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2016 DIGILAW 1136 (ALL)

Saeed Ahmad v. Jafar Ali

2016-03-30

SUNITA AGARWAL

body2016
JUDGMENT Mrs. Sunita Agarwal,J. Heard Shri Siddharth, learned counsel for the petitioner and Shri Shahroze Khan, learned counsel for the respondent. With the consent of learned counsel for the parties, the present petition has been heard for final disposal at this stage of admission itself. 2. In the suit for eviction filed by the respondent, it is averred that the defendant had defaulted in payment of rent from March 1993 till October 2008. A notice demanding rent was served upon a defendant on 26.6.2001 and further another notice was sent on 6.11.2008. The rent from March 1993 onwards was demanded, however, the defendant has failed to tender rent and, therefore, cause of action for filing the suit arose. 3. On issue no. 1 as to whether the defendant had defaulted in payment of rent it was recorded by the trial Court as also the revisional Court that there is an admission of the defendant in the written statement to the effect that rent for the last three years was due to the plaintiff. The defendant had failed to establish that after service of notice on 26.6.2001 rent was tendered to the plaintiff. As the defendant had failed to prove that he had tendered rent to the plaintiff after March 1993 it was held that the defendant had defaulted and the rent is due from March 1993. 4. The deposits made by the defendant before the Court below in the present suit are not sufficient to confer benefit of Section 20 (4) of U.P. Act No. 13 of 1972 as the entire dues were not deposited before the Court below prior to first date of hearing of the suit. The defendant was, therefore, evicted from the suit property. 5. Challenging the orders passed by the Court below, submission of learned counsel for the petitioner is that a specific plea was taken by the petitioner that the plaintiff had never given a receipt for the rent tendered to him. The averment in paragraph 2 of the written statement cannot be construed to mean that the dues were admitted to the revisionist. The suit has been filed with the assertion that rent was due from March 1993 which was categorically denied. The burden to prove the default in payment of rent which is the basis of the eviction suit could not have been laid upon the defendant. 6. The suit has been filed with the assertion that rent was due from March 1993 which was categorically denied. The burden to prove the default in payment of rent which is the basis of the eviction suit could not have been laid upon the defendant. 6. In order to prove that the defendant had defaulted, certain rent receipts papers nos. 42-Ga and 43-GA with list 27-Ga and 28-Ga were filed by the plaintiff which were found inadmissible in evidence. A finding has recorded by the trial Court that the plaintiff had never issued receipts to the defendant. Despite this finding, the Court below has wrongly concluded that the burden to prove the payment of rent was upon the defendant. 7. On the other hand, learned counsel for the respondent submits that the defendant witness could not prove tendering of rent to the plaintiff after March, 1993 and further after the year 2001. The defence is that the parties had entered into a compromise after the first notice dated 26.6.2001 but the witness PW-2 categorically stated that the defendant did not pay rent in his presence. He appeared only to prove the alleged compromise between the parties which was specifically denied by the plaintiff. In any case, in absence of any proof with regard to payment of rent to the plaintiff, eviction decree may not be interfered. 8. He further submits that this Court in Article 227 of the Constitution of India exercise only supervisory jurisdiction and may not interfere in the concurrent findings of fact recorded by two Courts below. 9. Having heard learned counsel for the parties and perused the records, before dealing with facts of the present case, this Court thinks it proper to examine the scope of its supervisory jurisdiction under Article 227 of the Constitution of India. 10. Article 227 of the Constitution of India confers on every High Court the power of Superintendence over all Courts and Tribunals throughout the territory in relation to which it exercises jurisdiction except any Court or Tribunal constituted by or under any law relating to Armed forces. 11. It is well-settled that the power of Superintendence so conferred on the High Court is administrative as well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo moto. 11. It is well-settled that the power of Superintendence so conferred on the High Court is administrative as well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo moto. The power under Article 227 is wider than one conferred under Article 226 but being supervisory power has to be used sparingly and only in an appropriate case. Proceedings under Article 226 are in exercise of the original jurisdiction while proceedings under Article 227 of the Constitution are only supervisory. The supervisory power is to be exercised to keep the Subordinate Court and Tribunals within the bound of their authorities and not in getting the error of law and facts corrected. The power may be exercised only in case where grave injustice or failure of justice caused. 12. The Apex Court in Surya Dev Rai Vs. Ram Chander Rai and Others reported in 2003 (6) SCC 675 traces back the history of the power under Article 226 and 227 of the Constitution of India and concluded in paragraph 24 as follows: - "24. The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram and Ors. Vs. Smt. Radhikabai and Anr., (1986) Supp. SCC 401. 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. 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." 13. In a recent judgment, Radhey Shyam and another Vs. Chhabi Nath and Others reported in 2015 (5) SCC 423 , the Apex Court while referring to Surya Dev Rai (Supra) and the earlier decisions has noted in paragraph 26 as follows: - "26.The Bench in Surya Dev Rai also observed in para 25 of its judgment that distinction between Articles 226 and 227stood almost obliterated. In para 24 of the said judgment distinction in the two articles has been noted. In view thereof, observation that scope of Article 226 and 227 was obliterated was not correct as rightly observed by the referring Bench in Para 32 quoted above. We make it clear that though despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected, it has been wrongly assumed in certain quarters that the said jurisdiction has been expanded. Scope of Article 227 has been explained in several decisions including Waryam Singh and another vs. Amarnath and anotherst, Ouseph Mathai vs. M. Abdul Khadir[12], Shalini Shyam Shetty vs. Rajendra Shankar Patil[13] and Sameer Suresh Gupta vs. Rahul Kumar Agarwal[14]. In Shalini Shyam Shetty, this Court observed : "64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions. 65. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority. 66. We may also observe that in some High Courts there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. 66. We may also observe that in some High Courts there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding the High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law. 67. As a result of frequent interference by the Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon'ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice within their jurisdiction will adhere to them strictly." 14. The observation is that the High Court shall follow the time honoured principles while exercising its power either under Article 226 or 227 of the Constitution of India and being the highest Courts of justice within their jurisdiction have to adhere to them strictly. 15. Having considered the scope of interference under Article 227 of the Constitution of India in the light of the argument of the petitioner, the facts of the case are to be sifted. 16. A consistent stand has been taken by the petitioner before the Court below that the plaintiff-defendant did not issue any rent receipt to him at any point of time. The plaintiff on the other hand by filing certain receipts through list 28-GA made an effort to submit that the rent receipts were being issued by him but those documents/receipts were found not admissible in evidence and were rejected by the Court below. 17. The plaintiff on the other hand by filing certain receipts through list 28-GA made an effort to submit that the rent receipts were being issued by him but those documents/receipts were found not admissible in evidence and were rejected by the Court below. 17. After rejection of this receipt, the Court below observed that the defendant could not prove that he paid rent to the plaintiff. This conclusion drawn by the Court below is nothing but an illegal exercise of jurisdiction vested in it. The burden to prove the default in payment of rent could not have been laid upon the defendant as the plaintiff had come out with the case that the defendant had defaulted and failed in his attempt to prove the same. Whereas the consistent stand of the defendant was that the payment of rent was without any rent receipt. 18. The revisional Court also committed grave error of law in exercise of its jurisdiction in holding that the defendant could not prove the payment of rent after March 1993. The burden to prove that the defendant had defaulted was upon the plaintiff which he had failed to discharge by producing relevant and admissible evidence, therefore, the onus could not have been shifted on the tenants/defendant to prove that he was not in arrears of rent. 19. Reference may be made to Full Bench judgment of this Court in Gokaran Singh Vs. 1st Additional District and Sessions Judge, Hardoi and others reported in 2000 (1) ARC 653 , relied upon by the learned counsel for the petitioner. (emphasis added to paragraph 33 to 37). 20. In view of the above discussion, it is held that both the Courts below have erred in exercise of the jurisdiction vested in them which caused grave miscarriage of justice in the present case. 21. The decree of eviction could not have been passed by the Courts below on the ground that the defendant was in default. 22. The orders dated 18.11.2015 and 16.11.2010 are hereby set-aside. 23. The suit for eviction on the ground of arrears of rent is dismissed. This petition under Article 227 of the Constitution of India is allowed in the above terms.