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2001 DIGILAW 266 (HP)

JATINDER SHARMA v. JEETI MUMMICK

2001-10-03

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J.—This revision petition is directed against the judgment dated 1.12.2000 passed by the learned District Judge, Shimla in Civil Miscellaneous Appeal No. 94-S/14 of 2000 whereby he has accepted the appeal of the respondent-defendant (hereafter referred to as the defendant) and has set aside the order dated 30.10.2000 passed by the learned Sub Judge 1st Class (5), Shimla whereby the application of the petitioner-plaintiff (hereafter referred to as the plaintiff) under Order 39 Rules 1 and 2 of the Code of Civil Procedure (hereafter referred to as the Code) was allowed. 2. The relevant facts are that the plaintiff instituted a suit for permanent prohibitory injunction restraining the defendant from dispossessing him from the premises i.e. first floor of Regal Building, Lakkar Bazaar, Shimla also known as Roller Skating Rink, Shimla except in due process of law and also from creating any type of hindrance in the smooth running of the business by the plaintiff in the said property. The case of the plaintiff, as made out in the plaint, is that he approached the defendant in September, 2000 for letting out the suit property to him for running the business to which the defendant agreed. As a consequence a rent deed dated 2.9.2000 was executed creating a tenancy in the suit property in favour of the plaintiff. The plaintiff paid Rs. 63,000 as security money and Rs. 4,500 as rent for the month of September, 2000 and was put in possession of the said property. However, 2 or 3 days before the date of plaint i.e. 6.10.2000 the defendant asked the plaintiff to increase the rent on the ground that the rent earlier agreed to was too meagre and threatened that in case her demand is not met she would take over the possession of the premises forcibly. 3. An application under Order 39 Rules 1 and 2 CPC was also filed alongwith the suit praying for grant of a temporary injunction restraining the defendant from dispossessing the plaintiff during the pendency of the suit. 4. The defendant contested the suit and filed written statement and also filed reply to the aforesaid application. As per the pleadings of the defendant her case is that her husband was the owner of the suit property and the ground floor of the building, in which the suit property is situated. 4. The defendant contested the suit and filed written statement and also filed reply to the aforesaid application. As per the pleadings of the defendant her case is that her husband was the owner of the suit property and the ground floor of the building, in which the suit property is situated. Her husband was running a Roller Skating Rink in the premises in suit. After his death it was continued by the defendant and her sons. The lower floor i.e. the floor below the Roller Skating Rink had a number of shops and were let out to various tenants. The plaintiff occupied a corner of that floor unauthorisedly and filed an application under Section 11 of the H.P. Urban Rent Control Act before Rent Controller (3), Shimla in 1988 claiming to be a tenant of the premises occupied by him under one of the sons of the defendant and that its electrical supply had been discontinued. A prayer was made for restoration of the supply. His plea of being a tenant was found unreliable and the document relied upon by him was found fabricated. The plaintiff, therefore, withdrew the petition and finally vacated the illegally occupied premises on 18.8.2000 after the plaintiff had given up her claim for mesne profits for unauthorised occupation of said premises. A writing dated 18.8.2000 was executed in this regard which is not disputed. Soon thereafter the plaintiff replaced the locks of the defendant on the suit property on the night intervening 18th and 19th October, 2000 after obtaining interim injunction from a Court and removed some of the articles kept inside the premises in suit. Since there were other articles also huge in number and large in size, therefore, the plaintiff could not remove all of them. He then set up a document dated 2.9.2000 to show that he is a tenant in the premises though such document is fabricated and forged. The act of the plaintiff in attempting to take forcible possession of the premises was reported to the police even earlier in the month of July, 2000 and a suit was also instituted by the defendant in this regard. It is, therefore, claimed that the plaintiff is neither a tenant nor in possession of the premises in suit. The application under Order 39 Rules 1 and 2 CPC was also contested on the similar grounds. 5. It is, therefore, claimed that the plaintiff is neither a tenant nor in possession of the premises in suit. The application under Order 39 Rules 1 and 2 CPC was also contested on the similar grounds. 5. The learned Sub Judge allowed the application on coming to the conclusion that the plaintiff had been inducted as a tenant of the premises. To arrive at this conclusion he mainly relied on the aforesaid rent deed dated 2.9.2000 and made the ad interim injunction earlier granted by him absolute restraining the defendant from illegally dispossessing the plaintiff from the suit property till the disposal of the suit. 6. Feeling aggrieved, the defendant preferred an appeal in the Court of the learned District Judge, Shimla who allowed the appeal and set aside the order passed by the learned Sub Judge. Hence, the present revision petition. 7. I have heard the learned Counsel for the parties and have also gone through the record. 8. The learned Counsel for the defendant contended that the learned District Judge has recorded a perverse finding that the plaintiff has prima facie failed to show that he is in possession of the suit premises whereas he was put in possession on the basis of a written document i.e. the rent deed dated 2.9.2000. It was further contended that after the dues had been paid by the plaintiff he was factually put in possession of the premises on the date of execution of the rent deed, therefore, the order passed by the learned District Judge being illegal deserves to be set aside. 9. On the other hand, the learned Counsel for the plaintiff had contended that the impugned order is based on proper appreciation of the material on record and there being no want of jurisdiction or illegality in the order it does not call for any interference by this Court in exercise of its revisional jurisdiction. It was further contended that basically the rent deed relied upon by the plaintiff is a forged document and further it does not witness that the possession of the premises was ever given to the plaintiff. Therefore, the findings of the learned District Judge cannot be said to be perverse. 10. Before adverting to the merits of the matter, it is proper to refer to law applicable to the present controversy. Therefore, the findings of the learned District Judge cannot be said to be perverse. 10. Before adverting to the merits of the matter, it is proper to refer to law applicable to the present controversy. While dealing with the scope of revisional powers of the High Court under Section 115 of the Code, this Court in H.P. Financial Corporation v. The New India Insurance Co. Ltd. and others, C.R. No. 401 of 1999, decided on 27.8.2001, held as follows : "The revisional powers of the High Court under Section 115 of the Code of Civil Procedure (hereafter referred to as the Code) to interfere with the order passed by the subordinate Court are limited and it can interfere only in a case where the subordinate Court has exercised jurisdiction not vested in it, or has failed to exercise jurisdiction vested in it, or has exercised its jurisdiction illegally and with material irregularity. Even when any of the aforesaid requisites exists, in view of the proviso to sub-section (1) of Section 115 of the Code it has further to be shown that the order if allowed to stand, would occasion failure of justice or irreparable injury to the party against whom it was made. It is clear from the reading of the said proviso that in exercise of its powers under Section 115 of the Code, it is not competent to the High Court to correct errors of fact, however gross or even errors of law, unless such errors have relation to the jurisdiction of the Court which passed the impugned order." 11. While dealing with the similar question in Lai Chand Bhardwaj v. Jagdish Kumar and another (CR No, 186 of 2001, decided on 24.8.2001) this Court held as follows: "Be it stated at the very outset that in exercise of its revisional jurisdiction under Section 115 of the Code, the High Court has limited powers to interfere with the order passed by a subordinate Court. Such interference is justified in a case where the subordinate Court has exercised a jurisdiction not vested in it or has failed to exercise jurisdiction vested in it or has exercised its jurisdiction illegally and with material irregularity. Interference may also be justified in a case where the order is perverse and if allowed to stand, will lead to failure of justice. Interference may also be justified in a case where the order is perverse and if allowed to stand, will lead to failure of justice. Thus, in exercise of its powers under Section 115 of the Code, it is not competent to the High Court to correct errors of fact, however gross or even errors of law, unless such errors have relation to the jurisdiction of the Court which passed the impugned order." 12. The view regarding the legal position as hereinabove is fully supported by the ratio in Pandurang phondi Chougule and others v. Maruti Hari Jadhav and others, AIR 1966 SC 153. In this case, the Hpnble Supreme Court held as follows:— V "(10) The provisions of Section 115 of the Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact, however gross they may be, or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. As Clauses (a), (b) and (c) of Section 115 indicate, it is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceedings instituted before subordinate Courts which are related to questions of jurisdiction. It is well-settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of Section 115 of the Code. But an erroneous decision on a question of law reached by the subordinate Court which has no relation to questions of jurisdiction of that Court, cannot be corrected by the High Court under Section 115." 13. The matter on hand thus calls for ^consideration and examination in view of the above settled position of law. 14. But an erroneous decision on a question of law reached by the subordinate Court which has no relation to questions of jurisdiction of that Court, cannot be corrected by the High Court under Section 115." 13. The matter on hand thus calls for ^consideration and examination in view of the above settled position of law. 14. The learned District Judge has passed the impugned judgment on the basis of the conclusions arrived at by him on the basis of the material placed on record. The prima facie conclusions so arrived at by the learned District Judge are fully justified. The parties have admittedly been litigating even prior to September 2000. The defendant secured possession of a part of the ground floor of the building from the plaintiff on 18.8.2000 on the basis of undisputed writing after having relinquished her claim for mesne profits for use and occupation of that portion by the plaintiff. Her report regarding attempted trespass by the plaintiff in the suit premises is pending with the police. She has also instituted a suit in this regard. In the given circumstances, it does not seem probable that the defendant would let out her premises to the plaintiff. The alleged rent deed has admittedly not been produced before the Court as yet. However, photo copy thereof is on the file of the trial Court. This deed purports to have been executed on 2nd day of September, 2000 between the parties and in all consists of 28 terms and conditions. However, this photocopy of the rent deed is not complete inasmuch as terms and conditions 10 to 14 thereof are not on the record even in the form of photocopy. The leaves of the rent deed copies whereof are on the record, appear to be unusually signed. In any case, there is nothing in this deed which may show that the possession of the premises in suit was delivered by the defendant to the plaintiff on the date of execution of the aforesaid deed. Term and condition No. 5 of the deed provides that "the second party will get and first party will hand over the vacant and peaceful possession of the accommodation of 2nd day of September, 2000". Evidently this is not acknowledgement of delivery of possession but is only a promise to deliver the possession. Term and condition No. 5 of the deed provides that "the second party will get and first party will hand over the vacant and peaceful possession of the accommodation of 2nd day of September, 2000". Evidently this is not acknowledgement of delivery of possession but is only a promise to deliver the possession. Thus, basically the withholding of a part of the rent deed is a circumstance adverse to the plaintiff. Secondly, the deed does not contain acknowledgment of delivery of possession. Further this deed does not acknowledge any payment. On the contrary the plaintiff claims that he had deposited the rent for September 2000 in the accounts of the defendant vide Cheque dated 2.9.2000. Had this amount been paid on the date of execution of the rent deed, it could be handed over to the defendant and acknowledged in the deed instead of being deposited in the Bank Account of the defendant on the date of execution of the , deed itself. The defendant, however, complained to the Bank by a communication dated 21.10.2000 that her Bank Account has been misused by the strangers by making wrong deposits therein. The plaintiff also claims to have paid security amount of Rs. 63,000 to the defendant but this payment is neither acknowledged in the deed nor there is any receipt thereof. In these circumstances, the conclusions arrived at by the learned District Judge, prima facie, do not seem to be wrong much less perverse. 15. In view of the above legal and prima facie factual position, the impugned judgment does not call for any interference by this Court in exercise of its revisional jurisdiction. 16. As a result, the revision petition fails and is accordingly dismissed. Petition dismissed.