Lekh Raj
Vs. Muni Lal & Ors [2001] Insc 66 (6 February 2001)
A.P.
Misra & D.P. Mohapatra. Misra. J.
L.T.J
Leave
granted.
The
present appeals are by the defendant-tenant as against the order dated 24th March, 2000 passed by the High Court in its revisional
jurisdiction by which it reversed the finding of the appellate court that the
disputed shop in question is not unsafe for human habitation. The questions
raised in these appeals are:
(1)
Whether the High Court under its Revisional Jurisdiction which limits to
examine the legality and propriety of the appellate court order was justified
in reversing its findings based on evidence on record.
(2)
Whether the High Court could have appointed a local Commissioner while
exercising its revisional jurisdiction and to reverse the finding of the
appellate court based on the report of such Commissioner.
In
order to appreciate the controversies we are herewith giving some of the
essential facts. The appellant took the disputed shop on rent from one Aya Ram
who sold the said shop to one Prakash Rani. The respondents nos. 1 to 8 are Lrs.
of this Prakash Rani, who filed petition for eviction against the appellant
under Section 13 of the East Punjab Urban Rent Restriction Act, 1949
(hereinafter referred to as the 'Act) from the disputed shop. The eviction
petition was based on three grounds:
(a)
The appellant has not paid the rent from 2nd July, 1968,
(b) He
has sub-let the shop without taking the permission of the landlord and
(c) the
building is in dilapidated condition with cracks hence not fit for human
habitation requiring demolition and reconstruction.
The
appellant denied all these and other allegations made in the petition. The
trial court decreed the eviction petition. It held that the appellant tendered
the rent on 24.10.1975 about which no grievance was made by the
respondent-landlord at the time of arguments, the shop was sub-let by the
appellant, and the disputed shop is unfit for human habitation. The appellant
filed appeal and the Appellate Court set aside the trial court findings. It
held that sub- letting has not been proved. It further, on the basis of
evidence on record, held that it cannot be said that the cracks in the building
have made it unfit or unsafe for human habitation. Aggrieved by this the
respondent filed revision in the High Court. During the pendency of the said
revision an application was moved by respondents for appointment of a local
Commissioner which was objected through written objection by the appellant. The
said local Commissioner submitted his report to the court, the relevant portion
of his report is quoted hereunder:
there
was a hole in the roof measuring 13 x 12 which had been temporarily shut from
the interior side with the help of wooden planks by giving the support of
sticks and from the upper side this hole was found and 4 Ballies near the hole
were in a decayed condition and wooden planks near the hole were in a bad
condition due to seepage of water from the hole of the roof..The outerside of
the right side wall of the shop, there was a big crack on the beginning of the
wall extending from top to more than middle of the wall.
This
crack measuring 2x 7.5 (depth) from the upper side and 1.5 x 6.5 from the lower
side and in the end of the same wall, there was also a big crack measuring 2x 8
from the upperside 2x7 from the lower side and the roof of the passage was in a
totally damaged condition which did not cover the shop but covers the passage.
The
appellant filed objection to this report pointing certain anomalies with a
prayer to ignore this report and appoint another local Commissioner. The High
Court confirmed as against respondent-landlord, the finding of the Appellate
Court on the question of sub-letting. However, it reversed its finding based on
the said local Commissioner report by holding that the disputed shop is unfit
for human habitation. The appellant being aggrieved by this order has filed the
present appeal.
The
submission is, power of revision cannot be construed to empower court to
reappraise the evidence and disturb the findings of fact recorded by the
Appellate Court. Having limited revisional jurisdiction the High Court was not
justified in interfering with the finding recorded by the Appellate Court.
To
appreciate this submission the revisional power of the High Court under
sub-section 5 of Section 15 of the aforesaid Act is quoted hereunder:
15(5):
The High Court may, at any time, on the application of any aggrieved party or
on its own motion, call and examine the records relating to any order passed or
proceedings taken under this Act for the purpose of satisfying itself as to the
legality or propriety of such order/proceedings and may pass an order in
relation thereto as it may deem fit.
The
law on the subject is well settled. The language of this sub- section clearly
spells out, High Court jurisdiction is neither restricted to what is under
Section 115 of the Civil Procedure Code nor it is as large as power of the
Appellate Authority. The High Court under its supervisory revisional
jurisdiction could examine the legality or propriety of any order. This
legality or propriety widens the scope of the High Court which is larger than
the power of revision under Civil Procedure Code. But in no case it confers
power to set aside findings of fact by reappraisal of evidence. In doing so it
would be trespassing its jurisdiction. However, good reason for drawing a
different conclusion it cannot be construed to be within jurisdiction. Thus
courts have to carve out a field for the exercise of revisional jurisdiction
under sub-section (5) of Section 15, emanating from the words legality and
propriety which should be between limited revisional jurisdictional under
Section 115 CPC and wider appellate jurisdiction.
Strong
reliance has been placed for the appellant in Lachmand Dass vs. Santokh Singh,
(1995) 4v SCC 202. This Court was considering, the revisional jurisdiction of
the High Court under sub- section (6) of Section 15 under the Haryana Rent
Control Act which is para materia with the revisional power under the aforesaid
Act under which we are considering. This Court held:
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 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.
For
the appellant, reliance is also placed on Shiv Lal vs. Sat Parkash and Anr.,
1993 Supp. (2) SCC 345. It was held:
While
exercising jurisdiction under Section 15(5) of the Act the Court does not act
as a regular third appellate court and can interfere only within the scope of
the sub-section. In the present case, the High Court, on being misled by its
view that the cession of tenancy is a necessary element of Section 13(2)(iv),
the High Court proceeded to re- examine the evidence on the records, and
reversed the finding of facts concurrently arrived at by the trial Court and
the first appellate court. An examination of the facts and circumstances of
this case indicates that the reconsideration of the evidence by the High Court
was not justified.
On the
other hand learned counsel for the appellant has relied on Mrs. Mohini Suraj Bhan
vs. Vinod Kumar Mital, (1986) 1 SCC 687. This Court observed:
It
cannot be disputed that the powers of the High Court under Section 15(5) of the
Act are wide and not confined merely to examining the legality of the appellate
authoritys order nor are those powers akin to the revisional powers of the High
Court under Section 115 of the CPC.
The
pith and substance of these authorities, to which appellant relies is that
Court under its revisional jurisdiction cannot disturb finding of facts nor
could it reappraise evidence on record, it can only interfere if there is
impropriety and illegality in the impugned order.
One of
the submissions for the appellant is that the High Court in its revisional
jurisdiction should not have permitted the inspection of the disputed shop by
the local Commissioner while exercising its revisional jurisdiction.
The
submission is, the revisional court could only take into consideration the fact
existing on the date of filing of the eviction petition supported by evidence
on record, thus by bringing on record the aforesaid report of the local
Commissioner which was called after 18 years of the pendency of the revision in
the High Court cannot be said to be within the jurisdiction of the Revisional
courts.
The
law on the subject is also settled. In case subsequent event or fact having
bearing on the issues or relief in a suit or proceeding, to which any party
seek to bring on record, the Court should not shut its door. All laws and
procedures including functioning of courts are all in aid to confer justice to
all who knocks its door. Courts should interpret the law not in derogation of
justice but in its aid. Thus bringing on record subsequent event, which is
relevant, should be permitted to be brought on record to render justice to a
party. But the court in doing so should be cautious not to permit it in a
routine. It should refuse where a party is doing so to delay the proceedings,
harass other party or doing so for any other ulterior motive. The courts even before
admitting should examine, whether the alleged subsequent event has any material
bearing on issues involved and which would materially effect the result. In Pasupuleti
Venkateswarlu vs. The Motor & General Traders, (1975) 1 SCC 770, this Court
has very clearly held to the same effect:
It is
basic to our processual jurisprudence that the right to relief must be judged
to exist as on the date a suitor institutes the legal proceeding. Equally clear
is the principle that procedure is the handmaid and not the mistress of the
judicial process. If a fact, after the lis has come to court and has a
fundamental impact on the right to relief or the manner of moulding it, is
brought diligently to the notice of the tribunal, it cannot blink as it or be
blind to events which stultify or render inept the decretal remedy. Equity
justifies bending the rules of procedure, where no specific provision or fairplay
is violated, with a view to promote substantial justice subject, of course, to
the absence of other disentitling factors or just circumstances. Nor can we
contemplate any limitation on this power to take note of updated facts to
confine it to the trial Court. If the litigation pends, the power exists,
absent other special circumstances repelling resort to that course in law or
justice. Rulings on this point are legion, even as situations for applications
of this equitable rule are myriad. We affirm the proposition that for making
the right or remedy claimed by the party just and meaningful as also legally
and factually in accord with the current realities, the Court can, and in many
cases must, take cautious cognisance of events and developments subsequent to
the institution of the proceeding provided the rules of fairness to both sides
are scrupulously obeyed.
This Court
in Ramesh Kumar vs. Kesho Ram, 1992 Supp.(2) SCC 623 held:
The
normal rule is that in any litigation the rights and obligations of the parties
are adjudicated upon as they obtain at the commencement of the lis. But this is
subject to an exception. Wherever subsequent events of fact or law which have a
material bearing on the entitlement of the parties to relief or on aspects
which bear on the moulding of the relief occur, the court is not precluded from
taking a cautious cognizance of the subsequent changes of fact and law to mould
the relief. In Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri Chief Justice
Sir Maurice Gwyer observed: (AIR p.6) But with regard to the question whether
the court is entitled to take into account legislative changes since the
decision under appeal was give, I desire to point out that the rule adopted by
the Supreme Court of the United States is the same as that which I think
commends itself to all three members of this Court. In Patterson v. State of
Alabama, Hughes C.J. said:
We
have frequently held that in the exercise of our appellate jurisdiction we have
power not only to correct error in the judgment under review but to make such
disposition of the case as justice requires. And in determining what justice
does require, the court is bound to consider any change, either in fact or law,
which has supervened since the judgment was entered.
This
decision also relied in the case of Pasupuleti Venkateswarlu vs. The Motor
& General Traders, (1975) 1 SCC 770 (supra).
In the
background of the aforesaid well settled legal principle we perused the
application of the respondent dated 31st March, 1999, before the High Court, for the
appointment of a local Commissioner. It is unfortunate, but the fact is that
civil revision remained pending in the High Court for more than 18 years when
the said application was made. The relevant portion of the application is
quoted hereunder:- That during the pendency of the present revision petition,
the roof of the shop in dispute has also fallen down and the condition of the
shop in dispute has further deteriorated as would be clear from a perusal of
the photographers attached as ANNEXURE P-1. It is well settled that subsequent
events which have taken place during the pendency of the revision petition can
and should be taken into consideration and the relief moulded accordingly.
The
respondent through this application states that the roof of the shop has since
also fallen down and its condition further deteriorated, during the pendency of
this revision, hence sought for the appointment of a local Commissioner which
was allowed. On these facts, in view of the issue, whether the accommodation in
question is fit for human habitation, with the long passage of eighteen years,
if fresh assessment was sought through a local Commissioner, it cannot be said,
in allowing such Commission the High Court exceeded in its revisional
jurisdiction.
Now,
we proceed to examine the submissions for the appellant, which is primarily
based on the objections recorded in his reply affidavit to the respondents
application for the appointment of a local Commissioner and the objections
dated 10th January,
2000 to the said
Commissioner report dated 7th July, 1999.
The objection as recorded therein are;
(a) when
the application for ejactment was filed, there was no crack in the wall of the
disputed shop
(b) the
cracks are from the Dehori side which are in possession of the landlord,
(c)
Similarly when the application for ejactment was made the roof of the shop was
in absolute perfect condition,
(d) the
landlord has deliberately damaged the roof for which the appellant filed a
complaint to the police. Each of these objections has no force.
The
objection with respect to the cracks on the wall and the condition of the roof
is, when the application for eviction was filed there were no cracks in the
wall. This objection has no merit, as per own evidence of the appellant, he
testified existence of such cracks but said, for this reason it cannot be said
it to be unfit for human condition. The submission that court could only take
into consideration on the facts existing on the date of suit only has also no
merit.
In
view of the legal principle we have stated herein before, a Court could take
into consideration subsequent facts, event or happening which are relevant, and
in the present case after expiry of about two decades if fresh local
Commissioner was appointed to find out the condition of shop, and it found two
big cracks on two walls of the disputed shop, it cannot be said consideration
of such evidence to be illegal. On the merits it is submitted, one of the
cracks is on the Dehori side which is in possession of the landlord. Even if
this to be, this would make no difference for drawing any inference about the
condition of the wall. There are always two sides of any wall, cracks on any
side of the wall, if it weakens the wall, may not be on the side of such an
occupant, it would make no difference.
Even
if the cracks on the wall are on the other side which is a passage, still as it
constitutes the same wall as that of the shop would have the same result. If
the cracks have weakened the wall, it would crumble not withstanding it is not
on the side of the shop. This coupled with the condition of the roof which
deteriorated as found by the local Commissioner would be a valid consideration
to find whether the shop is unfit for human consumption. So far the submission
that the appellant has filed a complaint against the landlord for causing
damage to the roof, we have perused the FIR. Though FIR records allegations
directly against the landlord but records no allegation of landlord damaging
the roof.
Next
submission is based on the objection filed to the local Commissioner report.
The objection is, the tenant was not allowed to go on the roof to which
landlord has an access. If he was permitted he could have pointed out to the
Commissioner that hole has been dug purposely and deliberately by the landlord.
Further, the Commissioner remained closet in the room with the landlord for
about half an hour. He sought this local Commissioner report be ignored and
another local Commissioner be appointed. We do not find any error in the High
Court judgment in not issuing another local Commissioner. The appellant merely
sought to show that roof of the disputed shop was damaged by the landlord, to
proof this how Commissioner would have been able to find this.
The
question whether the roof was damaged by the landlord or was damaged because of
the building being old and dilapidated is a question of fact, proof of it could
only be, if at all, through leading evidence and not through a local
Commissioner. A local Commissioner could only report the fact of existing
condition of the building and not who did it. It was open for him, if appellant
so desired for praying to the Court to grant time to lead evidence in this
regard. Since court permitted, a local Commissioner to report, so it would have
granted the prayers for leading evidence. Hence we do not find any of the
objections raised by the appellant, have any merit. The High Court considered
the said report, and there exists a hole on the roof which is not disputed. It
further records, even if the same is ignored, there are big cracks found by the
Commissioner on the beginning of the wall extending from top to more than
middle, and another big crack on another wall. The report records the depth of
the crack, not merely the length of the crack showing the bad condition of the
two walls of the disputed shop. Mere length of crack by itself may not have
foundation to hold its condition of structure of the shop to be bad but it
would be, where the crack measures 2 x 7.5 depth in one wall on the upper side and
1.5 (illegible) on the lower side and another crack measuring 2 x 8 from the
upper side and 2 x 7 from the lower side. This along with condition of roof, if
was considered by the High Court to draw the inference of the condition of the
shop, it cannot be said such finding is perverse or illegal which calls for
interference by this Court. Once the said local Commissioners report was
brought on the record, as part of evidence to show the subsequent event or
condition of building, it was incumbent on the High Court to have considered
it, which it rightly did and if in doing so an inference is drawn, that the
disputed accommodation is not fit for human habitation it is not such which
calls for interference. Normally, as revisional court, it could not have
embarked upon recording finding of facts but where any subsequent fact was
legally brought on record, it could enter into and decide the question, which
could inevitably include recording find of fact.
Lastly,
the submission was that the case may be remitted back to the court for
permitting the appellants to lead evidence to contradict, what is brought
through the Commissioner report. We have examined this aspect also.
Normally
if parties so desire, in a case where fresh facts are brought on the record as
a relevant subsequent event, the court grants such prayer. In the present case,
we find that before the High Court, at no stage, the appellant made any such
request. Even in this appeal before us, the appellant could not point any such
ground been raised. It is not even pleaded nor raised any ground that the High
Court refused such a request for leading any such evidence.
In
view of these facts in the present case we do not find any merit even of this
last submission. In view of the finding recorded by us we record our
conclusions to the aforesaid two questions raised in the appeals to the
following effect:
(1) On
the facts and circumstances of this case, where fresh evidence was permitted to
be brought on the record, reversing of the finding of fact by the High Court,
while exercising Revisional jurisdiction, cannot be said to be such that it
acted beyond its jurisdiction vested to it under the law.
(2)
Once, court could bring on the record, subsequent fact, event or happening,
which has direct bearing on the issues or relief claimed, on the facts and
circumstances of this case, then the High Court committed no error of jurisdiction
to permit the Commissioner report to be placed on the record and then on which
to rely while exercising its revisional power under sub- section 5 of Section
15 of the aforesaid Act.
In
view of the aforesaid findings recorded by us we do not find any merit in these
appeals, which are accordingly dismissed with costs on the parties.
Lastly,
learned counsel made request to grant substantial time to the appellant to
vacate the premises in question as he has been in possession of this shop for a
very long time, otherwise it would affect his business adversely. Looking to
the facts and circumstances of this case we grant time to the appellant to
vacate the premises in question by or before 31st December, 2001 subject to the usual undertaking to be filed within
four weeks from today.
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