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2002 DIGILAW 15 (HP)

SOHAN LAL v. SARLA DEVI

2002-01-09

R.L.KHURANA

body2002
JUDGMENT R.L. Khurana, J.—The petitioner before this Court is the tenant. Aggrieved by the order of ejectment passed against him by the two forums below, he has approached this Court by way of the present revision petition under Section 24(5) of the H.P. Urban Rent Control Act, 1987 (for short the Act). 2. The tenanted premises comprise of the first floor portion of the shop located in the land comprising of khasra No. 772 measuring 23 sqr. yards 2 sq. feet in mauja Jogindernagar. According to the landlord the tenanted premises were let out to the tenant for the residential purpose on a monthly rental of Rs. 300. The landlord sought the ejectment of the tenant under Section 14 of the Act, on the following grounds:— (a) Non-payment of rent with effect from 1.11.1990 at the rate of Rs. 300 per month; (b) Bona fide requirement of the landlord for self use and occupation; (c) The tenant is guilty of such act and conduct, which have become nuisance to the landlord; (d) The tenanted premises have become unfit for human dwelling; and (e) The tenant is using the tenanted premises for a purpose other than the same were let out. 3. The tenant while resisting the petition did not deny the relationship of landlord and tenant between the parties. It was averred that the tenanted premises were let out to him for commercial purposes at the monthly rental of Rs. 150 per month. Arrears of rent as claimed by the landlord were denied. It was pleaded that the requirement of the landlord was not bona fide. The tenant has not committed any act so as to cause nuisance to any one. There has been no change of user of the tenanted premises and that the same are neither dilapidated nor unfit for human habitation. 4. On the pleadings of the parties, following issues were framed by the Rent Controller:— 1. Whether the demised premises are required bona fide by the petitioner for her own use and occupation? OPP 2. Whether the respondent is guilty of such conduct and act, which have become nuisance to the petitioner and as such he is liable to be evicted from the suit premises? OPP 3. Whether the respondent is in arrears of rent if so, at what rate and to what extent? OPP 2. Whether the respondent is guilty of such conduct and act, which have become nuisance to the petitioner and as such he is liable to be evicted from the suit premises? OPP 3. Whether the respondent is in arrears of rent if so, at what rate and to what extent? OPP 3-A. Whether the building in dispute has become unfit for human dwelling, if so its effect? OPP 3-B. Whether the petitioner has rented the premises to the respondent for the residential purposes and respondent is now using the premises as non residential purposes and is running a tailoring shop therein? OPP 4. Relief. 5. The learned Rent Controller decided issues No. 1, 2 and 3-B against the landlord. Issues No. 3 and 3-A were found in favour of the landlord. The learned Rent Controller under Issue No. 3 found the tenant to be in arrears of rent with effect from 1.11.1990. The rate of rent was held to be Rs. 300 per month. While deciding issue No. 3-A in favour of the landlord, the learned Rent Controller came to the conclusion that the tenanted premises had become dilapidated and unfit for human habitation. Consequently, an order of ejectment was passed against the tenant on 21.6,1996 on the ground of non payment of rent as well as on the ground that the tenanted premises have become unfit for habitation. 6. Feeling aggrieved by the order of ejectment dated 21.6.1996 passed against him, the tenant preferred an appeal, being CMA No. 28 of 1996 before the appellate authority (Additional District Judge), Mandi, assailing the findings of the Rent Controller on both issues No. 1 and 3-A holding the tenant to be in arrears of rent with effect from 1.11.1990 at the rate of Rs. 300 per month and that the tenanted premises are dilapidated and unfit for human habitation. The Appellate Authority formulated the following questions for determination in appeal:— 1. Whether the appellant had been tenant in possession of the premises @ Rs. 300 per month? 2. Whether the appellant had been in arrears of rent @ Rs. 300 per month w.e.f. 1.11.1990 onwards? 3. Whether the demised premises had turned unfit for human dwelling? 7. The Appellate Authority formulated the following questions for determination in appeal:— 1. Whether the appellant had been tenant in possession of the premises @ Rs. 300 per month? 2. Whether the appellant had been in arrears of rent @ Rs. 300 per month w.e.f. 1.11.1990 onwards? 3. Whether the demised premises had turned unfit for human dwelling? 7. The learned appellate authority answered all the three questions in favour of the landlord and after affirming the findings of the Rent Controller dismissed the appeal of the tenant vide the impugned order dated 25.9.1999. Hence the present revision petition at the instance of the tenant assailing the findings of the two forums below. 8. At the very out set, it may be stated that the concurrent findings of the two forums below are purely on questions of fact, namely, rate of rent, period for which rent is due and the condition of the building being dilapidated and unfit for human habitation. 9. The power of the Court in exercise of the revisional jurisdiction under Section 24(5) of the Act is limited in seeing whether any illegality or impropriety has been committed by the two courts below in exercise of the powers under the Act. This Court in exercise of such limited revisional powers cannot reappreciate and re-asseess the evidence in order to disturb the concurrent findings on a question of fact. 10. The Apex Court in M/s. Shalimar Tar Products Lid. v. H.C. Sharma and others, 1988 (1) SCC 70, while dealing with the extent of revisional jurisdiction of the High Court under the Delhi Rent-Control Act, 1958 (the provisions of which are Control Act, 1958 (the provisions of which are similar to the provisions contained in Section 24(5) of the Rent Act in the present case) has held that the questions whether there was a sub-tenant and whether the written consent of the landlord had been obtained, were questions of fact. Concurrent findings on such questions cannot be interfered with by the High Court in exercise of its revisional powers. 11. Concurrent findings on such questions cannot be interfered with by the High Court in exercise of its revisional powers. 11. Again in Fatima Bee (Smt.) v. Mahamood Siddiqui, (1996) 9 SCC 450, it has been held by the Apex Court that the High Courts power to interfere with concurrent findings of fact under the Rent Act would be limited and if there is no misreading of evidence by the two courts below, it is not open to the High Court to reappreciate the evidence and reverse the findings recorded by the Courts below in exercise of revisional jurisdiction. 12. In Patel Valmik Himatlal and others v. Patel Mohan Lal Muljibhai, (1998) 7 SCC 383, the trial Court as well as the appellate Court had con-currently found sub-letting as proved. The High Court, in exercise of its revisional jurisdiction, after re-appreciating the evidence, held that it was not a case of sub-letting but a case of partnership. The Honble Supreme Court observed that the High Court exceeded its jurisdiction in re-appreciating the evidence, which it could not do. It was held that mere fact that a different view was possible on reappreciation of evidence was no ground for the High Court to substitute its own finding in exercise of revisional jurisdiction. 13. In Chaman Prakash Puri v. Ishwar Dass Rajput and another, 1995 Supp. (4) SCC 445, and in Sarla Ahuja v. United India Insurance Company Ltd., 1999 (1) RC] 158, it has been held that it is not permissible for the High Court in exercise of revisional jurisdiction to come to a different fact finding unless the finding arrived at by the two courts below, on the facts of the case, are so unreasonable that no Court could have reached such a finding on the material available. 14. Dealing with the similar provision contained in Section 21(5) of the H.P Urban Rent Control Act, 1971 (as then in force) which provision is pan materia to Section 24(5) of the present Rent Act, the Honble Supreme Court in Dr. Gyan Parkash v. Som Nath and others, 1996 (1) RCR 342 (SC), has held that on questions of fact, the findings recorded by the authorities below must be accepted and the High Court has no jurisdiction to interfere with such finding in exercise of limited scope and ambit of revisional jurisdiction under the Rent Act. Gyan Parkash v. Som Nath and others, 1996 (1) RCR 342 (SC), has held that on questions of fact, the findings recorded by the authorities below must be accepted and the High Court has no jurisdiction to interfere with such finding in exercise of limited scope and ambit of revisional jurisdiction under the Rent Act. The High Court is not exercising the powers of a Court of Appeal and, as such, is not expected to re-appreciate the entire evidence coming on record and to come to a contrary finding. 15. In Lachhman Dass v. Santokh Singh, (1995) 4 SCC 201, the Honble Supreme Court considered the revisional jurisdiction of the High Court under the Haryana Urban (Control of Rent and Eviction) Act, 1973. It was held that where a statute provides for a right of appeal as well as revision, discretionary jurisdiction of revision can be invoked only when appellate order suffers from illegality, impropriety or perversity. The two jurisdictions (appellate and revisional) are different from each other in scope and content. The use of the expression "legality or propriety of such orders or proceedings" makes the revisional powers of the High Court wider than powers under Section 115 of the Code of Civil Procedure, nonetheless it is not so wide as to embrace within its fold all the attributes and characteristics of an appeal and disturb findings of fact arrived at by the courts below without recording a finding that the conclusions arrived at were perverse or based on "no evidence" or were arrived at on a superficial or perfunctory approach. It was further observed:— "If the High Court proceeds to interfere with such concurrent findings of fact ignoring the above mentioned well recognized principles, it would amount to equating the revisional powers of the High Court as powers of a regular appeal frustrating the fine distinction between an appeal and a revision." In the present case, on the basis of the evidence coming on the record, the two courts below have arrived at concurrent findings that: (i) the rent for the tenanted premises is Rs. 300 per month; (ii) the tenant is in arrears of rent with effect from 1.11.1990; and (iii) the tenanted premises have become dilapidated and unfit for human habitation. 16. Such concurrent findings being purely on questions of fact, cannot be interfered with in the present revision petition. 300 per month; (ii) the tenant is in arrears of rent with effect from 1.11.1990; and (iii) the tenanted premises have become dilapidated and unfit for human habitation. 16. Such concurrent findings being purely on questions of fact, cannot be interfered with in the present revision petition. I have gone through the evidence coming on the record and it can be safely held that there has been neither misreading nor misappreciation of evidence by the two courts below. The impugned order does not suffer from any illegality or impropriety 17. There is yet another significant aspect of the case. The Rent Controller vide his order dated 21.6.1996 had found the tenant to be in arrears of rent since 1.11.1990 at the rate of Rs. 300 per month. In order to avoid ejectment on the ground of non-payment of rent, the tenant was required to pay the amount due along with interest and cost of the petition within 30 days from the date of the order of the Rent Controller. The tenant deposited arrears of rent for the period 1.11.1990 to 30.4.1993 only within 30 days from the date of order of the Rent Controller. 18. Dealing with the meaning of the words "amount due" occurring in Proviso III to Section 14(2)(i) of the Act, the Honble Supreme Court Madan Mohan and another v. Krishna Kumar Sood, 1993 (1) Rent Control Journal 170, has held : "It will be noticed that there is no provision in the Act for giving powers to the Controller to direct payment or deposit of "pendente lite" rent for each month during pendency of the petition for eviction of the tenant. First Proviso to sub-section (2) of Section 14 shows that in order to show payment or valid tender as contemplated by clause (i) of sub-section (2) of Section 14 by a tenant in default, he has to pay on the first date of hearing the arrears of rent along with interest and costs of the application which are to be assessed by the Controller. Surely where a tenant does not avail of the first opportunity and contest the eviction petition on the ground of non-payment of arrears of rent and fails to show that he was not in default and court finds that the ground has been made out, an order of eviction has to follow. Surely where a tenant does not avail of the first opportunity and contest the eviction petition on the ground of non-payment of arrears of rent and fails to show that he was not in default and court finds that the ground has been made out, an order of eviction has to follow. Therefore, it does not stand to reason that such a tenant who contests a claim and fails to avoid order of eviction can still avoid it by merely paying the rent due till the date of the filing of the application for ejectment. The third proviso to clause (i) of sub-section (2) of Section 14 should also receive an interpretation which will safeguard the rights of both the landlord and tenant. The "amount due" occurring in the third proviso in the context will mean the amount due on and upto the date of the order of eviction. It will take into account not merely the arrears of rent which gave cause of action to file a petition for eviction but also include the rent which accumulated during the pendency of eviction petition as well. If the tenant has been paying the rent during the pendency of the eviction petition to the landlord, the "amount due" will be only arrears which have not been paid. The landlord, as per scheme of the section cannot be worse off vis-a-vis a tenant who was good enough to deposit in court the arrears of rent together with interest and costs on the first date of hearing. If the interpretation given by the High Court is accepted the result would be that the tenant will be better off by avoiding to pay the arrears of rent with interest and costs on first date of hearing and prefer suffering order of ejectment after contest and then merely offer the amount due as mentioned in the application for ejectment to avoid eviction. This could not be the intention of the legislature." 19. In view of the above ratio, the tenant was required to pay the arrears of rent due as on the date of the order dated 21.6.1996 of the Rent Controller. As on that day rent for the period 1.11.1990 to 31J5.1996 was payable. This could not be the intention of the legislature." 19. In view of the above ratio, the tenant was required to pay the arrears of rent due as on the date of the order dated 21.6.1996 of the Rent Controller. As on that day rent for the period 1.11.1990 to 31J5.1996 was payable. Since the amount due as on the date of the order of the Rent Controller was not paid/deposited the tenant is liable to be ejected on the ground of non-payment of rent. 20. Resultantly, the revision petition fails and the same is accordingly dismissed with costs. Revision dismissed.