Kulwant Singh And Anr. vs Arjun Singh
2006 Latest Caselaw 2044 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The respondent / landlord filed an eviction petition against the petitioners on grounds of non-payment of rent and sub-letting under Sections 14(1)(a) and (b) of the Delhi Rent Control Act, 1958 (hereinafter to be referred to as, ?the said Act?) in respect of one shop situated on the ground floor of property bearing No. 495, Near Krishan Mandir, Najafgarh, Nangloi, Delhi stated to be let out at a rate of rent of Rs. 700/- per month. It may, however, be noted that petitioner No. 2 is the tenant and petitioner No. 1 is the alleged sub-tenant. Petitioner No. 1 is the son of petitioner No. 2. The petition was contested by the petitioners alleging that it is petitioner No. 1 herein, who is the tenant, and at the time of creation of tenancy, petitioner No. 2 was in Government service and, thus, there could not be any question of tenancy in his name. The rate of rent was also disputed and was stated to be Rs. 300/- per month. The notice of demand for arrears of rent was, thus, stated to have been addressed wrongly to petitioner No. 2.

2. The parties led evidence and the Additional Rent Controller (hereinafter to be referred to as, ?the ARC?) found that the tenant was in arrears of rent, but being the first default was entitled to the benefit under Section 14(2) of the said Act. The ground of sub-letting was found to be established and, thus, an eviction order was passed on 17.01.2002 under Section 14(1)(b) of the said Act.

3. The ARC found that the letting was through an oral agreement in June, 1978. The controversy revolved around the fact that in view of petitioner No. 2 being in Government service, he could not have taken the shop on rent for running the business. The petitioners were found to have deviated from their basic stand during the recording of the testimony as they claimed that the year of commencement of tenancy was 1987. Petitioner No. 2 himself stated that he retired from service on 31.01.1986. The ARC, thus, found that if the plea of the petitioners was accepted, then on the date of commencement of tenancy, petitioner No. 2 had already retired from service. The finding of the ARC on the scrutiny of evidence is as under:

9. ... In this cross-examination, respondent No. 1 appearing as RW-2 have admitted of running the business himself and with his wife in the shop in dispute and have further deposed that his son is not doing anything. Petitioner appearing as AW-1 have made a specific statement that property in dispute was let out by him to respondent No. 1 about 18-19 years old and at that time the respondent No. 2 was 10 years old. This statement of the petitioner was recorded on 3.11.1997. There is no cross-examination of the petitioner on either of these two facts that tenancy was not such old and age of the respondent No. 2 was not 10 years at that time. On the contrary, respondent No. 1 appearing as RW-2 has himself admitted that the respondent No. 2 took birth somewhere in 1968 and again confirmed in May, 1968. If all these facts are read together this would only lead to support the case of the petitioner that the tenancy was created somewhere in the year 1978 and admittedly the age of the respondent No. 2 at that time was of 10 years approximately. There was no question of his admitting as a tenant in the premises. The question that respondent No. 1 at the relevant time was in Government service and could not take the shop on rent is no relevant in view of this factual position and it was for respondent No. 1 to see how to meet the objection in this regard and to continue with the two things simultaneously. The respondent No. 1 admittedly being a minor was not supposed to be accepted as a tenant. As nothing is on record to reach to any contrary conclusion, it is to be held that at the relevant time it was respondent No. 1 and not respondent No. 2 who has inducted as a tenant in the property in dispute by the petitioner

4. The petitioner aggrieved by the same filed an appeal before the Additional Rent Control Tribunal (hereinafter to be referred to as, ?the ARCT?), which has been dismissed by the impugned order dated 12.05.2004 The ARCT found that on appraisal of the evidence and pleadings, the plea of the petitioners could not be accepted. In view of the plea of the petitioners in the written statement not denying the factum of the existence of tenancy since June, 1978, the same could not be overturned. Petitioner No. 1 was a young boy in the year 1978 and could not have taken the premises on rent. The plea of a tenancy commencing in the year 1987 was, thus, held to be an afterthought when there was admission in pleadings of the tenancy being created in the year 1978. Once that finding was reached, the sub-letting or parting with possession was, in any case, established as it was the case of the petitioners that it was petitioner No. 1, who was using the premises and not petitioner No. 2, who was the tenant.

5. The present proceedings are in the nature of a challenge under Article 227 of the Constitution. The observations of the Apex Court in Mohd Yunus v. Mohd Mustaqim and Ors. may be usefully re-produced as under:

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 or 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 not 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 decision.

6. The aforesaid, thus, leaves no manner of doubt that it is not the function of this Court in exercising jurisdiction under Article 227 of the Constitution of India to derive a different conclusion on the basis of the same material sitting as a court of appeal. The observations in Surya Dev Rai v. Ram Chander Rai and Ors. JT 2003 (6) SC 465 also support the view that in exercise of such supervisory jurisdiction, this Court is not to indulge in re-appreciation or re- evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. It is only where a subordinate court has assumed jurisdiction which it does not have or has failed to exercise jurisdiction which it has or the jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has resulted would the High Court be required to step in.

7. If the matter is examined in terms aforesaid, it will be found that it is not the function of this Court to re-appraise the evidence. There are concurrent findings by both the courts below, i.e., the ARC and the ARCT. In fact, under Section 38 of the said Act, the ARCT is to act as an appellate court only on a question of law.

8. The findings even on merits cannot be assailed for the reason that the petitioners cannot be permitted to lead evidence contrary to their pleadings where the creation of tenancy in the year 1978 has been admitted. In 1978, petitioner No. 1 was a boy of about 10 years of age and as such there could be no question of his doing any business. Thus, the tenancy is to be held to be in the name of petitioner No. 2. It is the admitted case of the petitioners that the premises is occupied and used by petitioner No. 1 and, thus, the occupation and user is of a third person albeit a son. Learned Single Judge of this Court in Kulwant Kaur and Ors. v. S.P. Bawa has held that even where there was a close relationship between the tenant and the alleged sub tenant, who was the son-in-law of the tenant, the exclusive possession of the son-in-law was held to be tantamount to subletting. The sub-tenancy or parting with possession of the tenanted premises is, thus, clearly made out. I find no patent or jurisdictional error in the impugned order.

9. It may be noticed that on the conclusion of hearing of the matter on 14.11.2006, learned Counsel for the petitioners had sought a day?s time to verify whether the petitioners would like to invite an adverse order or would like to take some time to vacate the tenanted premises. Learned Counsel today has stated that he has obtained instructions and the petitioners are not desirous of vacating the tenanted premises on furnishing of the usual undertaking even if some time-period is granted as they would like to agitate the matter further.

10. Dismissed.