Raman Kumar Nair Alias Raman Kumar ... vs Dinesh Kumar Gupta
2022 Latest Caselaw 3675 Chatt

                                1

                                                              AFR

         HIGH COURT OF CHHATTISGARH, BILASPUR

                      WP227 No. 205 of 2022

     Raman Kumar Nair Alias Raman Kumar Chouksey S/o Shri P
     Gopalan Nair Alies Gopal Chauksey Aged About 55 Years R/o
     Tikarapara Near Shashi Sringar Gift Center Near
     Maharastramandal, Bilaspur, District Bilaspur Chhattisgarh.
                                                 --- Petitioner

                             Versus

     Dinesh Kumar Gupta S/o Shiv Kumar Gupta Aged About 59
     Years Sadar Bajar Bilaspur Chhattisgarh 495001.
                                                --- Respondent

For the Appellant : Mr. Brajendra Singh, Advocate.

For the Respondent : Mr. Manoj Paranjpe, Advocate

DB : Hon'ble Shri Justice Goutam Bhaduri, Judge & Hon'ble Mrs. Justice Rajani Dubey, Judge

JUDGMENT/ORDER ON BOARD

Per Goutam Bhaduri, J

13.06.2022 Heard.

1. The present petition is against the order dated 08th February

2017 by the Rent Control Tribunal Raipur whereby the order

of eviction passed by the Rent Controlling Authority on

15.11.2016 was affirmed. The jurisdiction of this Court under

Article 227 of the Constitution of India is invoked to canvass

that the order passed by the Authority and the Tribunal are

illegal.

2. The brief facts of the case are that the respondent herein

filed a petition under Section 12 of the Chhattisgarh Rent

Control Act, 2011 for eviction of suit premises along with

arrears of rent on the ground that despite termination of

tenancy by notice, the petitioner herein failed to vacate the

premises. The ground raised was that he was in arrears did

not pay the rent despite the notice apart from that the suit

property was required bona-fide to start the business of

respondent's son who was without any avocation after his

graduation. The Rent Controlling Authority as well as the

Tribunal after evaluating the facts and evidence came to

conclusion that the petition filed by the respondent deserves

to be allowed resulting into decree for eviction.

3. Learned counsel for the petitioner who is tenant would

submit that the entire petition was based on agreement

dated 12.12.1995 and tenancy was for more than a year , as

such, the agreement itself was inadmissible in evidence. He

placed reliance on a case law reported in Anthony Versus

K.C. Ittoop and Sons and others decided on

01.07.2000 . It is further submitted that the ownership of

the suit premises itself was in dispute inasmuch as a civil suit

is pending in respect of the said premises wherein the

petitioner was also a party. Consequently in absence of

ownership right, the respondent could not be adjudicated to

be the owner of the property and accordingly, there ought to

have been a dismissal orders passed against the respondent.

4. Per contra, learned counsel for the respondent would show

that the grounds about the non-registration of Rent

agreement has been raised for the first time before this

Court which was never raised before the Rent Controlling

Authority or the Tribunal, as such, he would further submit

that contradictory statements have been made by the tenant

firstly about the ownership. Secondly, the agreement itself

was denied but during the cross examination all these facts

were admitted and tried to show that the owner of the

premises is a third party. Both the contradictory evidence

which are on record would show that the tenant himself has

demolished his defence. He would further submit that while

a finding of fact has been arrived by the Rent Controller and

the Tribunal, the said finding could not have been challenged

in the guise of the appeal under Article 227 of the

Constitution. He further submits that the date and events

would show that after eviction order passed by the learned

Rent Control Tribunal, an appeal was preferred before the

Supreme Court in 2017 which was unconditionally withdrawn

on 03.03.2022. Thereafter, the instant petition which is

preferred before this Court would be untenable as no liberty

was reserved and simplicitor withdrawn was made.

Therefore, he would submit that the petition would not be

tenable before this Court.

5. We have heard learned counsel for the parties at length.

Perused the entire record of the learned court below. A

perusal of the record would show that an application u/s 12

of the Chhattisgarh Rent Control Act 2011 was preferred for

eviction of the petitioner in respect of 3 shops comprised

over Kh.No.226 & 229 ad-measuring 640 sqft P.H.No.22

situated at Juna Bilaspur. The suit was for eviction on the

ground of bona-fide need as also for payment of arrears of

rent. The petition before the Rent Controlling Authority was

adjudicated on 15.11.2016 whereby the order of the eviction

along-with payment arrears of rent was passed. The said

order was subject of challenge before the Rent Controlling

Tribunal, Raipur. The Tribunal on 08.02.2017 affirmed the

order of eviction and arrears of rent thereby maintained the

finding arrived at by the Rent Controlling Authority. The

order of the Supreme Court which is filed on record would

show that on 31.07.2017, the petitioner herein filed a civil

appeal bearing No.4938/2017. In such proceeding, an interim

protection was granted that if the tenant is not dispossessed

till that date i.e., 31.07.2017, further dispossession shall be

differed until further orders. The said civil appeal finally

came-up for hearing before the Supreme Court on 03rd

March, 2022. The order would show that the appellant

withdrew the appeal without any liberty or any observation

made by the Supreme Court and the withdrawal was

similicitor. Thereafter the present petition has been preferred

before this Court on 16.03.2021. Therefore, prima facie, in

our considered opinion, the maintainability of the present

petition would loom large for the reason that when there was

a similicitor withdrawal before the Supreme Court, in a

subsequent proceeding before this Court the same order

could not be agitated time and again as it would be

enveloped on the doctrine of res-judicata and estoppal.

Since the case has been argued at length before us and the

copy of SLP was not before this Court, in order to give

opportunity of hearing to the parties on merits, we ventured

into facts so as to find out whether the finding arrived at by

the Court below was perverse or not.

6. A perusal of the record would show that the petitioner in his

written statement claimed that he is owner of the said shops

for which the eviction suit was filed. The tenant petitioner

also referred to a Civil Suit No.87-A/2013 which was filed by

one Smt. Kumari Bai Sharma wherein he also filed his written

statement. In the alternate, it was also stated by the tenant

that he had constructed the shops by his own expenditure of

Rs.5 lakhs which should be returned to him with interest @

18%. In defence, it was also pleaded that the suit was filed

against Ramesh Kumar Nair, Ramesh Kumar Chouksey and

the agreement was made with Raman Kumar Nair (Ex.P-3)

and they are different entities. As such, no agreement was

ever executed between the landlord and the present

petitioner, therefore, no decree can be passed for eviction.

7. A perusal of the record would show that in order to prove the

ownership, copy of the sale deed Ex.P-1 was placed to show

that the property bearing part of a Kh.Nos. 226 & 229 was

purchased by Dinesh Kumar Gupta, which is followed by

Revenue Entry (Ex.P-4). Thereafter, the map is also placed

to show that the construction was carried out. The petitioner

(tenant) states that in respect of the said suit property a

third party namely Kumari Bai is claiming to be the owner of

the said property. Nothing has been placed on record to

appreciate the same by the petitioner. The defence was

made that the tenancy agreement dated 12.12.1995 has not

been executed by the petitioner. When the statement of the

petitioner is examined, he has admitted his signature on the

agreement (Ex.P-6) and further admitted the fact that Raman

Kumar Nair and Raman Kumar Chouksey are the same

persons. In respect of the reference to a third party who

claimed over the suit property, further admission is made

that the said civil suit has been dismissed and he further

admitted the fact that at the instance of Dinesh Kumar

Gupta, respondent herein, he has raised the superstructure.

The further cross-examination and records would show the

no document has been placed on record to prove that the

said construction was made by him. Reading the evidence

together with defence would show that if the petitioner

claims that he was owner of the property in question, we are

unable to understand what was the necessity to get the

permission to raise construction from any one outsider. If

the petitioner claimed that he was the owner then in such a

case, the assertion of ownership could have been made by

himself and for any construction over the own land, the

permission of an outsider is not expected. Therefore, the

defence of the petitioner/ tenant of ownership and taking

the permission itself are contrary to each other which

demolishes the petitioner's case as a tenant.

8. With respect to the signature on the tenancy agreement

(Ex.P-6), the petitioner stated that when he signed the paper

it was blank. Nothing has been placed on record to draw any

inference that what made him to sign the agreement though

it was blank. The burden of proof to discharge in respect of

document was on the tenant petitioner and in absence of any

proof, the contents of document which bears the signature

would be admissible to hold that the petitioner was inducted

as a tenant in respect of the subject suit premises by the

respondent.

9. The petitioner tenant also raised a plea that the ownership of

the said property belonged to one Chhaya Pandey, wife of

petitioner and an agreement to purchase the said property

was entered by Chhaya Pandey. What was the basis to hold

the ownership in the hands of Chhaya Pandey was also not

clearly stated and it a bald oral statement. In cross

examination, he admitted the fact that though he is owner of

the suit premises but no document has been placed on

record, therefore, again the contradictory evidence have

come on record which demolishes the defence itself.

10. With respect to the arrears of rent, the admission exists in

the written statement that he has not paid the rent,

therefore, we are not inclined to go into that fact any further

to explore the reason simply on the ground of admission by

the petitioner tenant.

11. The instant petition is filed to invoke the power under Article

227 of the Constitution of India. The Supreme Court in

Shamshad Ahmad Versus Tilak Raj Bajaj (deceased)

through L.Rs., (2008) 9 SCC 1 para 39 reiterated the

view of Chandavarkar Siuta Ratna Rao v. Ashalata S. Guram

(1986) 4 SCC 447 which purports that unless there was any

grave miscarriage of justice or flagrant violation of law

calling for intervention it was not for the High Court under

Articles 226 & 227 of the Constitution to interfere. It is

further held that if there is evidence on record on which a

finding can be arrived at and if the court has not misdirected

itself either on law or on fact, then in exercise of the power

under Article 226 or Article 227 of the Constitution, the High

Court should refrain from interfering with such findings made

by the appropriate authorities.

12. Reading of facts and evidence in this case, we do not find

that the Rent Controlling Authority and Tribunal have

misdirected itself either on law or on facts to pass a decree

for eviction.

13. Further at para 41 of Shamshad Ahmad Case (supra), the

observations made in State of Maharashtra v. Milind

(2001) 1 SCC 4 at Para 33 was reiterated that while

exercising the power of judicial review under Article 227

against the orders of inferior tribunal being supervisory, the

High Court would be justified in interfering with the

conclusion of Tribunal only when it records a finding that the

inferior tribunal's conclusion is based on exclusion of some

admissible evidence or consideration of some inadmissible

evidence. Relevant part of para 33 reads thus :

"33. ... The power of the High Court under Article 227 of the Constitution of India, while exercising the power of judicial review against an order of inferior tribunal being supervisory and not appellate, the High Court would be justified in interfering with the conclusion of the tribunal only when it records a finding that the inferior tribunal's conclusion is based upon exclusion of some admissible evidence or consideration of some inadmissible evidence or the inferior tribunal has no jurisdiction at all or that the finding is such, which no reasonable man could arrive at, on the materials on record."

14. In a recent judgment of the Supreme Court reported in 2022

SCC OnLine SC 419 (Abid-ul-Islam Versus Inder Saina Dua) it

has been laid down that in cases of eviction under the Rent

Control Act and like nature, the scope of interference under

Article 227 should be confined to the limited sphere so as to

examine whether the order of the Rent Controller is

according to law or not. In other words, it was held that the

High Court shall scrutinize as to whether any illegality has

been committed by the Rent Controller in absence of

adjudication and it would not be permissible for the High

Court to come to a different fact finding when the findings

arrived at by the Rent Controller are reasonable.

15. In view of the foregoing discussion and after evaluating the

facts and evidence of the instant case, we do not find any

reason to interfere with the orders passed by the learned

Rent Control Authority and Tribunal. Accordingly, the petition

has no merit and is dismissed.

          Sd/-                                       Sd/-
      GOUTAM BHADURI                            RAJANI DUBEY
          JUDGE                                    JUDGE




Rao



                              Head-Notes

In cases of eviction under the Rent Control Act, the scope of interference under Article 227 is confined to limited sphere and it would not be permissible for the High Court to reach a different finding especially when the findings recorded by the Rent Controller are reasonable.

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