Allahabad High Court
Saroj Kumar vs Suresh Chandra & Another on 20 December, 2012
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 7 Case :- WRIT - A No. - 8017 of 2003 Petitioner :- Saroj Kumar (deceased) and others Respondent :- Suresh Chandra & Another Petitioner Counsel :- A.K. Rai,G.K.Singh,S.N. Singh,V.K. Singh Respondent Counsel :- Pramod Kumar Jain,A.Agarwal,S.C. Hon'ble Sudhir Agarwal,J.
1. Heard Sri V.K.Singh, Advocate for the petitioner and Sri Pramod Kumar Jain, Senior Advocate, assisted by Sri Anil Tripathi, Advocate for the respondents.
2. This is landlord's writ petition, who has felt aggrieved by judgment and order dated 25.1.2003 passed by Appellate Court i.e. Special Judge (Essential Commodities Act), Allahabad whereby Appellate Court had allowed respondents-tenant's appeal and has set aside Prescribed Authority's judgment and order dated 15.11.1999 in Rent Case No.32 of 1997. The result is that petitioner's release application filed under Section 21(1)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") for release of House No.55, Sadar Bazar Cantt., Allahabad has stood rejected.
3. The facts, in brief, giving rise to the present dispute are that petitioner is the owner and landlord of House No.55, Sadar Bazar Cantt., Allahabad. Earlier the aforesaid house was owned by petitioner's father Sri Chotey Lal, who let out the same to Sri Hazari Lal long back. After the death of petitioner's father, house in question devolved upon petitioner and his brother Tribhuvan Narayan vide registered partition deed dated 28.1.1980 both, settled for half of the house in each share between themselves.
4. Sri Hazari Lal, initial tenant, died on 7.3.1984 whereafter tenancy devolved upon legal heirs of erstwhile tenant but a fresh agreement was executed on 13.8.1984 with respondents- tenants namely Sri Suresh Chandra Son of Late Hazari Lal and Smt. Kaushalya Devi, widow of Late Hazari Lal, whereon it was stipulated that let out accommodation shall be vacated by respondent-tenants after marriage of Nirmala Devi sister of respondent no.1 and daughter of respondent No.2.
5. It is claimed that in view of aforesaid rent agreement, only respondent no.1 is the tenant in the disputed accommodation. The petitioner also owned house no.54A, Sadar Bazar Cantt. Allahabad and filed an application in 1980 for release thereof, which was allowed and release order was maintained up to High Court as a result whereof he got possession of the said premises. The petitioner's children subsequently became major necessitated additional accommodation by the petitioner. His eldest daughter married at Mirzapur having two children and his two sons, namely Anoop Kumar is also married and the second son Dharmendra is running a video shop and is also of marriagable age and for them, petitioner need aforesaid accommodation. Besides that, his two daughters are studying in B.A. IInd year and IIIrd year.
6. Prescribed Authority allowed application holding that petitioner is the owner of half of the premises and his need for release of accommodation is genuine and bona fide. It also recorded findings on comparative hardship in favour of petitioner-landlord hence vide judgment dated 25.11.1999, the release application in respect of disputed accommodation was allowed directing respondent-tenants to vacate premises and hand over possession to the petitioner within one month. The Trial Court's judgment was challenged in Rent Control Appeal No.371 of 1999 filed by respondent no.1 which has been allowed by Appellate Court vide judgment dated 25.01.2003.
7. The Appellate Court has reversed findings of Trial Court finding that besides House No.54A, which was already released in favour of the petitioner, he had another accommodation namely House No.359, Sadar Bazar Cantt., wherein accommodation consisted of two rooms and one shop. The Appellate Court in reversing findings of Trial Court looked into certain subsequent events namely death of one of petitioner's elder son and marriage of another daughter of petitioner. It is also not in dispute that during pendency of this writ petition, even petitioner himself has died.
8. Learned counsel for the petitioner vehemently contended that facts and circumstances, as available on the date when the cause of action accrued namely release application was filed can only be considered and it is not at all permissible for the Courts to look into any subsequent events and therefore, Appellate Court has erred in law in looking into subsequent events namely death of two family members of petitioners and this Court also cannot look into subsequent events occurred during pendency of the writ petition. He, however, could not dispute that need of family members, as set up initially at the time of filing release application, has substantially reduced due to death of some of the members and there is nothing on record to show that there is any other change in the circumstances justifying need of same size of the accommodation, as was pleaded at the initial stage.
9. That being so, this Court finds that only argument need to be considered whether it is at all permissible for the Court considering dispute under rent statute to take into consideration subsequent events having substantial effect/consequences on the core issues in the case.
10. This Court finds that this issue is no more res integra having been considered and now is virtually settled by various authorities of Apex Court and that of this Court. Law in respect to the question, when and in what circumstances, subsequent activities/events can be looked into is now well established. A three-Judge Bench of Apex Court in Pasupuleti Venkateswarlu vs. Motor and General Traders 1975 (1) SCC 770 permitted cognizance of subsequent events, though very cautiously, and said:
"We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceedings provided the rules of fairness to both sides are scrupulously obeyed."
11. Again in Hasmat Rai Vs. Raghunath Prasad 1981 (3) SCC 103, cognizance of subsequent events was held permissible provided it wholly satisfy requirement of petitioner/landlord who petitioned for eviction on the ground of personal requirement. The Court said:
"Therefore, it is now incontrovertible that where possession is sought for personal requirement it would be correct to say that the requirement pleaded by the landlord must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made. If in the meantime events have cropped up which would show that the landlords requirement is wholly satisfied then in that case his action must fail and in such a situation it is incorrect to say that as decree or order for eviction is passed against the tenant he cannot invite the court to take into consideration subsequent events." (emphasis added)
12. In Ramesh Kumar Vs. Kesho Ram 1992 Suppl. (2) SCC 623 a two-Judge Bench of Apex Court said, normal rule is that rights and obligations of the parties are to be determined as they were when the lis commenced. The only exception is that the Court is not precluded from moulding reliefs appropriately in consideration of subsequent events provided such events had an impact on those rights and obligations. Hon'ble M.N. Venkatachalia, J (as his Lordship then was) observed:
"The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief."
13. In Gaya Prasad Vs. Pradeep Srivastava 2001 (1) ARC 352 (SC), the Court said that for the malady of judicial system of delayed justice, a landlord should not suffer. Every day may result in some kind of development and, therefore, every subsequent development would not deny claim of landlord on the pretext of a subsequent development since no one can be expected to stay idle for all times to come till a litigation is going on. It may happen that the lifetime of litigation may be more than that of litigant-landlord himself. Therefore, the judicial tardiness should not cause an irreparable loss to a landlord. It would be unjust to shut the door of justice to a landlord at the end of litigation after passing through various levels of litigation, to deny him justice and relief sought, only on the ground, of certain developments occurred pendentelite because the tenant has been successful in prolonging litigation for an unduly extended long period. However, if the cause of action is submerged in such subsequent events, in other words, if the subsequent events are such as to satisfy the very requirement of landlord in its entirety, the same can be seen and there is no allergy in considering and taking note of subsequent events of importance which may justify remoulding of relief not on account of mere pendency of litigation but on account of the position and status of landlord and other relevant factors.
14. This matter was further examined in detail in Kedar Nath Agrawal and another Vs. Dhanraji Devi and another 2004 (4) AWC 3709 (SC) and having considered a number of authorities on the subject, the Apex Court, in para 14 of judgment, crystallized three aspects when subsequent events can be taken note of, by a Court of law, namely:
(i) The relief claimed originally has, by reason of subsequent change of circumstances, become inappropriate; or
(ii) It is necessary to take notice of subsequent events in order to shorten litigation; or
(iii) It is necessary to do so in order to do complete justice between the parties.
15. The above exposition of law has been followed and reiterated in several subsequent authorities of this Court in Civil Misc. Writ Petition No.46661 of 2004 (Chand Ratan Laddha Vs. Additional District Judge & ors.) decided on 26.07.2012, Civil Misc. Writ Petition No.8795 of 1995 (Abdul Rauf & Ors. Vs. Smt. Saira Begum & Ors.) decided on 19.09.2012, Civil Misc. Writ Petition No.19594 of 2001 (M/s Kanhaiya Mal Kasturi Lal & Anr. Vs. Sri Hari Prasad) decided on 27.09.2012, Civil Misc. Writ Petition No.8997 of 2000 (Murari Lal & ors. Vs. 12th A.D.J., Aligarh & Anr.) decided on 06.11.2012 and Civil Misc. Writ Petition No.8795 of 1995 (Laxmi Kan Bhatnagar Vs. The District Judge, Muzaffarnagar & Anr.) decided on 23.11.2012,
16. It is no doubt true that a Court of fact while considering need of landlord shall not dictate and control landlord's discretion and authority to adjust his affairs in the manner he likes but when all the facts are on record, whenever there is any substantial change in the circumstances due to the events occurring either for voluntary act of parties or for the reasons beyond control of the party, which has serious impact on the core issue, Court can also look into those circumstances and their impact on the issues. It is in these circumstances, authorities cited at the Bar on behalf of the petitioner that the need of petitioner-landlord ought not to have been held to have reduced due to subsequent events by the Court have no application.
17. In view of the above facts and circumstances I find no reason or manifest error in the impugned appellate judgment warranting interference in exercise of writ jurisdiction under Article 226/227 of Constitution. The scope of judicial review in the matter arising out of the proceedings and judgments of the Courts below is very limited. The writ petitions under Article 226/227 in such matters have not to be taken up like a regular appeal.
18. The Court below has recorded findings of fact and unless these findings are shown perverse or contrary to record resulting in grave injustice to petitioner, in writ jurisdiction under Article 226/227, this Court exercising restricted and narrow jurisdiction would not be justified in interfering with the same.
19. Under Article 227 of the Constitution, in supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority.
20. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes.
21. In D. N. Banerji Vs. P. R. Mukherjee, AIR 1953 SC 58 the Court said:
"Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere."
22. A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and made following observations at p. 571 :
"This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee AIR 1951 Cal. 193, to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors".
23. In Mohd. Yunus v. Mohd. Mustaqim and Ors. AIR 1984 SC 38 the Apex Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice.
24. For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. (See: Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895; Rukmanand Bairoliya Vs. the State of Bihar & ors., AIR 1971 SC 746; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors., AIR 1980 SC 1896; Laxmikant R. Bhojwani Vs. Pratapsing Mohansingh Singh Pardeshi, (1995) 6 SCC 576; Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel & ors., (1997) 7 SCC 300; M/s. Pepsi Food Ltd. & Anr. Vs. Sub-Judicial Magistrate & ors., (1998) 5 SCC 749; and Virendra Kashinath Ravat & ors. Vs. Vinayak N. Joshi & ors. (1999) 1 SCC 47).
25. It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See: Rena Drego Vs. Lalchand Soni & ors., (1998) 3 SCC 341; Chandra Bhushan Vs. Beni Prasad & ors., (1999) 1 SCC 70; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 171; and Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers' Union & Anr.,(1999) 2 SCC 143).
26. Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India & ors. Vs. Himmat Singh Chahar, (1999) 4 SCC 521).
27. In Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82, the Hon'ble Apex Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/ Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution.
28. In Mohan Amba Prasad Agnihotri Vs. Bhaskar Balwant Aheer, AIR 2000 SC 931, the Hon'ble Supreme Court held that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse.
29. In Indian Overseas Bank Vs. Indian Overseas Bank Staff Canteen Workers' Union (2000) 4 SCC 245, the Court observed that it is impermissible for the Writ Court to reappreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere.
30. In Union of India Vs. Rajendra Prabhu, (2001) 4 SCC 472, the Hon'ble Apex Court held that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below.
31. Similar view has been reiterated in State of Maharashtra Vs. Milind & ors., (2001) 1 SCC 4; Extrella Rubber Vs. Dass Estate (P) Ltd., (2001) 8 SCC 97; and Omeph Mathai & ors. Vs. M. Abdul Khader, (2002) 1 SCC 319.
32. In Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675, it was held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby.
33. In Jasbir Singh Vs. State of Punjab (2006 ) 8 SCC 294, the Court said:
"...while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions."
34. In Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil (2010) 8 SCC 329, the Court said that power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. The above authority has been cited and followed in Kokkanda B. Poondacha and others Vs. K.D. Ganapathi and another AIR 2011 SC 1353 and Bandaru Satyanarayana Vs. Imandi Anasuya (2011) 12 SCC 650.
35. In Abdul Razak (D) through Lrs. & others Vs. Mangesh Rajaram Wagle and others (2010) 2 SCC 432, Apex Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction.
36. In T.G.N. Kumar Vs. State of Kerala and others (2011) 2 SCC 772, the Court said that power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority.
37. In Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar (2011) 10 SCC 244, Apex Court referring to its earlier decision in Union of India Vs. R.K. Sharma (2001) 9 SCC 592 observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227.
38. The learned counsel for the petitioner could not show any perversity or manifest error in the impugned judgment justifying interference of this Court. I, therefore, do not find any reason to interfere with the impugned judgments.
39. Writ petition, therefore, lacks merit. Dismissed.
40. Interim order, if any, stands vacated.
Order Date :- 20.12.2012 KA