JUDGMENT
B.P. Dharmadhikari, J.
1. This is a writ petition under Article 227 of Constitution of India challenging the order dated 24-9-1991 passed by Additional Collector, Nagpur as Appellate Authority under Clause 21 of C.P. and Berar Rent Control Order, 1949 (referred as Rent Control Order hereafter) whereby said authority has allowed the appeal filed by respondent-tenant and has reversed the order dated 30-11-1988 passed by Rent Controller, Nagpur granting permission to petitioner landlord to terminate tenancy of respondent under Clause 13(3)(i)(ii) of Rent Control Order.
2. I have heard Advocate Shri Joshi for petitioner-landlord and Advocate Shri Shelat for respondent-tenant. After hearing both the counsels, I find that the case for remand is made out. Both the Advocates have stated that remand should not be ordered in the matter and this Court should itself decide it one way or the other.
3. Facts in brief are that the mother of petitioner filed application under Clause 13(3)(i)(ii) of Rent Control Order contending that the respondent is her tenant and monthly rent was Rs. 60/-. The present petitioner was applicant No. 2 with his mother in it. It was pointed out that the respondent tenant is in arrears of rent since 11-5-1983 till 28-2-1987 for period of 46 months and amount thereof worked out to Rs. 2760/- only. A registered A/D notice dated 26-2-1987 was therefore served upon tenant and on 24-3-1987 respondent paid sum of Rs. 1500/- only by cheque and promised to pay the balance soon. The petitioner therefore filed application before Rent Controller on 28-4-1987 and at that time the respondent was in arrears of Rs. 1380/- i.e. rent of 23 months. The respondent admitted the relationship as landlord and tenant between parties and also monthly rent. He took defence that as petitioner did not issue rent receipts, he remitted rent by money-orders and also by cheques but petitioner avoided to accept the same only to create false evidence against him. Rent Controller then recorded evidence of parties and on 30-11-1988 accepted the case of petitioners and granted them permission under both the clauses. This permission was challenged by respondent by filing appeal before Appellate Authority under Clause 21 of Rent Control Order and the Appellate Authority on 24-9-1991 reversed the permission granted to petitioners and allowed the appeal of tenant. The petition is directed against this order.
4. Advocate Joshi for petitioner contended that the order of Appellate Authority is cryptic and shows apparent errors. He states that arrears of 46 months were demanded in notice dated 26-2-1987 and tenant paid rent for 25 months only i.e. from 1-5-1983 to 30-5-1985. He further states that after the application was filed before Rent Controller another cheque for Rs. 1500/-towards rent of 25 months was forwarded. He contends that this conduct clearly shows that Rent Controller was justified in granting permission under Clauses (i) and (ii). He further states that the 3 documents on which Appellate Authority has placed reliance are not in fact the relevant money-orders or documents. He invites attention to para 4 of the judgment of Appellate Court and states that Exhibit NA-8 is in fact a money-orders received by landlord, Exhibit NA-10 is the cheque for Rs. 60/- which was not forwarded while Exhibit NA-14 is intimation to collect envelope which contained cheque for Rs. 720/- dated 15-2-1984. It is his argument that this is total non-application of mind by the Appellate Authority. He further states that cheque which is allegedly refused is dated 15-2-1984. According to him legal notices forwarded in February, 1987 and as such all these Exhibits were totally irrelevant. He has argued that 46 months arrears show 46 defaults and in support has relied upon judgment of this Court reported at 1981 Mh.L.J. page 446, Nathuji Udapure v. Narendra Thakkar. He has further contended that whenever rent was cleared, it was not up-to-date clearance and therefore also the present respondent is habitual defaulter. He has relied upon judgment reported at 2002(3) Mh.L.J. Pg. 813, Zakir Hussain v. Ravindrakumar. He has also relied upon the judgment of Hon’ble Apex Court reported at , Mariyam Begum v. Basheerunnisa Begum to substantiate his contention that tenant is under obligation to pay rent regularly even during pendency of proceedings. He further points out that only three money-order coupons were put to landlord by tenant in his cross examination and the same were Exhibits NA-2, 4 and 6 respectively. All these money-orders were sent in period of about 15 days and were sent back. He contends that there is no refusal. He states that landlord is residing on first floor and tenant is occupying ground floor of same building. He states that landlord accepted money-orders and there are total 19 money-orders forwarded between 1968 to 1982 which are accepted by landlord. He further states that rent receipts are being issued and as such there was never any attempt or intention by landlord to refuse rent. He states that receipt of envelope back by respondent with endorsement “not claimed” does not constitute refusal. He argues that after noticing that landlord is not available, the tenant forwarded these money-orders in short interval. He relies upon the judgment of Hon’ble Apex Court reported at , M.K. Mukunthan v. M. Pasupathi in support. He has further relied upon the judgment reported at , Balwant Singh v. Anand Kumar to contend that tenant is under obligation to deposit rent every month. He invites attention to the defence in written statement to the effect that money-orders were being sent as landlord did not issue rent receipts.
5. Advocate Shelat for tenant has stated that there is material on record to show that as money-orders/cheques were refused, the question of arrears came up. He argues that in 1983 landlord refused to issue receipts and therefore payment was started through money-orders or cheques. He states that on 1-3-1983, the respondent tenant forwarded in notice to the landlord in this respect. He invites attention to said notice and also to the fact that as the cheque was not encashed, money-order was forwarded. He states that the respondent tenant moved Civil application 3042/2000 and by obtaining orders upon he deposited the rent amount in advance in the office of this Court. He contends that there is no habit formed by respondent and there is no such proof on record. He relies upon one unreported judgment of this Court in this respect to contend that once money-orders/cheque is refused by landlord, law does not require tenant to continue to forward such money-order/cheque towards rent. He states that tenant has deposited rent amount till 31-12-2005 and there are no arrears. He further states from deposition and cross of landlord the situation is clear. According to him the material on record should be considered by this Court afresh and as the order of Appellate Authority can be justified on the basis of such material, it is not necessary to remand the matter back to it. In support he has relied upon judgment of Karnataka High Court in case between Jayaraja Hegde v. State of Karnataka reported at 2003 AIHC 849.
6. In reply, Advocate Joshi has urged this Court to consider the other material available on record and to quash the order of Appellate Authority and to restore the order of Rent Controller in favour of petitioner-landlord. He also states that remand should not be ordered and in case of adverse order in this petition, the petitioner would like to proceed under provisions of Maharashtra Rent Act.
7. In the light of arguments heard, I have perused the record of Rent Controller. I find that on record the petitioner has filed about 16 documents on 19-3-1988 and non-applicant has filed 25 documents on 22nd March, 1988. The 3 documents to which Appellate Authority has made reference are in fact a postal acknowledgment (Exhibit NA-8) dated 3-3-1983, a original cheque for Rs. 60/- (Exhibit NA-10) dated 13-7-1983 and an envelope with endorsement “not claimed” (Exhibit NA-14) dated 24-2-1984 or 6-3-1984. These documents by themselves are not sufficient to justify the findings reached by Appellate Authority in para 4 of its judgment. The Appellate Authority has not considered in necessary details the evidence and the documents on record. The conclusion that respondent tenant is not habitually in default is not based upon reasoning after considering the material on record. In said paragraph Appellate Authority has also not given reasons to arrive at finding different than one reached by Rent Controller. Similarly, if paragraph 3 of appellate judgment is seen, it again shows similar non-application of mind. The very fact that the position of arrears on the date of filing of application has been lost sight of clearly reveals that there is an error apparent. The judgment of Appellate Authority does not show that provisions of law have been applied after ascertaining the facts on record. As argued by parties, there is material on either side which needs to be considered to find out the reasons for arrears, whether landlord refused to receive money-orders/cheques and in the light of various cases cited by parties; a finding will have to be given whether the respondent-tenant is habitually in default.
8. The Hon’ble Apex Court in 2001(2) Mh.LJ, 786, Santosh Hazari v. Purushottam Tiwari, in para 15 has laid down the duty of Appellate Court writing a judgment of reversal and has observed that Appellate Court must come in close quarters with the reasoning assigned by trial Court and then assigned its own reasons for arriving at a different finding. Relevant observations are :-
15. A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first Appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The Appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the Appellate Court. The task of an Appellate Court affirming the findings of the trial Court is an easier one. The Appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the Appellate Court for shirking the duty cast on it. While writing a judgment of reversal the Appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the Appellate Court, moreso when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the Appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the Appellate Court is entitled to interfere with the finding of fact (See Madhusudan Das v. Smt. Narayani Bai ). The rule is – and it is nothing more than a rule of practice – that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge’s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the Appellate Court should not interfere with the finding of the trial Judge on a question of fact (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh ). Secondly, while reversing a finding of fact the Appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first Appellate Court had discharged the duty expected of it.
9. Clause 21 of Rent Control Order stipulates that the decision of Collector in appeal and subject only to such decision, an order of Rent Controller is final and no further appeal or revision or application for review lies from such decision to any authority whatsoever. Thus the findings of Appellate Authority at least on facts are supposed to be final. Here, one does not get any such finding and the conclusion reached is by placing reliance upon only 3 documents which do not lend support to it. There is absolutely no reference to thought process adopted by Rent Controller or to the other documents/evidence on record. Thus, the order passed fails to meet the requirements of Clause 21. Learned single Judge of this Court in judgment reported at 7975 Mh.L.J. 746, Janba Borkar v. Rajeshkumar Agrawal has taken the similar view in relation to discharge of its obligation/jurisdiction by Appellate Authority. It is held that the Appellate Authority has to deliver decision which means expression of opinion arrived at after due consideration of the evidence and the argument. The Appellate Authority has to properly appreciate the evidence on record and then has to write an order indicating that evidence has been fairly and properly dealt with. It has to make sincere effort in the administration of justice to show to the superior Court that it has applied its mind to all the evidence on record and has also considered all the important factors in that behalf. The learned single Judge has observed that the Rent Controller as well as the Appellate Authority are not merely executive officers but discharge judicial functions and adjudicate civil rights of the parties. It is observed that the successor in office of such authority (in case of review) or this Court or the Hon’ble Apex Court would be placed under great disadvantage if well considered and well reasoned order is not passed by Appellate Authority. The order of Appellate Authority impugned in this writ petition does not meet these requirements.
10. Though both the learned counsels have contended that this Court should not order any remand and have also cited various cases (stated above) to substantiate the pleas respectively taken by their clients on merits. I find that in writ jurisdiction it would be futile to make such an attempt because that deprives the aggrieved party of remedy of review under Clause 21 of Rent Control Order or of approaching this Court in writ jurisdiction. When the lower authority has failed to exercise jurisdiction available to it, this Court cannot substitute its own appreciation of facts for such lower authority. The judgment reported at 2003 AIHC 849 on which Advocate Shelat has placed reliance to make an attempt to persuade this Court not to remand the matter back does not consider this position. It was not the case in which it could have been said that Appellate Tribunal has failed to apply its mind and has failed to discharge its obligation and therefore, its judgment is no judgment in the eye of law. I have perused the documents on record and also the order of Rent Controller. The error committed by Appellate Authority in relation to Clause 13(3)(i) is apparent. Further, from material on record I find that the remand to Appellate Authority which is final authority under Clause 2.1 in the scheme of Rent Control Order is warranted. The obligations of Appellate Authority have not fallen for consideration before the Honourable Division Bench of Karnataka High Court. However, the Karnataka High Court has also held that if superior Court finds that on the basis of record, the verdict of Appellate Authority ought to have been different, then a remand would be justified. Here, I do not see any “finding” by Appellate Authority at all and I am satisfied that this is fit case for remand. More discussion in detail at this stage would prejudice the parties in prosecution of appeal before Appellate Authority and hence. I’m avoiding the same. The other rulings on which both the Advocates rely will become relevant only after the facts crystallize. At this stage, it would be premature to consider those authorities. The parties are free to cite the same before Appellate Authority and said authority is duty bound to find out their relevance and application in the matter. As the matter is being sent back, I do not feel it proper to express any view in relation to these authorities at this juncture.
11. The impugned order dated 24-9-1991 passed by Additional Collector, Nagpur in R.C. Appeal No. 126/A-71(2)/1988-89 is hereby quashed and set aside. The said appeal is restored back to the file of Appellate Authority for its fresh decision after hearing both the parties in accordance with law. As the matter is very old the Appellate Authority is directed to dispose of the appeal as early as possible and in any case within the period of six months from the date of communication of this order to it. Registry to forward R and P back to Appellate Authority immediately. Writ Petition is thus allowed. Rule made absolute in above terms. No costs.
