HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 6.5.2015 Court No. 30 Case :- WRIT - A No. - 37252 of 2004 Petitioner :- Ramesh Kumar Ghai Respondent :- Raj Kumar Rathore And Others Counsel for Petitioner :- S.M.Dayal,Ashutosh Yadav,Atul Dayal,S.Lal Counsel for Respondent :- SC,Rama Goel,Smt. Komal Khare,Somesh Khare Hon'ble Suneet Kumar,J.
This is a tenants petition under Article 226 of the Constitution of India. The writ petition is directed against the order dated 18 August 2004 passed by the Additional District Judge Court No. 10, Kanpur Nagar in SCC Revision No. 82 of 2003 (Raj Kumar Rathore vs. Ramesh Kumar Ghai and others). The Court below allowed the landlords revision, set aside the judgment and decree dated 30 September 2003 passed by the Small Causes Court, Kanpur Nagar, thereby decreeing the suit for eviction against the petitioner.
The facts giving rise to the petition, briefly is that the respondent/plaintiff filed a suit before the Small Causes Court for eviction, arrears of rent and damages against the petitioner for the shop situated on the ground floor of house no. 118/168, Kaushalpuri, Kanpur. The tenancy was determined by duly serving a notice upon the petitioner, however, the petitioner failed to comply the terms of the notice.
It was urged by the landlord that the construction being a new construction which was completed in 1987, therefore, was outside the ambit of Act No. 13 of 1972. The petitioner contested by filing written statement. The tenancy of the disputed shop was admitted but the tenant would urge that the property in dispute was constructed prior to 1987, therefore, the provisions of U.P. Act No. 13 of 1972 would apply to the shop in dispute.
The trial Court upon considering the evidence and material on record, returned a finding that the respondent/plaintiff failed to prove that the shop was constructed in 1987, accordingly, held that the provisions of Act No. 13 of 1972 was applicable and dismissed the suit.
Aggrieved, the respondent-landlord preferred a revision. The revisional Court came to the conclusion that the shop in dispute was exempted from the applicability of Act No. 13 of 1972, recording that the disputed premises was constructed in 1987, thus allowing the revision and decreeing the suit. The tenant-petitioner is assailing the revisional order.
The only question for determination is as to whether the revisional Court exceeded its jurisdiction in recording a finding of fact that the shop in question was constructed in 1987, while reversing the finding of fact returned by the trial Court.
Explanation (1) to Sub-clause (2) of Section 2 provides that the provisions of the Act would not apply to buildings for a period of 10 years from the date of completion of the construction. The period is computed from the date of completion of the building. In terms of Explanation (1) the construction of a building is deemed to have been completed on the date on which completion thereof, is reported or otherwise recorded by the local authority having jurisdiction. In the case of a building subject to assessment, the date on which the first assessment thereof, comes into effect and where the said dates are different, the earlier of the said date would be relevant for deciding the question of date of construction of the premises. According to the respondent/landlord, the shop in question was demolished and partially reconstructed in 1985, thereafter given on rent at Rs. 300/- per month to the petitioner on 1 April 1985. The entire construction was completed in 1987, accordingly Nagar Nigam, Kanpur assessed the new construction for the first time in April 1987. The suit for eviction was filed in 1993 before the expiry of 10 years, hence, it was contended that the provisions of the Act No. 13 of 1972 was not applicable to the disputed premises on the date of filing of the suit. The Revisional Court upon considering the assessment orders of the Nagar Mahapalika, Kanpur, for the assessment years 1978-1983, recorded that seven tenanted shops were shown. The shop of the respondent/defendant, admittedly was not shown in the said assessment. The annual rent of the then existing building was assessed at Rs. 2400. The revisional Court would further record that for assessment years 1987-1992 (paper no. 44) only three shops were assessed, the remaining were under construction. The annual rent was assessed at Rs. 8400/- as against Rs. 2400/- for the assessment years 1978-1983, accordingly, the revisional Court held that only three shops were constructed by 1987.
It is contended by the learned counsel for the petitioner that the revisional court committed an error in reversing the finding of fact recorded by the trial Court by re-appreciating and reassessing the evidence.
Learned counsel for the respondent in rebuttal would submit that the revisional Court has not committed any illegality or irregularity, neither exceeded its jurisdiction. The revisional Court merely recorded that the evidence and material available on record was misread by the trial Court. The relevant extract of the revisional order is as follows:
The learned trial Court has taken an erroneous view and has also not correctly interpreted and has misread the above paper no. 44, which is assessment for the year 1987-1992, which clearly proves that only three shops were constructed, which were assessed and the remaining portion of the building was under construction. Had there been an old building in existence then it would have been shown in the above assessment paper, it is proved that only three shops including the shop of the defendant was constructed by that time and the remaining portion was under construction. From the evidence on record, there is no evidence as to when the completion of construction was reported to Nagar Nigam. But from paper no. 44, it is proved that newly constructed building was reassessed too for higher Annual Rental Value, 7 tenements were assessed for a rental value of Rs. 2400/- for the previous assessment, whereas only three shops have been assessed for 3-1/2 times excess i.e. from Rs. 2400/- to Rs. 8400/-. Before the above assessment, a notice was given by Nagar Mahapalika, Kanpur on 23 September 1986.
The learned lower Court has misinterpreted the above documentary evidence and has certainly taken an erroneous view.
Ordinarily, appellate jurisdiction involves a rehearing while it is not so in the case of revisional jurisdiction when the same statute provides the remedy by way of an "appeal" and so also of a "revision". If that were so, the revisional power would become coextensive with that of the trial Court or the subordinate tribunal which is never the case.
However, in dealing with the findings of fact, the examination of findings of fact by the Revisional Court is limited to satisfy itself that the decision is "according to law". Whether or not a finding of fact recorded by the subordinate court is according to law, is required to be seen on the touchstone whether such finding of fact is based on some legal evidence or it suffers from any illegality like misreading of the evidence or overlooking and ignoring the material evidence altogether or suffers from perversity or any such illegality or such finding has resulted in gross miscarriage of justice. (Ram Dass vs. Ishwar Chander, (1988) 3 SCC 131).
In Shiv Sarup Gupta vs. Mahesh Chand Gupta, (1999) 6 SCC 222, the Apex Court with reference to revisional jurisdiction of the High Court under the Delhi Rent Control Act observed that the High Court, on the touchstone of "whether it is according to law" for that limited purpose, may enter into reappraisal of evidence but cannot enter into appreciation or reappreciation of evidence merely because it is inclined to take a different view on the facts. The evidence is examined by the High Court to find out whether the Court/authority below has ignored the evidence or proceeded on a wrong premise of law or derived such conclusion from the established facts which betray lack of reasons and/or objectivity which renders the finding not according to law.
The observations in Ram Narain Arora vs. Asha Rani, (1999) 1 SCC 141 that in in examining the "legality" or "propriety" of the proceedings before the Rent Controller, the High Court could examine the facts available must be understood for the purpose stated therein, namely, in order to find out that the finding of facts are based on firm legal basis and are not given on a wrong premise of law but pure findings of fact are not for interference in revisional jurisdiction.
In Hindustan Petroleum Corporation Ltd. vs. Dilbahar Singh (2014) 9 SCC 78 the Constitution Bench of Supreme Court considered the aforementioned judgments and held that the consideration or examination of the evidence by the High Court in revisional jurisdiction under the Rent Control 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 or 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. It 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.
In the facts of the case in hand the revisional Court records that the trial Court misread the evidence available on record while returning a finding regarding the date of completion/construction of the disputed building in terms of first Explanation to Section 2(2) of the Act No. 13 of 1972.
In such view of the matter, this Court is not inclined to interfere with the impugned order.
It is provided that in case the petitioner furnishes an undertaking on oath before the Additional District Judge (Room No. 10), Kanpur Nagar within ten days from today that the petitioner shall vacate the premises in question and hand over the possession of the same peacefully to the respondent-landlord on or before 31 January 2016. The petitioner shall deposit the monthly rent of the premises in question before the Court below, as per the current rent fixed and shall continue to deposit the same by 07th of the each calendar month till the vacation of the premises in question, which amount may be permitted to be withdrawn by the respondent-landlord after due verification by the Court concerned.
It is made clear that in the event of default of any of the conditions by the tenant, the order shall stand automatically vacated without reference to the Court.
Subject to the above, the writ petition is dismissed.
No order as to cost.
Order Date :- 01.09.2015 S.Prakash