Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 1463 (HP)

Roshni Devi v. Dhruv Chand Katoch

2018-08-06

SANJAY KAROL

body2018
JUDGMENT Sanjay Karol, Actg. C.J. - Landlady Smt. Roshni Devi (hereinafter referred as the landlady) has preferred the present petition, filed under Section 24(5) of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the Act). 2. Concurrently, the Rent Controller as also the Appellate Authority have upheld tenant''s plea of the landlady not accepting the rent and permitting him to deposit the same in Court. 3. According to the tenant Dhruv Chand Katoch (dead - now represented by LRs - hereinafter referred to as the tenant), tenancy in question was created by original owners Ishwar Dass & Majalsi Ram. Subsequently, the premises were sold by them to the landlady, who has refused to accept the rent and wants the premises to be vacated. Rent at the rate of ?40/- per month w.e.f. 1.4.1986 till 31.10.1995, previous month prior to the filing of the petition, under the provisions of Section 21 of the Act, so instituted on 3.11.1995, stands unaccepted by the landlady. 4. The landlady filed an application, seeking permission to lead additional evidence, i.e. judgments passed by various Courts, inter alia, holding the tenant to have failed to establish the factum of tenancy. However, factum of pendency of any such proceedings or passing of such orders/judgments was never pleaded nor proved on record, either before the Rent Controller or the Appellate Authority. On the contrary, before the Appellate Authority, the tenant produced evidence in the shape of municipal record, establishing his possession and existence of tenancy, much prior to transfer of ownership in favour of the landlady. 5. It is in this backdrop, the application, seeking permission to lead additional evidence, filed by the landlady, needs to be rejected. Ordered accordingly. 6. There is yet another reason why this Court is disallowing such prayer and that being the tenant having proven relationship of landlady and tenant, and admission made by the landlady of having instituted proceedings for ejectment against the occupier, i.e. the present tenant, thus belying her own testimony and shattering her defence of having bought the premises as vacated. Significantly, it is not the case of landlady that only thereafter, the tenant has trespassed into the properly. 7. Significantly, it is not the case of landlady that only thereafter, the tenant has trespassed into the properly. 7. This Court in Civil Revision No.154 of 2004, titled as Yog Raj Sood vs. Anita Kaushal & another, decided on 1.6.2016, has already discussed the scope of interference in a petition for revision, filed under Section 24(5) of the Act, in the following terms:- "31. Now what is the scope of such revisional jurisdiction and the extent of the power which the court can exercise is now well settled by a five-judge Bench of the apex Court reported in Hindustan Petroleum Corporation Limited vs. Diibahar Singh, (2014) 9 SCC 78 . The findings can be summarized as under: (i) The term ''propriety'' would imply something which is legal and proper. (ii) The power of the High Court even though wider than the one provided under Section 115 of the Code of Civil Procedure is not wide enough to that of the appellate Authority. (iii) Such power cannot be exercised as the cloak of an appeal in disguise. (iv) Issues raised in the original proceedings cannot be permitted to be reheard as a appellate Authority. (v) The expression "revision" is meant to convey the idea of much narrower expression than the one expressed by the expression "appeal". The revisional power under the Rent Control Act may not be as narrow as the revisional power under Section 115 of the CPC but certainly it is not wide enough to make the High Court a second court of first appeal. While holding so the Court reiterated the view taken in Dattonpant Gopaivarao Devakate vs. Vithairao Maruthirao Janagawai, (1975) 2 SCC 246 . (vi) The meaning of the expression "legality and propriety" so explained in Ram Dass vs. ishwar Chander, (1988) 3 SCC 131 was only to the extent that exercise of the power is not confined to jurisdictional error alone and has to be "according to law". (vii) Whether or not the finding of fact is according to law or not is required to be seen on the touch stone, as to whether such finding of fact is based on some legal evidence or it suffers from any illegality like misreading of the evidence; overlooking; ignoring the material evidence all together; suffers from perversity; illegality; or such finding has resulted into gross miscarriage of justice. Court clarified that the ratio of Ram Dass (supra) does not exposit that the revisional power conferred upon the High Court is as wide as an appellate power to reappraise or reassess the evidence for coming to a finding contrary to the findings returned by the authority below. (viii) In exercise of its revisional jurisdiction High Court shall not reverse findings of fact merely because on reappreciation of the evidence it may have a different view thereupon. (ix) The exercise of such power to examine record and facts must be understood in the context of the purpose that such findings are based on firm legal basis and not on a wrong premise of law. (x) Pure findings of fact are not to be interfered with. Reconsideration of all questions of fact is impermissible as Court cannot function as a Court of appeal. (xi) Even while considering the propriety and legality, high Court cannot reappreciate the evidence only for the purposes of arriving at a different conclusion. Consideration of the evidence is confined only to adjudge the legality, regularity and propriety of the order. (xii) Incorrect finding of fact must be understood in the context of such findings being perverse, based on no evidence; and misreading of evidence. 32. The Court was dealing with the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965, T. N. Buildings (Lease and Rent Control) Act, 1960 and Haryana Urban (Control of Rent and Eviction) Act, 1973. The incongruity in the decisions rendered by the apex Court in Rukmini Amma Saradamma vs. Kallyani Sulochana, (1993) 1 SCC 499 and Ram Dass (supra) was the backdrop in which the Constitution Bench was called upon to decide the scope of the revisional jurisdiction and the expression "legality and propriety" provided in the relevant statues. The essential question being as to whether in exercise of such powers, the revisional authority could reappreciate the evidence or not. Finally the Court answered the reference by making the following observations:- "43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, its view is different from the court/authority below. Finally the Court answered the reference by making the following observations:- "43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, its view is different from the court/authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded bv court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law . In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be eouated with the power of reconsideration of all Questions of fact as a court of first appeal . Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity." [Emphasis supplied] 8. Having heard learned counsel for the parties as also perused the record, this Court is of the considered view that the finding of fact, concurrent in nature, cannot be said to be perverse, illegal or not borne out from the record, warranting interference in any manner. 9. Having heard learned counsel for the parties as also perused the record, this Court is of the considered view that the finding of fact, concurrent in nature, cannot be said to be perverse, illegal or not borne out from the record, warranting interference in any manner. 9. Shri Prabhat Chand (PW-1) has established the factum of refusal of the landlady to receive rent, for the money orders, for the period in question, were returned by her as refused and not accepted. Witnesses Shri Bidhi Chand (PW-2) and Shri Bakshi Ram (PW-3) have categorically deposed that the school under the name of ''Shishu Model School'' is being run from the premises in question, for the last 17-18 years and that the tenant was inducted by the original owner and the tenancy was created at the monthly rental of ?40/-. Revenue record (Ex.P-1 & P-2) is also on record to establish such fact. 10. One notices that in the appeal, filed by the landlady, the tenant was permitted to lead evidence, further establishing the factum of the school being run from the premises. Shri Manoj Gupta (RW-1), who is working as a Clerk in the Nagar Parishad, Hamirpur, has produced the municipal record, wherein it is also recorded that the premises in question are under tenancy, from where a school is being run. 11. In the rent petition, the landlady has not led any evidence, save and except examining herself, wherein though initially she does state that the petitioner (tenant) is not her tenant and denies running of any school from the premises in question, but then admits having instituted proceedings for dispossessing the tenant. In what capacity the tenant occupies the premises is not so disclosed by her. Thus, veracity of her statement is rendered doubtful. 12. For the aforesaid reasons, the petition only merits rejection, for it cannot be said that the impugned order dated 16.1.2001, passed by the Rent Controller, Hamirpur, Himachal Pradesh in Rent Petition No.10 of 1995, titled as Prabhat Chand Katoch v. Smt. Roshani Devi, as affirmed by the lower Appellate Authority vide order dated 8.10.2007, passed in Rent Appeal No.8 of 2001/RBT No.l of 2004, titled as Roshani Devi v. Dhrub Chand Katoch, is perverse or illegal, warranting interference by this Court. Hence, the petition, without any merit, is dismissed. Pending application(s), if any, also stand disposed of.