Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 77 (CAL)

Soma Sharma (Halder) v. Gouri Halder

2008-01-18

RUDRENDRA NATH BANERJEE

body2008
Judgment RUDRENDRA NATH BANERJEE, J. This revision under Article 227 of the Constitution of India challenges the judgment of the appellate Court in Misc. Appeal No. 393 of 2006 of learned Additional District Judge, 10th Court, Alipore arising out of order dated 24.8.06 in Title Suit No. 169 of 2006 in the 3rd Court of learned Civil Judge, Junior Division, Alipore, South 24-Parganas. Smt. Soma Sharma and her husband Om Prakash Sharma filed the T.S. No. 169 of 2006 in the 3rd Court of learned Civil Judge, Junior Division, Alipore for a decree of declaration that the plaintiffs are the co-tenants under the defendant no. 1 Smt. Gouri Halder in respect of the suit premises consisting of one room beneath the staircase, common bath, privy and verandah in the ground floor and two rooms and verandah on the first floor and thakur ghar and roofs of both sides of the second floor in 86, Purna Mitra Lane described in details in Part A of the plaint schedule. The plaintiffs have also claimed their tenancy in respect of two rooms and kitchen, bathroom, privy in the adjacent land described in Part B of the schedule. The plaintiffs have also prayed for permanent injunction. The plaintiff’s case is that the entire suit property originally belonged to Tulsi Halder who bequeathed the suit property to the defendant no. 1 Smt. Gouri Halder i.e. his wife and the defendant no. 2 i.e. Basudev Halder, his son by a Will which was probated in the Court of competent jurisdiction. By the said Will the testator’s wife Gouri Halder i.e. the defendant no. 1 got life interest after the death of the testator Tulsi Halder. It was also stated that during such possession during the life time of the defendant no. 1 she was permitted to induct monthly tenants in respect of the suit premises; but, she was not empowered to make any sale or gift in respect of the same. It was further provided that after the death of Gouri Bala Halder the defendant no. 2 would get the suit property with 16 annas interest therein. It is the further case of the plaintiff-petitioners that on the death of Tulsi Charan Halder the Will was probated and Smt. Gouri Halder defendant no. 1/respondent no. It was further provided that after the death of Gouri Bala Halder the defendant no. 2 would get the suit property with 16 annas interest therein. It is the further case of the plaintiff-petitioners that on the death of Tulsi Charan Halder the Will was probated and Smt. Gouri Halder defendant no. 1/respondent no. 1 began to possess the suit property as life interest holder and she inducted the plaintiffs as tenant in respect of the part A and part B of the premises as per schedule of the plaint. The defendant no. 2 Basudev Halder having disturbed their possession and having tried to evict them from the suit property the plaintiff’s have brought the suit for declaration of their tenancy right and for permanent injunction. In the said suit the plaintiffs filed a petition under Order 39 Rules 1 and 2 of the Code of Civil Procedure for temporary injunction against the defendant no. 2 so that he may not disturb their peaceful possession as tenant in the suit premises, till disposal of the suit. Such petition for temporary injunction was rejected by the trial Court on contest. Being aggrieved by the said order of rejection the plaintiffs filed the Misc. Appeal No. 393 of 2006 which was dismissed on contest by the impugned judgment by the 3rd Court of learned Additional District Judge, Alipore. Being aggrieved by such judgment of the learned appellate Court in the said Misc. Appeal the plaintiffs as the petitioners have preferred this instant revisional application under Article 227 of the Constitution. As against the aforesaid case made out by the plaintiffs/petitioners the defendants no. 2’s case is that he is the son of the said Tulsi Halder and the plaintiff no. 1 Soma Halder is one of his sisters and the plaintiff no. 2 is her husband i.e. the plaintiffs are one of the daughters and son-in-law of the defendant no. 1. According to defendant no. 2 the plaintiff no. 1 having not obtained any share of property left by her father by the said will, she made successive attempts to annul/revoke probated will by filing two suits namely T.S. No. 170 of 1987 in the 3rd Court of learned Civil Judge, Junior Division, Alipore and the O.S. No. 6 of 1990 in the 11th Court of Additional District Judge at Alipore. Both the suits were dismissed as not maintainable. Both the suits were dismissed as not maintainable. After being unsuccessful in those two suits the present plaintiffs made conspiracy with the defendant no. 1 Gouri Rani Halder i.e. the mother of the plaintiff no. 1 and has tried to establish their tenancy in the suit property so that they may get possession in the suit property although they did not have any title over the same on the basis of the probated will. It is the further case of the defendant no. 2/O.P. No. 2 that the rate of rent to the tune of Rs.200/- per month for part A of the suit property and Rs.100/- per month for part B of the suit property appears to be inconsistent while such monthly rent in respect of greater number of rooms in the self same building to an outsider tenant was Rs.500/-. It is the further case of the defendant no. 2 that the plaintiffs are not in actual possession of the suit property. Learned trial Court while dismissing the application under Order 39 Rules 1 and 2 filed by the plaintiff on contest could not rely upon the plaintiffs’ case of tenancy under the defendant no. 1. It was observed that no voter’s identity card nor any ration card to show their possession in the suit property was filed. The learned appellate Court in the Misc. Appeal No. 393 of 2006 also dismissed the application for temporary injunction affirming the order of the learned trial Court. Learned appellate Court also could not rely upon the tenancy specially in view of the inconsistency of rate of rent in respect of the suit premises when compared with the rent fixed for outsider tenant. The learned appellate Court also took note of the earlier unsuccessful efforts of the plaintiff no. 1 for annulment or revocation of the Will as she did not get any share in the property left by the testator father. It has also been observed that the plaintiffs have not come in clean hands and that the life estate given to the mother defendant no. 1 cannot be misused by her by inducting her daughter as tenant in a portion of the suit premises. Accordingly, the learned Court of Appeal dismissed the Misc. Appeal and hence petition for temporary injunction affirming the order of learned trial Court. Mr. 1 cannot be misused by her by inducting her daughter as tenant in a portion of the suit premises. Accordingly, the learned Court of Appeal dismissed the Misc. Appeal and hence petition for temporary injunction affirming the order of learned trial Court. Mr. Asit Kumar Bhattacharya, the learned advocate for the petitioner has strenuously contended that the learned Courts below did not take note of existence of the agreement of tenancy made between the plaintiff no. 1 and the defendant no. 1 and the rent receipt granted by the defendant no. 1 in favour of the plaintiffs/petitioners. It has been further contended by Mr. Bhattacharya that the rate of rent is the matter of privity of contract between the plaintiffs and the defendant no. 1 and cannot be compared with the rate of rent fixed for the outsider tenant. It has been further contended that simply because the plaintiff no. 1 was unsuccessful in her attempts to get the will revoked or annulled it cannot be held that there is a collusion between the plaintiffs and the defendant no. 1. It has been further contended by Mr. Bhattacharya that under the probated Will the defendant no. 2 cannot have any locus standi to challenge the tenancy of the plaintiffs accepted by the defendant no. 1, his mother specially when during the lifetime of his mother the defendant no. 2/O.P. No. 2 cannot have any sort of title or possession of the suit property. Mr. Arun Kumar Maity, the learned advocate for the O.P. No. 2 has strenuously contended that such revisional application under Article 227 of the Constitution of India is not maintainable and under the supervisory jurisdiction this Court cannot entertain such application for revision under such Article when an appellate forum has been prescribed and availed of. It has been further contended by Mr. Maity that such power of superintendence can be exercised by this Court under Article 227 of the Constitution of India in a rarest case when by the impugned order it appears that the subordinate Court has exceeded jurisdiction. Mr. Maity has relied upon the decisions reported in AIR 1975 SC 1297 (Babhutmal Raichand Oswal V. Laxmibai R. Tarte & Anr.). The scope and extent of the power under Article 227 has been explained in such decision. Mr. Maity has relied upon the decisions reported in AIR 1975 SC 1297 (Babhutmal Raichand Oswal V. Laxmibai R. Tarte & Anr.). The scope and extent of the power under Article 227 has been explained in such decision. At page 1301 it has been held that, “The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as a Court of Appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a Court of Appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate Court or Tribunal final on facts.” In the case under this cited decision the question was as to whether the suit premises was used by the appellant-tenant for residential purpose or commercial purpose on a finding of the Court that the tenant was using part of the tenancy for the purpose other than for which it was let out and the High Court at Bombay entered into such evidence under Article 227 of the Constitution. Here in the present case the question is not simpliciter of facts as to the user of the tenanted premises, but of conferring power by the original owner of induction of tenant and that the defendant no. 2 is bound by that. Such vital evidence has been overlooked by both the courts below causing serious prejudice to the parties. Such omission is a substantial question of law and not a mere error of fact. Thus the aforesaid decision does not come to much help of the respondent No. 2. Mr. Maity has also cited the decision reported in AIR 1987 SC 1645 (Sukhbir Narain (dead) by LRs. V. Deputy Director of Consolidation) wherein it has been held by the Supreme Court that, “The High Court would not have interfered with this order under Article 227 of the Constitution of India unless there was any error apparent on the face of the order.” Mr. Maity has also cited a decision reported in AIR 2003 SC 3044 (Surya Dev Rai V. Ram Chander Rai & Ors.). Maity has also cited a decision reported in AIR 2003 SC 3044 (Surya Dev Rai V. Ram Chander Rai & Ors.). In the said cited decision it has been held in para 26 that, “In order to safeguard against a mere appellate or revisional jurisdiction being exercised in the garb of exercise of supervisory jurisdiction under Article 227 of the Constitution, the courts have devised self-imposed rules of discipline on their power. Supervisory jurisdiction may be refused to be exercised when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved. The High Court may have regard to legislative policy formulated or experience and expressed by enactments where the legislature in exercise of its wisdom has deliberately chosen certain orders and proceedings to be kept away from exercise of appellate and revisional jurisdiction in the hope of accelerating the conclusion of the proceedings and avoiding delay and procrastination which is occasioned by subjecting every order at every stage of proceedings to judicial review by way of appeal or revision. So long as an error is capable of being corrected by a superior court in exercise of appellate or revisional jurisdiction though available to be exercised only at the conclusion of the proceedings, it would be sound exercise of discretion on the part of the High Court to refuse to exercise power of superintendence during the pendency of the proceedings. However, there may be cases where but for invoking the supervisory jurisdiction, the jurisdictional error committed by the inferior court or tribunal would be incapable of being remedied once the proceedings have concluded.” In the present context the very vital evidence as to the respondent No. 2’s right to challenge the tenancy of the plaintiffs has been overlooked by both the courts below, which cannot be left unnoticed by this court exercising power of superintendence. After all the aforesaid decisions do not prohibit exercising power of the High Court of superintendence in case the finding of the Court below exceeds jurisdiction or exercises wrongful jurisdiction inviting serious prejudice to the parties. After all the aforesaid decisions do not prohibit exercising power of the High Court of superintendence in case the finding of the Court below exceeds jurisdiction or exercises wrongful jurisdiction inviting serious prejudice to the parties. Thus the sum and substance of the decisions cited above is that while exercising the supervisory power under Article 227 the High Court must be cautious and shall exercise such jurisdiction only in the rarest of rare case where there is a perverse finding in the impugned order causing flagrant defect and errors on the face of the record inviting serious prejudice to the concerned parties. A discretionary relief granted by the subordinate Courts should not generally be interfered with if the finding of facts on the basis of which such discretion has been exercised by the Courts below are right or without error. The decision of a three Judges’ Bench of the Supreme Court reported in AIR 1979 SC 1 corresponding to (1979) 3 SCC 118 (Chandrasekhar Singh & Ors. V. Siva Ram Singh & Ors.) may be relied upon over the present context. Although such question of power under Article 227 of the Constitution was dealt with in connection with the power under Sections 435 and 439 of Criminal Procedure Code, but the principles laid down therein regarding interference under Article 227 of the Constitution may be accepted. It has been held in such decision in para 11 – “The scope of interference by the High Court under Article 227 is restricted. The power of superintendence conferred by Article 227 is to be exercised sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors;” Although the scope of interference by the High Court under article 227 of the Constitution is restricted but in exercising such power of superintendence the High Court may also interfere with the finding of facts made by the subordinate courts if such findings are found to have been arrived at violating natural justice or are perverse finding on the face of the record or that the finding of subordinate courts are flagrant errors in procedure, all inviting serious prejudice to the concerned parties. Even upon a concurrent finding of both the lower courts on the question of fact can be interfered with if such finding is based on ‘no evidence’ or baseless assumption. Even upon a concurrent finding of both the lower courts on the question of fact can be interfered with if such finding is based on ‘no evidence’ or baseless assumption. In this connection the decision reported in A.I.R. 1987 Supreme Court, 2179 (Vinode Kumar Arora – Vs. – Smti Surjit Kaur, may be relied upon. In the said decision, the contest was between a widowed landlady seeking for eviction of the tenant for bonafide requirement of herself and her son, daughter etc for residential purpose and a tenant whose young son was running a clinic in the suit premises which was a big hall. Another ground for eviction was that the tenant changed the user of the suit premises from residential purpose to non residential purpose. Both the rent controller and the appellate authority dismissed the suit for eviction on the ground of absence of bonafide requirement and change of user. The High Court of Punjab and Hariyana interfered with such decision of Rent Controller & Appellate Authority and held bonafide requirement in favour of landlady and ordered for eviction. The Supreme Court at para – 9 has observed that “In our view the High Court was fully justified in rejecting the finding of Rent Controller and the Appellate Authority, even though it is a finding of fact, because both the authorities have based their findings on conjectures and surmises and secondly they have lost sight of relevant pieces of evidence which have not been controverted.” It was further observed by the Supreme Court that the rule of non interference by High Court in the case of concurrent finding of fact is well settled but it must be remembered that such rule would apply only where the findings have been rendered with reference to facts and not on the basis of non existent material and baseless assumption. Here, in the present case the defendant nos. 1 and 2 both claiming their right to the property on the basis of the probated Will by the settlor Tulsi Charan Halder. The plaintiffs are claiming the tenancy right on the strength of the alleged induction by defendant no. 1 emerging from the right given in the probated Will by defendant no. 2’s father to the defendant No.1, his wife. On perusal of the relevant portion of the said Will it appears that the testator gave the life interest to his wife defendant no. 1 emerging from the right given in the probated Will by defendant no. 2’s father to the defendant No.1, his wife. On perusal of the relevant portion of the said Will it appears that the testator gave the life interest to his wife defendant no. 1 and also granted her the right to induct monthly tenants though no right of transfer of the suit property by way of sale or gift etc. was given to her. It has been further stated in the said Will that the defendant no. 2/O.P. No. 2 will get the absolute title to the suit property for suit building only after the death of the defendant no. 1. Thus, so long the defendant no. 1 is alive the defendant no. 2 cannot have any right, title and interest to the suit property nor can he have any locus standi to challenge the act of his mother defendant no. 1 in inducting tenant. It has been observed by the learned appellate Court that the said mother defendant no. 1 Gouri Bala Halder in the name of inducting tenant has practically misused her liberty and power given by the Will. It is also observed by learned Courts below that there is much inconsistency in the rates of rent which practically goes to show fraud or falsity of the tenancy itself. But it cannot be left unnoticed that the defendant No. 1/opposite party No.1 herself does not come forward to deny the tenancy of the plaintiffs under her. We need not enter into such question of fraud or falsity of the story of tenancy for the purpose of the present context of dealing with the injunction matter, and in exercise of power under Article 227 of the Constitution. After all this defendant no. 2/O.P. No. 2 has got no locus standi to raise such question in the suit itself. The defendant no. 1 having not challenged the tenancy of the plaintiffs under her, it appears that the plaintiffs have a strong prima facie case. Considering all such facts and circumstances I find that both the learned Courts below has practically overlooked this aspect of the matter and accordingly has made perverse finding and irregular exercise of jurisdiction inviting serious prejudice to the plaintiffs and such irregular exercise of jurisdiction cannot be remedied once the suit or proceedings is concluded. Considering all such facts and circumstances I find that both the learned Courts below has practically overlooked this aspect of the matter and accordingly has made perverse finding and irregular exercise of jurisdiction inviting serious prejudice to the plaintiffs and such irregular exercise of jurisdiction cannot be remedied once the suit or proceedings is concluded. Thus, the provisions of Article 227 of the Constitution is attracted and the impugned order dated September 29, 2007 passed by the learned Additional District Judge, 10th Court, Alipore in Misc. Appeal No. 393 of 2006 affirming the order dated September 2, 2006 passed by Civil Judge, Junior Division, 3rd Court, Alipore in T.S. No. 169 of 2006 is set aside. The plaintiffs’/petitioners’ petition for temporary injunction is accordingly allowed and the defendant no. 2 and his men and agents are restrained from interfering with the possession of the plaintiffs or from evicting the plaintiffs petitioners from the suit A and B schedule property till the disposal of the suit. The revisional application is accordingly allowed. There shall be no order as to costs.