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2018 DIGILAW 742 (HP)

New Brother And Sons v. Hira Mani

2018-04-25

SANJAY KAROL

body2018
JUDGMENT Sanjay Karol, A.C.J —Petitioner, who is a tenant lays challenge to the order dated 10.11.2016, passed by the Rent Controller (1) , Shimla in Rent Petition No. 24-2 of 2012, titled as Smt. Hiramani versus M/s New Brother & Sons, as affirmed by the Lower Appellate Authority vide order dated 19.5.2017, passed in Rent Appeal No. 52-S/14 of 2016, titled as M/s New Brother & Sons versus Smt. Hiramani. 2. The authorities below have held the landlady Smt. Hiramani (respondent herein) to have established her bonafide need, the ground for ejectment of the tenant from the premises comprising of two rooms measuring 12 feet by 15 feet each and one glazed verandah measuring 9 feet by 3 feet, one bathroom, one toilet, used both for residential and nonresidential purposes, in the first floor of building No. 73/4, Ram Bazar, Shimla. 3. The findings returned by the authorities below are assailed on the ground: (a) That the authorities below have erred in correctly and completely appreciating the material placed on record by the parties and more specifically, the admission of the landlady that now she has shifted out of Shimla to Zirakpur (Punjab) and that her only son is also gainfully employed and residing outside the State; and (b) The landlady has no genuine need or bonafide requirement to open up a retail store of daily needs and ration shop, the only ground for ejectment, for it is only a mere wish and desire. 4. What is the scope of interference by the Court in a petition so filed under Section 24 (5) of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as the Act) , is now well settled. Considering the decisions rendered by the apex Court in its various judicial pronouncements, this Court in Civil Revision No. 154 of 2004 alongwith CMPMO No. 121 of 2012, titled as Shri Yog Raj Sood versus Smt. Sunita Kaushal and another, has observed as under: "28.For the purpose of convenience and ready reference sub-Section (5) of Section 24 of the Act is extracted as under:- "Vesting of Appellate Authority on officers by the State Government. Section 24 ... ... ... ... Section 24 ... ... ... ... (5) The High Court may, at any time, on the application of the aggrieved party or on its own motion call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceeding and may pass such order in relation thereto as it may deem fit." 29. A Full Bench of this court in Vinod alias Raja vs. Smt. Joginder Kaur, 2012 3 HimLR 1401 (FB) has held the right of appeal to be a statutory right, not to be circumscribed by the delegatee/State Government. 30.The order of the authority attaches finality not to be called in question in any Court of law, except by the High Court in exercise of its revisional jurisdiction which can be either on an application filed by an aggrieved party or suo motu by the Court. The court can call for and examine the records for "satisfying itself" about the "legality and propriety" of the "order" or the "proceedings". The High Court may pass orders as it may "deem fit". 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. Dilbahar 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. 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 Gopalvarao Devakate vs. Vithalrao Maruthirao Janagawal , (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 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. 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 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. 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 by 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. 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 equated 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 irregular ity." 33.In view of the aforesaid discussion the correctness, legality and propriety of the orders passed both by the Rent Controller and the Appellate Authority are required to be examined." 5. Before us, certain facts are not in dispute. (a) Demised premises, about which there is no ambiguity, are the tenanted premises; (b) Relationship of landlord and tenant between the parties; (c) Landlady, who was working as Superintendent in the Himachal Pradesh University has since retired; (d) She has got a daughter who is married in Shimla and a son, who, after graduating in MBA is gainfully employed outside the State, i.e., in Panchkula (Haryana) , and drawing a salary of ''15000/- per month; (e) Equally landlady now resides at Zirakpur (Punjab) . 6. This Court proceeds to examine the findings returned by the authorities below in the backdrop of the aforesaid factual matrix. 7. Record reveals that the landlady produced three witnesses and the tenant produced two witnesses. This Court has carefully examined the testimonies of the witnesses. Having fully appreciated the same, in the backdrop of principles of law laid down by the apex Court, interpreting the statutory provisions, one finds the petition only merits rejection. 8. 7. Record reveals that the landlady produced three witnesses and the tenant produced two witnesses. This Court has carefully examined the testimonies of the witnesses. Having fully appreciated the same, in the backdrop of principles of law laid down by the apex Court, interpreting the statutory provisions, one finds the petition only merits rejection. 8. It is a settled principle of law that only for the reason that landlady does not have previous experience in that business or that she is a lady, her desire, so to say, which actually is a need, does not establish that her requirement is not bonafide or genuine. [ Duttatraya Laxman Kamle versus Abdul Rasul Moulali Kotkunde and another , (1999) 4 SCC 1 ]. 9. Now the landlady does state that she has purchased a house in Zirakpur (Punjab) where she resides. But then it cannot be construed, for she does not state so, that she has, for all times to come, decided not to return to Shimla. Judicial notice can be taken of the fact that generally people residing in Shimla, do have their houses/flats in the plains (area where she has bought a flat) and for certain period and season of the year do shift there. Significantly, landlady shifted to Zirakpur only after her retirement, which was much after the filing of the petition under Section 14 of the Act and for the reason that she could not engage herself in her pursuits to match-up her need after retirement. Economic necessity and interdependence both of the mother and the son is mutual and understandable. 10. Petition under Section 14 of the Act was filed on 12.6.2012, on which date, landlady was still residing in Shimla. The lower Appellate Authority has dismissed the appeal also for the reason that facts, as prevalent on the date of the institution of the petition, are required to be considered. Well, without going into this aspect of the matter, this Court has accounted for the subsequent events and after considering the evidence/material on record, arrived at its conclusion. 11. The premises in question are situate in the heart of the town. For any educated lady, who had been working all throughout, after retirement, more so, when she has lost her husband, would want to keep herself engaged in an activity, also augmenting her income. 11. The premises in question are situate in the heart of the town. For any educated lady, who had been working all throughout, after retirement, more so, when she has lost her husband, would want to keep herself engaged in an activity, also augmenting her income. Retrial benefits of a Superintendent, with inflation are not sufficient to meet up both ends. 12. There is yet another reason for the landlady to reside in Shimla and that being her married daughter. Even according to the tenant, son of the landlady is gainfully employed at Panchakula (Haryana) but then his earning is meager as stands held by the lower Appellate Authority. It would not be prudent for any young person to wait endlessly for the premises to be vacated to start any enterprise. The son is engaged in a private firm. Whether a person who is qualified as an MBA can run a grocery store alongwith his mother or not, as is argued, is not for the tenant to judge but for the landlady to decide. Landlady is the best judge of her bonafide need which this Court does not find to be based on extraneous factors or considerations or for that matter, mere wishful desire with an oblique motive or purpose of having the tenant ejected unlawfully. 13. Submissions that the authorities below erred in correctly and completely appreciating the evidence led by the parties thus only merits rejection, so also that the landlady only desires and has no bonafide need to setup a commercial enterprise, with the tenant being ejected, is untenable on facts and not borne out from the record. 14. One finds the authorities below to have correctly applied the principles of law laid down by various Courts, which for the purpose of repetition are not being referred to herein, for the principles stand considered; applied and referred to herein. 15. Further, it is argued that the petition is malafide, filed only to seek enhancement of rent. Well, this Court is not inclined to accept such submission, more so in the absence of any material on record. The tenancy was created in the year 1984 and the only petition, for ejectment, was filed only in the year 2012 and, that too, when the landlady was to retire. 16. Well, this Court is not inclined to accept such submission, more so in the absence of any material on record. The tenancy was created in the year 1984 and the only petition, for ejectment, was filed only in the year 2012 and, that too, when the landlady was to retire. 16. Learned counsel for the petitioner has referred to several decisions rendered by different Courts as reported in Sri Kempaiah versus Lingaiah and others , (2001) 2 RentLR 612 (SC) , Prabha Arora and another versus Brij Mohini Anand and others , (2007) 2 RCR(Rent) 600 (SC) , Urmil Kumari Sharma versus K.D. Sharma , (2008) 2 ShimLC 290 , (HP) , Shri Raghunath S. Dixit versus Surendranath B. Burad , (2016) 2 RCR(Rent) 188 (Bomb) , and Arun Kumar versus Smt. Ramwati Devi and others , (2016) 1 RCR(Rent) 614 (UK) . 17. Having considered the same, this Court only finds the principles laid down therein, in no manner, helping the tenant for each case has to be seen in the backdrop of the factual matrix, based on the settled principles of law, which this Court finds to have been correctly applied by the authorities below. 18. Thus no interference is warranted on the findings returned by the authorities below. It cannot be said that the order is illegal or passed dehors the Rules. Both the orders passed by the Rent Controller as also the Appellate Authority have to be read together. 19. Testimonies of the witnesses stand correctly and completely appreciated. Documentary evidence also stands considered. The provisions of law are correctly applied to the given facts and circumstances. 20. As such, present petition is disposed of, without interfering with the order of eviction dated 10.11.2016, passed by the Rent Controller (1) , Shimla in Rent Petition No. 24-2 of 2012, titled as Smt. Hiramani versus M/s New Brother & Sons, as affirmed by the Lower Appellate Authority in terms of order dated 19.5.2017, passed in Rent Appeal No. 52-S/14 of 2016, titled as M/s New Brother & Sons versus Smt. Hiramani. 21. Pending applications, if any, also stand disposed of.