- (1.) Special leave granted. Dr. Radhyshyam, the respondent, filed an application under Section 13 of the C. P. and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as "The Rent Control Order") against the appellants for permission to serve with notice of ejectment. The application was based on several grounds, but the eviction was pressed in the High Court only on the ground of need of the entire house for bona fide occupation and habitual default in the payment of rent. The matter was argued only on the aforesaid two grounds, before us also. The Deputy Collector and Rent Controller, Gondia, decided all the grounds against the landlord and dismissed the application by his order dated 13-9-1985. The Resident Deputy Collector, Bhadara dismissed the appeal by order dated 31-3-1986. Dr. Radhyshyam, the landlord then filed a Writ Petition No. 1356 of 1986 under Articles 226 and 227 of the Constitution of India before the Bombay High Court. Learned single Judge held that the tenants were habitual defaulters, and that the landlord had established his bona fide need. The learned single Judge however took the view that it would be proper to remand the case to the Rent Controller for determining the extent of the need of the petitioner (respondent in this appeal) for his residence and clinic/ dispensary and also for examining the case of the petitioner to reconstruct the house. Learned single Judge of the High Court also directed that full opportunity be given to the parties to amend the pleadings and lead evidence and thereafter to pass such suitable orders under clauses 13(3) (vi) and (vii) of the Rent Control Order in accordance with law. The learned single Judge by his order dated 11-12-1987 remanded the matter to the Rent Controller with the above directions.
(2.) The tenants/ appellants aggrieved against the Judgment of the learned single Judge filed a Letters Patent Appeal before the Division Bench of the High Court. The Division Bench by order dated 23-10-1989 dismissed the appeal taking the view that in truth and substance the order was passed by the learned single Judge under Art. 227 of the Constitution against which Letters Patent Appeal was not maintainable. The tenants have come in appeal by grant of special leave in S.L.P. No. 3484 of 1991 against the Judgment of the learned single Judge of the High Court dated 11-12-1987 and S.L.P. No. 2980 of 1990 against the Judgment of the Division Bench of the High Court dated 23-10-1989.
(3.) It was contended on behalf of the tenants/appellants that the Writ Petition No. 1356 of 1986 was filed by the respondent/landlord under Articles 226 and 227 of the Constitution. In the relief prayed in the writ petition it was clearly mentioned that the orders dated 13-9-1985 passed by the Rent Controller, Gondia, and the order dated 31-3-1986 passed by the Resident Deputy Collector, Bhandara be quashed and set aside by a suitable writ, order or direction. It was submitted that in the heading of the petition it was clearly stated that it was a petition under Articles 226 and 227 of the Constitution. It was further argued that even though Art. 227 was mentioned in the writ petition but in substance it was a petition under Art. 226 and the entire tenor of the order of the learned single Judge clearly showed that it was dealing with a petition under Art. 226. It was thus contended that the learned Division Bench was not correct in taking the view that no appeal was maintainable against the order of the learned single Judge and in holding that the learned single Judge had passed the order under Art. 227 of the Constitution. It was also submitted that the Division Bench of the High Court wrongly placed reliance on a Full Bench decision of the High Court in Sushilabai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha, 1989 Mah LJ 695.;