case. He cannot delegate his authority to the Civil Court or any other Court. Since the Rent Controller has to satisfy himself whether the default is wilful or not, to consider whether he should exercise his discretion under proviso to section 15(2)(i), it is necessary that the Rent Controller himself should apply his mind to the question whether the default is wilful or not. A useful reference can be made to a judgment of learned Single Judge of this Court in the case Bane Khan alias Munshi s/o. Sharif Khan v. Surajlal s/o. Balaprasad Jaiswal and others, 1984 Mh. L.R. 26. In this case, a decree passed by the Civil Court was produced by way of evidence before the Rent Controller and on the basis of that decree, learned Rent Controller held the tenant in that case to be a wilful defaulter. The finding recorded by the learned Rent Controller was confirmed by the learned District Judge in appeal. This Court in the revision application by tenant challenging concurrent findings, observed thus:
“In my judgment, the approach of the learned District Judge is obviously erroneous, which amounts to an error apparent on the face of the record. There is no application of mind by the learned District Judge to the proviso to section 15(2)(i). In the absence of such application of mind, the finding recorded by the learned District Judge cannot be sustained and it requires to be quashed.”
In the instant case, there appears to be total failure of the application of mind by the learned Rent Controller and the learned District Judge. Both have passed cryptic orders without referring to the evidence on record and, therefore, those will have to be quashed.
6. Shri V.M. Kendre, learned Counsel appearing for respondent, invited my attention to the judgment of Supreme Court in the case of Manik Chandra Nandy v. Debdas Nandy and others, , to contend that the revisional jurisdiction of this Court does not empower this Court to set aside a finding of fact and any interference in the finding of fact is not permissible in the exercise of the revisional jurisdiction. There cannot be any dispute about the proposition. When a finding of fact is recorded concurrently by both the courts below, this Court in exercise of revisional jurisdiction either under section 26 of the Hyderabad Rent Act or under Article 227 of the Constitution of India will be very slow and will not normally interfere unless the findings are totally perverse or without any evidence. In the instant case, findings were recorded without even reference to the evidence and, therefore, this cannot be regarded to be findings recorded by the Court in the exercise of its original and appellate jurisdiction. This is a failure to exercise jurisdiction vested in law and it would, therefore, be not only proper but necessary for this Court to interfere in view of the provisions of section 26(b) of the Hyderabad Rent Act which reads that a revision would lie to the High Court, in case, the original or the appellate authority fails to exercise its jurisdiction so vested. In this view of the matter, both the judgments, that of the learned Rent Controller dated 12th December, 1980 and of the learned District Judge, Parbhani, dated 18th August, 1988 will have to be quashed and the matter will have to be remitted back to the learned Rent Controller for decision according to law.
7. Shri Kendre, learned Counsel for respondent, had filed an affidavit and certified copy of the panchanama to say that the possession of the suit premises has already been taken by the landlord in execution of the order passed by the learned Rent Controller which is impugned in this revision application. Therefore, until the Rent Controller decides the case afresh, I do not think that it is necessary to disposses the landlord. Landlord can remain in possession till the matter is decided afresh by the learned Rent Controller as per directions of this Court.
8. In result, revision application is allowed. The judgments and orders passed by the learned Rent Controller & Assistant Collector, Hingoli, on 12th December, 1980 in Case No. 1976-RCO-2 and that of the learned District Judge, Parbhani, dated 18th August, 1988 in Rent Civil Appeal No. 1/1981 are both hereby set aside. The matter is remitted back to the learned Rent Controller, Hingoli, for decision afresh according to law and as per directions and observations contained in this judgment. Since the case is very old one, I direct the learned Rent Controller, Hingoli, to decide the case as expeditiously as possible and under any circumstances on or before 30th day of September, 1994. However, the learned Rent Controller shall not record any further evidence and shall decide the case only considering the evidence on record. No party shall be allowed to lead any further evidence. Parties to appear before the learned Rent Controller on 28th April, 1994. Learned Rent Controller shall thereupon give further date to the parties and shall dispose of the case within the period indicated above. Rule is made absolute in the above terms. In the circumstances of the case, there shall be no order as to costs of this petition.