Puspa Devi @ Dave vs Udai Kumar Rajgaria
2021 Latest Caselaw 4707 Jhar

                                  1




     IN THE HIGH COURT OF JHARKHAND AT RANCHI
               W.P. (C) No. 4319 of 2013
                         --------

1.Puspa Devi @ Dave W/o Late Purusuttam Das.

2.Jay Rajgaria S/o Late Purusuttam Das

3.Vijay Rajgaria, son all resident of Panchgari Bazar, P.O and P.S. Katras, District: Dhanbad.

4.Pankaj Kumar Rajgaria Son

5.Bharti Seksaria D/o late Purusuttam Das W/o Shri Rajesh Seksaria, P.O. P.S. & dist Jamtara.

                        ....    ...            Petitioners/Defendants
                                      Versus
    1.Udai Kumar Rajgaria
    2.Akash Kumar Rajgaria
    3.Bikram Kumar Rajgaria

All s/o late Uma Shankar Rajgaria, residents of Katrasgarh, P.O. and P.S. Katras, District: Dhanbad.

                                       ...         Respondents/Plaintiffs
                           -------

CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

-------

For the Petitioner :Mr. J.K. Pasari, Advocate For the Respondents :Mr. Indrajit Sinha, Advocate

------

C.A.V. on 02.12.2021 Pronounced on 09/12/2021

This writ petition has been filed under Article 227 of

the Constitution of India for quashing order dated

02.07.2013 passed by Civil Judge (Sr. Div.)-V, Dhanbad in

Title (Eviction) Suit No. 03 of 1998 on the petition filed by

plaintiffs (respondents herein) under Section 15 of the

Jharkhand Building (Lease, Rent & Eviction) Control Act,

by which it was held the defendant-original writ petitioner

is liable to pay the rent at the rate of agreed rate i.e. Rs.

1908/- per month for all shops and further directed to

deposit the arrear rent @ Rs. 1908/- per month from the

month of December, 1994 till date with further direction to

deposit current rent of every month at the same rate by 15th

of succeeding month, as the defendant had raised objection

regarding the status of the plaintiffs as his landlord, which

is to be decided in the suit, it was ordered that the said

deposited rent shall not be withdrawn till disposal of the

suit or any other order passed by this Court; and also for

quashing order dated 24.08.2013 by which defence of the

petitioner has been struck off.

2. The brief facts of the case, as per the pleadings

made in the writ petition read as under:

The respondents-plaintiffs filed a suit being Title

Suit No. 17 of 1988 for declaration of title over the

scheduled property and for confirmation of possession over

the same. The defendant-original writ petitioner appeared

and filed written statement. The suit was decreed vide order

dated 31.07.1997 against the defendant-writ petitioner.

Against the said judgment, the defendant-writ petitioner

filed a petition, which was registered as Misc. Case No. 1 of

1997, before Sub Judge - V, Dhanbad under Order IX Rule

13 of the Code of Civil Procedure, which was dismissed vide

order dated 14.11.1997. Thereafter, he filed M.A. Case No.

72 of 1997, which was also dismissed vide order dated

19.08.1998. Aggrieved thereof, he filed revision before the

High Court being Civil Revision No. 423 of 1998(R), which

was dismissed vide order dated 16.07.2001, against which

the petitioner filed Special Leave Petition No. 19184 of

2001, which was dismissed on 23.11.2001.

The petitioner, thereafter, filed appeal being Title

Appeal No. 72 of 2001 before the learned District Judge,

which was dismissed on 20.12.2001 on the ground of

limitation, against which the petitioner filed Second Appeal

No. 180 of 2002, which was admitted on 09.11.2004 and is

pending for final hearing.

It was the case of the writ petitioner before the

Court below that since the right, title and interest over the

suit premises is still to be decided by the Hon'ble High

Court, it cannot be said that the petitioner is tenant of the

respondents.

It has further been stated that after the decree and

judgment dated 31.07.1997 in Title Suit No. 17 of 1988, the

plaintiffs-respondents filed Title (Eviction) Suit No. 3 of

1998 against the defendant-petitioner claiming the

ownership of the shop rooms and the rent. The defendant-

petitioner appeared in suit and filed written statement

denying any relationship of landlord and tenant between

the respondents and the petitioner under the Jharkhand

Building (Lease, Rent and Eviction) Control Act.

In the Eviction suit, the plaintiffs-respondents filed

a petition under Section 15 of the Bihar Building (Lease,

Rent and Eviction) Control Act [herein after referred to as

"Act"] on 16.08.1999 with a prayer that arrears of rent may

be deposited by the petitioner, against which a rejoinder

was filed by the defendant-petitioner on 27.09.1999. The

Court after hearing the parties rejected the said petition

vide order dated 01.12.2005. It is alleged that against the

said order the respondents did not do anything up-to 2007

and on 21.07.2007 filed another petition under Section 15

of the Jharkhand Building (Lease, Rent and Eviction)

Control Act for the same relief, which was rejected vide

order dated 21.12.2010. Thereafter, the plaintiffs-

respondents filed another petition under Section 15 of the

Jharkhand Building (Lease, Rent and Eviction) Control Act

for the same relief which was again rejected vide order

dated 26.06.2013 as not pressed.

The plaintiffs-respondents again filed petition on

28.06.2013 under Section 15 of the Act for the same relief

claiming rent from the period December, 1994, rejoinder to

which was filed by the defendant-original petitioner

immediately on 01.07.2013 denying any relationship of

landlord and tenant between the respondents and the

petitioner and further dispute of ownership of the suit

premises is subjudice before this Court in Second Appeal

No. 180 of 2002. The learned trial Court disposed of the

said petition holding that the defendants-writ petitioners

are liable to pay the rent at the rate of agreed rate i.e. Rs.

1908/- per month for all shops and further directed to

deposit the arrear rent at the rate of Rs. 1908 per month

from the month of December, 1994 till date with further

direction to deposit current rent of every month at the same

rate by 15th of succeeding month, as the defendant had

raised objection regarding the status of the plaintiffs as his

landlord, which is to be decided in the suit, it was ordered

that the said deposited rent shall not be withdrawn till

disposal of the suit or any other order passed by this Court.

The order dated 02.07.2013 since was not complied

with, the trial Court struck off the defence of the petitioner

vide order dated 24.08.2013 and case was fixed for

plaintiffs' evidence, which has been challenged by the writ

petitioner by filing interlocutory application being I.A. No.

8996 of 2013, which was allowed by this Court vide order

dated 25.06.2014.

The writ petitioner-defendant has filed the writ

petition in exercise of power conferred to this Court under

Article 227 of the Constitution of India assailing order

dated 02.07.2013 as also order dated 24.08.2013 disputing

relationship of landlord and tenant between the

respondents and the petitioner by making reference of

order/judgment passed by the competent Court in Title

Suit no. 17 of 1988 as also judgment passed by first

appellate Court dated 20.12.2001 in Title Appeal No. 72 of

2001 and further the matter of declaration of title is

pending before the High Court in Second Appeal No. 180 of

2002 for adjudication.

3. Mr. J.K. Pasari, learned counsel for the petitioner

taking aid of judgment rendered in the case of Mohammad

Imteyaz Ahmad Vs. Abdul Quayum [(2003) 2 JCR 145],

wherein it has been alleged that before passing order under

Section 15 of the Act, the trial Court ought to have recorded

a prima facie finding with respect to relationship of landlord

and tenant has submitted that since such finding has not

been recorded, the order passed by trial Court is not

sustainable in the eyes of law.

Apart from that one additional ground has been

taken, while questioning order dated 24.08.2013 whereby

defence has been struck off, taking the plea that after

passing final order under Section 15 of the Jharkhand

Building (Lease, Rent and Eviction) Control Act directing to

make payment of rent as also strucking off the defence, the

original defendant has died and thereafter the present

petitioner has been substituted, therefore, the order of

strucking off the defence will not be applicable so far legal

heirs of the defendant is concerned, who are petitioners in

the present writ petition.

4. Mr. Indrajit Sinha, learned counsel for the plaintiffs-

respondents has submitted, by refuting the submission

made on behalf of learned counsel for the petitioners so far

as it relates to non-availability of prima facie finding of

relationship of landlord and tenant in between the

respondents and the petitioners, that the trial Court has

prima facie found the relationship of landlord and tenant in

between the respondents and the petitioner and thereafter

order under Section 15 of the Act has been passed,

therefore, the judgment referred by the petitioners in the

case of Mohammad Imteyaz Ahmad (Supra) in the facts

of the given case is not applicable.

So far as the second ground that the order of

strucking off the defence will not be applicable so far legal

heirs of the defendant is concerned, who are petitioners in

the present writ petition, it has been submitted that since

the instant petition is under Article 227 of the Constitution

of India, this Court, in exercise of power conferred under

Article 227 of the Constitution of India, is only supposed to

see the legality and propriety of the impugned order, if

available in its face, as such said ground is not fit to be

considered by this Court.

5. This Court has heard learned counsel for the parties

and perused the documents available on record as also the

finding recorded by the trial Court in the impugned orders.

6. The admitted facts in this case is that after the

decree and judgment dated 31.07.1997 passed in Title Suit

No. 17 of 1988, the plaintiffs-respondents have filed Title

(Eviction) Suit No. 3 of 1998 against the defendant-original

petitioner, namely, Purushottam Das Rajgaria claiming

ownership of the shop rooms and the rent, in which the

defendant-writ petitioner appeared and filed written

statement on 22.07.1999 denying any relationship of

landlord and tenant between the plaintiffs-respondents

defendant-petitioner and thereafter filed additional written

statement on 04.08.2009 due to amendment sought for by

the plaintiff in the plaint and prayer was made to dismiss

the aforesaid Title (Eviction) Suit.

In the said eviction suit, the respondents-plaintiffs

filed a petition under Section 15 of the Bihar Building

(Lease, Rent and Eviction) Control Act on 28.06.2013

(Annexure 5) praying therein for direction upon the

defendant-writ petitioner to pay all arrears of rent, against

which a rejoinder was filed on 01.07.2013. The trial Court

after hearing the parties disposed of the said petition vide

order dated 02.07.2013 directing the defendants-writ

petitioners to pay the rent at the rate of agreed rate i.e. Rs.

1908 per months for all shops and further directed to

deposit the arrear rent @ Rs. 1908 per month from the

month of December, 1994 till date with further direction to

deposit current rent of every month at the same rate by 15th

of succeeding month, as the defendant had raised objection

regarding the status of the plaintiffs as his landlord, which

is to be decided in the suit, it was ordered that the said

deposited rent shall not be withdrawn till disposal of the

suit or any other order passed by this Court; and also for

quashing order dated 24.08.2013 by which defence of the

petitioner has been struck off.

7. The defendant-writ petitioner has approached this

Court challenging the order dated 02.07.2013 on the

ground that the order is passed without application of mind

and without consideration of rejoinder filed to the petition

dated 01.07.2013 wherein serious dispute about existence

of relationship of tenant and landlord in between the

respondents and petitioner has been raised as also on the

ground that the trial Court without coming to prima facie

finding upon existence of relationship of landlord and

tenant has passed the impugned order. In the meanwhile,

when the order dated 02.07.2013 has not been complied

with prayer was made by the plaintiffs-respondents to

struck off the defence of the defendant against ejectment,

as they have not complied with the order passed by the trial

Court dated 02.07.2013 under Section 15 of the Act, which

was allowed vide order dated 24.08.2013, the same has

been challenged by the writ petitioner-defendant by filing

an Interlocutory Application being I.A. No. 8996 of 2013

with a prayer for amendment in the prayer portion of the

writ petition by addition of the prayer for quashing order

dated 24.08.2013 whereby defence of the writ petitioner

has been struck off. The aforesaid Interlocutory Application

being I.A. No. 8996 of 2013 was allowed vide order dated

25.06.2014.

8. This Court, on the basis of aforesaid admitted fact,

is required to consider the objection made by the writ

petitioner about the legality and propriety of order dated

02.07.2013 and 24.08.2013. But, prior to that it is relevant

to refer the provisions of Section 15 of the Bihar Building

(Lease, Rent and Eviction) Control Act, which reads as

under:

"15.Deposit of rent by tenants in suits for ejectment.-- (1) If, in a suit for recovery of possession of any building the tenant contests the suit as regards claim for ejectment, landlord may move an application at any stage of the suit for order on the tenant to deposit rent month by month at a rate at which it was last paid and also subject to the law to limitation, the arrears of rent, if any, and the Court after giving opportunity to the parties to be heard, may make any order for deposit of rent month by month at such rate as may be determined and the arrears of rent, both before [or] after the institution of the suit if any and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of

order or the rent at such rate for any month by the fifteenth day of the next following month; the Court shall order the defence against ejectment to be struck off and the tenant to be placed in the same position as if he had not defended the claim to ejectment and further the Court shall not allow the tenant to cross-examine the landlord's witnesses. (2).If in any proceeding referred to in sub-section (1) there is any dispute as to the person or persons to whom the rent is payable the Court may direct the tenant to deposit in Court the amount payable by him under sub-section (1) and in such case no person shall be entitled to withdraw the amount in deposit until the Court decides the dispute and makes an order for payment of the same.

(3).If the Court is satisfied that any dispute referred to in sub- section (2) has been raised by a tenant for reasons which are false or frivolous the Court may order the defence against the eviction to be struck off and proceed with the hearing of the suit as laid down in sub-section (1)."

It is evident from the aforesaid provision that if, in a

suit for recovery of possession of any building the tenant

contests the suit as regards claim for ejectment, landlord

may move an application at any stage of the suit for order

on the tenant to deposit rent month by month at a rate at

which it was last paid and also subject to the law to

limitation, the arrears of rent, if any, and the Court after

giving opportunity to the parties to be heard, may make

any order for deposit of rent month by month at such rate

as may be determined and the arrears of rent, both before

[or] after the institution of the suit if any and on failure of

the tenant to deposit the arrears of rent within fifteen days

of the date of order or the rent at such rate for any month

by the fifteenth day of the next following month; the Court

shall order the defence against ejectment to be struck off

and the tenant to be placed in the same position as if he

had not defended the claim to ejectment and further the

Court shall not allow the tenant to cross-examine the

landlord's witnesses.

Thus, it would be evident from the aforesaid

provision of law that the trial Court has been conferred with

the power to pass an order for making payment of arrears

of rent as well as current rent and in case of default in

compliance of the aforesaid order, the Court has also been

conferred with power to struck off the defence.

Herein, the order has been passed on a petition filed

under Section 15 of the Act on 02.07.2013 for making

payment of arrears of rent as well as current rent and after

that on the prayer made on behalf of plaintiffs-respondents

order dated 24.08.2013 has been passed for strucking off

the defence of the defendant-writ petitioner.

9. Contention has been raised by learned counsel for

the petitioner that there is no prima facie finding recorded

by the learned trial Court in order dated 02.07.2013 about

having the relationship of landlord and tenant.

This Court in order to appreciate the aforesaid

finding has gone across order dated 02.07.2013, as

appended as Annexure 8 to the writ petition, wherefrom it

transpires that the trial Court after appreciating the factual

aspect has recorded the finding to the effect that:

"............. I find that it is admitted fact that the keys of the aforesaid six shops were given to the defendant by receiver appointed in Title Suit no. 17/88 on monthly rental of Rs. 1908/- for all shops. This fact itself makes it clear that the defendant entered in above shops as a tenant because when he started to pay rent for against their possession in the aforesaid shops, in my opinion in no stretch of imagination his status may be other than a tenant. Further in course of argument defendant could not say anything regarding charge of his status.

It is also admitted fact that the Title Suit no. 17/88 has already been decided in favour of plaintiff which is under challenge before Hon'ble High Court.

From the above discussion, I come to the conclusion that plaintiffs are claiming themselves owner of the aforesaid shops on the basis of judgment and decree passed in Title Suit no. 17/88 which is under challenge before the Hon'ble High Court. At this point of time there may be dispute as defendant is tenant of plaintiffs or not but there is no doubt that entry of defendants in the aforesaid shops was as the tenant. There is nothing on record to reflect that there is any change the status of defendant."

[emphasis supplied]

This Court after having gone through the aforesaid

finding is of the considered view that the trial Court has

come to a prima facie finding about existence of

relationship of landlord and tenant in between the

plaintiffs-respondents and petitioner-defendant, as such

what has been contended by learned counsel for the

petitioner that there is no prima facie finding about

existence of relationship of landlord and tenant is having

no force. Accordingly, said ground is hereby rejected.

10. The second ground has been taken about the

applicability of order of strucking of the defence so far it

relates to substituted legal heirs of the original defendant

and it has been submitted that whatever order has been

passed against the original defendant will not be applicable

with respect to his legal heir.

11. Serious objection to such submission has been

made by learned counsel for the appearing respondents by

taking the plea that petitioners cannot be allowed to agitate

this point before this Court in a petition under Article 227

of the Constitution of India, which admittedly has been filed

by original defendant.

12. Admittedly, the fact herein is that the original

defendant has died on 17.05.2018, much after passing of

order dated 02.07.2013 and 24.08.2013 and after filing of

writ petition, and the consequence of death of original

defendant is his substitution through legal heir(s), who are

now the petitioners to the present writ petition.

13. However, this Court before coming to the conclusive

finding about legality and propriety of the impugned orders,

deem it fit and proper to delve upon the issue of jurisdiction

conferred upon this Court under Article 227 of the

Constitution of India, as has been raised by learned

counsel for the respondents.

It is not in dispute that the power conferred under

Article 227 of the Constitution of India is supervisory in

nature and High Court under the power of superintendence

and supervisory jurisdiction has got power to look into the

legality and propriety of the order under the provision of

Article 227 of the Constitution of India, if the order is

interlocutory in nature.

The scope of Article 227 has been discussed in

detail in the case of Surya Dev Rai Vrs. Ram Chander

Rai and Ors., [(2003) 6 SCC 675] wherein it has been held

that the High Court can look into the legality and propriety

of the order by testing it on the face of record and to set it

right. The said view has repeatedly been taken by the

Hon'ble Supreme Court and in the case of Shalini Shyam

Shetty & Anr. Vrs. Rajendra Shankar Patil, [(2010) 8

SCC 329] the scope of Article 227 which relates to the

supervisory powers of the High Courts have been laid down

and by taking aid of the judgment rendered by the Hon'ble

Full Bench of Calcutta High Court in Dalmia Jain

Airways Ltd. Vrs. Sukumar Mukherje, [AIR 1951

Calcutta 193], wherein it has been laid down that Article

227 of the Constitution of India does not vest the High

Court with limit less power which may be exercised at the

Court's discretion to remove the hardship of particular

decisions. The power of superintendence confers power of a

known and well recognized character and should be

exercised on those judicial principles which give it its

character. In general words, the High Court's power of

superintendence is a power to keep the subordinate courts

within the bounds of the authority, to see that they do what

their duty requires and that they do it in a legal manner.

The power of superintendence is not to be exercised

unless there has been;

(a).An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or

(b). gross abuse of jurisdiction; or

(c).an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals.

Further, in the aforesaid judgment the Hon'ble Apex

Court has taken aid of a judgment rendered in Mani

Nariman Daruwala alias Bharucha (deceased) though

its LRs & Ors Vrs. Phiroz N. Bhatena, reported in

(1991) 3 SCC 141 wherein it has been laid down that in

exercise of power conferred under Article 227, the High

Court can set aside or reverse finding of an inferior court or

tribunal only in a case where there is no evidence or where

no reasonable person could possibly have come to the

conclusion which the court or tribunal has come to. The

Hon'ble Apex Court has made it clear that except to this

limited extent the High court has no jurisdiction to interfere

with the finding of facts.

Likewise, the judgment rendered by the Hon'ble

Apex Court in Laxmikant Revchand Bhojwani & Anr.

Vrs. Pratapsing Mohansingh Pardeshi, [(1995) 6 SCC

576] it has been laid down that the High Court under

Article 227 cannot assume unlimited prerogative to correct

all species of hardship or wrong decisions. Its exercise must

be restricted to grave dereliction of duty and flagrant abuse

of fundamental principles of law and justice.

It has been laid down at paragraph 47 of the

judgment rendered in Shalini Shyam Shetty (supra) that

the jurisdiction under Article 227 is not original nor is it

appellable. This jurisdiction of superintendence under

Article 227 is for both administrative and judicial

superintendence. Therefore, the powers conferred under

Article 226 and 227 are separate and distinct and operate

in different fields. Another distinction between these two

jurisdictions is that under Article 226 the High Court

normal annuls or quashes an order or proceedings but in

exercise of its jurisdiction under Article 227, the High

Court, apart from annulling the proceeding, can also

substitute the impugned order by the order which the

inferior tribunal should have made.

It has further been laid down regarding the powers

to be exercised by the High Court under Article 227 of the

Constitution of India that the High Court, in exercise of its

jurisdiction of superintendence, can interfere in order only

to keep the tribunals and courts subordinate to it within

the bounds of its authority, in order to ensure that law is

followed by such tribunals and courts by exercising

jurisdiction which is vested with them and by not declining

to exercise the jurisdiction which is vested in them. Apart

from that, High Court can interfere in exercise of its power

of superintendence when there has been a patent perversity

in the orders of the tribunals and courts subordinate to it

or where there has been a gross and manifest failure of

justice or the basic principles of natural justice have been

flouted.

In exercise of its power of superintendence High

Court cannot interfere to correct mere errors of law or fact

or just because another view than the one taken by the

tribunals or courts subordinate to it, is a possible view. In

other words the jurisdiction has to be very sparingly

exercised.

It is evident from the proposition laid down by

Hon'ble Supreme Court that the jurisdiction conferred to

this Court under Article 227 of the Constitution of India is

very limited and the High Court sitting in exercise of power

conferred under Article 227 of the Constitution of India is

only supposed to look into the legality and propriety of the

order which appears from its face.

It is further settled position of law that since this

Court in exercise of power conferred under Article 227 of

the Constitution of India is to test the order by looking into

the legality and propriety if apparent from the face of the

order and if any such point which was available to the

litigant, if not raised before the trial Court, the same cannot

be allowed to be agitated under Article 227 of the

Constitution of India, it is for the reason that the High

Court sitting under Article 227 of the Constitution of India

is to look into the legality and propriety of the order passed

by the trial Court by appreciating the defect apparent from

the face of the order.

14. Thus, the second ground, as has been agitated by

learned counsel for the petitioner, according to considered

view of this Court, will not be appropriate to be considered

since no such ground was available due to the reason that

the above order was passed during the lifetime of the

original defendant who being aggrieved with order has

preferred the instant petition only on the ground of no

prima facie finding of relationship of landlord and tenant as

such this Court has considered the aforesaid ground, as

above, as held by Hon'ble Apex Court regarding the

jurisdiction of Article 227 of the Constitution of India, will

not be proper for this Court to consider this ground, which

has been raised by the present petitioners, who have been

substituted after the death of original defendant, who died

during the pendency of the instant petition, and cannot be

allowed to raise this ground for the first time in this

proceeding, hence the second ground as agitated is of not

worth to be considered.

15. Accordingly, the said ground is rejected.

16. This Court since has already referred hereinabove

about the jurisdiction of this Court in exercise of power

conferred under Article 227 of the Constitution of India and

since the main ground about non-existence of relationship

of landlord and tenant as has been agitated on behalf of

petitioner is not sustainable and there is prima facie finding

about relationship of landlord and tenant in the impugned

order, as has been referred hereinabove, this Court is of the

view that the orders impugned require no interference by

this Court.

17. Accordingly, the present writ petition fails and is

dismissed.

18. Consequent upon dismissal of the writ petition,

interim order granted by this Court vide order dated

21.01.2014 stands vacated.

19. All pending Interlocutory Application(s) stand

disposed of.

(Sujit Narayan Prasad, J.) Alankar/-