Jammu & Kashmir High Court
Mushtaq Ahmad Dar And Anr. vs Ali Mohd. Rather on 16 November, 2004
Equivalent citations: 2005(1)JKJ434
JUDGMENT H. Imtiyaz Hussain, J.
1. These civil revisions are directed against the order of the learned District Judge Budgam dated 10.3.1991 confirming on appeal the order of Munsiff Chadoora permitting the petitioners to raise the construction in the shape of shops and keep two shops vacant for the respondent. The facts relevant for the disposal of this appeal are as under: --
All Mohd Rather S/o Ghulam Nabi Rather R/o Rambagh Payeen, Srinagar (Respondent) filed a suit for declaration and injunction before the Munsiff Chadura against Mushtaq Ahmad Dar and Bashir Ahmad Dar sons of Ghulam Mohammad Dar residents of Rambagh, Srinagar (Respondent).
2. The case of the respondent before the trial court was that he was the maternal uncle of the defendants. He is engaged in printing and binding business for the last more than 15 years. He was running a printing press at Chota Bazar Srinagar when in the year 1987 after obtaining No Objection Certificate from District Magistrate Budgam, he shifted the printing press from Chota Bazar Srinagar to Rambagh Payeen, Tehsil Chadoora. According to the respondent he installed the cutting and binding machine in the ground floor of the house owned by the petitioners on monthly rent of Rs. 150/-. In one of the shops he installed the machine and while as other shop were used by him for storage of the printing material and also used as office. According to him in terms of the internal arrangement shops were rented out to him by Mushtaq Ahmad Dar in the month of April 1987. According to the respondent, the petitioners without resorting to process of law forcibly demolished the building, he therefore prayed to the court for the following belief: --
"declaring him to be the tenant of the premises consisting of two shops bearing No. 21032 and 21030 in Srinagar Municipality located in the ground floor of the demolished building owned by defendants situate on Indira Gandhi Road, at Ram Bagh Payeen.
That a further declaration declaring the plaintiff to be entitled to restore the tenanted premises by allowing them to reconstruct the premises so as to be able to perform their business in the tenanted premises; and A decree for permanent injunction be issued in favour of the plaintiff and against the defendants restraining them from interfering into the restoration/reconstruction of the tenanted shops by the plaintiff on such terms as the Court deems appropriate by allowing the deduction of the amount spent on re-construction by the plaintiff towards the rent payable to the defendant No. 1 with a further declaration that the defendants have no right to reconstruct the building and to exclude the plaintiff from the process of re-construction and deny him the tenancy rights over the shops in question; and A decree may also be passed in favour of plaintiff and against the defendants for sum of Rs. 12,000/- for the damages caused to the machinery and goods lying in the premises and also for damages sustained in the business. Any other relief which this Hon'ble Court deem fit and appropriate in the circumstances of the case may also be passed in favour of plaintiff and against the defendants with costs."
3. Along with the suit the respondent also moved an application for grant of interim relief with the following prayer: --
"In the above premises it is prayed that the Hon'ble Court may issue an injunction allowing the plaintiff to restore/reconstruct tenanted premises the super-structure of which has been forcibly demolished by the defendants and restraining the defendants from interfering into the restoration/rebuilding of the premises by the plaintiff with further direction restraining the defendants from effecting any construction over the tenanted premises.
Any other relief which Hon'ble court may deem appropriate may also be passed."
4. The trial court after hearing the parties and considering the matter passed order dated 24.09.1998, by means of which it permitted the petitioners to raise construction on spot after duly getting the permission from the Municipal authorities and thereafter keeping two shops reserved for the re-entry of the respondent. The trial court while coming to this conclusion found that there was a prima facia case in favour of the respondent as from the copies of the receipt of rent, no objection certificate from the District Magistrate Budgam as to the shifting of the printing press of the plaintiff from Chota Bazar to Rambagh Payeen and the plate Nos issued by the Municipal Committee in favour of the plaintiff for running the press establishment it stands established that the respondent had prima facie case. The trial court further found that the balance of convenience was in his favour and that the dispute was a bonafide on the part of the respondent, and in case interim relief is not allowed the suit will become infructuous and that there is possibility of irreparable loss and liquidable injury to the respondent. The trial court passed the following order: --
"1/ That the defendants/ non-applicant shall be at liberty to raise the construction of their residential house/building strictly in accordance with the lawful permission as may be given by the Municipal authority Srinagar. However, no construction of any kind shall be initiated by the non-applicants/defendants unless and until they will not seek, solicit and obtain the permission at lease in the ground floor.
2/That after getting the lawful permission from Municipal authority Srinagar as above and after raising the construction of the building along with the shops, the non applicants-defendants shall keep two shops reserved for re-entry of the plaintiff/applicant as tenant, provide he succeeds in establishing the claim as to the tenancy in the main suit. Till the disposal of the main suit the two shops shall be kept reserved and not allotted to any one or to their self by the non applicants/defendants.
The observation made here-in-above shall have no impact on the final disposal of the main suit. The parties shall bear their own costs. The application be annexed with main suit after due accomplishment."
5. The petitioners case was of total denial. They denied that the respondent was their tenant or that they had ever paid the rent for the shops. They however admitted that since the respondent was their relative they had allowed him, on shifting of the press from Chota Bazar to Rambagh, to keep the machine on the footpath in front of the shops. In view of this stand they got aggrieved by the order passed by the trial court and went in appeal before the District Judge Budgam against the same. The Ld. District Judge heard and disposed of the appeal by means of the impugned order dated 10.04.1999. The Ld. District Judge agreed with the trial court that a prima facie case was in favour of the respondent and the balance of convenience was also in his favour the appellate court further found that in case the two shops as ordered by the trial court are not reserved, there is likely hood that the plaintiff would be put to pecuniary, monetary and mental loss, which cannot be compensated if effective measures are not taken at this stage. The court therefore, upheld the order impugned before it and dismissed the appeal,
6. It is against this order that the present revision (49/1999) has been filed by the petitioners on the ground that since they had denied the tenancy of the respondent, it could not be said that the respondent was their tenant. They however admit that the respondent being a close relation of the petitioners was granted personal privilege purely on humanitarian grounds without creating any legal relationship between the parties as no document like rent deed or lease deed has been executed between the parties. According to the petitioners in a suit for declaration where the plaintiff has yet to establish his right, the trial court has by directing reservation of two shops in favour of the respondent decided the main controversy and has virtually decreed the suit. According to the petitioners, there was no prima facie case in favour of the respondent so the trial could not have passed the impugned directions either under Order XXXIX Code of Civil Procedure or Section 151 C.P.C.
7. Ali Mohd Rather S/o Ghulam Nabi Rather R/o Rambagh Payeen Srinagar has also filed a separate Revision (No. 65/1999) in which the order of the learned District Judge has been impugned and the following prayer has been made: -
"the plaintiff/petitioner prays that to save the ends of justice from being defeated and to provide a chance to the plaintiff/petitioner to run the business in the tenanted premises, comprises of two shops in the building owned by the defendants/respondents which is under construction on the Indira Gandhi Airport Road at Rambagh Payeen, Srinagar the Hon'ble Court may modify the orders of the Court below to the extent that plaintiff/petitioner may be permitted to use the shops ordered to be reserved for him immediately after the reconstruction of the shops on the condition that if plaintiff petitioner fails in the suit, he will vacate the shops without claiming any right thereto. The Hon'ble Court may be further pleased to direct the reconstruction of the shops in the building under construction in such a manner so that the plaintiff is able to get the shops in the ground floor of the building facing the Indira Gandhi Airport Road which was original situation of the tenanted premises in the building owned by the defendants."
8. Heard the learned counsels. Ld. Counsel for the respondent would argue that the relief granted by the trial court and confirmed by the learned District Judge was the only appropriate interim order that could have been passed by the courts below in the circumstances of the case. According to him the court had to give some protection to the tenant from the high-handedness committed by the landlord who has in violation of the law and utter disregard to the rights of the respondent demolished the structure thus throwing the tenant on the roadside. The landlord according to him, was under an obligation to provide an accommodation convenient to the tenant so that his rights are protected. In the premise he relied on Jivanbhai Jerambhai Patadia v. Bhavanjdee Vinasjee Thakkar, AIR 1995 Gujarat 92, Naushe Ali Khan v. Mohammad Siddiq, AIR 1981 Allahabad 307.
9. Learned counsel for the respondent has also relied on MIS D.L.F. Housing and Construction Co (P) Ltd. v. Sarup Singh and Ors., AIR 1971 SC 2324 and Pandurang Dhondi Chougule and Ors. v. Maruti Hari Jadhav and Ors., AIR 1966 SC 153, to show that the revision in the present case was not maintainable in view of the fact that there was no error as the trial court had not exercised the jurisdiction not vested in it by law nor had it exercised the jurisdiction illegally or irregularly.
10. In D.L.F. Housing and Construction Co. (P) Ltd., v. Sarup Singh and Ors., AIR 1971 SC 2324 it was held by the apex court as under:
"8. that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clause (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had cither exercised law jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also docs not seem to apply to the case in hand. The words "illegally" and "with material irregularity" as used in this clause do not cover either error of fact or of law, they do not refer to the decision arrived at but merely to the manner in which it is reached,. The errors can contemplated by the clause may in our law relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal."
11. Similarly in Pandurang Dhondi Chougule and Ors. v. Maruti Hari Jadhav and Ors., AIR 1966 SC 153, the apex court held:
"11. It is true that in order to afford guidance to subordinate Courts and to avoid confusion in the administration of the specific law ink question, important questions relating to the construction of the operative provisions contained in such an Act must be finally determined by the High Court but in doing so, the High Court must enquire whether a complaint made against the decision of the subordinate Court on the ground that it has misconstrued the relevant provisions of the statute, attracts the provisions of Section 115. Does the alleged misconstruction of the statutory provision have relation to the erroneous assumption of jurisdiction, or the erroneous failure to exercise jurisdiction or the exercise of jurisdiction illegally or with material irregularity by the subordinate Court? These are the tests laid down by Section 115 of the Code and they have to be borne in mind before the High Court decides to exercise its revisional jurisdiction under it."
12. In my view the two authorities of the Apex Court are not applicable to the facts of the present case on the ground that there is difference in the grounds provided by the State Code of Civil Procedure and the Central Code of Civil Procedure in respect of the revisional powers of the High Court.
13. Under the Central Code of Civil Procedure, the revision can lie before the High Court if it appears that the subordinate Court has:
(a) Exercised a jurisdiction not vested in it by law or,
(b) has failed to exercise the jurisdiction so vested or,
(c) has acted in the exercise of its jurisdiction illegally or with material irregularity.
While as under the State Code of Civil Procedure, in addition to three grounds mentioned in the Central Code of Civil Procedure, the High Court can also interfere where it appears that a subordinate court can under Clause (d) has caused failure of justice.
Clause(d) of Section 115 in the State Code of Civil Procedure is not found in the Central Code of Civil Procedure, which means that the scope of revisional powers of the High Court under the State Code is wider than that as contained in the Central Code of Civil Procedure.
14. There is a concurrent finding of fact returned by both the court below on the fact that there was a prima facie case in favour of the respondent. The Courts have come to the conclusion that there exists the lesser and lessee relationship between the parties. While doing so, they have placed reliance on the documents submitted by the respondent with his plaint. The documents are in the shape of Registration certificate, Form O issued by the department of Lobour, Photostat copies of receipts, receipt issued by the SMC in respect of Plate No. 21032/WM and NOC issued by the District Magistrate Budgam.
15. There is no written lease agreement between the parties. The respondent has relied on the above-mentioned documents out of which the Registration Certificate, Form 'O' and NOC nowhere shows that there exists any relationship of landlord and tenant between the parties. The receipts produced shows that Rs. 150/- have been paid as rent, but it nowhere shows that it has been paid for two shops. There is no mention in the receipts that the same has been paid for two shops, even if these are taken as rent receipts, as held by the trial court, it can relate to only one shop. Similarly the Srinagar Municipal receipt relates to Plate No: 21032/WM only which shows that even the token was paid to the Municipality for one shop only.
16. I am not inclined to interfere at this stage with the concurrent finding of the Courts below on 'prima facie' case as the trial is yet to proceed. I however find that while asking the petitioners to keep both the shops vacant for the re-entry of the respondents, the Courts below have caused failure of justice to both the parties so far as balance of convenience is concerned. What relief the respondent is getting at this stage if both the shops are kept vacant during the pendency of the case. Disposal of case is likely to take some time and what he will do for all these years. If he really was the tenant of the shops, as the Courts below have prima facie found him to be, his whole business will get finished causing him irreparable loss. Similarly keeping both the shops vacant will not be in any way beneficial for the petitioners, rather it will cause loss to them too. Thus the balance of convenience lies not in keeping both the shops vacant but in making an arrangement under which the parties could, without prejudice to each others rights, make use of the shops. It is on record that the petitioners have filed an undertaking in respect of one shop that they will keep the same vacant for the respondent in case he succeeds in the suit. Since undertaking on behalf of petitioners is there, they shall have to abide by such undertaking and keep one shop vacant for the respondent.
17. In these circumstances I dispose of these revision petitions modifying the impugned orders as under: --
(i) One shop shall remain reserved for the re-entry of the respondent in the event of his success in the suit. The trial court may however consider the re-entry of respondent in the said shop even at this stage if the respondent is ready to furnish an undertaking to the satisfaction of the trial court with the condition that he will carry on business in the shop only till the final disposal of the case and in the event he fails to get any relief from the trial court at the conclusion of the trial, he will vacate the shop and hand over its possession to the petitioners unconditionally. The respondent may pay to the petitioners an amount to be fixed by the trial Court for the use and occupation of the shop. It may be made clear that the amount so paid shall not be treated as rent nor shall it otherwise create landlord-tenant relationship between the parties. It shall be paid only for the use and occupation during the final outcome of the case without prejudice to the rights of the parties.
(ii) On the same pattern let the petitioners use the second shop. However, they shall furnish an undertaking to the effect that in case the respondent succeed in getting the decree as prayed for, they will hand over the shop to him unconditionally.
18. Disposed of. Record be retuned to the trial court where parties shall appear on 01.12.2004.