Ram Sewak Gupta vs Sukhvir Singh
2013 Latest Caselaw 5645 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Order delivered on: December 06, 2013

+                          RC. Rev. No.12/2013

       RAM SEWAK GUPTA                                           ..... Petitioner
                   Through               Mr.K.P.Singh, Adv.

                           versus

       SUKHVIR SINGH                                        ..... Respondent
                    Through              Mr.K.L.Bhardwaj, Adv.

       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

C.M. No.7394/2013 (for restoration) This is an application filed by the petitioner under Section 151 CPC for restoration of the abovementioned petition which was dismissed in default as also for non-prosecution vide order dated 26th April, 2013. Notice of this application was issued to the respondent who has filed his reply.

For the reasons stated in the application, the same is allowed, as there is no delay in filing the present application. The petition is restored to its original position.

The application is disposed of.

RC. Rev. No.12/2013 & C.M. No.467/2013 (for stay)

1. Learned counsel for both the parties have also made their submissions on merits for some time.

2. The petitioner (respondent in the eviction petition) has filed the present petition against the impugned order dated 18 th February, 2012 whereby his application for leave to defend was dismissed and eviction orders were passed against him in respect of the tenanted premises.

3. The respondent (petitioner in the eviction petition) filed the petition before the learned Rent Controller on the ground of bonafide requirement under Section 14(1)(e) of the Delhi Rent Control Act, 1958 in respect of the tenanted premises, i.e. one shop on the ground floor of property No.WZ-524, Part-II, Basai Darapur, New Delhi.

4. It was stated in the eviction petition that the respondent who was earlier doing the business of Lithography for preparing the negatives and positives of photographs at the second floor of property No.WZ-476, Basai Darapur, New Delhi has undergone a bye-pass surgery through his right leg and became handicap.

Further, he was diagnosed having gangrene in his right toe and thereafter, met with an accident and a plate was fixed in his same leg and because of this ailment, he is not able to go upstairs and this problem has aggravated since 2009. It was prayed that since the respondent is unable to climb up to the second floor, the tenanted premises is required bonafidely for him for his lithography business in the tenanted premises.

5. In the application for leave to defend, the petitioner has mainly taken the stand that the respondent is having five shops in the property detailed above. Reply to the application for leave to defend was filed by the respondent who has admitted that he has already disclosed that he has five shops in the property but has also mentioned that all the shops are given on rent.

6. The question before this Court is, as to whether said findings call for any interference by the Courts in revisionary jurisdiction or not in view of the facts and circumstances of the present case.

i) In the case of Ramesh Chand Vs. Uganti Devi, 157(2009) Delhi Law Times 450, it has been held that while exercising jurisdiction under Section 25(B)(8), this Court does not act as a Court of appeal. This Court has only to see whether the learned ARC has committed any jurisdictional error and has passed the order on the basis of material available before it.

ii) A Full Bench of this Court in Mohan Lal v. Ram Chopra and Anr., 1982 (2) RCJ 161 exhaustively considered the provisions of Section 25B of the Act. On the scope of the proviso to Sub-section (8) of this Section, after examining the judgment of Supreme Court in Hari Shanker and Ors. v. Rao Girdhari Lal Chowdhury, A.I.R. 1963 S.C. 698 and Bell and Co. Ltd. v. Waman Hemraj, AIR 1938 Bom (223) it was laid down as follows:

"In our opinion the jurisdiction of the High Court under proviso to Section 25B(8) has to be interpreted, keeping in view the legislative intent. The revision under Section 25B(8) cannot be regarded as a first appeal and nor can it be as restricted as the revisional jurisdiction under Section 115 CPC. The High Court would have jurisdiction to interfere if it is of the opinion that there has been a gross illegality or material irregularity which has been committed or the Controller has acted in excess of his jurisdiction or has not exercised the jurisdiction vested in him. A finding of fact arrived at by the Controller would not be interfered with by the High Court unless it can be shown that finding has been arrived at by misreading or omitting relevant evidence and this has resulted in gross injustice being caused. If

none of the aforesaid circumstances exist the High Court would not be entitled to interfere with the order of the Controller in exercise of its jurisdiction under proviso to Section 25B(8) of the Act."

iii) In the case titled as Shiv Sarup Gupta vs. Dr.Mahesh Chand Gupta, reported in AIR 1999 Supreme Court 2507, it has been held as under:-

".....The revisional jurisdiction exercisable by the High Court under S.25-B (8) is not so limited as is under S.115, CPC nor so wide as that of an Appellate Court. The High Court cannot enter into appreciation or re- appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a Court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of „whether it is according to law‟. For that limited purpose it may enter into reappraisal of evidence, that is, for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached that conclusion on the material available. Ignoring the weight of evidence, proceeding on wrong premise of law or deriving such conclusion for the established facts as betray the lack of reason and/or objectivity would render the finding of the Controller „not according to law‟ calling for an interference under proviso to sub-sec. (8) of S.25-B of the Act. A judgment leading to miscarriage of justice is not a judgment according to law."

iv) The Supreme Court in another case tilted as Chaman Prakash Puri vs. Ishwar Dass Rajput and Another, 1995 Supp (4) Supreme Court Cases 445 has examined with regard to High Court‟s power to interfere in

revision against the finding as to bonafide requirement of landlord. It has been held that if the Rent Controller finds that landlord was in bonafide need of premises, the High Court in revision was not entitled to re-appreciate evidence and reverse the finding.

v) The Apex Court in Sarla Ahuja versus United India Insurance Company Ltd., reported in AIR (1999) SC 100 held as under:-

"6. .....The above proviso indicates that power of the High Court is supervisory in nature and it is intended to ensure that the Rent Controller conforms to law when he passes the order. The satisfaction of the High Court when perusing the records of the case must be confined to the limited sphere that the order of the Rent Controller is "according to the law". In other words, the High Court shall scrutinize the records to ascertain whether any illegality has been committed by the Rent Controller in passing the order under Section 25-B. It is not permissible for the High Court in that exercise to come to a different fact finding unless the finding arrived at by the Rent Controller on the facts is so unreasonable that no Rent Controller should have reached such a finding on the materials available."

7. Learned counsel for the petitioner has not disputed the fact that on 9th January, 2013, the respondent has already taken the possession of the tenanted premises through the process of law. There is hardly any submission made by the petitioner on merits. The petitioner has not denied the fact about the ailments of the respondent alleged in the petition in which it is specifically alleged that the respondent had undergone a bye-pass surgery and became handicap. He had also met with an accident and a plate was fixed in his leg and because of various ailments, he is not able to climb

upstairs and his problem is aggravated since 2009 and he is unable to climb up to the second floor of the another property where he was working earlier.

8. Reliance can also be placed upon the case titled as Sarla Ahuja vs. United India Insurance Co. Ltd., reported in AIR 1999 Supreme Court 100. The facts of this matter were that the petitioner who was a widow wanted to shift her residence from Calcutta to New Delhi to occupy her own building which was in the possession of her tenant M/s United India Insurance Company Limited. Though she got an order of eviction from the Rent Controller under Section 14(1)(e) of the Delhi rent Control Act 1958 (for short "the Act"), a single Judge of this Court non-suited her by reversing the order which she challenged before the Supreme Court by way of Special Leave to Appeal. It was held by the Supreme Court that:-

"......The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."

9. Having considered the impugned order as well as the pleadings on record, I find no merit in the petition. The same is accordingly dismissed. Pending application, if any, also stands dismissed.

10. No costs.

(MANMOHAN SINGH) JUDGE DECEMBER 06, 2013