Rajasthan High Court - Jodhpur
Smt. Meenu & Ors vs Rent Appe. Tribunal Rajsamand & Ors on 26 October, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S. B. Civil Writ Petition No. 14027 / 2015
1. Smt. Meenu wd/o Late Pritam Bhavasar, aged about 40 years,
2. Nikhil S/o Late Pritam Bhavsar minor through his mother and
natural guardian Smt. Meenu
3. Harseet S/o Late Pritam Bhavsar minor through his mother
and natural guardian Smt. Meenu
All R/o 26/2, kanji - Ka - Hatha, Udaipur
4. Smt. Pushpa W/o Janki Lal, aged about 65 years, R/o 22/2,
26/2, Kanji - Ka - Hatha, Udaipur
5. Sobhagya Bhavasar S/o Janki Lal, aged about 47 years, C/o
Kankroli Main Chopati, Tehsil Kankroli, District Rajsamand
----Petitioners
Versus
1. Rent Appellate Tribunal, Rajsamand
2. Rent Tribunal, Rajsamand
3. Smt. Roshan Devi W/o Banshi Lal, R/o Railway Station Road,
Kankroli, District Rajsamand
----Respondents
_____________________________________________________
For Petitioners : Mr. Suresh Shrimali
For Respondents : Mr. Deelip Kawadia
_____________________________________________________
HON'BLE MS. JUSTICE NIRMALJIT KAUR
Order October 26th, 2017 The prayer in the present writ petition is for quashing of the Judgment & Order dated 06.11.2015 (Annx.14) passed by the Rent Appellate Tribunal, Rajsamand vide which the appeal filed by the petitioners-tenant against the Judgment & Order dated 31.05.2013 (Annx.12) allowing the eviction petition filed by the (2 of 9) [CW-14027/2015] respondent-landlady was dismissed as well as Judgment & Order dated 10.05.2011 (Annx.9) vide which the appeal filed by the respondent-landlady against dismissal of the eviction petition was allowed and the matter was remanded back to the Rent Tribunal.
The disputed premises were rented to one Pritam Bhavsar. The petitioner No. 1 Meenu is wife of Pritam Bhavsar, whereas, the petitioner Nos. 2 and 3 are sons of Pritam Bhavsar. The petitioner No. 4 is the mother of Pritam Bhavsar and the petitioner No. 5 is the brother of Pritam Bhavsar to whom the premises were to sublet. After the death of Pritam Bhavsar, the petitioner Nos. 1 to 4 stopped paying the rent. The eviction from the suit premises was sought on the ground of sublet, default and bonafide necessity of the disputed premises. The petitioner Nos. 1 to 4 filed reply to the rent petition and denied the claim. It was further mentioned in the reply that her husband Pritam Bhavsar was not the tenant and nor any rent deed was executed by him in favour of the respondent-landlady. Further, the petitioner No. 5 - Sobhagya Bhavsar was the tenant since 1997-98. The petitioner No. 5 also filed his reply and while supporting the stand of the petitioner Nos. 1 to 4 submitted that he is the tenant from the very beginning and the rent was @ Rs. 300/- per month and that he was regularly paying the rent to the respondent-landlady and has also paying the electricity bills from the date of taking the suit premises on rent. The rent tribunal, however, dismissed the eviction petition vide Judgment and Order dated 12.01.2009. Being aggrieved by the same, the respondent-landlady filed an appeal before the Rent Appellate Tribunal. The Rent Appellate (3 of 9) [CW-14027/2015] Tribunal vide its Judgment and Order dated 10.05.2011 allowed the appeal and remanded the matter back to the Rent Tribunal. This time, the Rent Tribunal vide its Judgment & Order dated 31.05.2013 allowed the eviction petition. Aggrieved, the petitioners-tenant preferred the appeal before the Rent Appellate Tribunal, which was dismissed vide Judgment and Order dated 06.11.2015.
While praying for setting aside the judgments and orders impugned, learned counsel for the petitioners-tenant relied on the first Judgment and Order of the Rent Tribunal dated 12.01.2009 and vehemently argued that while deciding the Issue No. 1 against the respondent-landlady that as to whether the landlady had rented out the suit premises to Pritam Bhavsar at the rent of Rs. 300/- per month, the Rent Tribunal observed that there is no signature of an independent person and that the suit premises was taken on rent on 02.02.2005 on the stamp which was purchased on 03.02.1998 i.e. after seven years from the date of purchase of the stamp and thus, the Rent Tribunal did not believe the same. The order of the Rent Tribunal dated 12.01.2009 was heavily relied upon by the learned counsel for the petitioners- tenant to contend that as per the said order, it was the petitioner No. 5 - Sobhagya Bhavsar who was the tenant of the suit premises since 1997. Hence, the petitioner Nos. 1 to 4 were not the tenant and therefore, the order of the eviction as well as recovery of arrears of rent from the petitioner Nos. 1 to 4 was wrong. Secondly, the bills produced by the petitioners-tenant show that the petitioner No. 5 is the tenant from the year 1997 (4 of 9) [CW-14027/2015] but the Rent Tribunal wholly omitted to consider this very important aspect of the matter. How the electricity bills for the period when the suit premises was alleged to be in the tenancy of Kamal Prakash Sanadhya could be produced by the petitioners was omitted by the Rent Tribunal though this fact clearly established that the petitioner No. 5 is the tenant of the suit premises since the year 1997. Further, the petitioner Nos. 1 to 4 and the petitioner No. 5 belong to one family and the petitioner Nos. 1 to 4 are the legal heirs of the brother of the petitioner No.
5. When the Rent Tribunal observed that the petitioner Nos. 1 to 5 are members of one family, then, the question of subletting does not arise at all. While raising yet another argument, it was submitted that the rent note dated 02.02.2015 is fraudulent and forged but the Rent Appellate Tribunal erroneously observed that since the petitioners did not seek any cross-examination on the affidavits filed by the respondent No. 3 and her witnesses and on the basis of the cross-examination of the petitioner No. 5, the alleged rent note cannot be said to be forged or fabricated. Further, the Rent Appellate Tribunal neither referred the evidence led by the petitioners nor considered the same though the petitioners came with the case that Paras Medical Store is run by Kamal Prakash Sanadhya at the station road. When once it is admitted that in the year 1997, the petitioner No. 5 was the tenant of the suit premises then, in absence of any evidence regarding vacating that shop by him, the Issue No. 1 ought to have been decided against the respondent No. 3. Further, the documents produced by the petitioners along with reply to the (5 of 9) [CW-14027/2015] application under Section 19(9) of the Act of 2001 before the Rent Appellate Tribunal and the information that Kamal Prakash Sanadhya is carrying on the business from the year 2002 in the name and style of Parag Medical Store in Hingad Market situated at Station Road, Kankroli was submitted but it is strange that neither the reply filed by the petitioners before the Rent Appellate Tribunal nor the documents produced by them along with the reply have been considered or even referred by the Rent Appellate Tribunal. Therefore, it is clear that the Judgment & Order dated 10.05.2011 is totally a non-speaking order.
Learned counsel for the respondent-landlady, on the other hand, while raising a preliminary objection submitted that in case, the stand of the petitioner Nos. 1 to 4 that they are not the tenants of the respondent-landlady is accepted, then, it is not understood as to why they have come forward to file the appeal against the order of the eviction. Secondly, there is concurrent findings on facts. It has been held by the Tribunals below in no uncertain terms that the premises were sublet to the respondent No. 5.
Learned counsel for the parties were heard at length. The respondent-landlady had filed the rejoinder on 01.12.2008 before the Rent Tribunal with the averment that the shop had been given on rent in the year 1997 to the petitioner No. 5 - Sobhagya Bhavsar for some time. The shop remained with him. Thereafter, he evicted the said shop. After the said shop was given on rent to many persons, finally on 02.02.2005, the said shop was given on rent to the husband of the petitioner (6 of 9) [CW-14027/2015] No. 1, namely, Pritam Bhavsar @ Rs. 350/- per month. Thus, the whole case depends on the rent note dated 15.11.2002 which shows that the premises in question were given to one Kamal Sanadhya during the intervening period till 02.02.2005, the shop in question was rented out to Pritam Bhavsar. The affidavits were filed in support of the claim of the respondent-landlady by Roshan Devi, Banshi Lal, Nandlal and Phoolchand Ranka. The rent note executed by Pritam Bhavsar in favour of the husband of the respondent-landlady, namely, Banshilal shows that the same was given @ Rs. 350/- per month from 02.02.2005 onwards. The signature of Pritam Bhavsar are mentioned on the said rent-note.
The argument of the petitioners-tenant that the rent note of 02.02.2005 was fabricated has not been believed by either of the tribunals below taking into account that no criminal case was registered. Moreover, the petitioners-tenants even failed to cross- examine the witnesses on the said point. Thus, it was held by both the tribunals below that the respondent No. 5 remained the tenant over the premises only for some time till it was given to one Kamal Sanadhya and thereafter, a rent-deed was executed by the husband of the petitioner No. 1, namely, Pritam Bhavsar in favour of the respondent-landlady and therefore, the respondent No. 5 was no more the tenant. The entire argument of the learned counsel for the petitioner was based on the judgment rendered by the Rent Tribunal dated 12.01.2009. The said arguments cannot be sustained as admittedly, the Judgment and Order dated 12.01.2009 passed by the Rent Tribunal was set aside and the matter was remanded back to the Rent Tribunal. The (7 of 9) [CW-14027/2015] petitioner did not challenge the Judgment & Order dated 31.05.2013 vide which the judgment and order of the Rent Tribunal dated 12.01.2009 was set aside.
Moreover, both the courts below have returned a positive finding on the question of sublet in favour of the respondent- landlady. The petitioners have lost from both the courts below. In case, the concurrent findings of facts is based on proper appreciation and analysis of the evidence on record, the said findings should not be interfered by the High Court in its exercise of powers under Article 227 of the Constitution of India. It cannot assume the powers of an appeal as also held by this Court in the case of Shailendra Kumar Vs. Rent Appellate Tribunal, Jaipur and ors. reported in 2013 (4) RLW 3371 (Raj.) in para 7 and 8 as under :-
"7. Coming to another aspect of the present case with regard to the limited scope which is left to this Court while exercising powers under Article 227 of the Constitution of India in respect of concurrent findings arrived at by both the Tribunals, an aspect which has been much emphasized by learned counsel for the respondent, this Court is of the considered opinion that it is a settled principle of law since long that the powers under Article 227 of the Constitution are neither akin to appellate powers or revisional powers. Moreso, when the proceedings in the present case arises under the Act governing the land lord and tenant relationship and their dispute, it does not provide for any second appeal or revision to the High Court. The purpose behind providing such a remedy is to give finality to the orders passed under the Act. The power under Article 227 is exercisable when it is found by the High Court that due to a certain grave error, an injustice has been caused to a party. The said jurisdiction of the High Court is limited only to seeing that the subordinate courts functions within the limits of its authority and does not extend to correction of mere error of fact by examining the evidence and reappreciating an error of fact that can be corrected (8 of 9) [CW-14027/2015] only by a superior court in exercise of statutory powers as a court of law. Therefore, the High Court cannot be anxious in exercising its jurisdiction under Article 227 of the Constitution of India to convert itself into a court of appeal.
8. About half a century ago, the Constitution Bench of the Hon'ble Supreme Court in the case of Negendra Nath Bora Vs. Commissioner Of Hills, AIR 1958 SC 398 has laid down that the powers under Article 227 is limited to seeing that the courts of law function within the limits in its authority or jurisdiction. The said principle was then followed in the case of Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895 wherein the Hon'ble Supreme Court in Para 12 held that :
"... jurisdiction conferred (under Article
227) is not by any means appellate in its nature for correcting errors in the decisions of subordinate courts or tribunals but is merely a power of superintendence to be used to keep them within the bounds of their authority ..."
Similarly, in the case of Mohd. Yunus Vs. Mohd. Mustaqim reported in (1983) 4 SCC 566, the Hon'ble Supreme Court, in Para 7 and 9, observed :
"7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited `to seeing that an inferior court or tribunal functions within the limits of its authority', and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him nor in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an appellate court or tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decisions."
9. Later on in the case of Laxmikant Revchand (9 of 9) [CW-14027/2015] Bhojwani Vs. Pratapsing Mohansingh Pardeshi, (1995) 6 SCC 576, the Hon''ble Supreme Court had again observed, in Para 9 that :
"9. ... The High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes."
In the present case as observed above, the respondent No. 5 has miserably failed to show that he was the tenant of the premises in question since the year 1997 and continued to be the tenant even after the year 2005 and uptil the death of Pritam Bhavsar. On the other hand, from the rent note dated 15.11.2002 executed between one Kamal Prakash Sanadhya and the landlord and another rent-note dated 02.02.2005 executed between Pritam Bhavsar and the landlord clearly shows that the respondent No. 5 was no more the tenant and after 2005, Pritam Bhavsar was the tenant and the respondent No. 5 was in possession of the said premises in his capacity as sub-tenant of Pritam Bhavsar. There is no reason to arrive at a different conclusion than arrived at by the courts below with respect to the said rent notes. Both the rent notes are found to be genuine and are not fabricated in any manner.
In view of the above, this Court is not inclined to interfere in the concurrent findings recorded by the tribunals below.
The present writ petition is, accordingly, dismissed.
(NIRMALJIT KAUR), J.
Inder/Jr.P.A.