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2003 DIGILAW 64 (PNJ)

Mangal Singh v. Varinder Kumar

2003-01-15

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This petition filed under Sub-section (5) of Section 15 of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, the Act) challenges the judgment dated 3.1.1985 passed by the Appellate Authority, Jalandhar upholding the order of ejectment of the tenant-petitioners dated 30.11.1982. The Rent Controller, Jalandhar in his order dated 30.11.1982 had ordered ejectment of the tenant-petitioners sustaining the ground of material alterations and impairment of value and utility of the demised premises.The findings of fact recorded by the Rent Controller have been affirmed by the learned Appellate Authority. 2. Landlord-respondent Varinder Kumar filed an application on 20.2.1980 under Section 13 of the Act seeking ejectment of the tenant-petitioners from the demised premises alleging that the aforementioned premises was undertaken on rent from Ram Rattan through his son Sham Lal who is the father of landlord-respondents. Ram Rattan died and was survived by his son Sham Lal and grandsons Varinder Kumar and Mohinder Kumar. Thereafter, the estate was partitioned and the premises in dispute fell to the share of landlord-respondents. For that reason defendant-respondents 2 and 3 have been impleaded formally. However, no relief has been claimed against them. The ejectment was sought principally on the ground of material alterations and the construction raised in the property.It was alleged that the tenant-petitioners have started using furnace on the fore-front of the shop (Tharra) completely violating the terms and conditions of the tenancy. On the basis of pleadings of the parties, the Rent Controller framed the following issues:- 1. Whether the tender made on 17.11.1980 was valid? OPR. 2. Whether the respondents are liable to be evicted on grounds given in para 2(B) and (c) of the petition? OPA. 3. Relief. 3. On issue No. 1 as the tender of rent was validly made, the Rent Controller held that the ground on non payment of rent did not survive. However, on issue No. 2 firm findings were returned that the wall CD dividing the shop from the house has been completely removed by the petitioner-tenant without seeking permission of the landlord-respondents. The petitioner was granted permission only to the extent of opening a door in the rear wall. However, the argument that the door could be as bigger as the tenant-petitioners like, was rejected. The petitioner was granted permission only to the extent of opening a door in the rear wall. However, the argument that the door could be as bigger as the tenant-petitioners like, was rejected. The detail evidence documentary as well as oral has been referred by the Rent Controller in support of the findings that the wall has been completely removed and the house at the back of the shop has merged into the sop by removing the wall. The findings recorded by the Rent Controller have been affirmed in all material aspects by the Appellate Authority. The view of the Appellate Authority in this regard reads as under;- ".... It stands established on the record that no door exists in the back wall. It also stands established that almost the entire wall has been removed. The portion of the shop and the house of the tenant/appellants have become one. Ajit Singh tenant/appellant admitted in his cross-examination that the disputed shop and the room owned by him have become one single unit. This admission, coupled with the other evidence, is sufficient to prove that the tenants have effected such material alterations in the buildings which have changed and altered the entire identity of the demised premises. Similarly, it stands established that the tenant/appellants have also installed a shutter in place of the front door. There is nothing on the record to show that they have done so with the consent of the landlords. Consequently, I am of the opinion that the learned Rent Controller was right in holding that the tenants are guilty of having committed material alliterations in the premises in dispute." 4. Learned counsel for the tenant-petitioners has argued that once there was a permission to open the door and even if the wall is removed, it could not be concluded that it has impaired the value and utility of the shop and therefore, the ground of ejectment contemplated under Section 13 of the Act could not be available to the landlord-respondents. She had also made reference to the rent note stipulating that the alterations were permitted by the landlord-respondents and for that reason they were under an obligation that at the time of vacation of the premises, the tenant-petitioners were to return the demised premises in the same condition as it was before the alterations. 5. She had also made reference to the rent note stipulating that the alterations were permitted by the landlord-respondents and for that reason they were under an obligation that at the time of vacation of the premises, the tenant-petitioners were to return the demised premises in the same condition as it was before the alterations. 5. Learned counsel for the landlord-respondents has argued that the concurrent findings of fact recorded by both the courts below cannot be interfered with as has been held by the Supreme Court in the case of Vaneet Jain v. Jagjit Singh, 2000(5) S.C.C. 1. He has further submitted that the rent note which is now referred to by the learned counsel for the landlord-respondents was never produced before the Rent Controller or the Appellate Authority. Even before this Court, there is no application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (for brevity, the Code) and, therefore, no reliance could be placed on the rent note at such a belated stage. 6. Having heard learned counsel for the parties, I am of the considered view that the concurrent findings of fact recorded by the Courts below with regard to material impairments of value and utility of the demised premises cannot be interfered with because after perusing the orders passed by both the Courts below, it cannot be concluded that the findings are without evidence or no reasonable person would record those findings as have been recorded by the Courts below. The jurisdiction of this Court under Sub-section (5) of Section 15 of the Act has repeatedly been defined by the Supreme Court in various cases. 7. The revisional power of this Court under Section 15(5) of the Act cannot be equated with the power of appeal. It is true that power in revision under Section 15(5) of the Act is wider than the power of revision conferred on this Court under Section 115 of the Code of Civil Procedure, 1908 but still it would fall short of the power of the appellate Court. Sub Section 5 of the Section 5 of the Act is reproduced below for facility of reference; "15. Sub Section 5 of the Section 5 of the Act is reproduced below for facility of reference; "15. Vesting of appellate authority on officers by State Government.-(5) The High Court may at any time on the application of any aggrieved party or on its own motion, call and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying himself as to the legality or propriety of such order or proceedings may pass such an order in relation thereto as it may deem fit." 8. A similar provision made in the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for brevity the Haryana Act) came up for consideration before the Supreme Court in the case of Vaneet Jain v. Jagit Singh,1 2000(5) S.C.C. 1. Dealing with sub section 6 of Section 15 of the Haryana Act which is pari materia to sub section 5 of Section 15 of the Act, their Lordships observed as under:- "Sub-section (6) of Section 15 of the Act empowers the High Court to exercise its revisional jurisdiction for the purpose of satisfying itself if an order passed by the Rent Controller or the appellate authority is in accordance with law. The question that arises for consideration is whether the High Court in its revisional jurisdiction can reassess or re-evaluate the evidence only to come to different finding than what has been recorded by the Court below. This Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, (1999) 6 S.C.C. 222 held, that the High Court cannot enter into appreciation or re-appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of whether such an order is in accordance with law. For that limited purpose the High Court would be justified in reappraising the evidence. In Sarla Ahuja v. United India Insurance Co. Ltd., (1998)8 S.C.C. 119 it was held that the High Court while exercising the jurisdiction can reappraise the evidence only for a limited purpose for ascertaining as to whether the conclusion arrived at by the feet-finding court is wholly unreasonable. In Sarla Ahuja v. United India Insurance Co. Ltd., (1998)8 S.C.C. 119 it was held that the High Court while exercising the jurisdiction can reappraise the evidence only for a limited purpose for ascertaining as to whether the conclusion arrived at by the feet-finding court is wholly unreasonable. A perusal of Sub-section (6) of Section 15 of the Act shows that the power of the High Court to revise an order is not an appellate power, but it is also true that it is not akin to power exercisable under Section 115 of the Code of Civil Procedure. It is no doubt true that the High Court would be justified in interfering with the order passed by the appellate authority if the legality or propriety of such order demands such interference. We are, therefore, of the view that it is not permissible for the High Court to reassess or reappraise the evidence to arrive at a finding contrary to the finding of fact recorded by the Court below." 9. Similar view has been taken in the case of Shiv Lal v. Sat Parkash 1983 (Suppl)2 S.C.C. 345 and Bhoop Chand v. Kay Pee Cee Investments (1991)1 S.C.C. 343. Sub Section 6 of Section 15 of the Haryana Act also fell for consideration in the case of Lachhman Doss v. Santokh Singh, (1995)4 S.C.C. 201. Placing reliance on Hari Shankar v. Rao Girdhari Lal Chowdhury A.I.R. 1963 S.C. 698: State of Kerala v. K.M.Charia Abdullah and Co., A.I.R. 1965 S.C. 1585 and Neta Ram v. Jiwan Lal A.I.R. 1963 S.C. 499, their Lordships pointed out the distinction between the revisional power under the Rent Act and the appellate power which reads as under: "From the use of the expression "Legality or propriety of such order or proceedings" occurring in Sub-section (6) of Section 15 of the Act, it appears that no doubt the revisional power of the High Court under the Act is wider than the power under Section 115 of the Code of Civil Procedure which is confined to jurisdiction, but it is also not so wide as to embrace within its fold all the attributes and characteristics of an appeal and disturb concurrent finding of fact properly arrived at without recording a finding that such conclusions are perverse or based on no evidence or based on a superficial and perfunctory approach. If the High Court proceeds to interfere with such concurrent findings of fact ignoring the afore mentioned well-recognised 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. That being so unless the High Court comes to the conclusion that the concurrent findings recorded by the two courts below are wholly perverse and erroneous which manifestly appear to be unjust there should be no interfere." 10. When the above mentioned principles enunciated by the Supreme Court are applied to the facts of the present case, it becomes evident that there is ample evidence on record to support the findings of fact that material alterations in the demised premises by removing the entire wall and by including the portion of the demised shop in the house has been done without the consent of the landlord-respondents. 11. The other contention raised by the learned counsel with regard to rent note would not require any detailed consideration because such an argument cannot be permitted to be raised for the first time at the stage of revision. The Appellate Authority is the last Court of findings of fact and, therefore, no such argument can be raised for the first time in the revision petition. That has not been done before the Courts below and not even an application under Order XLI Rule 27 of the Code has been filed. Therefore, 1 have no hesitation to reject that argument. 12. For the reasons stated above, this revision petition fails and the same is dismissed. The tenant-petitioners are directed to hand over vacant possession of the demised premises to the landlord-respondents within a period of two weeks from today.