Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 372 (RAJ)

Nikky Mehta v. Rent Tribunal, Jodhpur

2013-02-13

VINEET KOTHARI

body2013
JUDGMENT 1. - This writ petition has been filed by the petitioner- tenant under Article 227 of the Constitution of India against the order dated 11.10.2012 passed by learned Appellate Rent Tribunal, jodhpur whereby the learned Appellate Rent Tribunal has refused to take the documents on record filed alongwith additional affidavit filed by the petitioner-tenant after its the amendment in the written statement came to be allowed by previous order dated 11.10.2012 passed by learned Appellate Rent Tribunal in Appeal No. 76 of 2008, Smt. Nikky Devi v. Chothmal . 2. Mr. O.P. Boob, learned counsel for the petitioner-tenant submitted that the documents filed alongwith additional affidavit to support the averments made in the amended written statement deserve to be taken on record and the same could not have been refused by the Appellate Rent Tribunal, which has co-extensive powers with that of Rent Tribunal and therefore, the impugned order dated 11.10.2012 cannot be sustained to that extent. 3. A coordinate bench of this Court, while issuing notices to the respondents vide the order dated 22.11.2012 stayed the further proceedings in Appeal No. 76/2008 pending before the learned Appellate Rent Tribunal, jodhpur. 4. On the other hand, Mr. M.L. Chhangani, learned counsel for the respondent/landlord submitted that the additional affidavit filed by the petitioner- tenant only can be taken on record, subject to cross-examination by the landlord/respondent; and no additional documents can be taken on record, nor any further record can be allowed to be summoned at this stage of appeal. Since, the amendment in the written statement was allowed in view of subsequent events/developments i.e. the two sons of the respondent/landlord, got employment in Government services, therefore, to that extent such amendment has already been allowed by the learned Tribunal on 11.10.2012, and which order is, however, not under challenge in the present writ petition. He thus, submitted that the additional affidavit filed by the petitioner/tenant may be taken in the evidence by the learned Appellate Rent Tribunal. He, however, opposed the request of remand to the lower Rent Tribunal for this purpose of cross-examination and submitted that the Appellate Rent Tribunal itself may be directed to allow such cross-examination of the additional affidavit before it. 5. He, however, opposed the request of remand to the lower Rent Tribunal for this purpose of cross-examination and submitted that the Appellate Rent Tribunal itself may be directed to allow such cross-examination of the additional affidavit before it. 5. Having heard learned counsel for the petitioner-defendant/tenant and the respondent/landlord at some length, this Court is of the opinion that though the scope of interference under Article 227 of the Constitution of India in such interlocutory orders passed by the learned Rent Tribunal or the Appellate Rent Tribunals is very minimal in view of recent decision of Hon'ble Supreme Court in the case of Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil, reported in 2010 AIR SCW 6387 . The Apex Court in the case of Shalini Shyam Shetty (supra), has held as under: "62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction tinder Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the -Constitution is different from a petition under Article 227. The mode of exercised power by High Court under these two Articles is also different. (b) In any event, a petition under Article 227 be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of Tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or Tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the Tribunals and Courts subordinate to it, 'within the bounds of their authority'. (f) In order to ensure that law is followed by such Tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of Tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the Tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution' by the Constitution Bench of this Court in the case of L. Chandra Kumar v. Union of India & Ors., reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in , the functioning of the Tribunals and Courts subordinate to High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality. 63. In the facts of the present case we find that the petition has been entertained as a writ petition in a dispute between landlord and tenant amongst private parties. 64. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality. 63. In the facts of the present case we find that the petition has been entertained as a writ petition in a dispute between landlord and tenant amongst private parties. 64. It is well settled that a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226 , High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform." 6. In view of peculiar facts of the case and in the light of aforesaid legal position, where the amendment in the written statement was allowed by the Rent Tribunal itself by its previous order dated 11.10.2012, the additional affidavit filed by the tenant/petitioner to support his averments made in such amended written statement, should however, has been permitted by the Appellate Rent Tribunal itself and the same could be admitted in the evidence by the learned Appellate Rent Tribunal subject to cross-examination by the respondent/landlord. However, the appeal proceedings cannot be allowed to be further stretched to the extent of taking any additional documents on record or further summoning of the record from the concerned Government department, where the two sons are said to have been employed so as to delay the disposal of the appeal any further. 7. Therefore, without summoning such record if the additional affidavit has already been filed by the defendant-tenant, the learned Appellate Rent Tribunal may permit the landlord/respondent to cross-examine the tenant/petitioner on such additional affidavit and after such cross-examination, learned Appellate Rent Tribunal may take into account the additional affidavit filed by the petitioner. 8. With these observations, the writ petition filed by the petitioner/tenant is disposed of. 8. With these observations, the writ petition filed by the petitioner/tenant is disposed of. The interim order granted by a coordinate bench of this Court dated 22.11.2012, staying the further proceedings in Appeal No. 76/2008 pending before the Appellate Rent Tribunal, Jodhpur Metropolitan City is hereby vacated. A copy of this order be sent to the concerned parties and both the Tribunals forthwith.Petition disposed of. *******