HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 7 Civil Misc. Writ Petition No.22481 of 2011 Pramod Kumar ......Petitioner. Vs. Additional District Judge, Court No. 1 Bijnor and others .....Respondents. ****** Hon'ble Rakesh Tiwari, J.
Heard learned counsel for the parties and perused the record.
By this writ petition, the petitioner has challenged the validity and correctness of the orders dated 22.2.2011 passed by the Additional District Judge, Court No. 1, Bijnor/respondent no. 1 in Rent Control Appeal No. 05 of 2010, as well as order dated 17.2.2010 passed by the Prescribed Authority/Civil Judge (Junior Division), Nageena, Bijnor/respondent no. 2 in P.A. Case No. 9 of 2002, appended as Aannexures 1 and 2 to the writ petition.
The facts of the case are that the applicant-respondent no. 3 moved an application under Section 21 (1)(a) & (b) of U.P. Urban Buildings (Regulation of Letting, Rent And Eviction), Act 1972, hereinafter referred to as "Act No. 13 of 1972, for release of the tenament stating therein that the applicant-respondent no. 3 had purchased the property in question by means of a registered sale-deed dated 21.1.1995 from erstwhile landlord in which petitioner is a tenant @ Rs.100/- per month. It was averred in the release application that the building in question is more than 100 years, is in dilapidate condition and is required for personal need by the landlord. On receipt of the summons, the petitioner-tenant filed written statement denying the plaint allegation. The case set up by the petitioner-tenant before the Court below was that the above said property in dispute was purchased by the applicant-respondent no. 3 in the year 1995 and since then he wanted to evict the petitioner as such the petitioner had filed original suit no. 479 of 1995 before the Court of Civil Judge (Junior Division) Nageena, Bijnor in which temporary injunction was granted ; that during the pendency of the aforesaid suit, the applicant-respondent no. 3/landlord had taken possession from Sri Jaswant Singh, who was a tenant of the first floor in the building and since then the applicant-respondent no. 3 is pressing hard to get the property in question vacated, therefore he malafidely filed suit no. 730 of 2000 for permanent injunction. The said suit is still pending and temporary injunction has not been granted in favour of the applicant-respondent no. 3.
During the pendency of P.A. Case, petitioner moved an application on 16.2.2006 before the Prescribed Authority being paper no. 72-C for issuance of a commission for inspecting the properties of respondent no. 3, alleging that applicant-respondent no. 3 is comfortably living with his family in a spacious building constructed on 1000 sq. yards of plot and has other properties also, as such there is no genuine and bonafide requirement of the shop in dispute to the landlord. The application was contested by respondent no. 3 by filing objection dated 2.3.2006. The Prescribed Authority vide his order dated 8.5.2006 rejected the application paper no. 72-C for issuance of commission. The order dated 8.5.2006 was assailed by the petitioner in writ petition no. 64457 of 2006 which was disposed of by order dated 27.11.2006 with the observation that petitioner may move a fresh application before the Prescribed Authority taking all these grounds which he had taken in that writ petition.
The contention of learned counsel for the petitioner is that pursuant to the order dated 27.11.2006, petitioner moved an application (paper no. 85-C) before the Prescribed Authority for compliance of order dated 27.11.2006. The said application was objected by the applicant-respondent no. 3 by filing objection on 11.1.2008. Thereafter, the petitioner moved other applications being paper no. 97-C & 102-C before the Prescribed Authority for filing some additional documentary evidence in order to demonstrate that respondent no. 3 is not having any need of the property in question and that copy of this application (paper no. 97-C) which is not available with the petitioner shall be produced during the course of argument. Subsequently, all the aforesaid applications being paper no. 85-C, 97-C and 102-C were allowed by order dated 17.2.2010.
Aggrieved by the order dated 17.2.2010, petitioner preferred Rent Appeal No. 05 of 2010 before the Additional District Judge, Bijnor. He has also challenged the orders of the Prescribed Authority by which Applications, paper nos. 85-C, 97-C and 102-C were rejected on 8.3.1997 and 7.5.2008 respectively.
It appears that the petitioner also moved another application being paper no. 22-C before the Appellate Court under section 34 Rule 22 along with Order 41 Rule 27 of C.P.C. for receiving additional evidence on record and another application paper no. 24-C for issuance of commission. The Appellate Court vide its order dated 21.10.2010 allowed the application (paper no. 22-C) and rejected the rent control appeal no. 5 of 2010 vide his order dated 22.2.2011.
The order impugned is challenged on the ground that the appellate court despite allowing the application (paper no. 22-C) has failed to pass any order on the application (paper no. 24-C) which was filed for issuance of commission; that both the courts below have committed manifest error of law while passing the impugned orders; that the court below has failed to take into account that the Court by order dated 27.11.2006 permitted the petitioner to raise all the grounds in the arguments regarding comfortable living of applicant-respondent no. 3 before the Prescribed Authority, but the court below have failed to comply with the order dated 27.11.2006 and have failed to take into account that as per section 34 of Rent Control Act the prescribed authority will have the same powers as are vested in civil court under C.P.C. when trying the suit and that the prescribed authority has erred in law in not receiving additional evidence submitted by the petitioner in order to demonstrate need of the property in dispute by respondent no. 3 is not bonafide as the Prescribed Authority was under the obligation to receive evidence from the petitioner as per section 34 of Act no. 13 of 1972.
It is submitted that both the courts below have completely ignored the provisions of Section 34 of Act No. 13 of 1972 and have also failed to take into account that release application was moved on the ground that disputed shop is in dilapidated condition which requires demolition and reconstruction. The courts below have recorded a finding against the petitioner in this regard even though the landlord failed to prove the case under section 21 (1) (b); that the finding of the court is also contrary to inspection report submitted by the Engineer which goes to say that the building is in good condition and only requires repairs.
A supplementary affidavit has been filed by learned counsel for the respondent inter alia that along with application for release the landlord had also filed the proposed map, as well as an estimate of expenses which were likely to be incurred in demolition and reconstruction of the house in dispute. An amendment application and another application being application no. 67-C were filed by the applicant-respondent no. 3 on 4.2.2011 for deleting clause (b) under which the composite release application was filed. Both the applications were allowed by the appellate court vide its order dated 7.2.2011. It is also argued that after passing of the order dated 7.2.2011, the applicant-respondent no. 3 lost the cause of action to file release application under section 21 (1) (b) of the Act.
In support of his case, learned counsel for the petitioner has relied upon a judgment rendered in the case of Smt. Gulaicha Devi Vs. Prescribed Authority (Munsif), Basti and another reported in ARC, 1989 (1) 407. This case is of no help in the facts and circumstances of the present case as admittedly Section 34 does not bar cross-examination of person giving evidence on affidavit. Rather provide that such a person can be called in certain circumstances for cross-examination.
Per contra, learned counsel for the respondent has submitted that pursuant to the order dated 27.11.2006 passed by the Court, petitioner filed the application (paper no. 85-C) after one year and that too at the time of final argument which was rejected by the Prescribed Authority on 7.5.2008, on the ground that in the release proceedings, evidence can be filed to prove the bonafide need; that thereafter the Prescribed Authority allowed the release application filed by the respondent no. 3; that during the pendency of appeal when it was reached at the stage of final argument, with oblique motive two applications i.e. paper no. 22-C and 24-C in respect of taking additional evidence on record and in respect of issuing commission respectively were filed by the tenant. It is submitted that after hearing both the applications, aforesaid, the appellate court by order dated 21.10.2010 allowed the application (paper no. 22-C) by a detailed and separate order and rejected the application (paper no. 24- C) . It is further stated that the petitioner has wrongly alleged in the writ petition that appellate court did not pass any order on application (paper no. 24-C).
In support of his case, learned counsel for the respondent has relied upon the following judgments:
1. 2004 (55) ALR 319 SC : Ranjeet Singh Vs. Ravi Prakash.
2. 2003 SC & Full Bench Rent Cases 137: Akhileshwar Kumar & others Vs. Mustaqim and others.
3. 2008 SCFBRC 352: Shamshad Ahmad & others Vs. Tilak Raj Bajaj (d) by L.Rs. & others.
In the case of Ranjeet Singh, it has been held that the High Court in setting aside the judgment of the appellate court and restraining that all the trial court cannot act like an appellate court in certiorari jurisdiction for correcting the judgment of appellate court. Recording a finding by the High Court it has been held that "considering the evidence on the record carefully" it was inclined not to sustain the judgment of the Appellate Court. On its own showing, the High Court has acted like an Appellate Court which was not permissible for it to do under Article 226 of Article 227 of the Constitution.
In the case of Akhileshwar Kumar & others Vs. Mustaqim and others, it has been held that a decree for eviction upholding availability of ground under clause (c) of sub-section (1) of Section 11 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereafter 'the Act', for short) was passed in favour of the appellant-landlords and against the tenant-respondents by learned Munsif, Biharsharif. A revision preferred under Section 14 (8) of the Act has been allowed by the High Court and decree of trial Court set aside. The aggrieved landlords are in appeal by special leave. In this reference paragraphs 3 and 5 of the said judgment are quoted below:
"In our opinion, the approach adopted by the High Court cannot be countenanced and has occasioned a failure of justice. Over-whelming evidence is available to show that the plaintiff No. 1 is sitting idle, without any adequate commercial activity available to him so as to gainfully employ him. The plaintiff no. 1 and his father both have deposed to this fact. Simply because the plaintiff no. 1 is provisionally assisting his father in their family business, it does not mean that he should never start his own independent business. What the High Court has overlooked is the evidence to the effect, relied on by the trial court too, that the husband of plaintiff no. 4 i e. son-in-law of Ram Chandra Sao, was assisting the latter in his business and there was little left to be done by the three sons.
We find it difficult to sustain the observation of the High Court that the requirement pleaded by the plaintiffs falls short of felt need and is merely a desire. The judgment of the trial Court is a detailed and exhaustive judgment which has taken into consideration each and every available piece of evidence and relevant circumstances, assessed with objectivity, consistently with the relevant principles of law and hence the finding is one which could not have been upset by High Court in exercise of its revisional jurisdiction. Moreover, as we have pointed out, the manner in which the High Court has proceeded to form an opinion at variance with the findings of the trial Court is wholly unsustainable.
In the case of Shamshad Ahmad & others Vs. Tilak Raj Bajaj & others cited by the respondent filed under Section 21 (1) (a) of U.P. Act No. 13 of 1972, the Apex Court held that bonafide requirement was a question of fact in each case. It was found in this case that the tenant bonafide required the shop for doing business. In this context, relevant portion of this judgment is quoted below:
"High Court by a cryptic order without disturbing the said finding set aside the order of eviction- High Court was not right in interfering with the order passed by Appellate Authority".
It was further held in the said judgment that:-
"Powers of High Court under Articles 226 and 227 are very wide and extensive, but such powers must be exercised within limits of law-Power is supervisory in nature. It does not act as a Court of Appeal, or Court of error and it can neither review nor reappreciate, nor weigh the in evidence upon which determination of a subordinate court of inferior Tribunal purports to be based or correct errors of fact or even of law. The powers in writ jurisdiction are required to be exercised most sparingly and in appropriate cases in order to keep the subordinate courts within limits of law".
The cases cited above by learned for the respondent are not applicable in the fact and circumstances of the present case as a perusal of order impugned shows that the appellate court has come to the conclusion from the evidence on record that the landlord has been able to prove his bonafide need and has greater comparative hardship than the tenant-petitioner in case shop in dispute is not released in his favour. The appellate Court has further held that finding of fact recorded by the Prescribed Authority are based on evidence and record. For this reason the judgment of the Prescribed Authority does not require any interference. It is also apparent from the reading of the order dated 27.11.2006 passed in writ petition no. 64457 of 2006 that the same has been followed by the appellate court in letter and spirit. The order dated 27.11.2006 is appended as Annexure-8 to the writ petition. Relevant portion of the order dated 27.11.2006 is quoted below:
"The powers vested under Section 34 have to be exercised judiciously. It is not a case for interference under Article 226 of the Constitution. However, in view of the submissions made by the petitioner that he will be deprived of his livelihood having a family of his wife, two sons and a daughter it is directed that he may file an application in this regard in the aforesaid release application and the Prescribed Authority shall decide the same in accordance with law.
The writ petition is accordingly disposed of with the direction that the petitioner can take all these grounds which are taken in this writ petition before the Prescribed Authority in his arguments or evidence. No order as to costs."
The High Court in the above order had only permitted that "petitioner can take all the grounds in argument which are taken in the writ petition and had in no uncertain terms had not permitted to move application taking additional evidence or making amendment etc. as this Court was quite clear that case should not start de-novo from evidence stage.
It appears from record that the petitioner did not file application before the Prescribed Authority taking the grounds which he had taken after substantial arguments had been advanced in the writ petition but filed application for additional evidence.
As regards, application (paper no. 97-C) is concerned, it pertains to the fact that certain documents were required to be supplied by Nagar Palika, but as fees for the same was not deposited, the documents required to be supplied by Nagar Palika, were not supplied, hence this application is of no consequence.
Suffice it to say that the application which was sought to be filed after argument, had substantially been heard and the case was listed for further arguments. If the evidence is brought on record at that stage, it could not have been rebutted. Therefore, the Court below has rightly passed the order impugned and has not considered the application of the petitioner holding that there is no evidence filed by the petitioner in so far as no evidence was filed by the petitioner in support of his case. Even in summary proceedings, there is a stage for filing documentary evidence and which has to be filed before start of the argument and not when the argument is being concluded.
For all the reasons stated above, it is crystal clear that no illegality or infirmity has been found in the order impugned. The writ petition is, accordingly, dismissed.
The petitioner is directed to vacate and handover the peaceful possession of the shop in dispute to the landlord-respondent within a period of one month from today. No order as to costs.
Dated: 26.04.2011 RCT/-