Lachhman
Dass Vs. Santokh Singh [1995] INSC 282 (12 May 1995)
Faizan
Uddin (J) Faizan Uddin (J) Anand, A.S. (J) Faizan Uddin, J.
CITATION:
1995 SCC (4) 201 JT 1995 (7) 437 1995 SCALE (3)704
ACT:
HEAD NOTE:
THE
12TH DAY OF MAY,1995 Present:
Hon'ble
Dr.Justice A.S.Anand Hon'ble Mr.Justice Faizan Uddin Mr.Sarwa Mitter, (Mr.Sujit
Bhattacharya,) Adv. for M/s. Mitter & Mitter Co., for the appellant Mr.K.G.Bhagat,
Mr.Kamal Baid, Ms.Kusum Choudhary, Advs. for the Respondent
The
following Judgment of the Court was delivered:
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL
APPEAL NO. 5752 OF 1995 (Arising out of SLP (C) No.20025 of 1991) Lachhman Dass
.....Appellant versus Santokh Singh .....Respondent
1.
Leave granted.
2.
This appeal under Article 136 of the Constitution of India has been directed
against the judgment dated 19th February, 1991, passed by a learned Single
Judge of the High Court of Punjab and Haryana at Chandigarh in Civil Revision
No.1076 of 1987 reversing the judgment and order of eviction passed against the
tenant-respondent herein by the Rent Controlling Authority, Karnal in Rent Case
Nos.41/2 of 1984 (21/2 of 1982) and affirmed by the Appellate Authority, Karnal
in Rent Appeal No.1 of 1986 decided on 11th March, 1987.
3. The
present appellant brought the suit seeking the eviction of his tenant, the
respondent herein, from the House No.372, situated in Ward No.7, Sadar Bazar, Karnal
consisting of two rooms, one varandah and kitchen and an open courtyard on the
grounds set out hereunder :- I THAT the respondent was a defaulter in respect
of payment of arrears of rent from 1-8-1979 to 31-7-1982 at the rate of Rs.20/-
per month amounting to Rs.720/- and House Tax to Rs.90/-:
II
THAT the respondent had started tethering cattle and putting dung cakes on
walls of demised premises diminishing its value and utility;
III
THAT the respondent had ceased to occupy the tenanted premises for more than a
year without reasonable cause and;
IV
THAT the respondent-tenant has shifted his residence to his own residential
House No.351/7, Sadar Bazar, Karnal having purchased in the name of his wife which
is reasonably sufficient for himself and his family members.
It may
be pointed out here that the afore-mentioned grounds of eviction fall under
Sections 13(2) (1), 13(2) (iii), 13(2)(v) and 13(3)(a) (iv) respectively of the
Haryana Urban (Control of Rent and Eviction) Act, 1973 [hereinafter referred to
as the `Act'].
4. The
respondent-tenant contested the said eviction proceedings by controverting the
material averments made by the appellant-landlord. The respondent, inter-alia,
pleaded that the appellant was not the only owner and landlord of the suit
premises and, therefore, he was not competent to file the suit for his
eviction. He pleaded that the arrears of rent were duly tendered by him. He
also pleaded that the house purchased by his wife consists of two small rooms
and that since he has strained relations with his wife, she was living separate
from him. He further pleaded that he and his married son and his children and
the wife of his son are living in the house in dispute and on these pleadings
he made a prayer for the dismissal of the eviction suit.
5. The
Rent Controller after framing the necessary issues and recording the parties evidence
came to the conclusion that the appellant alone was competent to initiate
eviction proceedings and since the tenant- respondent had paid the arrears of
rent, house tax and interest on 18-1-1983, therefore, the ground is eviction
under Section 13(2)(1) of the Act became non-existent. As regards the second
ground, the Rent Controller found that there was no cogent and reliable
evidence to prove that the respondent had committed any act diminishing the
value or the utility of the suit premises. As regard the third and fourth
grounds mentioned above, the Rent Controller on a minute and detailed
discussion of the parties evidence on record, took the view that the
respondent-tenant had ceased to occupy the demised premises for a continuous
period of more than four months without any reasonable cause and had in fact
shifted his residence with his wife and children in September, 1981 in House
No.351, Ward No.7, Sadar Bazar, Karnal which he had purchased in the name of
his wife and the same is reasonably sufficient for his requirements. The Rent
Controller, therefore, passed an order of eviction of the respondent from the
suit premises on the ground contained in Section 13(2)(v) and 13(3)(a)(iv) of
the Act.
The
respondent-tenant challenged the said finding in appeal under Section 15(2) of
the Act before the Appellate Authority. The Appellate Authority re-examined the
entire evidence and the material on record and after such reassessment of
evidence affirmed the conclusions recorded by the Rent Controller and, therefore,
dismissed the appeal filed by the respondent, maintaining the order of
eviction.
The
respondent-tenant then prefarred Civil Revision under sub-section (6) of
Section 15 of the Act before the High Court of Punjab and Haryana and the
learned Single Judge by the impugned judgment set aside the concurrent findings
of the two courts below by holding that it was not established that the
respondent-tenant has acquired or is in possession of reasonably sufficient
accommodation which renders him liable to be evicted from the demised premises.
6.
Learned counsel appearing for the landlord- appellant strenuously urged that
the learned Single Judge of the High Court committed a grave and serious error
in interferring with the well reasoned judgment and findings of fact recorded
by the two courts below after proper appreciation of evidence on record and
took contrary view on extraneous facts and circumstances by ignoring the
relevant evidence and material on record which has resulted into miscarriage of
justice. The learned counsel for the appellant submitted that there is cogent
and convincing evidence indicating that the respondent had shifted to new
residential house which he had acquired in the name of his wife and had
absolutely ceased to occupy the tenanted premises in question. It was urged
that the learned Single Judge totally ignored the fact that respondent-tenant
had come forward with a false defence that he had strained relations with his
wife and, therefore, he was living separate in the demised premises with his
son and his family while his wife was living separate from him in House No.351,
which defence has been found to be entirely false by the two courts below on a
thorough marshalling of evidence on record. It was also urged that the learned
Single Judge made out a case for respondent-tenant that his family consisted of
about 14 persons and, therefore, the house acquired by him was not reasonably
sufficient for the whole family which is against the evidence on record. After
hearing the learned counsel for the parties and on perusal of the judgment of
the High Court as well as the judgments of the two subordinate courts and other
material on record we find that there is much substance in the store-mentioned
submissions made by the learned counsel for the appellant.
7. The
first question that arises for our consideration is whether the learned Single
Judge of the High Court was justified in re-assessing the value of the evidence
and substitute his own conclusions in respect of the concurrent findings of
fact recorded by the two courts below, in exercise of his revisional powers
vested in the High Court under Section 15(6) of the Act. In the present case as
discussed earlier the Rent Controller passed the order of eviction against the
respondent on the ground mentioned under Section 13 of the Act against which
the respondent preferred an appeal under sub-section (2) of Section 15 of the
Act and the Appellate Authority affirmed the order of eviction passed by the
Rent Controller. Here it may be noted that the Act does not provide a second
appeal against the order passed in appeal by the Appellate Authority under
sub-section (2) of Section 15. The Act, however, under sub-section (6) of
Section 15 makes a provision for revision to the High Court against any order
passed or proceedings taken under the Act. Thus, the Legislature has provided
for a single appeal against the order passed by the Rent Controlling Authority
and no further appeal has been provided under the Act. The Legislature has,
however, made a provision for discretionary remedy of revision which is
indicative of the fact that the Legislature has created two jurisdictions
different from each other in scope and content in the form of an appeal and
revision. That being so the two jurisdictions - one under an appeal and the
other under revision cannot be said to be one and the same but distinct and
different in the ambit and scope. Precisely stated, an appeal is a continuation
of a suit or proceedings wherein the entire proceedings are again left open for
consideration by the appellate authorities which has the power to review the
entire evidence subject, of course, to the prescribed statutory limitations.
But in the case of revision whatever powers the revisional authority may have,
it has no power to reassess and reaporeciate the evidence unless the statute
expressly confers on it that power. That limitation is implicit in the concept
of revision. In this view of the matter we are supported by a decision of this
Court in State of Kerala vs. K.M. Charia Abdullah and Co. [1965 (1) SCR 601 at
604 ].
8.
This Court in the case of Hari Shankar vs. Rao Girdhari Lal Chowdhury [ 1962 Suppl
(1) SCR 933 = AIR 1963 SC 698 ] had an occasion to consider the question of
distinction between an appeal and a revision and Hidayatullah, J. (as he then
was ) speaking for the Court observed at page 939 of the report as follows :-
"The distinction between an appeal and revision is a real one. A right to
appeal carries with it right of re-hearing on law as well as fact, unless the
statute conferring the right to appeal limits the re-hearing in some way as we
find has been done in second appeal arising under the Code of Civil Procedure.
The power to hear a revision is generally given to a superior court so that it
may satisfy, itself that a particular case has been decided according to
law."
9. In
the case of State of Kerala vs. K.M. Charia Abdulla & Co. [1965 (1) SCR
601] this Court expressed the view that when the Legislature confers a right to
appeal in one case and a discretionary remedy of revision in another, it may be
deemed to have created two jurisdictions different in scope and content. Again
in the case of Neta Ram and others vs. Jivan Lal and another [ AIR 1963 SC 499
] Hidayatullah, J. (as he then was) speaking for the Court observed that the revisional
jurisdiction of the High Court do not include the power to reverse concurrent
findings, without showing how those findings are erroneous.
10. In
the present case sub-section (6) of Section 15 of the Act confers revisional
power on the High Court for the purpose of satisfying itself with regard to the
legality or propriety of an order or proceeding taken under the Act and
empowers the High Court to pass such order in relation thereto as it may deem
fit. The High Court will be justified in interfering with the order in revision
if it finds that the order of the appellate authority suffers from a material
impropriety or illegality. From the use of the expression "Legality or
propriety of such order or proceedings" occurring in sub-section (6) of
Section 15 of the Act, it appears that no doubt the revisional power of the
High Court under the Act is wider than the power under Section 115 of the Code
of Civil Procedure which is confined to jurisdiction, but it is also not so
wide as to embrace within its fold all the attributes and characteristics of an
appeal and disturb a concurrent finding of fact properly arrived at without
recording a finding that such conclusions are perverse or based on no evidence
or based on a superficial and perfunctory approach. If the High Court proceeds
to interfere with such concurrent findings of fact ignoring the aforementioned
well recognised principles, it would amount to equating the revisional powers
of the High Court as powers of a regular appeal frustrating the fine
distinction between an appeal and a revision. That being so unless the High
Court comes to the conclusion that the concurrent findings recorded by the two
courts below are wholly perverse and erroneous which manifestly appear to be
unjust there should be no interference. In the present case the two courts
below have thoroughly examined and appreciated the parties evidence and have
recorded a definite finding, entirely based on the evidence on record that the
respondent-tenant has ceased to occupy the demised premises since after
September 1981 and had, in fact, alongwith his wife and family started living
in the House No.351, Ward No.7, Karnal, having been acquired by him in the name
of his wife.
11. It
may be noticed that the learned Single Judge has himself stated in the impugned
judgment that it is not a matter of dispute that both the accommodations i.e.
the demised premises and the house acquired by the tenant- respondent, in the
name of his wife, both have almost the same capacity, yet the learned Single
Judge took the view that the house acquired by the respondent was not
reasonably sufficient for his requirements. If both the houses are almost of
the same capacity it is difficult to accept the finding that the house acquired
by the respondent is a reasonably not sufficient for his requirements. The
observation of the learned Single Judge that the respondent's family consists
of about 14 persons is neither here nor there, as admittedly, all those 14
persons are not living at Karnal with the respondent and, particularly, in the
demised premises or in the house acquired by the respondent. The learned Single
Judge has himself further observed in the impugned judgment that "though
it is also in evidence that some of the sons are either posted or working
outside Karnal yet it is patent that they keep on visiting the
petitioner." Thus, the learned Single Judge included the occasional
visitors of the respondent also to be the members of the family which by no
stretch of imagination could be accepted to be a sound reasoning, to set aside
the concurrent findings of fact. It is also not the case of respondent-tenant
that 14 persons of his family are living with him in the house. On the contrary
from the evidence it is clear that at the most the respondent's family consist
of six members including his wife who have been living in the demised premises
and all of them have shifted in the house acquired by the respondent in the
name of his wife. This fact is sufficiently established from the oral and
documentary evidence on record. But surprisingly enough the learned Single
Judge ignored this part of the evidence and disturbed concurrent findings for
no good reasons, resulting into miscarriage of justice.
12. In
the facts and circumstances discussed above we are satisfied that there were no
reasons muchless cogent reasons for the learned Single Judge to interfere with
the findings of fact recorded by the two courts below.
Consequently
we set aside the impugned judgment and order of the High Court and restore the
orders of the two courts below with costs of Rs.1000/-.
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