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2006 DIGILAW 2752 (ALL)

SRAWAN KUMAR SINGH CHAUHAN v. IIIRD ADDL DISTRICT JUDGE KANPUR NAGAR

2006-11-13

SANJAY MISRA

body2006
SANJAY MISRA, J. These are two connected writ petitions arising out of the same proceedings under Section 21 (1) (a) of Uttar Pradesh Urban Build ings (Regulation of Letting, Rent and Eviction) Act, 1972 hereinafter referred to as U. P. Act No. 13 of 1972. 2. In writ petition No. 16326 of 1989 the petitioner who is a tenant of the shop in dispute has challenged the judgment and order dated 16-12-1982 passed by the prescribed authority, Kanpur Nagar whereby the release ap plication of the respondent landlord has been allowed as also the judgment and order dated 29-4-1989 whereby the ap pellate Court has partly allowed the ap peal of the petitioner by holding that the petitioner will be entitled to get posses sion of an alternative shop in the same premises being shop No. 8. 3. The writ petition No. 21890 of 1992 has been filed against the judg ment and order dated 4-5-1992 passed by the appellate Court whereby the ap plication made by the landlord has been allowed and the judgment and order dated 29-4-1989 passed in the appeal earlier has been modified to the extent that shop No. 8 cannot be provided as an alternative accommoda tion to the tenant. 4. The facts of the case are that the petitioner is a tenant of a shop situate on the ground floor of premises No. 109/1 Nehru Nagar, Kanpur Nagar. The landlord namely Gyan Singh filed an ap plication for release of the shop in ques tion on 30-4-1974 which was registered as rent case No. 480 of 1974. The ap plication was contested by the petitioner. However, the prescribed authority came to the conclusion that the need of the respondent landlord was bona fide and the shop in question was required for the son of Gyan Singh namely Dr. YR Singh who had obtained the degree of MBBS in 1968 and was employed in the Air Force but was retired from the Air Force in 1974 and as such requires the shop in question for establishing his private practice. The shop No. 1 and shop No. 8 in the premises in question were in the oc cupation of the other two sons of the landlord who were doing their inde pendent business in the said shops. The shop No. 1 and shop No. 8 in the premises in question were in the oc cupation of the other two sons of the landlord who were doing their inde pendent business in the said shops. The trial Court found that since the said shop No. 1 and shop No. 8 were in oc cupation of the other two sons of the landlord hence they were neither vacant nor they were suitable for Dr. YR Singh for running his clinic. The trial Court found that the petitioner had not made any effort to search out an alter native accommodation nor any evidence was produced by the petitioner to such effect. The petitioner was in possession of another house No. 109/417 wherein the first and second floor were vacant. It also found that the petitioner has a second house No. 111/460 in Brahma Nagar, Kanpur Nagar where the petitioner is living with his family on first floor and recorded that he could start his business in his own house which was very near to the shop in dispute. The trial Court considered the plea of the petitioner of being given shop No. 8 in the premises itself in ex change for the shop in question but refused the said plea. It found that the bona fide need of the landlord was genuine and comparative hardship would be more to the landlord than to the tenant. In appeal the appellate Court confirmed the finding of bona fide need set up by the landlord for estab lishing the clinic of his son Dr. Y. P. Singh. It took into consideration the provision of Rule 16 (2) (a) of the Rules, 1972 framed under the Act and found that since the petitioner was doing the busi ness in the shop in question for a long period, therefore, there was less jus tification for allowing the application for release. It held that the petitioner had earned considerable goodwill in the area and due to shortage of accom modation it was not possible for him to search for another shop. On the aforesaid reasons the appellate Court held that the landlord should provide shop No. 8 as an alternative accom modation to the petitioner. It, therefore, released the shop in question but directed that the landlord shall provide shop No. 8 to the petitioner. 5. On the aforesaid reasons the appellate Court held that the landlord should provide shop No. 8 as an alternative accom modation to the petitioner. It, therefore, released the shop in question but directed that the landlord shall provide shop No. 8 to the petitioner. 5. Learned Counsel for the petitioner has argued that the said find ing of the appellate Court for providing shop No. 8 as an alternative accom modation was neither offered by the londlord nor the petitioner has given his consent for accepting the same. As such he contends that the order of the appellate Court is liable to be set aside. He also contended that shop No. 1 and shop No. 8 situate within the same premises are available with the landlord and the Courts below have illegally held that the said shops are not available. Learned Counsel for the petitioner states that the comparative hardship was more to the petitioner than to the landlord and therefore, the finding on comparative hardship recorded by the Courts below is liable to be set aside. 6. A counter-affidavit has been filed on behalf of respondent No. 4 Dr. Y. P. Singh. It has been stated by learned Counsel for the respondents that the order of the appellate Court directing the landlord to provide shop No. 8 in the same premises to the petitioner as an alternative accommodation is illegal in as much as the said shop was not vacant but was being used by Sri N. P. Singh (respondent No. 6) who is brother of respondent No. 4. It has been contended that shop No. 1 is in occupa tion of another brother namely Y. P. Singh (respondent No. 5) who is carrying on his business in the name of M/s. Creative Engineering Enterprises. It is stated that apart from the fact that both the aforesaid shops were not available for Dr. Y. P. Singh, the prescribed authority has, on the basis of evidence available on record, found that the said shops were not suitable for opening a clinic by Dr. Y. P. Singh. He, therefore, contends that the finding recorded by the Courts below on bona fide need berg concurrent need no interference by this Court. Learned Counsel for the respondent has submitted that the petitioner owns two other houses near by and has got sufficient accommoda tion in the said houses to do his busi ness. Y. P. Singh. He, therefore, contends that the finding recorded by the Courts below on bona fide need berg concurrent need no interference by this Court. Learned Counsel for the respondent has submitted that the petitioner owns two other houses near by and has got sufficient accommoda tion in the said houses to do his busi ness. It has been stated that in one of the houses which is opposite the premises in question the petitioner is doing the business of dry cleaning and Photostat. He states that the petitioner has got his own accommodation in the said two houses being house No. 109/417-B and house No. 111/460. He submits that the petitioner is not doing business of manufacturing Chappal and the shop in question is mostly closed. The intention of the petitioner, according to learned Counsel for the respondents, is that he was anticipating to get some premium for vacating the shop in question. Learned Counsel for the respondent contends that in view of aforesaid fact even on the question of comparative hardship Dr. Y. P. Singh was to suffer more hardship if the shop was not released, whereas the petitioner who has got his own two houses nearby and has enough space in the said houses to run his business could not be said to suffer more hardship in case shop is released. He contends that the petitioner has got his business in the other house and therefore, the shop in question is not the only source of his livelihood. 7. In writ petition No. 21890 of 1992 the petitioner contends that since the petitioner had already filed the writ peti tion No. 16326 of 1989 against the order of release and the appellate order, therefore, no review application of the respondent was maintainable against the appellate order. He contends that he had filed an objection with respect to maintainability of the review application which was not considered by the appel late Court. 8. Learned Counsel for the respon dents on the other hand argued that by virtue of the provision of Rule 22 (f) of the Rules the appellate Court had the same inherent power as provided under Sec tions 151 and 152 C. P. C. and therefore, it could make any order in the interest of justice or to prevent the abuse of process of the authority concerned. It is, therefore, stated by him that the error committed by the appellate Court in directing that the petitioner will be provided with an alternative shop was apparent on the face of record in as much as it was neither offered by the landlord nor the offer was accepted by the tenant. 9. In reply learned Counsel for the petitioner contends that power of review under the aforesaid provision of C. P. C. can be exercised for correction of a mistake but not to substitute a view al ready expressed. Learned Counsel for the petitioner has relied upon a decision of Honble Supreme Court in the case of Lily Thomas v. Union of India & Ors. , reported in JT 2000 (5) SC 617. He further contends that there was no mistake or error apparent on the face of record so as to give jurisdiction to the appellate Court to rehear the matter for detecting any error in the earlier decision and then to correct the same upon a review application. He has placed reliance on a decision of Honble Supreme Court in the case of Pars/on Devi & Ors. v. Sumitri Devi & Ors. , reported in 1997 (2) JCLR 879 (SC) : (1997) 8 SCC 715 and contends that the review proceeding cannot be equated with the original hearing of the case and that the finality of the judgment cannot be recon sidered unless a glaring omission or patent mistake or a grave error has crept in the earlier judgment. In support of his contention he has relied upon a decision of Honble Supreme Court in the case of M/s. Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, reported in AIR 1980 SC 674 . It is further contended that when there is lack of in herent jurisdiction then a decree is rendered a nullity. However irregularity in jurisdiction can be waived by the party or may be ignored at the appeal or revisional stage. For the said contention he has placed reliance on a decision of this Court in the case of Rameshwar Gond v. llndaddl. District Judge & Ors. , reported in 1998 RD 742. Citing the case of Smt. Shivraji & Ors. v. Dy Direc tor of Consolidation & Ors. For the said contention he has placed reliance on a decision of this Court in the case of Rameshwar Gond v. llndaddl. District Judge & Ors. , reported in 1998 RD 742. Citing the case of Smt. Shivraji & Ors. v. Dy Direc tor of Consolidation & Ors. , 1997 (2) JCLR 639 (All) (FB) : 1997 JIR 651 : 1997 RD 562 (F. B.), he has contended that in the case of consolidation proceedings the consolidation authorities are not vested with any power of review. There fore, in the absence of such a power under the statute the consolidation authorities cannot reopen the proceed ing or review its previous order. Accord ing to him the said principle applies in the present case. 10. Learned Counsel for the respondents on the other hand has relied upon a decision of this Court in the case of Sri Sita Ram Sikhaulia v. Prescribed Authority, reported in 1978 ARC 91 and has contended that in view of Rule 22 (0 of the Rules if the authority is satisfied that some illegalities have been committed in passing the order it would have inherent power to rectify the same. For the similar contention he has relied upon a decision of this Court in the case of Dr. Sidh Nath Tripathi v. IInd Addl. District Judge & Ors. , reported in 1985 (1) ARC 553 and has contended that if a decision is made under some misconception then the proper course would be to make an application before the appellate Court bringing to its notice the said misconception. It has been contended by him that review of a judg ment which was based on misconcep tion or on facts which were factually in correct would be maintainable in rent control proceeding by virtue of Rule 22 (f) of the Rules. He has placed reliance on the decision in the case of Smt. Lachmana v. Deputy Director of Consolidation & Ors. , reported in 1966 RD 419. 11. Section 152 of the Code of Civil Procedure provides for correction of clerical or arithmetical mistakes in judg ment, decrees or orders or any error arising from any accidental slip or omis sion. He has placed reliance on the decision in the case of Smt. Lachmana v. Deputy Director of Consolidation & Ors. , reported in 1966 RD 419. 11. Section 152 of the Code of Civil Procedure provides for correction of clerical or arithmetical mistakes in judg ment, decrees or orders or any error arising from any accidental slip or omis sion. This section empowers the Court to correct the mistakes of its ministerial actions and does not empower the Court to pass any effective judicial order after passing of the judgment since it becomes functus officio and therefore, cannot vary the terms of its earlier judg ment, decree or order. While exercising its inherent power under Section 151 CPC such restrictions as are there under Section 152 CPC do exist. The powers under the two sections are therefore, quite different and are exer cised in totally different fact situations. In the present case it has not been ar gued that the Court was exercising any power under Section 152 CPC nor such a power was exercised by the appellate Court while passing the impugned order dated 4-5-1992. 12. Under Section 151 of the Code of Civil Procedure the inherent power of the Court has not been confined upon it. Such power is inherent in the Court by virtue of its duties to do justice be tween the parties. In case an order can be challenged under the provisions of the statute the Courts would be hesitant to exercise its inherent powers. In Rule 22 (b) of the Rules it has been provided that the Courts under U. P. Act No. 13 of 1972 shall have the same powers as referred to in Section 151 of the Code of Civil Procedure. The inherent power to make any order for the ends of justice or to prevent the abuse of process of the authority concerned is, therefore, ac knowledged under the Act. It would, therefore, be incorrect to say that the statute divests the Courts of its inherent powers. A review application as con templated under Order XLVII, Rule 1 CPC is not maintainable before the Courts exercising jurisdiction under U. P. Act No. 13 of 1972 since no such power has been given to the Courts under the Act. It would, therefore, be incorrect to say that the statute divests the Courts of its inherent powers. A review application as con templated under Order XLVII, Rule 1 CPC is not maintainable before the Courts exercising jurisdiction under U. P. Act No. 13 of 1972 since no such power has been given to the Courts under the Act. Therefore if the Courts under the Act have exercised their inherent power then it would have to be seen whether in the garb of such power the Court has in effect reviewed its earlier order or it has passed the order under Rule 22 (f) in the ends of justice or to prevent abuse of process of the authority. The applica tion under Rule 22 (f) of the Rules can not be considered as one for review nor the Court can dispose of one treating it as a review application as provided under Order XLVII, Rule 1 CPC. The im pugned order dated 4-5-1992 has to, therefore, be seen in its detail to find out if it was passed in exercise of the appel late Courts inherent power or it was in effect a review of the earlier order. 13. From a perusal of impugned order dated 4-5-1992 it appears that the preliminary objection raised by the petitioner with respect to maintainability of the application was considered by the Court and it found that upon a perusal of appellate Court judgment the Court had definitely overlooked the af fidavit of the landlord whereby a categorical denial with respect to vacancy of shop No. 8 was made, whereas in the judgment the Court had recorded that no such denial had been made by the landlord. The Court found that this particular document was never looked into by the Court in as much it had held that N. P. Singh had not filed his affidavit, whereas the said N. P. Singh was not a party before the prescribed authority. The landlord had specifically stated in his affidavit (paper No. 101) that shop No. 8 was in occupation of N. P. Singh but the Court without looking into the affidavit drew an adverse in ference against the landlord only on the ground that N. P. Singh has not filed any affidavit. The Court had overlooked the affidavit paper No. 101 of the landlord. The Court had overlooked the affidavit paper No. 101 of the landlord. Upon finding the aforesaid error the Court also found that there was over sight in as much as the commissioners report also indicated that shop No. 6 was not vacant and the Court had overlooked it. The Court had also over looked the order passed by the Rent Control and Eviction Officer on 16-7-1982 wherein N. P. Singh was found in occupation of shop No. 8. Having found the aforesaid three glaring errors of oversight of the material on record the Court found that the shop No. 8 could not have been provided as an alterna tive accommodation to the tenant. It is, therefore, true that if the shop No. 8 was not in a vacant position, being in the possession of N. P. Singh, the appellate Court could not have ordered it to be provided to the tenant as an alternative accommodation. The release applica tion was filed by Sri Gyan Singh against the petitioner. Record indicated that N. P. Singh was in occupation of the shop No. 8 and he was not a party to the proceeding before the prescribed authority. The application was filed by the heirs of Gyan Singh who had since died. The occasion for recording the finding that the shop No. 8 was vacant and available did not arise in view of the evidence on record as has been men tioned above and therefore, while pass ing the appellate order dated 29-4-1989 the appellate Court had based its find ings on facts which were factually incor rect and were under a misconception. 14. The power referred in Rule 22 (f) of the Rules is the inherent power of the Court and as provided under Sec tion 151 CPC it can be exercised by the Court in the ends of justice and for preventing the abuse of process of the authority. Such a power could be exer cised in the present case in as much as by providing shop No. 8 as an alterna tive accommodation, the appellate Court has actually ordered eviction of N. P. Singh under whose occupation the said shop was and his possession was also found in another proceeding under Section 24 (2) of the Act as mentioned in the order of the Rent Control and Evic tion Officer dated 16-7-1982. The result of the order of providing an alternative accommodation to the tenant would, therefore, amount to abuse of process by the authority concerned in as much as the shop not being vacant was being provided to a tenant thereby dispos sessing another son of the landlord who was doing business therein. The said son was admittedly not a party before the prescribed authority hence he was not required to file his affidavit. Apart from the aforesaid the appellate Court could also correct its error in the judg ment under its inherent power in the ends of justice since the appellate order dated 29-4-1989 where it had directed to provide shop No. 8 to the tenant was neither based upon the pleading of any party nor the respondent landlord had offered the shop nor the petitioner had accepted such non-existent offer. It is the specific case of the petitioner tenant in the writ petition that no such offer was made by the landlord nor such an offer was acceptable to the tenant even if made. It is also the stand taken by the respondent landlord in the counter-af fidavit. Therefore, it can safely be con cluded that the said condition imposed by the appellate Court was not the case of any of the parties and was imposed under a misconception by ignoring material evidence on record and was imposed by drawing an adverse in ference against a person who was not a party before the prescribed authority and there was no occasion of his filing any affidavit before either of the Courts. Such a view as taken by the appellate Court in the order dated 29-4-1989 could be corrected in the ends of justice because the condition imposed being not the case of any party amounted to dispossessing another son from another shop which would squarely amount to abuse of the process of the concerned authority. That being the situation the appellate Court could have passed an order on an application to correct the misconception. It would not be a case of expressing a substantially another view than that expressed in the earlier order. 15. The contention of learned Counsel for the petitioner is that if the statute does not confer the power of review then the authority concerned acting under the said statute cannot as sume jurisdiction and decide a review application. It would not be a case of expressing a substantially another view than that expressed in the earlier order. 15. The contention of learned Counsel for the petitioner is that if the statute does not confer the power of review then the authority concerned acting under the said statute cannot as sume jurisdiction and decide a review application. The said contention of learned Counsel for the petitioner can not be doubted. In the present case Rule 22 (f) of the Rules does provide that the authority under U. P. Act No. 13 of 1972 can exercise its inherent jurisdic tion as provided in Section 151 CPC which is not withstanding any thing in the code. Such exercise of jurisdiction by the Court below has to be con sidered upon the facts which have been brought forward on the record of the case. As has already been seen above the application was considered when the landlord brought to the notice of the appellate Court the finding recorded on a misconception and on facts which were factually incorrect and wrongly recorded by the Court. The exercise of inherent jurisdiction by the appellate Court, therefore, cannot be said to be il legal or without jurisdiction in any man ner It is not a case where there is in herent lack of jurisdiction nor it is a case where there is irregularity in jurisdiction. The order, therefore, cannot be said to be a nullity and in view of the facts of the case and the case set up by the parties the order has been passed to prevent the abuse of process of authority con cerned and in the ends of justice. It would, therefore, be incorrect to say that the appellate Court was reviewing its earlier order. This is a case where there was a mistake of the Court whereby it was prejudicing a party to the proceedings. The judgment was given in ignorance of the fact that N. P. Singh was not a party before the prescribed authority and therefore, there was no occasion for him to file any affidavit regarding shop No. 8 which was not the shop in dispute. An affidavit of denial had been filed by the landlord which was overlooked. The judgment was given in ignorance of the fact that N. P. Singh was not a party before the prescribed authority and therefore, there was no occasion for him to file any affidavit regarding shop No. 8 which was not the shop in dispute. An affidavit of denial had been filed by the landlord which was overlooked. This Court is, therefore, of the view that the impugned order dated 4-5-1992 was passed by the Court under its inherent power and the same does not amount to a review of the earlier decision. 16. In so far as the arguments of learned Counsel for the petitioner on the merits of the case are concerned there is a concurrent finding of fact recorded by both the Courts below on the bona fide need of the respondent landlord. Nothing has been shown by learned Counsel for the petitioner to indi cate that the said findings are in any way erroneous or perverse. This Court would, therefore, not interfere with the aforesaid concurrent findings of fact in absence of any evidence to the contrary. 17. The comparative hardship has been judged by the Courts below and found to be more to the respondent No. 4 than to the petitioner in case the shop was not released. It is on record that the petitioner is in possession of wo houses nearby the premises in ques tion. The Courts below have recorded that the petitioner has got vacant space in his possisstion of two houses. This being a finding of fact it cannot be said that in case the petitioner is evicted from the shop in question he would lose his livelihood. On the other hand the respondent No. 4 Dr. Y. P Singh was a MBBS doctor and had retired from the Air Force in 1974. He was entitled to seek release of the shop in question for opening his clinic in order to earn his livelihood. The father of Dr. Y. P. Singh had, therefore, made the application for release of the shop in order to meet the need of his son. Since the shop has now remained in possession of the petitioner for 30 years it can safely to said that the respondent No. 4 landlord has been denied the benefit of his own shop belonging to him and has been compelled to earn his livelihood from other premises. Since the shop has now remained in possession of the petitioner for 30 years it can safely to said that the respondent No. 4 landlord has been denied the benefit of his own shop belonging to him and has been compelled to earn his livelihood from other premises. The law is settled that the landlord cannot be denied release of the accommodation owned by him only to accommodate a tenant. The release application was rightly allowed by the prescribed authority as also by the appellate Court by the impugned or ders. The condition of alternative shop to the petitioner was also rightly set aside by the appellate Court while con sidering the application under Rule 22 (0 of the Rules. This Court would, therefore, not interfere in the findings of fact recorded by the Courts below on the comparative hardship in favour of the respondent landlord, 18. For the reasons aforesaid these writ petitions do not have any merit and are liable to be dismissed. 19. The writ petition No. 16326 of 1989 is hereby dismissed. The order of the prescribed authority is confirmed. Writ Petition No. 21890 of 1992 also stands dismissed and the order dated 4-5-1992 is upheld. The respondent No. 4 will be entitled to get possession of the shop in question and the landlord will be entitled to recover the arrears of rent, if any, in accordance with law. In the facts and circumstances of the case, no order is passed as to costs. Petition dismissed. .