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2017 DIGILAW 337 (RAJ)

Shabbir @ Bablu S/o Late Mohammad Ismile v. Mohammad Yakub S/o Late Rahamtulla Saikh

2017-01-30

MOHAMMAD RAFIQ

body2017
ORDER : Mohammad Rafiq, J. 1. This writ petition has been filed by Shabbir @ Bablu and Ajeej against the order dated 29.11.2016 passed by Appellate Rent Tribunal, Jaipur Metropolitan, Jaipur in appeal filed by the petitioners, whereby it upheld the judgment of the Rent Tribunal dated 26.11.2015 with the prayer that the impugned orders be set aside and the application filed by the applicant under Section 9 of the Rajasthan Rent Control Act, 2001 may be dismissed. 2. Facts of the case are that the applicant-landlord-respondent filed an application under Section 9 of the Rent Control Act, 2001 against the father of the petitioners with the averments that there is a house situated at 25 Jaims Colony, Vidhyadhar Nagar, Jaipur and same was let out to non-applicant no. 1 and from 01.05.2007 to 31.01.2008 rent was not paid and north east side of the property has been given by the non-applicant no.1 to the non-applicant 2 in sub-tenancy. It was further mentioned that the non-applicant no.1 has denied the title of the applicant and there is a bona fide necessity of the premises for the residence of this sons Faruk and Sarfuddin. The applicant-landlord also took the ground of nuisance and it was requested to pass a decree of possession in favour of the applicant. The non-applicant no.1 filed reply to the application in which the fact that the applicant and the non-applicant no. 1 are close relatives was admitted. The non-applicant no.2 filed separate reply in which it was admitted that the plot no.25 was purchased by the father of the applicant and no-applicant no.2 jointly and the non-applicant no.2 is owner of the half share in the property and accordingly he is in the possession in the half share. It was further mentioned that the applicant never let out the premises to the non-applicant no.1 and there is collusion of the applicant and non-applicant no.1. Applicant moved an application for amendment of the pleadings and same was allowed by learned Rent Tribunal and the applicant filed amended rent application and during pendency of the rent application, the non-applicant no.2 expired and the petitioners as well as other legal heirs of the non-applicant no.2 were taken on record. The petitioners filed reply to the amended application in which it was mentioned that the applicant is brother-in-law of the non-applicant no.1 and they are having collusion. The petitioners filed reply to the amended application in which it was mentioned that the applicant is brother-in-law of the non-applicant no.1 and they are having collusion. Father of the petitioners was owner of the half share of the property in dispute and therefore it is requested to dismiss the application filed by the applicant. 3. The applicant appeared in evidence as PW/1 and also produced the evidence of three other witnesses and also produces 66 documentary evidence in support of his case. The non-applicant no.1 appeared in evidence as DW/1 and produced 31 documents in support of his case. The non-applicant no.2 appeared as witness and also produced the evidence of two other witnesses and produced 14 documentary evidence. 4. The learned Rent Tribunal framed as many as seven issues for adjudication of the case and vides judgment and decree dated 26.11.2015, application filed by the applicant-landlord was allowed and it was ordered that the applicant will be entitled to get the possession of the property in dispute within a period of three months from the non-applicants. The petitioners filed appeal before learned Appellate Rent Tribunal and the non-applicant no. 1 also filed separate appeal. The Rent Tribunal formulated seven points for determination of the dispute. The point no.1 was with regard to default, point no.2 was regarding subletting, point no.3 was with regard to denial of title of the landlord by the tenant, point no.4 was for personal bona fide reasonable necessity of the landlord for his sons Farukh and Shafruddin, point no.5 was regarding nuisance, point no.6 was regarding arrears of rent and the last point no.7 was with regard to relief. 5. While finding on point no.1 with regard to default was recorded in favour of the landlord, finding on point no.2 with regard to subletting was also recorded in favour of the landlord, but the finding on point no.3 regarding denial of title was recorded in favour of the tenant because non-applicant no.1, the original tenant did not deny the title of the landlord and, therefore, the dispute raised by the non-applicant no.1 about the ownership of the landlord was not held to fall in the purview of denial of title. The point no.4 with regard to bona fide reasonable necessity was also decided in favour of landlord. Point no.5 with regard to nuisance was also decided in favour of landlord. The point no.4 with regard to bona fide reasonable necessity was also decided in favour of landlord. Point no.5 with regard to nuisance was also decided in favour of landlord. Point no.6 with regard to arrears of rent was also decided in favour of the landlord. While the tenant filed an appeal against the judgment on all issues except the point no.3 with regard to denial of title, the landlord also filed appeal there against. Both the appeals were dismissed by the learned Appellate Rent Tribunal vide judgment dated 29.11.2016. Now the tenants have filed the present writ petition there against. 6. Shri Amit Jindal, learned counsel for the petitioners has submitted that the learned Courts below failed to consider that the applicant-landlord initially filed a civil suit for permanent injunction against the non-applicants with a prayer to restrain the non-applicants to get electricity connection on the suit premises and during the pendency of the rent application, a civil suit was filed by the non-applicant no.2 for declaration and permanent injunction against the applicant and non-applicant no.1 on 21.10.2011 with the prayer to declare the non-applicant no. 2 as owner of the half share of the property in dispute and prayed to restrain the applicant and non-applicant no.1 to dispossess the non-applicant no. 2. It is submitted that the title suit filed by the non-applicant no.2 was pending for adjudication at the time of pendency of the rent application filed by the applicant hence; the learned Rent Tribunal should have waited for the outcome of the suit for declaration filed by the non-applicant no.2. 7. It is contended that the learned Courts below failed to consider that the applicant is brother-in-law of the non-applicant no.1 and there is collusion of the applicant/landlord with the non-applicant no.1 to dispossess the petitioners/non-applicant no.2 from the suit premises. It is submitted that the learned Tribunal decided the Issue no.2 in favour of the applicant with the observation that "whether the petitioners/non-applicant no.2 is co-owner of the property in dispute or not" is not in the jurisdiction of the Tribunal. It is submitted that the non-applicant no.2 filed the suit for declaration to declare him the half sharer in the property in dispute in the month of October, 2011, hence the learned Tribunal was duty bound to wait for the outcome of the civil suit filed by the non-applicant no.2. 8. It is submitted that the non-applicant no.2 filed the suit for declaration to declare him the half sharer in the property in dispute in the month of October, 2011, hence the learned Tribunal was duty bound to wait for the outcome of the civil suit filed by the non-applicant no.2. 8. Learned counsel for the petitioners further submitted that the learned Courts below failed to consider that the applicant has taken the ground of bona fide necessity of his sons Faruk and Sarfuddin but both the sons were not produced by the applicant in the evidence and on the basis of the admission made by the non-applicant no.1, issue no. 4 regarding bona fide necessity was decided in favour of the applicant. It is submitted that the non-applicant no.2 is not bound by the admission made by the non-applicant no.1 and it was specifically mentioned by the non applicant no.2 in his reply that there is collusion of applicant and the non-applicant no. 1. It is contended that the learned Court below further committed illegality by deciding the Issue no. 5 & 6 on the basis of admission of the non-applicant no.1 that the applicant is entitled to get the due rent of Rs.9,000/- from the non-applicants. It is therefore prayed that the impugned order be set aside and the appeal of the petitioners-tenants be allowed. 9. On hearing learned counsel for the parties and perusing the impugned order, this Court does not find any infirmity in the concurrent findings of facts recorded by both the courts below on all the points as the learned Rent Tribunal as also the Appellate Rent Tribunal have critically analysed the evidence adduced by both the parties and have found that the landlord was able to prove not only the default, but also the bona fide and reasonable necessity and nuisance. The concurrent findings have also been recorded on account of subletting and parting with possession. All these are findings of facts. Despite arguments of learned counsel for the petitioners, this Court does not find any good reason to take a different view on the available evidence, than the one expressed by the two courts below. 10. The concurrent findings have also been recorded on account of subletting and parting with possession. All these are findings of facts. Despite arguments of learned counsel for the petitioners, this Court does not find any good reason to take a different view on the available evidence, than the one expressed by the two courts below. 10. The Supreme Court in Mehmood Rahmat Ullah Khan and Another v. Niyaz Ahmad Khan - (2011) 14 SCC 672 , held that the High Court in writ petition cannot interfere with finding of fact with regard to bona-fide need, this being a finding of fact. The Supreme Court in Babhutmal Raichand Oswal v. Laxmibai R. Tarta and Another - (1975) 1 SCC 858 , while dealing with supervisory power of a High Court under Article 227 of the Constitution, held that if an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari, it should follow a fortiori that it is not subject to correction by the High Court in exercise of its jurisdiction under Article 227. 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 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. Moreover, the Supreme Court in Shamshad Ahmad and Others v. Tilak Raj Bajaj - (2008) 9 SCC 1 , held that a finding as to bona fide requirement is a finding of fact. Neither it could have been interfered with, nor can it be set aside by the writ court. In view of the above position, the High Court was wrong in allowing the writ petition. 11. Neither it could have been interfered with, nor can it be set aside by the writ court. In view of the above position, the High Court was wrong in allowing the writ petition. 11. In State of Maharashtra v. Milind - (2001) 1 SCC 4 , it was held by the Supreme Court that the High Court, while exercising the power of judicial review under Article 227 of the Constitution of India, against an order of inferior Tribunal, being supervisory and not appellate, would be justified in interfering with the conclusion of the Tribunal, only when it records a finding that the inferior Tribunal's conclusion is based upon exclusion of some admissible evidence or consideration of some inadmissible evidence or the inferior Tribunal has no jurisdiction at all or that the finding is such, which no reasonable man could arrive at, on the materials on record. 12. In Chundvarkar Sita Ratna Rao v. Ashalata S. Guram - (1986) 4 SCC 447 , the Supreme Court held that unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it was not for the High Court under Articles 226 and 227 of the Constitution to interfere. If there is evidence on record on which a finding can be arrived at and if the court has not misdirected itself either on law or on fact, then the High Court, in exercise of the power under Article 226 or Article 227 of the Constitution, should refrain from interfering with such findings. 13. In Shalini Shyam Shetty and Another v. Rajendra Shankar Patil - (2010) 8 SCC 329 , after dealing with plethora of previous case law, the Supreme Court held that jurisdiction under Article 227 of the Constitution of India is entirely discretionary and no person can claim it as a matter of right. A petition under Article 226 is different than a petition under Article 227. The mode of exercise of power by the High Court under these two Articles is also different. 14. In State v. Navjot Sandhu, (2003) 6 SCC 641 , the Supreme Court held that the power of judicial superintendence, under Article 227, must be exercised sparingly only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. 14. In State v. Navjot Sandhu, (2003) 6 SCC 641 , the Supreme Court held that the power of judicial superintendence, under Article 227, must be exercised sparingly only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. Where the statute bans the exercise of revisional powers, it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. The jurisdiction under Article 227 could not be exercised as the cloak of an appeal in disguise. 15. In view of above, this Court finds no merit in the writ petition. The writ petition is dismissed.