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Himachal Pradesh High Court

Tahir Khan vs Jai Dev Singh And Ors on 26 March, 2019

Author: Tarlok Singh Chauhan

Bench: Tarlok Singh Chauhan

           IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

                                C.R. No. 84/2011
                                Decided on: 26.3.2019
    _______________________________________________________________




                                                                                      .
    Tahir Khan                                                                           ......Petitioner





                                          Versus





    Jai Dev Singh and ors.                                                         ....Respondents

    Coram:

    The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.

    Whether approved for reporting?1 No

    For the petitioner:
                                 r                 to
                                                  Mr. Ashok K. Tyagi, Advocate.

    For the respondents:        Mr. Karan Singh, Advocate,                                            for
                                respondents No. 1 and 2.
    __________________________________________________________


                        Justice Tarlok Singh Chauhan, Judge (oral)

The petitioner claims to be one of the landlords, whose petition for eviction of the tenant/respondent No.1 was dismissed by the learned Rent Controller vide order dated 31.12.2005 and thereafter an appeal filed against the said order was dismissed by the learned Appellate Authority vide judgment dated 17.3.2011, constraining him to file the present revision petition.

2 That the petitioner filed a petition under Section 14 of the H.P. Urban Rent Control Act, 1987, seeking eviction of 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.

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respondent No.1 from two shops built over Khasra Nos. 48 and .

49, bearing Municipal No. 2263/7in Muhal Rajinder Nagar, Nahan Town. It was averred that father of the petitioner, namely, late Sh. Mohd. Khan, let out demised premises to respondent No.1 for repairing, manufacturing and selling of shoes, on a monthly rental of Rs.2000/­ and Rs.3000/­ respectively, as shown in the rough site plan with ink 'A' & 'B' and besides this, respondent No.1 was to pay the electricity charges and other taxes etc. The tenancy of the demised premises was created by his father during his life time and one of the shops marked 'A' was small and another marked 'B' was bigger. The small shop was rented out about 20 years ago on the monthly rental of Rs.

1,000/­ and the bigger shop was let out in the year 1995 for a monthly rental of Rs.3000/­. However, the monthly rental of small shop had been increased from time to time and when the bigger shop was also given to respondent No.1 on tenancy in August 1995, the rent of the said shop was mutually fixed at Rs.2000/­ per month.

3 The petitioner pleaded that respondent No.1 had not paid the rent of the demised premises/shops since the month of August 1996 till the date of filing of the petition for a period of 59 ::: Downloaded on - 02/04/2019 21:58:02 :::HCHP months amounting to Rs.2,95,000/­ and thus respondent No.1 .

was liable to pay arrears of rent amounting to Rs.2,95,000/­ along with interest @ 9% per annum. The petitioner sought eviction of respondent No.1 on the ground that he started causing public nuisance in the said two tenanted shops as he used to keep the tenanted shops open on the closing day as well as throughout the working day till mid­night and he along with his workers used to keep on repairing the shoes till 11.00/12.00 P.M. even night and thereby creating intolerable noise and nuisance. Respondent No.1 was also in habit of throwing rubbish just in front of the entry of residential house of the petitioner.

After the death of father of the petitioner, the petitioner, his brother and sisters became heirs of late Sh. Mohd. Khan and thereafter due to family circumstances and un­cooperative attitude of the brother and sisters of the petitioner, coupled with the things which resulted into mental tension and other unavoidable problems, the petitioner had been demanding arrears of rent from respondent No.1, but he on one pretext or the other kept on avoiding the payment of the same. Proforma respondents No. 2 to 6 were also co­sharers in the demised premises, but they never received any rent from respondent No.1 ::: Downloaded on - 02/04/2019 21:58:02 :::HCHP as after the death of father of the petitioner and proforma .

respondents No. 2 to 6, it was only the petitioner who used to deal with respondent No.1 and was responsible for receiving the rent. Though, there was no need legally or otherwise to implead proforma respondents No. 2 to 6 in the petition, but from the conduct and acts of proforma respondents, particularly, proforma respondent No.2, it appeared that in order to settle the personal score with the petitioner to harm him, he might have joined hands with respondent No.1 and further manipulated the things in connivance with respondent No.1, as respondent No.1 for the last few years had been developing an envious and hostile attitude towards the petitioner.

4 The petition was contested by respondent No.1 and proforma respondent No.2 only, while remaining proforma respondents were proceeded ex parte.

5 Respondent No.1 in his reply, after taking various preliminary objections like maintainability, jurisdiction, locus standi, estoppel etc., on merits refuted the allegations of the petitioner. He admitted that the shops in question were rented out to him by late Sh. Mohd. Khan, who expired on 9.8.1996 and after his death, the landlady Munia Khan had been receiving rent ::: Downloaded on - 02/04/2019 21:58:02 :::HCHP from him at the rate of Rs.2000/­ per month for bigger shop and .

Rs.1000/­ per month for small shop. The petitioner never became the landlord of the demised premises and there was no relationship of landlord and tenant between the petitioner and respondent No.1. As a matter of fact, Munia Khan had succeeded the estate of late Sh. Mohd. Khan and she was only receiving the rent from respondent No.1.

r Respondent No.1 denied that he was in arrears of rent w.e.f. August 1996 to June 2002. He further alleged that Munia Khan had been receiving the rent and he only recognized her as his landlady and the factum of receiving rent was corroborated from receipts dated 31.12.2002 issued by Munia Khan and if respondent No.1 would be in arrears of rent, Munia Khan would not have issued such receipts to respondent No.1. The petitioner was residing in Housing Board Colony, Nahan, therefore, there was no question of creating any nuisance by respondent No.1 and the demised shops were situated nearby the Police Post Gunnu Ghat. He alleged that the petition had been filed with mala fide intention to counter blast the case under Section 107/150 Cr.P.C., which was pending in the Court of S.D.M. Nahan. In fact, after the death of Mohd. Khan, Munia Khan apprised respondent No.1 ::: Downloaded on - 02/04/2019 21:58:02 :::HCHP that she had only inherited the estate of late Mohd. Khan, which .

fact was also in the knowledge of the petitioner and he never objected for payment of rent to Munia Khan and the petitioner admitted through an affidavit before his department that he had not been claiming any rent from the ancestral property.

6 Proforma respondent No.2 by filing separate reply also controverted the averments made in the petition and supported the case of respondent No.1. He averred that in fact the petitioner was not the landlord and the rent of the shops had been received on the basis of will by the daughters. The rent from August 2002 to December 2003 amounting to Rs.51,000/­ had been received on different dates by Munia Khan and she had further received rent of Rs.2000/­ on 25.4.2004 in cash without issuing receipt.

7 The petitioner filed rejoinders, wherein averments made in the replies filed by respondents No. 1 and 2 were denied and the averments made in the petition were re­affirmed and re­ asserted.

8 After framing the issues and recording the evidence and evaluating the same, the learned Rent Controller vide order dated 31.12.2005 dismissed the eviction petition. Aggrieved by ::: Downloaded on - 02/04/2019 21:58:02 :::HCHP the aforesaid order the petitioner filed an appeal before the .

learned Appellate Authority, but the same was also dismissed vide judgment dated 17.3.2011, leading to filing of the present petition.

9 It is vehemently argued by learned counsel for the petitioner that the findings concurrently recorded by the learned authorities below are perverse and, therefore, deserve to be set aside. On the other hand, learned counsel for respondents No. 1 and 2 would argue that taking into consideration the limited scope of revisional jurisdiction of this Court, the findings concurrently recorded by the learned authorities below warrant no interference as there is no illegality or impropriety in the orders assailed before this Court.

10 I have heard the learned counsel for the parties and have also gone through the records of the case carefully.

11 At the outset, the scope of revisional jurisdiction which Court can exercise must borne in mind, as the Constitution Bench of the Hon'ble Supreme Court in Hindustan Petroleum Corporation Limited vs. Dilbahar Singh (2014) 9 SCC 78 laid down certain broad principles for exercise of revisional jurisdiction which can be summarized as under:

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(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 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 ::: Downloaded on - 02/04/2019 21:58:02 :::HCHP 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.

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(xii) Incorrect finding of fact must be understood in the .

context of such findings being perverse, based on no evidence; and misreading of evidence."

12 In the aforesaid decision, the Hon'ble Supreme 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 Hon'ble Supreme 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 Hon'ble Supreme 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 ::: Downloaded on - 02/04/2019 21:58:02 :::HCHP 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.

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."

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13 Bearing in mind the law propounded in the aforesaid .

decision, this Court will now proceed to consider the merits of the petition.

14 Notably, the eviction petition was initially filed by the petitioner against respondent No.1 and it is only after closer of the evidence that the petitioner filed an application under Order 1 Rule 10 CPC for arraying other co­owners as proforma respondents in this case. After impleadment, the petition was amended to the effect that even though, proforma respondents were also co­sharers in the premises, but they never received any rent from respondent No.1 after the death of father of the petitioner and proforma respondents No. 2 to 6 and it was only the petitioner, who used to deal with respondent No.1 and was responsible for receiving the rent. However, the petitioner in his cross­examination, while appearing as PW1, admitted that respondent No.1 had never paid any rent to him. He further admitted that his father had received the rent during his life time till August 1995. He also admitted that before filing the eviction petition, he had not asked his brother and sisters. Even though, he tried to explain that his sisters used to reside outside Nahan Town and his brother, proforma respondent No.2, told him that ::: Downloaded on - 02/04/2019 21:58:02 :::HCHP he had nothing to do with the premises in question. He also .

admitted that the shops were constructed by his father of his own income and at that time, proforma respondent Munia Khan was unmarried and living with her parents.

15 As regards the evidence led by respondent No.1, he examined brother of the petitioner, namely, Mehtab Khan as RW2, who stated that the rent of the small shop was Rs.1000/­, whereas rent of the bigger shop was Rs.2000/­. He further stated that it was the proforma respondents No. 2 to 6, who, after death of their father, were receiving rent from respondent No.1 on the basis of will executed in their favour. He also proved on record rent receipts, Ext. R1 to Ext. R8. He further admitted that 2­3 times, Rs.18000/20,000 as rent had been paid by respondent No.1 to him and the rent had also been paid to proforma respondents No. 3 to 6.

16 Once that be the position, obviously respondent No.1 cannot be burdened to pay additional rent to the petitioner, which rent otherwise stands tendered and accepted by proforma respondents No. 2 to 6.

17 The issue is otherwise no longer res integra in view of the judgment rendered by the Hon'ble Supreme Court in ::: Downloaded on - 02/04/2019 21:58:02 :::HCHP Chitranjan Burman vs. Om Prakash Bajoria and ors., (2001) .

8 SCC 758, wherein the tenant had repeatedly sent rent by way of money order to other co­owners, who happened to be mother of the landlords, who refused to accept the same and it is in this back ground that the Hon'ble Court observed as under:­ "When rent was admittedly tendered to one of the co­ owners, one of the plaintiffs in the suit, it would be unjust to hold that there was no valid tender of rent and pass an order of eviction against the tenant on that ground."

18 That apart, it has been duly proved on record that the petitioner had never received rent from respondent No.1 nor he inducted him as tenant. Once it is so, then technically, the petitioner cannot even be said or held to be the exclusive landlord of the demised premises and his status at best is that of a co­sharer.

19 The petitioner appears to have misdirected his gun and targeted respondent No.1, whereas he was required to resolve the issue with proforma respondents No. 2 to 6, who are his brother and sisters. Even otherwise, the petitioner being one of the landlords is bound by the statement given by other landlord i.e. RW2 Mehtab Khan, who has clearly admitted and ::: Downloaded on - 02/04/2019 21:58:02 :::HCHP acknowledged the receipts of rent by the co­sharer, Munia Khan, .

upto the filing of the petition.

20 Thus, once it is established that the rent of the demised premises stands paid by respondent No.1 to one or other co­sharers of the demised premises, then obviously no interference is warranted on the findings rendered by both the learned authorities below. There is neither any illegality nor any perversity in the same. The testimonies of the witnesses stand correctly and completely appreciated. The oral and documentary evidence also stand considered in its right perspective and even the provisions of law have been correctly applied to the given facts and circumstances of the case.

21 In view of aforesaid discussion, the instant petition is devoid of any merit and is dismissed as such along with pending application(s), if any, leaving the parties to bear their own costs.

(Tarlok Singh Chauhan) Judge 26.3.2019 (pankaj) ::: Downloaded on - 02/04/2019 21:58:02 :::HCHP