Delhi High Court
Rajinder Prasad Sharma vs Hari Singh on 11 March, 2011
Author: Veena Birbal
* HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: March 11, 2011
+ CM(M) 1250/2010
Rajinder Prasad Sharma ..... Petitioner
Through:Mr.Rajeev K Vermani, Sr.Adv. with
Mr.Vivek Sharma & Mr.Lokeshwar
Sharma, Advs.
-versus-
Hari Singh ..... Respondent
Through:Mr.K.K.Sharma, Sr.Adv. with
Mr.Pradeep Sharma & Mr.Shubhashish
Kukreti, Advs.
CORAM:-
HON'BLE MS. JUSTICE VEENA BIRBAL
1. Whether the Reporters of local papers may be allowed to
see the judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
Veena Birbal, J
1. Present is a petition under Article 227 of the Constitution of India
for setting aside the impugned order dated 23rd August, 2010 passed
by the Ld. District Judge (East) cum Additional Rent Control Tribunal
wherein eviction order under section 14(1)(d) of the Delhi Rent Control
Act, 1959 (hereinafter referred to as „the Act‟) passed by the Ld.
Additional Rent Controller (E), Karkardooma Court, Delhi against the
petitioner has been upheld.
2. The brief facts relevant for deciding the present petition are that
respondent/landlord had filed an eviction petition against the
petitioner/tenant under section 14(1)(d) of the Act alleging therein that
he was owner/landlord of the premises bearing no.4/2706, Gali No.5,
Bihari Colony, Shahdara, Delhi. Petitioner was a tenant in the above
mentioned premises @ ` 715/- per month excluding electricity and
water charges. It was stated that the tenanted premises comprised of
two rooms, one kitchen, one store room, one bath room and one latrine
and were let out to the respondent for residential purposes. It was
further alleged that neither the respondent nor his family members had
been residing in the tenanted premises since January, 2002 till the date
of filing of the eviction petition. Respondent/landlord had alleged that
petitioner/tenant had been residing along with his family members at
A-51/1A, East Azad Nagar, Delhi-110 051 since January, 2002 and had
refused to vacate the tenanted premises and same had been
abandoned by the petitioner/tenant with an intention of not re-
occupying the same. It was alleged that although no notice was
required for filing the eviction petition, respondent/landlord served a
notice dated 20.12.2005 on the petitioner/tenant. Respondent/landlord
had prayed that an ejectment order be passed in his favour and
against the petitioner/tenant.
3. Petitioner/tenant had opposed the eviction petition by filing
written statement wherein he contended that he had been
continuously residing in the tenanted premises and the house bearing
no. A-51/1-A, East Azad Nagar, Delhi was the residence of his younger
son who was residing therein along with his family. Petitioner/tenant
had further contended that he along with his wife and elder son were
residing separately at the tenanted premises. In the written statement,
on the one hand, petitioner/tenant had taken the stand that he had
purchased the premises in question from the father of
respondent/landlord, on the other hand, he had also accepted landlord-
tenant relationship between the parties and paying rent to the
respondent/landlord. Petitioner/tenant had alleged that a frivolous
petition had been filed and the same was liable to be rejected.
4. Respondent/landlord had examined six witnesses including
himself before the Ld.Additional Rent Controller whereas the
petitioner/tenant got himself examined as the only witness i.e RW-1.
5. The Ld. Additional Rent Controller vide impugned judgment
dated 25.5.2010 allowed the eviction petition under section 14(1)(d) of
the Act in favour of the respondent/landlord and against the
petitioner/tenant.
6. Aggrieved with the same, petitioner/tenant had filed an appeal
against the judgment dated 25.5.2010 contending therein that he had
been residing in the tenanted premises along with his family and had
not abandoned the same and the premises at A 51/1A, East Azad
Nagar, Delhi belongs to his son and had never shifted there. The
Appellate Tribunal dismissed the appeal by holding that
respondent/landlord by way of documentary evidence had established
that the petitioner/tenant was not residing in the premises in question
at the relevant period and had not interfered with the order of the
learned ARC and dismissed the appeal.
7. Aggrieved with the same, present petition is filed.
8. Learned counsel for the petitioner/tenant has contended that
evidence of petitioner/tenant is completely ignored by the Ld. Addl.
Rent Controller, as well as by Appellate Court and the same amounts to
denial of justice to him. It is contended that petitioner has got a ration
card (RW-1/2), voter‟s identity card (RW 1/3), Identity card of Regd.
Society (RW 1/4), summon (RW1/5) issued by the Arbitrator in a
dispute that arose in society which was duly served upon the
petitioner/tenant at the tenanted premises and all these documents
had been ignored by the learned trial court and finding given by the
learned trial court that the petitioner/tenant had left the tenanted
premises is a perverse finding. Learned counsel further submits that
this court is competent to quash such finding in exercise of its
jurisdiction under Article 227 of the Constitution of India. In support of
his contention, learned counsel has relied upon (i) Achutananda Baidya
Vs. Prafulla Kumar & ors (1997) (5) SCC 76 (ii) State of West Bengal &
Ors Vs. Samar Kumar Sarkar 2009 (15) SCC 444.
9. The respondent/landlord has contended that in the petition under
Article 227 of the Constitution of India, this court does not act as a
court of appeal and cannot upset the concurrent findings of facts given
by the two courts below nor can the court re-appreciate the material
finding and give its own finding. It is contended that the order passed
by the Ld. Addl. Rent Controller is based on evidence on record. It is
further contended that there is no perversity in the finding given by the
two courts below nor any material evidence is ignored as is contended,
as such, this court would not interfere in the exercise of jurisdiction
under Article 227 of the Constitution of India.
10. In Mohd Yunus Vs Mohd Mustaqim and others reported in AIR
1984 SC 38 the Apex Court has held that:-
"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 of
law. In this case, there was in our opinion no error of law
much less an error apparent on the face of the record.
These 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 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."
The observations in Surya Dev Rai Vs Ram Chander Rai & ors; JT
2003 (6) SC 675 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.
11. Keeping in mind the above legal position, the matter is
examined. To prove that the petitioner/tenant had left the tenanted
premises and had shifted to A 51/1A, East Azad Nagar, Delhi, the
respondent/landlord has led the evidence of six witnesses including
himself before the Ld. ARC(E). Respondent/landlord has examined PW
2 Sh.S.K.Saini, Head Clerk from the office of Z.R.O, Water, North East,
Delhi Jal Board Delhi who has deposed that the premises were found
locked continuously for years during the relevant period and proved on
record Ex.PW 2/1. Respondent/landlord has also examined a witness
from BSES Sh Ram Gopal, PW 3, who has proved on record relevant
document Ex.PW 2/3 showing the consumption pattern of electricity for
the relevant period i.e 10.5.2006 to 10.11.2006 on provisional basis.
The Ld. ARC has also noted that the counsel for petitioner/tenant did
not put any question or suggestion regarding consumption of electricity
for the relevant period as was reflected in Ex. PW 2/3.
Respondent/landlord has also examined PW5, a witness from MTNL
who has deposed about shifting of Tel.No.2215330 from the tenanted
premises to A 51/1A, East Azad Nagar, Delhi. Ld. Addl. Rent Controller
had noted that there is an evidence on record to the effect that the gas
connection which was in the name of petitioner/tenant at the tenanted
premises has been disconnected due to not obtaining the gas cylinders
on the said connection.
12. Considering the entire evidence on record, the ld. ARC has held
that respondent/landlord has been able to prove that neither petitioner
nor his family members have been living in the tenanted premises
during the relevant period i.e 10.5.2006 to 10.11.2006.
13. The learned Addl. Rent Control Tribunal vide impugned judgment
dated 23.8.2010 has also affirmed the above said findings and has
held that the respondent/landlord by way of documentary evidence has
established that petitioner/tenant and his family were not residing in
the tenanted premises during the relevant period i.e 10.5.2006 to
10.11.2006. Tribunal has also held that the petitioner/tenant has
failed to rebut the documentary evidence of respondent/landlord.
14. In view of the above, it cannot be said that the findings of fact
have been arrived at by the learned ARC by not considering relevant
material on record, as is alleged. The learned ARC has considered the
entire evidence which was adduced by both the parties. It cannot be
said that consideration of evidence, as is referred by learned counsel
for the petitioner, could have led to opposite finding. The findings
arrived at by the learned ARC cannot said to be perverse finding or
based on no evidence, as is alleged. In these circumstances, the
judgments relied upon by learned counsel for the petitioner i.e
Achutananda Baidya Vs. Prafulla Kumar & ors (supra) & State of West
Bengal & Ors Vs. Samar Kumar Sarkar (supra) are of no help.
15. The two courts below have given concurrent findings of fact as is
noted above. Under Article 227 of the Constitution of India, this court
cannot re appreciate the evidence and give its own findings. The law is
well settled by various decisions of this court that the High Court can
interfere under Article 227 of the Constitution in cases of erroneous
assumption or acting beyond its jurisdiction, refusal to exercise
jurisdiction, error of law apparent on record as distinguished from a mere
mistake of law, arbitrary or capricious exercise of authority or discretion, a
patent error in procedure, arriving at a finding which is perverse or based
on no material or resulting in manifest injustice.
16. In view of the above discussion, no case for interference is made
out. Petition is hereby dismissed. Parties are left to bear their own
costs.
VEENA BIRBAL, J.
March 11, 2011
ssb
