Punjab-Haryana High Court
D.N. Metal Industries And Anr. vs Chaman Lal And Ors. on 21 February, 2003
Equivalent citations: (2003)133PLR720, AIR 2003 (NOC) 552 (P&H), 2003 A I H C 3073, (2003) 1 PUN LR 720, (2003) 1 RENTLR 338, 2003 HRR 626, (2003) 1 RENCR 551
Author: S.S. Nijjar
Bench: S.S. Nijjar
JUDGMENT S.S. Nijjar, J.
1. Amar Nath, landlord-respondent, executed a rent note on 01.01.1957 in favour of the petitioners M/s D.N. Metal Industries through its Proprietor, Nathi Ram, letting out the property (hereinafter referred to as the "demised premises"), consisting of one Balkhana, one room facing east, one kotha facing towards north plus one court-yard bounded in the north by the shop of Chhaju Ram, west by the shop of Beran Chand and south-east by street and passage situated in Devi Bazar, Mohalla Kaharan, Jagadhari. By this rent note, a tenancy was created from 01.01.1957 to 31.12.1957. The rent was fixed at Rs. 325/- per annum plus house tax. At that time, Nathi Ram and one Darshan Lal, were the partners of petitioner No. 1-firm. Subsequently. Darshan Lal left the firm. Thus, the firm-petitioner No. 1 and Nathi Ram have become statutory tenants in the demised premises. Amar Nath the original landlord filed the eviction petition in the Court of learned Rent Controller, Jagadhari, on 31.10.1973 for eviction of the tenants under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act. 1973 (hereinafter referred to as "the Act") on various grounds. Amar Nath having died during the course of the litigation, is now represented by his legal representatives. It was pleaded that the tenants are liable to ejectment from the demised premises on the ground of non-payment of arrears of rent, material impairment qf the value and utility of the disputed property and change of user. The rent and the house-tax from 01.05.1967 to 31.08.1973 has been claimed. It was stated that the tenants have constructed two rooms, two tin sheds, another room on the first floor of the kotha and have covered the entire court-yard tin roof. The original premises have ceased to exist and have been replaced by entirely different building. The value and utility of the property in dispute has been materially impaired. It was pleaded that the demised premises were residential and it had been let out for residential purposes but the tenants had started using it for manufacturing utensils and metal factory. Thus, they have changed the user of the demised premises.
2. In the written statement, the plea put forward by the landlord was denied by the tenants. Rent of Rs. 325/- per annum was admitted. It was stated that the tenancy is annual and the rent does not include house tax. The terms and conditions of the tenancy are contained in the rent note, which is in the custody of the landlord. According to the terms and conditions, it has been agreed between the parties that the tenants would be at liberty to raise construction in the disputed property according to their own requirements. The existing constructions were in a dilapidated condition and the tenants required more rooms/sheds. So they were permitted to raise construction. Rent up to 30.04.1968 stands paid. The landlord has avoided the receipt of the rent It was further pleaded that the value and utility of the property in dispute has not been impaired. Rather, they have increased the value and utility of the property in dispute. They have raised the construction according to the terms and conditions of the tenancy. The disputed property had been taken on rent by the tenants for setting up a metal factory. This question stands decided in the previous eviction petition by order dated 15.03.1966, which operates as res judicata in this behalf.
3. On the pleadings of the parties, the following issues were framed by the learned Rent Controller:-
1. Whether the applicant requires the property in dispute for his personal use and occupation? OPA
2. Whether the respondent has impaired the value and utility of the property in dispute by affecting changes? OPA
3. Whether the respondent has changed the business and it was originally let out for another purpose? OPA
4. Whether the tender is valid? OPA
5. Relief.
4. Issue No. 1 seems to have been framed by mistake as the plea with regard to the personal use and occupation-had not been raised by the landlord. The contest between the parties was with regard to issue No. 2. Issue No. 2 has been decided in favour of the landlord. Issue Nos. 3 and 4 have been decided against the landlord. The petitioners have been ordered to be evicted from the demised premises.
5. I have heard the learned counsel for the parties at length and perused the record of the case.
6. Both the learned Courts below have meticulously examined the evidence led by the parties. Mr. Guglani, learned counsel for the petitioner-tenants has submitted that the findings recorded by both the learned Courts below are based on mis-reading of the evidence. Learned counsel submitted that this Court while exercising revisional jurisdiction under Section 1-5(5) of the Act, has wider powers than revisional powers of this Court under Section 115 of the Code of Civil Procedure. In support of the aforesaid submission, learned counsel has relied on Lachhman Doss v. Santokh Singh, 1995(2) R.C.R. 480; Chanan Mal v. Shiv Shankar Trust, Jagadhri, 1999(2) R.C.R. 203; Kartar Singh Sachdeva v. Shri Ram Asra, 1983(1) R.C.R. 54.
7. On the other hand, Mr. Chhibbar, learned Senior Counsel for the landlord has submitted that both the learned Courts below have given concurrent findings of fact after due, appreciation of evidence led by the parties. Therefore, the present revision petition deserves to be dismissed.
8. The authorities cited by Mr. Guglani are of no assistance to the tenants in the facts and circumstances of the present case. It is, undoubtedly, true that this Court can while exercising jurisdiction under Section 15 (5) of the Act interfere in the concurrent findings of fact recorded by the Courts below. In exercising the aforesaid powers, the Court has to exercise care and caution. The findings of fact recorded by the Courts below on due appreciation of evidence, would be binding on the High Court. It is not permissible for the High Court while exercising revisional jurisdiction to re-appreciate the evidence to come to a conclusion other than the conclusion reached by the Courts below. At the same time, the Court is not precluded from examining the propriety of the findings recorded by the Courts below. Although, the powers of the High Court under Section 15(5) of the Act are much wider than the powers under Section 115 of the Code of Civil Procedure, yet the Court cannot convert itself into an appellate Court. In other words, the Court should be very slow to disturb the findings of fact properly-arrived at after due appreciation of the evidence The Hon'ble Supreme Court in paragraphs 8, 9 and 10 in Lachhman Doss's case (supra), observed as follows:-
"8. This Court in the case of Hari Shankar v. Rao Girdhari Lal Chowdhury, A.I.R. 1963 S.C. 698, has an occasion to consider the question of distinction between an appeal and a revision and Hidayatullah, J. (as he then was) speaking for the Court observed at p. 939 of the report as follows:-
"The distinction between an appeal and revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right to appeal limits the rehearing in some way as, we find, has been done in second appeals arising under the Code of Civil Procedure. The power to hear a revision is generally given to a superior court so that it may satisfy itself that a particular case has been decided according to law."
9. In the case of State of Kerala v. K.M. Charia Abdullah and Company, (supra) this Court expressed the view that when the Legislature confers a right to appeal in one case and discretionary remedy of revision in another, it may be deemed to have created two jurisdictions different in scope and content. Again in the case of Neta Ram v. Jiwan Lal, A.I.R. 1963 S.C. 499, Hidayatullah, J. (as he then was) speaking for the Court observed that the revisional jurisdiction of the High Court does not include the power to reverse concurrent findings, without showing how those findings are erroneous.
10. In the present case Sub-section (6) of Section 15 of the Act confers revisional power on the High Court or the purpose of satisfying itself with regard to the legality or propriety of an order for proceedings taken under the Act and empowers the High Court to pass such order in relation thereto as it may deem fit. The High Court will be justified in interfering with the order in revision if it finds that the order of the appellate authority suffers from a material impropriety or illegality. From the use of the expression Legality or propriety of such order or proceedings", occurring in Sub-section (6) of Section 15 of the Act, it appears that no doubt the revisional power of the High Court under the Act is wider than the power under Section 115 of the Code of Civil Procedure which is confined to jurisdiction, but it is also not so wide as to embrace within its fold all the attributes and characteristics of an appeal and disturb a concurrent finding of fact properly arrived at without recording a finding that such conclusions are perverse or based on no evidence or based on a superficial and perfunctory approach. If the High Court proceeds to interfere with such concurrent findings of fact ignoring the aforementioned well-recognised principles, it would amount to equating the revisional powers of the High Court as powers of a regular appeal frustrating the fine distinction between an appeal and a revision. That being so unless the High Court comes to the conclusion that the concurrent findings recorded by the two courts below are wholly perverse and erroneous which manifestly appear te be unjust there should be no interference. In the present case, the two courts below have thoroughly examined and appreciated the parties evidence and have recorded a definite finding, entirely based on the evidence on record that the respondent-tenant has ceased to occupy the demised premises since after September 1981 and had, in fact, along with his wife and family started living in House No. 351, Ward No. 7, Karnal, having been acquired by him in the name of his wife."
9. The aforesaid observations of the Hon'bte Supreme Court make it abundantly clear that while exercising revisional jurisdiction, the powers of this Court to interfere or reverse the findings of fact recorded by the Courts below are confined to the findings which can be said to be improper, arbitrary or based on no evidence.
10. Again, in the case of Umrao v. Smt. Minu @ Manju Sanghi, 1999(2) R.C.R. 320, this Court reiterated the ratio of the law laid down in Lachhman Doss case (supra), by the Hon'ble Supreme Court. In the case of Kartar Singh Sachdeva v. Shri Ram Asra, 1983(1) R.C.R. 54, this Court reversed the findings of the learned Lower Appellate Court. It was, however, observed "that, no doubt, the finding recorded by the Appellate Court on the personal need of the landlord is a finding of fact and would not ordinarily be open to challenge in revision, but here 1 find that the said authority proceeded wholly on the misconceived and untenable premises to up-hold the claim of the landlord". The aforesaid observations make it clear that the Court was cautious in reversing even the findings of fact recorded by the Appellate Authority which had upset the findings of fact recorded by the learned Rent Controller, it was not a case of concurrent findings of fact recorded by the learned Courts below.
11. I have examined the judgments of the learned Courts below whilst keeping the aforesaid principles of law in view.
12. From the perusal of the judgments of the learned Courts below and the record, it becomes evident that the premises were initially leased out for one year from 01.01.1957 to 31.12.1957. The description of the premises as given in the eviction application has been admitted. Rather, it has been pleaded by the tenants that the premises were in a dilapidated condition and hence the constructions have been made. The petitioner-tenants, however, claim that the construction has been made with the consent of the landlord. The learned Rent Controller had appointed a Local Commissioner to visit the spot and to report about the existing position of the disputed property. The Local Commissioner had prepared the site plan Ex. A-1. This was confirmed to be correct by the tenants. According to this site plan, now there are five rooms, two tin sheds, one water tank, one urinal, two latrines and three verandahs covered with tin. The open court-yard has also been covered by the iron-jal. From the above, it becomes apparent that the constructions existing at the time of lease had become non-existent. In fact, a new building had come up in the place of old building. Consequently, I am of the considered opinion that both the learned Courts below have come to the correct conclusion that the tenants have impaired the value and utility of the premises in dispute. Therefore, Mr. Chhibbar is justified in his submission that this Court ought not to interfere in the concurrent findings of fact recorded by the learned Courts below.
13. Mr. Guglani had laid much stress on the argument that the construction had been raised with the consent of the landlord. According to the learned counsel, the original rent note which was in possession of the landlord, contained a clause permitting the tenants to raise the construction according to their needs. The respondent-landlord, however, did not produce the original rent note before the learned Rent Controller. Relying on a judgment of the Hon'ble Supreme Court in the case of Gopal Krishnaji Ketkar v. Mohamed Haji Latif and Ors., A.I.R. 1968 S.C. 1413, learned counsel submitted that the learned Courts below ought to have drawn an adverse inference against the landlord as the original rent note which was in the possession of the landlord, was deliberately not produced.
14. In the aforesaid judgment, the Hon'ble Supreme Court has, undoubtedly, held that a party in possession of the best evidence ought to produce it in Court. The parties ought not to be permitted to with hold the evidence on the ground that the burden of proof does not lie on the party in possession of the best evidence. However, in the facts and circumstances of this case, it is to be seen that no such adverse inference can be drawn. There was previous litigation between the parties which has been noticed by both the learned Courts below, which culminated in a judgment dated 15.03.1966, Annexure R-8. Even in the aforesaid judgment, it has been noticed that respondent-landlord was unable to produce the original rent note. In that case, under issue No. 2, the petitioner-tenants had produced a copy of the extract from the register of the Petition Writer. From a reading of the extract, it had been held that annual rent of the disputed property was Rs. 325/-. Therefore, I do not find any force in the submission made by Mr. Guglani that the rent note is now deliberately with-held by the landlord. In fact, a plausible explanation has been given by the legal representatives of the original landlord. It has been stated that here was so much litigation between the parties that the rent note may well have been produced in one or the other proceedings by the original landlord.
15. Mr. Guglani has submitted that even if the construction is without the consent of the landlord, the eviction petition was liable to be dismissed as the landlord had acquiesced in the constructions. According to the learned counsel, a sum of Rs. 487.50 P. which was to be paid as rent was adjusted towards the cost of construction of a boundary wall. According to the learned counsel, the endorsement at the bottom of Annexure R-2, clearly shows that a sum of Rs. 487.50 P.was adjusted towards the construction of the boundary wall. There is no substance in the aforesaid submission made by the learned counsel. Both the learned Courts below have rejected the case put forward by the tenants. The evidence given by Rattan Lal, RW-1, has been rejected and he has been characterised as first rate liar. It has also been observed by the learned Courts below that the receipt Ex.R-2, was never put to the attorney of the landlord, namely, Ramesh Chand, AW-4. Further more, Rattan Lal, RW-1 and Nathi Ram, RW-4, stated names of different persons as authors of the receipt i.e. Darbari Lal and Sat Dev Sharma, but these two persons were not examined in Court by the tenants. The aforesaid findings of fact recorded as they are, on due appreciation of evidence by the learned Courts below, would not call for any interference by this Court at the revisional stage.
16. Faced with this, Mr. Guglani has vehemently argued that the present eviction application is barred by the principle of res judicata. The eviction application, according to the learned counsel would also be barred under Order II Rule 2 of the Code of Civil Procedure. I am unable to accept the submission made by the learned counsel. A perusal of the judgment in the earlier litigation shows that it had proceeded on the grounds other than the ground of .material impairment of value and utility of the building. The issues as framed in the earlier litigation, were as foliows:-
1. Whether the disputed premises is a residential building? OPA
2. What is the monthly rent of the disputed premises? OPA
3. Whether the respondents have paid the arrears of rent? OPR
4. Whether the applicant bona fide requires the disputed premises for his own use and occupation, if so, to what effect? OPA
5. Whether the respondents are using the disputed premises for a purpose other than for which it was leased out, as alleged in para No. 3 (iii) of the application, if so to what effect? OPA
6. Whether the respondent No. 2 is an unnecessary party, if so to what effect? OPR
7. Relief.
17. In the present litigation, issue No. 3 corresponds to issue No. 5 in the earlier litigation. Issue No. 4 corresponds to Issue No. 2 in the earlier litigation. Thus, it becomes evident that no plea was earlier raised with regard to the material impairment of the value and utility of the building. There was no pleading to this effect. Therefore, it would not be possible to hold that the present eviction petition is barred by the principle of res judicata or under Order 2 Rule 2 of the Code of Civil Procedure. In order to successfully raise the plea of res judicata, it was necessary for the tenants to place on the record the pleadings in the previous case. Further more, the plea ought to have been specifically raised in the Courts below. No issue has been framed with regard to. the plea of res judicata. No documents, except the judgment dated 15.03.1966, Annexure R-8, have been placed on the record. Therefore, it would not be permissible for the tenants now to raise an argument on the plea of res judicata or the bar under Order 2 Rule 2 of the Code of Civil Procedure.
18. The Hon'ble Supreme Court in the case of Syed Mohd. Salie Labbai (Dead) by LRs and Ors. v. Mohd. Hanifa (Dead) by LRs and Ors., AIR 1976 Supreme Court, 1569, has elaborately considered and laid down the conditions which are necessary for successfully establishing the plea of res judicata. It has been held as follows :-
"......Before we analyse these judgments, it may be necessary to mention that before a plea of res judicata can be given effect, the following conditions must be proved:-
(1) that the litigating parties must be the same;
(2) that the subject-matter of the suit also must be identical;
(3) that the matter must be finally decided between the parties; and (4) that the suit must be decided by a court of competent jurisdiction."
19. The facts and circumstances of the present case as noticed earlier do not fulfil the conditions laid down by the Hon'ble Supreme Court for a successful plea of res judicata.
20. In the case of Gurbux Singh v. Bhooralal, AIR 1964, Supreme Court, 1810, the Hon'ble Supreme Court held as under :-
" ......As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that a plea of a bar under Order 2 Rule 2, Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the causes of action in the two suits..."
21. In the present case, excepting for the judgment Ex.R-8, no pleadings have been placed on the record by the tenants with regard to the previous Eviction Petition. On this ground also, the plea of res judicata cannot be countenanced.
22. The aforesaid ratio of the law has been reiterated by the Hon'ble Supreme Court in Bengal Waterproof Limited v. Bombay Waterproof Manufacturing Company and Anr., A.I.R. 1997 Supreme Court 1398.
23. Mr. Guglani has submitted that the lay-out plan of the demised premises which was produced in earlier litigation, was identical to the lay-out plan presented in the present case. He, therefore, submitted that the landlord was precluded from raising the plea of material impairment in value and utility of the demised premises under Order 2 Rule 2 of the Code of Ciyil Procedure. As noticed earlier, this plea could only succeed if necessary averments had been made in the original pleadings. The plea of res judicata is a mixed question of fact and law. Therefore, it has to be raised at the earliest stage of litigation. It cannot be permitted to be raised for the first time in the revisional Court. This view of mine finds support from a judgment of the Hon'ble Supreme Court in the case of Madhukar D. Shende v. Tarabai Aba Shedage, A.I.R. 2002 Supreme Court 637. Examining the issue, the Hon'ble Supreme Court, in paragraph 14 of the judgment, observed as under:-
".....We are not inclined, in the facts and circumstances of this case, to weigh the admissibility and binding efficacy of the decision rendered in the earlier suit on the doctrine of res judicata and holding the earlier decisions as conclusive between the parties. Res judicata is a mixed question of fact and law. We do not find the plea of res judicata having been raised in the plaint. Copies of pleadings and issues framed in the earlier suit have not been .tendered in evidence and we do not find any issue on res judicata having been framed and fried between the parties in the present suit. No submission raising the plea of res judicata was made before any of the Courts below or the High Court. We do not think such a plea can be permitted to be raised before this Court for the first time and at the hearing......."
24. The aforesaid ratio of the law laid down by the Hon'ble Supreme Court is fully applicable to the facts and circumstances of this case. Apart from this, Section 14 of the Act enjoined on the tenant to take the plea of res judicata at the earliest stage in the litigation. Section 14 of the Act is as under:-
"14. Decisions which have become final not to be reopened in appeal-The Controller shall summarily reject any application under Sub-section (2) or under Sub-section (3) of Section 13 which raises substantially the issues as have been finally decided in a former proceedings under this Act."
25. A perusal of the aforesaid section clearly shows that the Controller shall summarily reject any application under Sub-section (2) or under Sub-section (3) of Section 13 which raises substantially the issues as have been finally decided in a former proceedings under this Act. Since the issue with regard to material impairment was not raised in the earlier eviction petition, the same cannot be said to have been finally decided. Under Section 13(2)(iii) of the Act, a distinct cause of action has arisen in favour of the landlord on account of the construction raised by the petitioner. No issue was framed with regard to illegal or unauthorised construction in the previous litigation. Therefore, the question of res judicata would not arise in the facts and circumstances of this case. A Full Bench of this Court in the case of Harnam Singh v. Surjit Singh,, A.I.R. 1984 Punjab and Haryana 126, has held that different clauses of Section 13 of the Act give rise to distinct cause of action. In cpming to the aforesaid conclusion, this Court relied on the authoritative summing up of the nature of a cause of action by the Privy Council in the case of Md. Khalil Khan v. Mahbub Ali Mian,A.I.R. 1949 Privy Council 78. In the aforesaid case, laying down the principles for the determination of the cause of action, it was held as under:-
"The principles laid down in the cases thus far discussed may be thus summarised: -
(1) & (2) XXX XXX XXX (3) If the evidence to support the two claims is different then the causes of action are also different (Brunsden v. Humphrey, (1884) 14 QBD 141)."
26. Applying the aforesaid test, it would become apparent that issue No. 2 in the present case cannot be intermingled with any of the issues in the earlier litigation. In Harnam Singh's case (supra), the judgment of the Delhi High Court in the case of Dr. Hans Raj Dawar v. Shyam Kishore, 1977(2) Rent L.R. 253 (Delhi), has been quoted with approval. This judgment was given in the context of the specific claim of constructive res judicata having been raised in proceedings under the Delhi Rent Act. In Dr. Hans Raj Dawar's case (supra), Hon'ble Mishra, J. observed as under:-
"*******In my opinion, therefore, the cause of action in a petition for eviction does not consist in merely obtaining an order for eviction but the cause of action consist in obtaining an order of eviction on one or the other grounds specified in the statute. In Faqir Chand v. Ram Rattan Bhanot, AIR 1973 SC 921, Alagirtswami, J., speaking for the Court observed that the grounds of eviction under Clause (k) and Clause (c) are different and the mere fact that the landlord was estopped from claiming eviction on the ground of misuser mentioned in Clause (c), (since he had consented to the misuser) did not debar him from claiming eviction on the ground mentioned in Clause (k).
and again **** But the landlord cannot be compelled to raise in a petition all the statutory grounds that entitle him to obtain eviction. I am of the view that if it is the legal right of the landlord to obtain eviction on the grounds afforded to him by the statute, he is free to claim it on any of them and is not obliged to press all of them in one petition nor can he be debarred from claiming eviction or pressing the grounds that may be available to him in a subsequent petition, provided he satisfies the ingredients of the ground, e.g., if a landlord claims eviction on the ground of non-payment of rent he may not even be aware of existence of the subletting and if he comes to know about it later, he cannot be debarred from claiming eviction on the ground of subletting which he may succeed in establishing irrespective of the fact when the subletting had occurred."
27. The aforesaid observations of Mishra, J. make it abundantly clear that the landlord cannot be compelled to plead all the grounds which may entitle him to seek eviction in a single petition. Therefore, I am of the considered opinion that the petition filed by the landlord cannot be rejected on the ground it is barred either on the plea of res judicata or on the plea that it is barred under Order 2 Rule 2 of the Code of Civil Procedure.
28. Both the learned Courts below after evaluating the evidence led by the parties, have given concurrent findings of fact. While exercising revisional powers under Section 15(5) of the Act, this Court would not re-appreciate the evidence. Concurrent findings of fact recorded by both the learned Courts below can only be reversed if the revisional Court comes to the conclusion that the findings are arbitrary or based on no evidence. In the present case, it would not be possible to hold that the findings recorded by both the learned Courts below, are either arbitrary or based on no evidence.
29. In view of the above, I find no merit in the present revision petition. The same is, therefore, dismissed. No costs.