Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 892 (RAJ)

Shakhavat Hussain v. Tulsi Ram

2013-05-06

P.K.LOHRA

body2013
JUDGMENT 1. - The petitioner-tenant has laid the present writ petition under Article 227 of the Constitution of India for assailing the part of the order dated 11th May 2012 passed by the learned Appellate Rent Tribunal, Udaipur (for short, 'the Tribunal') whereby the learned Tribunal has rejected the application of the petitioner under Order 6 Rule 17 CPC for amendment of written statement. 2. By the impugned order, the learned Tribunal has decided two applications submitted on behalf of the petitioner- tenant. The application under Order 41 Rule 27 CPC for taking additional documents on record was allowed but the application for amendment in the pleadings was declined. 3. The learned counsel for the petitioner-tenant Mr. Rajesh Shah has argued that having granted the indulgence to the petitioner-tenant on his application under Order 41 Rule 27 CPC, the learned Tribunal ought to have allowed the amendment in the written statement because those amendments were consequential. Mr. Shah has further submitted that the proposed amendment in the written statement was just and by seeking amendment the petitioner-tenant has made endevour to place on record certain subsequent events which have definite bearing on the matter. Learned counsel for the petitioner has further urged that the amendment prayed for on behalf of the petitioner-tenant was necessary for disproving reasonable bonafide necessary of the respondent-landlord for the disputed premises. In support of his arguments, the learned counsel for the petitioner has placed reliance on a judgment of the Apex Court in case of S.J. Ebenzezer v. Velayudhan & Ors., AIR 1988 SC 746 . The Apex Court in that case while examining the grounds of bonafide need of the landlord and examining the importance of pleading and proof in such proceedings has made following observations in Para 8 of the judgment: 8. It is common fact that the principal ground on which the landlord sought eviction was that the building in his occupation was under immediate threat of acquisition by the Town Planning Authority under the provisions of the Land Acquisition Act. It is again an undisputed fact that in the pleadings the first respondent required the premises in question for his residence and to conduct his 'affairs'. He has not disclosed in the application what those 'affairs' are. It is again an undisputed fact that in the pleadings the first respondent required the premises in question for his residence and to conduct his 'affairs'. He has not disclosed in the application what those 'affairs' are. However, at the time of giving evidence he has submitted that he required the building for running his business which he is presently running in the premises in his occupation. The business mentioned by the first respondent was that of Travel agency, It is also an admitted fact that the first respondent was running his business in a room in Mascot Hotel. The Rent Controller, who had the opportunity of observing the demeanour of the witness, has stated as follows:- "Even though the applicant would state that he needs the building to conduct his 'affairs' in the application he has not cared to disclose what those 'affairs' are. Nevertheless, at the time of enquiry he has disclosed those 'affairs'. According to him he needs the building for funding his business which is now being run in premises No.13/1412. His business by way appears to be some travel agency. it would appear from the allegations that he needs this building since the building bearing door number 13/1412 is about to be acquired for some public purpose., Any how at the time of his cross examination he admitted that the Town Planning Scheme for which T.C. 13/1412 is about to be acquired envisages alternate accommodation to those who will be affected by the Scheme. If that be so there is no need to get the disputed building vacated. Probably due to this difficulty that the applicant was forced to sweat in the course of his cross examination that even if the Town planning Scheme does not materialise he had an idea to shift his business from the existing T.C. 13/1412. His evidence shows that he is very often altering his position to suit his convenience as the situation demands. In the cross examination he states that there are practical difficulties in running his business in T.C. 13/1412 and so he needs the building involved in these proceedings. He has no such case either in his application or in the evidence adduced by him while being examined by his own counsel." 4. In the cross examination he states that there are practical difficulties in running his business in T.C. 13/1412 and so he needs the building involved in these proceedings. He has no such case either in his application or in the evidence adduced by him while being examined by his own counsel." 4. While adverting to the limited powers of this Court under Article 227 of the Constitution of India, the Apex Court in case of S.J. Ebenzezer (supra), has made following observations in Para 16. 16. The above narration of facts is totally incorrect and contrary to the pleadings and evidence. A reading of the order of the High Court will show that it has substituted its view in the place of the view taken by the statutory authority which is not within the jurisdiction of the High Court while exercising powers under Article 227 of the Constitution of India. Apart from the above, it is now an admitted fact that the alleged acquisition initiated in the year 1987 must be deemed to have been either given up or lapsed due to efflux of time. This position is not disputed by the learned counsel for the first respondent-landlord. If this is so, the principal ground on which the application for eviction was presented before the Rent Controller is not available to the landlord. This is yet another ground for allowing this appeal. 5. The learned counsel for the petitioner Mr. Shah has also placed reliance on a verdict of Apex Court in Koyilerian Janaki & Ors. v. Rent Controller (Munsiff), Cannanore & Ors., (2000) 9 SCC 406 . In the said verdict, while dealing with the pleadings and the evidence tendered by the landlord, the Apex Court has emphasised the need of the importance of pleading as well as proof and so also the revisional jurisdiction of the District Judge under the Kerala Rent Act. The Apex Court made following observations in Para 2 & 3 of the judgment. 2. Learned counsel appearing for the appellant urged that in the absence of any pleading in the petition and evidence to the effect that the married daughter and son-in-law are dependent on the landlady, the petition filed by the landlady for eviction of appellant was liable to be rejected and the revisional court acted within its jurisdiction when it set aside the order of the appellate Court. On the arguments of the learned counsel for the parties, the first question that arises for consideration is whether the landlady was required under law to plead and substantiate that her married daughter and the son-in-law for whose occupation the building was required were dependent on her. The relevant portion of Section 11(3) of the Kerala Buildings (Lease and Rent control) Act is extracted below: "11 (3) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him." Language of Section 11(3) of the Act is plain and simple and there is no ambiguity in it. A perusal of Section 11(3) shows that if the landlord is in bona fide need of the building for occupation by any members of the family dependent on him he may apply to the Rent Control Court for eviction of the tenant. Thus where eviction of a tenant is sought by a landlord for occupation of any member of his family, the landlord is required to plead and substantiate three ingredients. Firstly, a person for whose need the premises is required is a member of the landlord'- s family. Secondly, such member of the family is dependent on the landlord and thirdly, there is bona fide need. In the absence of any one of the three ingredients, the petition by a landlord under Section 11(3) would fail. In the present case, what we find is that, there was pleading to the effect that the building is needed for the married daughter and son-in- law. However, there is no pleading as regards the fact that the married daughter and the son-in-law are dependent on the landlady. The word "family" has not been defined in the Act. However, for the sake of argument we may assume that the married daughter and son-in-law are members of the landlady'- s family. In that case the landlady has to further plead and substantiate that they are dependent on her. The word "family" has not been defined in the Act. However, for the sake of argument we may assume that the married daughter and son-in-law are members of the landlady'- s family. In that case the landlady has to further plead and substantiate that they are dependent on her. Unless it is pleaded that the married daughter and the son-in-law are dependent on the landlady, a petition under Section 11(3) of the Act cannot succeed on the mere allegation that the building is needed for the occupation of the married daughter and the son-in-law. We are, therefore, of the view that in the absence of any pleading that the married daughter and the son-in-law are dependent on the landlady the appellate court was not justified in allowing the petition of the landlady on the ground that the landlady bona fide required the building for occupation of her married daughter and son-in-law. 3. Once we are of the view that in the absence of any pleading as regarding one of the ingredients that the married daughter and the son-in-law are dependent on the landlady, the landlady cannot succeed in her petition for eviction of the tenant, the next question that arises is as to whether the learned District Judge in exercise of its revisional jurisdiction could interfere with the order of the appellate court. Section 20 of the Act confers revisional jurisdiction on the District Judge. Section 20 of the Act reads as follows: "20(1) In case where the appellate authority empowered under Section 18 is a Subordinate Judge, the District Court and in other cases the High Court, may at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. (2) The costs of and incident to all proceedings before the High Court or District Court under sub-section (1) shall be in its discretion." The aforesaid section empowers the District Judge in its revisional jurisdiction to call for and examine the records relating to any order passed or proceedings taken under the Act for the purpose of satisfying itself as to the legality, regularity and propriety of such order of proceedings and pass such order in reference thereto, as it thinks fit. On the wording of Section 20, we cannot hold that the revisional power with the District Judge is limited to the mere question of jurisdiction only. The said power is not akin to the jurisdiction under Section 115 CPC. In our view, the District Judge in exercise of its revisional jurisdiction could go into the legality, regularity or propriety of any order passed by the appellate court. In fact, the revisional power on the District Judge is of greater amplitude than the power of revision as we find, suffered from legal infirmity and, therefore, the District Judge was justified in setting aside that order. The High Court fell in error in holding that the District Judge has exceeded in his jurisdiction in interfering with the order of the appellate court. Consequently, the judgment of the High Court deserves to be set aside. 6. Per contra, the learned counsel for the respondent- landlord Mr. Sandeep Shah, has vehemently argued that the proposed amendment was prayed for by the petitioner-tenant at the appellate stage and therefore the same was rightly declined by the learned Tribunal. Mr. Sandeep Shah has further urged that legal position is no more res-integra that for deciding bonafide need of the landlord, the crucial date is the date of the application and that is the deciding factor. According to Mr. Sandeep Shah, the subsequent developments cannot be taken as mitigating factors for diminishing or minimising the bonafide need of a landlord for the rented premises. With these submissions, the learned counsel for the respondent has submitted that the learned court below has rightly exercised its discretion in declining the amendment proposed by the petitioner. According to Mr. Sandeep Shah, the subsequent developments cannot be taken as mitigating factors for diminishing or minimising the bonafide need of a landlord for the rented premises. With these submissions, the learned counsel for the respondent has submitted that the learned court below has rightly exercised its discretion in declining the amendment proposed by the petitioner. Stoutly defending the impugned order on that count, the learned counsel for the respondent submits that the learned Tribunal has thoroughly examined the application for amendment of the written statement of the petitioner and thereafter by a reasoned order the said prayer has been declined and therefore no interference with the impugned order is warranted. Buttressing his submission on the issue of crucial date for deciding bonafide need of a landlord, Mr. Sandeep Shah has placed reliance on a verdict of Apex Court in case of Gaya Prasad v. Pradeep Shrivastava, AIR 2001 SC 803 . In the said verdict, the Apex Court while examining the issue has made following observations in Para 10 & 13 : 10. We have no doubt that the crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow process system subsists. During 23 years after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period. 13. In our opinion, the subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events. A three-Judge Bench of this Court in Pasupuleti Venkateswarlu v. Motor and General Traders, 1975 (1) SCC 770 which pointed to the need for re-moulding the reliefs on the strength of subsequent events affecting the cause of action in the field of rent control litigation, forewarned that cognizance of such subsequent events should be taken very cautiously. This is what learned Judges of the Bench said then: "We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceedings provided the rules of fairness to both sides are scrupulously obeyed." 7. The learned counsel for the respondent has also contended that while considering amendment in the written statement at the appellate stage, this Court in case of Tola Ram v. Addl. District Judge & Anr., 2012 (2) RLW 1160 (Raj.) has held in clear and unequivocal terms that bonafide necessity of landlord is to be considered on the day when the necessity arose and the crucial date is the date of the petition. Analyzing the law on pleadings, the Court has made following observations in Para 14 of the verdict. 14. District Judge & Anr., 2012 (2) RLW 1160 (Raj.) has held in clear and unequivocal terms that bonafide necessity of landlord is to be considered on the day when the necessity arose and the crucial date is the date of the petition. Analyzing the law on pleadings, the Court has made following observations in Para 14 of the verdict. 14. Adverting to the facts of the instant case, it is noticed that the learned appellate Court having discussed all the facts and circumstance of the case adlongum and placing reliance on the decision of this Court and of the Hon'ble Apex Court observed that the crucial date for determining the bona fide necessity of the landlord was the date when the lis commenced. The judgment cited by the learned counsel for the petitioner is of no consequence and renders no assistance to the petitioner. It is a settled law that the bonafide necessity of the landlord is to be considered of the day when the necessity arose and the crucial date is the date of the petition. If any subsequent event emerges, the necessity of the landlord does not cease nor the bonafide necessity of that day becomes non-existent. Viewed from this angle, the appellate Court is found to have rightly dismissed the application of the petitioner- tenant seeking amendment in the written statement of defence. The impugned order rendered by the appellate Court is found to be just and proper and suffers from no infirmity and thus, the same warrants no intervention. 8. With these submissions, the learned counsel Mr. Sandeep Shah has strenuously urged that no interference with the impugned order is called for and the petition merits dismissal. 9. I have heard the learned counsel for the rival parties and perused the impugned order passed by the learned Tribunal. 10. A glance at the impugned order makes it amply clear that while examining the application of the petitioner for amendment in the written statement, the learned Tribunal has examined the matter in its entirety and the learned Tribunal has also considered the proposed amendment in the written statement in the light of additional documents tendered by the petitioner, which are allowed to be taken on record. Taking cognizance of all the pros & cons, the learned Tribunal has concluded in clear and unequivocal terms that proposed amendment is not at all necessary for adjudication of the lis involved in the matter. The learned Tribunal, while rejecting the application of the petitioner tenant for amendment, has also observed that in the original petition for eviction laid by the respondent-landlord, he has pleaded bonafide necessity of himself and his both the grandsons and therefore allowing the proposed amendment will not serve any fruitful purpose. It is also not in dispute that the proposed amendment was sought for by the petitioner- tenant at the appellate stage and therefore disallowing the amendment at the appellate stage by the learned Tribunal in exercise of its discretion cannot be faulted in the given circumstances. 11. The petitioner's present petition is under Article 227 of the Constitution of India for invoking supervisory jurisdiction of this Court. It is a trite law that supervisory jurisdiction is to be exercised with great care and circumspection and the said jurisdiction is not akin to that of an appellate jurisdiction. The Apex Court while examining the scope of supervisory jurisdiction in case of Surya Dev Rai v. Ramchander Rai, (2003) 6 SCC 675 , has prescribed certain parameters in exercise of the said jurisdiction in Para 24 of the verdict. Para 24 of the judgment reads as under: 24. The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram v. Radhikabai . Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this Article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction. 12. While summing up the conclusions, in a nutshell, the Apex Court in Para 38(4) to 38 (8) of the verdict has prescribed the following guidelines: (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent. (6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. 13. Thus, applying the ratio decidendi of Surya Dev's case (supra) and the law churned out by this Court on the law of amendment in pleadings, I am convinced that the learned Tribunal has not committed any error much less an error apparent on the face of record while rejecting the application under Order 6 Rule 17 CPC for amendment of written statement. Moreover, in my considered opinion, the impugned order has also not occasioned miscarriage of justice. As regards the legal precedents on which learned counsel for the petitioner has placed reliance, suffice it to say that ratio decidendi of these verdicts cannot be applied in the peculiar facts and circumstances of the present case. Moreover, in my considered opinion, the impugned order has also not occasioned miscarriage of justice. As regards the legal precedents on which learned counsel for the petitioner has placed reliance, suffice it to say that ratio decidendi of these verdicts cannot be applied in the peculiar facts and circumstances of the present case. These legal precedents of the Apex Court are clearly distinguish[ able and are of no assistance to the petitioner. In the background of the fact situation of the instant case and taking into account legislative intent of the Act of 2001, the judgments in the case of Gaya Prasad and Tota Ram's case (supra) clearly clinches the issue in favour of the respondent- landlord. Therefore, on objective analysis and evaluation of the matter in its entirety, I am not inclined to interfere with the impugned order in exercise of supervisory jurisdiction. 14. The upshot of the above discussion is that the writ petition preferred by the petitioner is devoid of any force and the same is hereby rejected.Costs are made easy.Petition Dismissed. *******