Smt Usha Jain vs Shri Sushil Kumar Gupta & Anr.
2013 Latest Caselaw 5792 Del

.*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Order delivered on: December 16, 2013

+                          CM(M) 1246/2013

      SMT USHA JAIN                                          ..... Petitioner
                           Through      Mr.V.K. Srivastava, Adv.

                           versus

      SHRI SUSHIL KUMAR GUPTA & ANR                         ..... Respondents
                    Through None.

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By way of the present petition under Article 227 of the Constitution of India, the petitioner has assailed orders dated 3 rd January, 2011 passed by the learned Trial Court and order dated 6th October, 2012 passed by the learned Appellate Tribunal.

2. Brief facts for the purpose of adjudication of the present petition are that the petitioner filed an eviction petition under Section 14(1)(a) of the Delhi Rent Control Act, 1958 (hereinafter referred to as "the Act") against the respondent in respect of a premises comprises of the Eastern Flat on the first floor in property bearing no. H.No. XI/4236 situated at Shri Raj Krishen Jain Street, 1, Ansari Road, Daryaganj, New Delhi- 110002 (hereinafter referred to as "the suit premises").

3. As per the case of the petitioner, the suit premises were let out on rent to the respondents w.e.f. 1st June, 1989 for residential purposes. Earlier an eviction petition was filed against the respondents under Section 14(1)(a) of

the Act and an order under Section 15(1) of the Act was passed. After the respondents were granted the benefit of Section 14(2) of the Act, the said earlier eviction petition was dismissed. It was stated by the petitioner that after the said dismissal, the respondents again committed default in payment of rent for three consecutive months w.e.f. 1st March, 2004 despite service of notice of demand dated 20th August, 2004 and expiry of two months. Hence, the petitioner again filed an eviction petition against the respondents.

4. The respondents in their written statement denied the failure of payment of rent w.e.f. 1st March, 2004 and it was stated that rent for the month of March to May, 2004 had been deposited in Court pursuant to the permission dated 12th March, 2004. It was also stated that rent for the period of June to August, 2004 was tendered to the petitioner by way of the money order which was refused by the petitioner as reported by the postal authority. Consequently, the respondents filed a petition under Section 27 of the Act to deposit rent and in pursuance to an order therein, they deposited the rent for the said period in the Court. It was further stated that respondents had not committed any default and were regularly making payments of rent in respect of the suit premises.

5. The averments made by the respondents were denied by the petitioner in her replication.

6. Considering the evidence led by the parties and their submissions in the matter, the learned Trial Court observed that the demand notice was duly served upon the respondents. As regards the rent for the period March to May, 2014, it was held that the same was deposited in the Court and was withdrawn by the petitioner without any protest. The learned Trial Court observed that as such, it could not be said that on the date of issuance of

notice, there were any arrears of rent for the period March to May, 2004. As regards June to August, 2004, it was observed that there were no consecutive defaults for three months and even otherwise same was duly paid under Section 27 of the Act, as such, there was no default. Since in view of the learned Trial Court, the petitioner was not able to prove the second default, the eviction petition was dismissed vide order dated 3rd January 2011.

7. The petitioner assailed the said eviction order by way of an appeal. The learned Appellate Court observed that other things being admitted, the basic controversies between the parties was two folds: (i) service of notice of demand and (ii) whether there was any arrears of rent on the date of issuance of notice of demand and whether the respondents failed to comply with the notice of demand.

8. As regards the service of notice of demand, the learned Appellate Court observed that during examination and cross-examination of witnesses, the address on the notice of demand sent by AD and UPC was admitted to be correct, and having admitted so, there was a presumption that the same was received by the addressee and it was for the addressee to rebut the said presumption by leading sufficient and convincing evidence. The bare bald denial that the notice of demand was not received by him is not sufficient to rebut the said presumption. Moreover, the summons of the eviction petition were also served on the respondents on the same address and he himself had mentioned the same address while filing the petition under Section 27 of the Act. It was accordingly observed by the learned Appellate Court that it stood proved that the legal notice of demand was duly served upon the respondents.

9. On the second question i.e. whether there were arrears of rent on the day of service of notice of demand, it was observed by the learned Appellate Court that for the period of March to May, 2004, the respondents had moved the Court concerned for depositing the rent for the said period and permission was granted. After allowing the treasury challan, the rent was deposited in the Court on 31st March, 2004 and the petitioner had withdrawn the amount so deposited without any protest or demur. It was accordingly observed by the learned Appellate Court that it could not be said that the respondents were in arrears of rent for the period of March to May, 2004 on the date of issuance of notice of demand.

10. As regards the period of June to August, 2004, it was observed by the learned Appellate Court that on date of notice i.e. 20 th August 2004, the rent for the month of August, 2004 was not due. Even otherwise, petitioner herself did not appear in the witness box and her brother Shri Bharat Bhushan Jain who was appointed as attorney in 1972 was examined. The said attorney denied receipt of any money order for the payment of rent for the said period as alleged by the respondents. The learned Appellate Court opined that in circumstances of the case, examination of the petitioner herself was material in order to refute the case of the respondent that she refused to receive the rent for this period when the rent was tendered by money order. Her non-examination in view of the learned Appellate Court on this point, led to adverse inference against her. It was noticed by the learned Appellate Court from the record that much prior to the issuance of notice of demand on 20th August, 2004, the respondents had filed the application under Section 27 of the Act for deposit of rent on 9th August, 2004, however, due to the non-availability of the Presiding Officer same

could not be deposited earlier. Accordingly it was opined by the learned Appellate Court that it could not be said that respondents were in arrears of rent for three consecutive months which may furnish any cause of action to the petitioner to file an eviction petition on the ground of second default.

11. With these observations the learned Appellate Court dismissed the appeal of the petitioner thereby upholding the decision of the learned Trial Court. Aggrieved thereof the petitioner filed the present petition.

12. It is well settled principle of law that the High Court while exercising its power under Article 227 of the Constitution of India, cannot proceed to act as a Court of appeal by interfering in mere errors of finding fact which requires re-appreciation and re-weighing of evidence unless it results in manifest miscarriage of justice as a Court of appeal. The said power under Article 227 of the Constitution of India has to be exercised sparingly and circumspectly to ensure that decision making done by lower Court and tribunal below is within their bounds and limits.

13. The said power under Article 227 of the Constitution of India being supervisory in nature cannot be equated with the powers of appellate Court and the jurisdiction under Article 227 could not be exercised as a cloak of an appeal in disguise.

14. In the case of Babhutmal Raichand Oswal vs. Laxmibai R. Tarta reported in (1975) 1 SCC 858, the Supreme Court speaking through Bhagwati J. as his Lordship then was observed thus:

"If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227.

The power of superintendence under Article

227 cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as a Court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a Court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate Court or tribunal final on facts" (emphasis supplied) The Supreme Court in the case of Babhutmal (supra) approved the dictum of Morris L., J. in Res v. Northumberland Compensation Appellate Tribunal, 1952 All England Reports 122.

15. In the case of State of Maharashtra vs. Milind, 2001 (1) SCC 4, the Supreme Court observed:

"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." (Emphasis supplied)

16. Again in the case of State vs. Navjot Sandhu, (2003) 6 SCC 641, the Supreme Court observed:

"Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the

limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order.

However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised as the cloak of an appeal in disguise." (Emphasis supplied)

17. The decisions of Babhutmal (supra), State vs. Navjot (supra) and State of Maharashtra vs. Milind (supra) have been approved by Hon'ble Justice C.K. Thakkar as his Lordship then was in the case of Shamshad Ahmad & Ors. vs. Tilak Raj Bajaj (D) By LRs. & Ors., 2008 (9) SCC 1.

Upon careful reading of observations in the above referred cases, it can be safely said that the scope of judicial interference under Article 227 is well settled and the Court ceased of the proceedings under Article 227 cannot act as a Court of appeal and should interfere with the decision of the inferior tribunal or Court only to keep the authorities and Courts within their bounds and in the cases where it results into manifest miscarriage of justice and not in all other cases to correct mere errors. The power under Article 227 is thus discretionary in nature and can be exercised in the cases where the lower

Court ignores material piece of evidence or considers some evidence which it ought not to have considered resulting into injustice and not in cases where there are two views possible and the view adopted by lower Court is reasonable and plausible one and the High Court would be unjustified to interfere in such cases merely to arrive at different view in the matter as this would be re-appreciating the evidence on finding of facts which is the role of the appellate Court and not the supervisory Court acting under Article 227 of the Constitution of India.

18. In the present case, there are concurrent findings arrived by the two courts below. Having considered both orders and material placed on record as well as in view of settled law, I am not inclined to interfere with the same finding.

19. The present petition and pending application, if any, are therefore, dismissed.

(MANMOHAN SINGH) JUDGE DECEMBER 16, 2013