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2014 DIGILAW 2416 (ALL)

Syed Mahfoozul Hasnain v. Shahjahan

2014-08-08

SUDHIR AGARWAL

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JUDGMENT Sudhir Agarwal,J. 1. This is a plaintiff-landlord's writ petition, who is aggrieved by the judgment and decree dated 15.09.2005 passed by the Additional District Judge, J.P. Nagar, whereby it has allowed SCC Revision No. 6 of 2001 preferred by defendants-respondents against the judgment and decree dated 07.04.2001 passed by Judge Small Causes Court, Amroha in SCC Suit No. 25 of 1993 and the suit, which was decreed by Trial Court, has been dismissed by setting aside Trial Court's judgement. In other words, petitioner-landlord though succeeded in Trial Court but lost in Revisional Court, hence has invoked jurisdiction of this Court under Articles 226/227 of the Constitution of India. 2. The petitioner, Syed Mahfuzul Hasnain instituted SCC Suit No. 25 of 1993 in the Court of Judge Small Cause, Amroha (earlier it was in District Moradabad but subsequently now part of District J.P. Nagar), impleading Mansoor Ahamd and Smt. Shahjahan, daughter of Mansoor Ahmad as defendants no. 1 and 2, alleging that plaintiff has purchased property in dispute from its erstwhile owner, Ram Swaroop on 01.06.1963. The defendants are tenants in a part of aforesaid house. In 19971-72 some improvement/ renovation was made in the house including the part which is in tenancy of defendants. As a result thereof, rent was increased from Rs. 2/- per month to Rs. 15 per month and then it was increased to Rs. 25/- per month in the year 1972. The defendants have altered let out accommodation substantially. 3. The plaintiff instituted injunction Suit No. 321 of 1988 against construction being made by defendants in which Munsif, Amroha, passed an injunction order dated 19.07.1988 directing defendants to maintain status quo. Subsequently, defendants filed a false Suit No. 357 of 1990 so as to enable themselves to make some alteration in the building and sought an injunction against landlord, which is pending. However, since defendants have made structural alteration in the let out building causing reduction of utility and value thereof, therefore, they are liable for ejectment. It was further pleaded that since first assessment of building was made in 1997, therefore, U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972") was not applicable. The other grounds are default in payment of rent and sub-letting. It was further pleaded that since first assessment of building was made in 1997, therefore, U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972") was not applicable. The other grounds are default in payment of rent and sub-letting. It was also said that vide notice dated 16.08.1993 demand of arrears of rent was made but defendants failed and their tenancy stood terminated. 4. The defendant no. 1 did not put in appearance and the suit proceeded ex parte against him while it was contested by defendant no. 2 only. The oral evidence constitute statement of plaintiff as PW-1 and statement of defendant no. 2 and DW-1. 5. The defendant no. 2 contested suit admitting tenancy rights but denied allegations of material alteration and default in payment of rent. On the contrary it was pleaded that building in dispute was within the ambit of Act, 1972 and landlord himself declined to admit rent, hence it has been deposited in the Court. 6. The Trial Court formulated following three issues: "1. Whether the defendants are liable to be evicted on the basis of the statements in the plaint? 2. Whether the plaintiff is entitled to the remaining rent and damages from the defendants? 3. What relief, if any, is the plaintiff entitled to?" 7. The issues no. 1 and 2 were adjudicated together. The Trial Court held that tenancy rights were available to defendant no. 1 but not to defendant no. 2 and since defendant no. 1 allowed defendant no. 2 also to stay in the house in question, there was a sub-letting of building in dispute. It also held that defendant no. 2 never offered any rent to plaintiff and, therefore, default in payment of rent was also proved. However, on the question of structural alteration the Trial Court recorded no finding. There was no issue framed by Trial Court regarding applicability of Act, 1972 and on the contrary it proceeded as if Act, 1972 was applicable and the issues were adjudicated, accordingly. The suit was decreed by recording finding on the question of sub-letting and default in payment of rent. The decree and judgment of ejectment was passed on 07.04.2001. 8. The defendant no. 2, Smt. Shahjahan, i.e., respondent no. 1 before this Court, aggrieved by aforesaid judgment and decree dated 07.04.2001, preferred SCC Revision No. 06 of 2001. The suit was decreed by recording finding on the question of sub-letting and default in payment of rent. The decree and judgment of ejectment was passed on 07.04.2001. 8. The defendant no. 2, Smt. Shahjahan, i.e., respondent no. 1 before this Court, aggrieved by aforesaid judgment and decree dated 07.04.2001, preferred SCC Revision No. 06 of 2001. The revision has been allowed and the Trial Court's decree has been reversed. 9. Sri M.A. Qadeer, learned Senior Advocate assisted by Sri Mohd. Waris, Advocate for petitioner, contended that Revisional Court has clearly erred in reversing the findings of Trial Court on the issue of default and sub-letting. He said that admittedly the tenancy was initially in the name of of Smt. Sarwari wife of defendant no. 1 and mother of defendant no. 2. Admittedly the defendant no. 2 was married daughter and, therefore, was not a member of 'family' as defined under Act, 1972. The tenancy rights after death of Smt. Sarwari, could be inherited only by defendant no. 1 and not by defendant no. 2. It is admitted that after the death of Smt. Sarwari, defendant no. 2 came to reside in disputed accommodation and, therefore, plea of sub-letting was rightly determined by Trial Court in favour of plaintiff. He further said that defendant no. 2 deposited rent at the rate of Rs. 2/- only in the Court under Section 30 of Act, 1972 and, therefore, default was virtually admitted yet the Revisional Court in taking an otherwise view has committed manifest error and, therefore, the judgment is liable to be set aside. 10. I take up the above pleas in seriatim. So far as sub-letting is concerned, I do not find that it has been proved in any manner. It is admitted that defendant no. 2 was daughter of original owner, Smt. Sarwari died in May, 1985. In order to plead a case of sub-letting payment of rent by sub-tenant to tenant is a necessary condition but in the present case there is no evidence to prove this fact. 11. The definition of 'family' in Act, 1972 is very wide. 2 was daughter of original owner, Smt. Sarwari died in May, 1985. In order to plead a case of sub-letting payment of rent by sub-tenant to tenant is a necessary condition but in the present case there is no evidence to prove this fact. 11. The definition of 'family' in Act, 1972 is very wide. In a given case a married daughter may also be included therein if she is ordinarily residing alongwith her parents but at this stage I do not intend to examine this aspect for the reason that to prove sub-letting one of necessary ingredient having not been pleaded and proved, the same is bound to fail. If the original tenant has died, and no family member is alive, there is a provision under Act, 1972 declaring a "deemed vacancy" but that is not a case pleaded and hence not to be examined by this Court. 12. Now coming to the issue of failure in payment of rent, it is not in dispute that rent was deposited under Section 30. So far as rate of rent is concerned, except of oral statement, it is not shown that any documentary evidence was available and proved. Therefore, it is difficult to hold that there was a default in payment of rent. 13. So far as structural alteration is concerned, the Trial Court has nowhere recorded its finding specifically dealing with the question of reduction in utility or diminution of value of the property due to alleged structural alteration. On the contrary, the Revisional Court has noted that the evidence shows that roof walls have fallen down due to natural calamity and after giving notice to landlord the same was repaired so as to keep rented building habitable. The cost was incurred by tenant and anything otherwise could not be proved by landlord. This was permissible under Section 29(2) of Act, 1972. 14. The view taken by Revisional Court that Trial Court has erred in law and the judgment was not in accordance with law on this aspect, has not been shown perverse and contrary. In my view, there is no apparent error in the impugned judgment warranting interference. This was permissible under Section 29(2) of Act, 1972. 14. The view taken by Revisional Court that Trial Court has erred in law and the judgment was not in accordance with law on this aspect, has not been shown perverse and contrary. In my view, there is no apparent error in the impugned judgment warranting interference. The Revisional Court has not only reappreciated the evidence, but, has found the view taken by Trial Court, not in accordance with law, and that is how it has removed deficiency and set the defect straight, which has resulted in dismissal of suit. It cannot be said that Revisional Court has acted illegally in any manner and has gone beyond its jurisdiction. 15. The scope of judicial review in matters under Article 226/227 of the Constitution is very limited. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes. 16. In D. N. Banerji Vs. P. R. Mukherjee 1953 SC 58 the Court said: "Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere." 17. A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and made following observations at p. 571 : "This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee AIR 1951 Cal. 193 , to be exercised most 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". 18. In Mohd. Yunus v. Mohd. Mustaqim and Ors. Sukumar Mukherjee AIR 1951 Cal. 193 , to be exercised most 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". 18. In Mohd. Yunus v. Mohd. Mustaqim and Ors. AIR 1984 SC 38 the Apex Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice. 19. For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. (See: Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895 ; Rukmanand Bairoliya Vs. the State of Bihar & ors., AIR 1971 SC 746 ; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors., AIR 1980 SC 1896 ; Laxmikant R. Bhojwani Vs. Pratapsing Mohansingh Singh Pardeshi, (1995) 6 SCC 576 ; Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel & ors., (1997) 7 SCC 300 ; M/s. Pepsi Food Ltd. & Anr. Vs. Sub-Judicial Magistrate & ors., (1998) 5 SCC 749 ; and Virendra Kashinath Ravat & ors. Vs. Vinayak N. Joshi & ors. (1999) 1 SCC 47 ). 20. It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See: Rena Drego Vs. Lalchand Soni & ors., (1998) 3 SCC 341 ; Chandra Bhushan Vs. Beni Prasad & ors., (1999) 1 SCC 70 ; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 171 ; and Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers' Union & Anr., (1999) 2 SCC 143 ). 21. (See: Rena Drego Vs. Lalchand Soni & ors., (1998) 3 SCC 341 ; Chandra Bhushan Vs. Beni Prasad & ors., (1999) 1 SCC 70 ; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 171 ; and Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers' Union & Anr., (1999) 2 SCC 143 ). 21. Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India & ors. Vs. Himmat Singh Chahar, (1999) 4 SCC 521 ). 22. In Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82 , the Hon'ble Apex Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/ Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution. 23. In Mohan Amba Prasad Agnihotri Vs. Bhaskar Balwant Aheer, AIR 2000 SC 931 , the Hon'ble Supreme Court held that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse. 24. In Indian Overseas Bank Vs. Indian Overseas Bank Staff Canteen Workers' Union (2000) 4 SCC 245 , the Court observed that it is impermissible for the Writ Court to reappreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere. 25. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere. 25. In Union of India Vs. Rajendra Prabhu, (2001) 4 SCC 472 , the Hon'ble Apex Court held that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below. 26. Similar view has been reiterated in State of Maharashtra Vs. Milind & ors., (2001) 1 SCC 4 ; Extrella Rubber Vs. Dass Estate (P) Ltd., (2001) 8 SCC 97 ; and Omeph Mathai & ors. Vs. M. Abdul Khader, (2002) 1 SCC 319 . 27. In Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675 , it was held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby. 28. In Jasbir Singh Vs. State of Punjab (2006 ) 8 SCC 294, the Court said: "...while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions." 29. In Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil (2010) 8 SCC 329 , the Court said that power of interference under Article 227 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. The above authority has been cited and followed in Kokkanda B. Poondacha and others Vs. K.D. Ganapathi and another AIR 2011 SC 1353 and Bandaru Satyanarayana Vs. Imandi Anasuya (2011) 12 SCC 650. 30. In Abdul Razak (D) through Lrs. & others Vs. Mangesh Rajaram Wagle and others (2010) 2 SCC 432 , Apex Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction. 31. In T.G.N. Kumar Vs. State of Kerala and others (2011) 2 SCC 772 , the Court said that power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. 32. In Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar (2011) 10 SCC 244 , Apex Court referring to its earlier decision in Union of India Vs. R.K. Sharma (2001) 9 SCC 592 observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227. 33. In view thereof, I find no justification warranting interference with the order impugned in this writ petition. 34. Dismissed. Interim order, if any, stands vacated.