Sudhir Agarwal, J@mdashBoth these writ petitions have arisen from proceedings involving common premises and parties, therefore, have been heard together and are being decided by this common judgment. Sri Ajit Kumar, Advocate, has advanced arguments on behalf of petitioner and Sri Arvind Srivastava, Advocate, has made his submissions on be half of contesting respondents. Besides, Sri Arvind Srivastava has also filed written arguments.
2. Both these writ petitions have come up under Article 226/227 of the Constitution of India at the instance of a tenant who is occupying a non residential accommodation, i.e., Shop No. 88/2 Sarafa Bazar, Jhansi, owned by plaintiff-respondent No. 1, Sri Radhey Shyam Agrawal (hereinafter referred to as "the landlord").
3. In Writ Petition No. 2506 of 2008 (hereinafter referred to as "First Petition") the petitioner-tenant has challenged orders of Revisional Court dated 31.8.2007 and 9.10.2007 whereby it allowed applications for admitting additional evidence, and final judgment of Revisional Court dated 30.11.2007 allowing S.C.C. Revision No. 106 of 2004, arising from Small Cause Court Suit No. 9 of 2000.
4. The landlord instituted SCC Suit No. 9 of 2000 in the Court of Khafifa Judge, impleading Sri Ramesh Chandra, Mahesh Chandra and petitioner Suresh Chandra, who are all real brothers, as defendants No. 1, 2 and 3 respectively. The plaint case set up by landlord is that shop in dispute was let out to defendants on a monthly rent of Rs. 60/-, besides Rs. 36/- annual house-tax and Rs. 95/- annual water-tax. The rate of house-tax was revised by Nagar Palika to Rs. 75/- whereupon defendants-tenants were liable to pay house-tax at the rate of Rs. 75/- per annum. The rent from 1.7.1995 to 31.8.1999, i.e., for 50 months fell due, besides the difference of house-tax of 1995-96 to 1998-99. The dues come to Rs. 3000/- towards rent and Rs. 300/- as balance amount of house-tax. Despite demand the defendants did not pay the aforesaid amount whereafter a notice dated 21.9.1999 was sent by registered post to defendant No. 3, who used to pay rent to the landlord. The notice returned by Post Office whereafter again it was sent on 15.10.1999, but the addressee refused to accept it and returned with the aforesaid endorsement. Thus notice was deemed served on 22.10.1999 due to refusal by addressee. Since the defendants failed to pay rent, tenancy stood terminated after notice period. The suit for ejectment and recovery of arrears of rent, mesne profits etc. thereafter was filed vide plaint dated 14.2.2000.
5. The suit was contested by petitioner who was impleaded as defendant No. 3 in the aforesaid suit. In written statement, he admitted tenancy at the rent of Rs. 60/- per month and also admitted that the amount of house-tax and water-tax was payable separately which was Rs. 36/- and Rs. 95/- per annum. The default in payment of rent was denied. In additional pleas, it was said that rent upto 30.6.1995 was received by plaintiff through money orders. Thereafter he declined to accept rent, despite tender by defendants-tenants. It was also pleaded that the entire amount of rent and tax, as claimed by plaintiff, as also interest and expenses of suit were deposited by petitioner-tenant on the first date of hearing, i.e., 4.4.2000/6.4.2000, hence, tenants are entitled for benefit of section 20(4) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") and there is no default, hence, decree of ejectment is liable to be declined.
6. Trial Court formulated following eight issues :
"1. Whether the notice sent by the plaintiff was served upon defendant No. 3?
2. Whether, on the basis of the alleged notice, the claim against the defendants is not sustainable?
3. Whether the defendants have defaulted in payment of rent?
4. Whether the defendants are entitled to get benefit of section 20(4) of the Act (Act 13 of 1972)?
5. Whether the plaintiff is entitled to get from the defendants the outstanding rent for the period in question, the house tax and the damages in lieu of use?
6. Whether the plaintiff is entitled to get from the defendants the damages in lieu of use at the rate of Rs. 25/- per day during pendency of the case and thereafter?
7. Whether the liability to pay the house tax at the rate of Rs. 75/- per annum lies with the defendants?
8. Relief?" (English Translation by the Court)
7. The issue No. 1 relating to service of notice upon defendant No. 3-tenant was answered in favour of plaintiff. Issues No. 2 and 3 were taken together. It was held that there was default in payment of rent for a period of four months and more but notice was not served upon all the co-tenants separately, therefore, suit was not maintainable. Issue No. 4 relating to benefit under section 20(4) of Act, 1972 was answered in favour of tenants. The issues No. 5 and 6 were taken together and it was held that for disputed period, plaintiff is entitled to claim rent and house tax but not damages. Issue No. 7 was answered in favour of defendants holding that they were liable for payment of house-tax at the rate of Rs. 36/- per month. Consequently, suit was partly decreed. While dismissing the suit in respect to relief of ejectment and damages, it was decreed with respect to rent and house-tax. The Court directed that amount deposited by defendants in the Court shall be adjusted against such dues payable by defendants to the plaintiff-landlord.
8. Landlord preferred S.C.C. Revision No. 106 of 2004 which was allowed ex parte on 31.1.2007. Petitioner-tenant filed Restoration Application before Revisional Court which was rejected on 115.2007. Petitioner men came in Writ Petition No. 23578 of 2007 challenging order dated 11.5.2007 passed by Additional District Judge, Court No. 4, Jhansi, in Misc. Case No. 2 of 2007 rejecting Restoration Application against ex parte judgment dated 31.1.2007 in S.C.C. Revision No. 106 of 2004. This writ petition was allowed vide judgment dated 18.5.2007. Order dated 115.2007 passed by Revisional Court was set aside subject to payment of cost of Rs. 10,000/- by petitioner-tenant. The Revisional Court, thereafter, was directed to decide revision on merits after hearing both the parties.
9. After remand, the respondent-landlord filed two applications before Revisional Court for admitting certain additional evidences which were allowed vide orders dated 31.8.2007 and 9.10.2007. These evidences consisted of a sale-deed dated 26.12.2003 and another sale-deed dated 1.2.1997. The revision thereafter has been decided by District Judge, Jhansi, fide judgment dated 30.11.2007. It has been allowed and judgment of Trial Court has been set aside. The tenants have been directed to vacate the shop in dispute and also pay arrears of rent and house Tax, damages for unauthorized use and occupation, and damages, pendente lite at the rate of Rs. 20/- per day.
10. The Writ Petition No. 35323 of 2006 (hereinafter referred to as "Second Petition") also relates to same shop and has arisen from the proceedings which were initiated by landlord under section 21(1)(a) of Act, 1972, against the tenants.
11. The landlord filed an application dated 18.3.1996 under section 21(1)(a) of Act, 1972 registered as P.A. Case No. 20 of 1996 before Prescribed Authority claiming that he has two sons, Kaushal Kishore and Pawan Kumar, who are both unemployed. The elder son is already married. For engaging them in their own business, the disputed shop is required by landlord. It was also pleaded that defendant No. 1, Ramesh Chandra, is an employee in U.P. State Electricity Board and defendants 2 and 3 Mahesh Chandra and Suresh Chandra have their own shop No. 120, Sarafa Bazar, Jhansi which is a very big shop and, therefore, they are not in genuine need of shop in dispute.
12. The application was contested by tenants. In the written statement it was pleaded that house No. 88, which was pleaded by landlord as his house, is actually a shop which is actually in possession of landlord and lying vacant. The shop No. 120, Sarafa Bazar, Jhansi was in tenancy of Mahesh Chandra, who is doing his own independent business thereat. The defendants No. 1 and 3 have no concern therewith. In the disputed shop, defendant 3, Suresh Chandra Agarwal and son of defendant No. 1, both are carrying on sarafa business, separately. They have no other shop in their possession either on tenancy or otherwise. It was also pleaded that the landlord has several other shops in his possession, i.e., shop No. 126, Sarafa Bazar, a big shop on the first floor of shops No. 88/1, 88/2 and 88/3. The landlord''s son Kaushal Kishore has one shop No. 99, Sarafa Bazar Jhansi which is also lying vacant and he is in possession thereof. Besides, several other non residential premises possessed by landlord were also mentioned in paras 18, 19 and 20 of written statement.
13. Landlord filed affidavit in which he denied possession of shop No. 126, Sarafa Bazar. He said that there is a shop No. 127/1, Sarafa Bazar owned by his wife who purchased the same in 1986 and therein landlord himself is doing his own Sarafa business. There is no shop on the first floor of shops No. 88/1, 88/2 and 88/3. Shop No. 99, Sarafa Bazar actually is a house, lying vacant, and in respect thereto some litigation is going on. The house No. 51, Jawahar Chowk is a residential building and there is no other shop or non residential building available to landlord in which he can accommodate his two sons.
14. The release application was allowed by Second Additional Chief Judicial Magistrate/Prescribed Authority vide dated 12.7.1999. The petitioner-tenant and defendant No. 2, Mahesh Chandra, filed Rent Control Appeal No. 24 of 1999 but the same has also been dismissed by Lower Appellate Court, i.e., Additional District Judge/Special Judge (SC/ST Act), Jhansi vide judgment dated 29.5.2006. Second Petition assails both these orders, which also have the effect of evicting petitioner-tenant from the same shop in question.
15. It is not disputed by learned Counsel for parties at the outset that if either of the two writ petitions fail, the result would be that petitioner-tenant would have to vacate the shop in question. Therefore, the fate of petitioner-tenant depends upon the factum that both the writ petitions should succeed else for all practical purposes, he will stand ousted from the shop in dispute.
16. Though both these matters relate to the same shop and have been contested between same parties, but the fact remains that the issues and considerations, up for judicial review are within different parameters. One has arisen from the proceedings initiated by landlord on the ground of "personal need" under section 21(1)(a) of Act, 1972 and another one has arisen from the alleged default committed by tenant in payment of rent incurring liability of ejectment on the ground provided under section 20(2)(a) of Act, 1972.
17. During the course of hearing, it was shown to the Court that landlord has some other accommodations which may be offered to tenant and parties were given opportunity to negotiate thereon, but the same has failed whereafter the matter has been heard finally and now both the writ petitions are being decided by this common judgment, on merits.
18. First, I propose to deal the First Petition relating to SCC Suit.
19. Sri Ajit Kumar, learned Counsel for petitioner in first petition, while challenging the orders passed by Court below in Small Causes Suit proceedings contended that Revisional Court, while admitting additional evidence, did not afford any opportunity to petitioner to submit defence evidence, therefore, the judgment and decree passed by Revisional Court is in utter violation of principles of natural justice. The additional evidence admitted by Revisional Court consisted of only certified copies of sale-deeds dated 26.12.2003 and 1.2.1997. The original documents were not submitted. The Revisional Court has not looked into the fact that secondary evidence was not admissible unless pre-conditions thereof under Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1872") are satisfied. Therefore, reliance placed on the certified copies of aforesaid sale-deeds is patently illegal. The Court below has relied on inadmissible evidence. The aforesaid sale-deeds do not belong to petitioner. The sale-deed dated 1.2.1997 was in favour of Ramesh Chandra Agarwal; Smt. Sudha Ram Agarwal wife of Sri Ramesh Chandra Agarwal; Vivek Agarwal, Vineet Agarwal and Vishal Agarwal, i.e., sons of Ramesh Chandra Agarwal. The sale-deed pertains to residential building. The second sale-deed dated 26.12.2003 pertains to a shop purchased by Sri Manish, son of Mahesh Chandra and Vishal, son of Sri Ramesh Chandra, which also had no concern with the petitioner. The findings of fact recorded by Trial Court in respect to deposit of rent has been interfered by Revisional Court without pointing out that there was any perversity or misreading or that findings recorded by Trial Court were not in accordance with law. The Revisional Court, therefore, has proceeded beyond its jurisdiction in passing a judgment of reversal. The Revisional Court has erred in law in denying benefit of deposit of rent under section 20(4) of Act, 1972 to the petitioner by following Order XV, Rule 5, C.P.C. holding that during the pendency of suit, rent was not continuously paid and there was default. The rent was deposited under section 30(1) of Act, 1972 and the same could not have been ignored at all. Revisional Court has erred in law in applying Explanation-1 to section 21(1)(a) of Act, 1972 to the shop in dispute since the aforesaid provision is applicable only in respect to residential accommodation and not non residential accommodation. The Revisional Court has erred in holding that petitioner had not deposited entire amount of rent etc. on the first date of hearing. The service of notice was not validly proved by landlord inasmuch it was not served upon all the tenants and Revisional Court in taking a different view than the Trial Court has erred in law.
20. Per contra, Sri Arvind Srivastava , learned Counsel for the respondent-landlord defended the judgment of Revisional Court on the reasoning contained therein.
21. From rival submissions, I find that for proper adjudication of First Petition, the following points need consideration :
(i) Whether the petitioner-tenant committed default in payment of rent and was in arrears of rent of four months and more on the date of notice?
(ii) Whether petitioner had complied with the requirement of section 20(4) of Act, 1972?
(iii) Whether service of notice upon petitioner-tenant only and not to other tenants, i.e., defendants No. 1 and 2 rendered notice invalid?
(iv) Whether additional evidence in the form of certified copy of sale-deeds, relied on by Revisional Court, was admissible and has validly been considered?
(v) Whether Proviso to section 20(4) of Act, 1972 will apply to residential building only or it includes within its ambit a non-residential premises also?
(vi) Whether non payment of rent regularly during pendency of suit would justify denial of relief to petitioner-tenant?
22. So far as first issue of default in payment of rent of four months and more, so as to attract section 20(2)(a) of Act, 1972 is concerned, this Court finds that even Trial Court has recorded a finding against tenants. It has held that there was default in payment of rent for a period of four months and more on the date of issue of notice by landlord which attracted liability of eviction under section 20(2)(a) of Act, 1972 unless for other reasons, the decree of eviction is not justified. The finding recorded by Trial Court while considering Issues No. 2 and 3 reads as under:
"Defendants have committed default in payment of rent."
(English Translation by the Court)
23. This finding has been concurred by Revisional Court as is evident from following:
"Thus, the finding of the learned Lower Court that the tenants were clear defaulters, was correct."
24. The finding with regard to default recorded by both the Courts below are apparently concurrent findings of fact. In absence of anything to show that the said findings are perverse or based on misreading of document (s) or has resulted on account of consideration of some irrelevant evidence or exclusion of relevant evidence, I find no legal or otherwise justification to take a different view. Issue No. (i) in First Petition is, therefore, answered against the petitioner-tenant.
25. Now I come to second question regarding compliance of requirement of section 20(4) of Act, 1972.
26. It''s evident that rent from 1.7.1995 and onwards was due. The monthly rent due at the time when notice was issued, demanding rent and terminating tenancy was for the period of 1.7.1995 to 31.3.1996 which included the amount of rent, house-tax and water-tax. It is not disputed before this Court that first date of hearing was 6.4.2000. Therefore it has to be examined, whether on that date petitioner complied with the requirement of section 20(4) of Act, 1972. The arrears of rent at the rate of Rs. 60/- per month from 1.7.1995 to 31.3.2000 would come to Rs. 3420/-. As per section 20(4), tenant is supposed to deposit entire amount of rent and damages of use and occupation of building, due from him, together with interest thereon, at the rate of 9 per cent per annum and cost of suit. In the present case, Revisional Court has found that vide Tender dated 4.4.2000 (Paper No. 60-C) tenant deposited Rs. 5900/- but did not give any details as to what amount was deposited under which head and whether there was a complete deposit of entire amount as required under section 20(4) of Act, 1972 or not. Considering other documents, Revisional Court found that tenants were negligent in respect of payment/deposit of house-tax and water-tax and have thus failed in compliance of section 20(4) of Act, 1972. The Court below has referred to evidence of D.W. 2 Suresh Chandra on this aspect and has said as under:
"Thus, the defendant No. 3 has himself accepted that he did not deposit house tax and water tax. The deposit dated 4.4.2000, tender 60-C, as pointed out earlier lacks specific details. Defendants/respondents were also found defaulter. There is no mention of Advocate Fees, cost of service of notice through publication and Court-fee, and interest at the rate of 9%. Therefore, obvious conclusion, which can be drawn from these facts is that the tenants/defendants failed to comply with the provisions of section 20(4) of the Act. The learned Lower Court, therefore, clearly erred in allowing the benefit of section 20(4) of the Act."
(Emphasis added)
27. Before this Court, nothing has been placed by learned Counsel for petitioner to show that there was compliance of section 20(4) so as to attract the said provision entitling petitioner-tenant to claim benefit/protection thereunder. Trial Court while considering compliance of section 20(4) of Act, 1872 has not at all discussed all these aspects, therefore, findings recorded by Trial Court cannot be said to be in accordance with law. In my view, it has rightly been reversed by Revisional Court. In absence of anything to show that Revisional Court''s findings are perverse or amount to misreading or contrary to record, I do not find any reason to interfere with the same. Question No. (ii) in First Petition, therefore, is also answered against petitioner-tenant and in favour of respondent-landlord.
28. Then comes the question regarding validity of notice. Trial Court has held that petitioner and his brothers constituted tenancy in common and not joint tenancy and, therefore, notice on each individual tenant was necessary.
29. It is admitted fact that earlier tenant in the shop in dispute was father of three defendants including petitioner-tenant. After death of petitioner''s father, tenancy devolved upon his three sons, i.e., defendants No. 1 to 3. Such a tenancy is clearly a co-tenancy-joint tenancy.
30. In H.C. Pandey v. G.C. Paul 1989 (15) ALR 864 (SC), Apex Court said that on the death of original tenant, subject to any provision to the contrary either negativing or limiting succession, tenancy rights devolve on the heirs of the deceased tenant. The incidence of tenancy is same as those enjoyed by original tenant. Thus in other words the heirs succeed tenancy as joint tenants.
31. The above legal exposition was reiterated and approved by a three-Judge Bench in Harish Tandon v. Addl. District Magistrate, Allahabad and others 1991 (1) ARC 220. In paras 23 and 24 of the judgment, Court said that it is difficult to hold that after death of original tenant, his heirs become tenant in common and each one of the heirs shall be deemed to be an independent tenant in his own right. On the contrary, it is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable therefor; The heirs would succeed tenancy as joint tenants. The Court also referred and followed a Constitution Bench Judgment in Smt. Gian Devi Anand v. Jeevan Kumar and others 1985 SCFBRC 229 SC. The Bench referred to a contrary decision in Mohd. Azeem v. District judge, Aligarh 1985 (2) ARC 85 (SC), and having considered the same in para 27, held, that decision in Mohd. Azeem (supra) does not lay down correct law. It further held that decision in H.C. Pandey (supra) lays down the correct law. The above exposition of law has further been reiterated in Ashok Chintaman Juker v. Kishore Pandurang Mantri 2002 (47) ALR 37 (SC).
32. In view of above, tenancy, in the case in hand, which devolved upon defendants, was clearly a co-tenancy. In such a case, notice to one co-tenant is sufficient notice to all others for the reason that when tenancy is inherited after death of initial tenant, a notice to one joint tenant is sufficient and decision and decree passed would be binding on all joint tenants as held in Qamar Alam v. IInd ADJ, Meerut 2006 (62) ALR 570, and Sandeep Bhatia v. Vth ADJ, Bijnor 2001 (2) ALR 630.
33. Trial Court, therefore, took a view which was not in accordance with law on the question of notice and wrongly decided the same in favour of tenants and against landlord, which has rightly been reversed by Revisional Court.
34. Learned Counsel for petitioner has relied on
35. In view of above discussion, question No. (iii) in First Petition is also answered against the petitioner-tenant.
36. Both questions No. (iv) and (v), I propose to deal together. The question relating to admissibility of additional evidence and consequence thereof is necessary to be dealt with question No. (v) together for the reason that Revisional Court had relied on the said documents while considering question whether the tenants are entitled to benefit of section 20(4) Proviso.
37. The Revisional Court has held that proviso to section 20(4) can be followed in the case in hand, i.e., to non residential building also despite the fact that said proviso refers to its applicability to "residential building" only.
38. It is contended that this part of the finding recorded by Revisional Court and the view taken by it is clearly erroneous and illegal inasmuch proviso to section 20(4) will apply only to residential building. Reliance is placed on Sunil Kumar Mukherji v. Kabiraj Bindu Madho Bhattacharaya and others 1978 (4) ALR 17, and Sheo Nath Prasad v. IIIrd Additional District Judge and others 1981 (7) ALR 11 (Sum.) : 1981 ARC 207.
39. I find myself in agreement with the submission advanced by Sri Ajit Kumar, learned Counsel appearing for petitioner-tenant so far as this aspect is concerned that Proviso to section 20(4) would not be attracted in this case which involves a non-residential building.
40. Section 20(4) and its proviso reads as under:
"In any suit for eviction on the ground mentioned in Clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord''s costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of section 30, the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground:
Provided that nothing in this sub-section, shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area.
(Emphasis added)
41. The contention on behalf of landlord is that application of sub-section (4) of section 20 has been excluded in its entirety in case the tenant or any member of his family has built or otherwise acquired in a vacant state, or has got vacated after acquisition, a "residential building" in the same city, municipality, notified area or town area. It does not talk of the suit whether filed for residential building or commercial or non residential building or otherwise. It excludes the application of section 20(4) only on occurrence of a particular instance namely construction or acquisition by the tenant or any member of his family, "residential building". Once the tenant admits to have acquired a residential accommodation in the same city, benefit under section 20(4) is excluded and could not have been applied by Revisional Court.
42. It is no doubt true that a bare and a literal reading of proviso to section 20(4) shows, if a tenant or any member of his family has built or otherwise acquire a residential building in a vacant condition in the same city etc. and is contesting a suit under section 20(1)(a) for eviction on the ground of default in payment of rent, he shall not be given the benefit of sub-section (4) even if he pays the entire dues and expanses etc. on the first date of hearing in the suit irrespective of the fact whether suit involves residential building or non-residential building. It does not talk of the category of building for which the suit has been filed or pending and only on getting a residential building available, sub-section (4) of section 20 gets ousted. The Counsel for landlord endeavoured to pursue this Court to construe the aforesaid provision so as to cover a case where tenancy in question though non-residential, and ejectment is sought on the ground of default in payment of rent, despite tenant deposited entire dues etc. on the first date of hearing, yet should not be protected from a decree of eviction by giving benefit under sub-section (4) of section 20, on the ground that he or his family has acquired or built a residential building in the same city etc. though such residential building as such would not have or may not have any connection with non-residential activities carrying on in the accommodation under tenancy. Can such an unjust, absurd consequence be conceived by reading proviso of section 20(4) literally. In my view it would have to be answered in negative. Legislature cannot be conceived of such a bizarre consequence which may result in grave injustice to the tenants, whose protection has been dominant purpose and intention in the enactment of Act, 1972. It is well established principle of interpretation that language when plain and explicit, does not admit of any doubtful interpretation, the Court shall not, by making reference to an assumed legislative intent or otherwise do violence with the explicit interpretation and meaning of legislation but resort can be had to legislative intent etc. when the language employed is doubtful, susceptible of meanings, more than one, or is likely to cause such consequence which cannot be conceived from a bare study of statute in question. The need for interpretation, resorting to various parts of statute, to gather legislative intention, objective etc. arises when words used in statute, on their own terms are ambivalent and do not manifest the intention of legislature clearly.
43. Construing rent control legislations in
44. Similarly construing the role of proviso the Court in
45. Can it be said that the legislature, irrespective of nature of accommodation under tenancy, has intended to deprive benefit of sub-section (4) of section 20 to a tenant on his acquiring or having built a residential accommodation himself or by any member of his family in the same city etc. though it is true that acquisition of a residential building may have consequence in respect to tenant''s need to continue in the rented residential accommodation but the same thing would not be true if the accommodation in tenancy is of some different kind, namely, non residential.
46. Cumulative reading of various provisions of Act, 1972 makes it clear that legislature is well aware of different categories of accommodation under tenancy. The term "building" has been defined in section 3(i) of Act 1972 so as to denote a "residential" or "non-residential" roofed structure and it includes certain other structure specified in the said definition. It, reads as under:
"Building", means a residential or non-residential roofed structure and includes--
(i) any land (including any garden), garages and out-houses, appurtenant to such building;
(ii) any furniture supplied by the landlord for use in such building;
(iii) any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof.
47. A building can be let out for various purposes. Broadly it can be categorized as, (i) Residential; (ii) Business; and, (iii) Manufacturing. The above later two categories are also termed as ''commercial'' and ''industrial''. The categories (ii) and (iii) collectively may be said "non residential" in contradistinction to the term ''residential''. It is no doubt true that in sub-section (1) and sub-section (2) of section 20 only the term "building" has been used enabling the landlord to file suit on specific grounds for eviction of a tenant but in proviso to sub-section 4 the legislature has used the word "residential building". Can it be said that a tenant can be allowed to be evicted under section 20(1) or (2) on the ground of default in payment of rent from a building let out for commercial/manufacturing/industrial purposes if he has built or acquired a "residential accommodation" in the same city etc. where he cannot carry on commercial/industrial/manufacturing activity. There may be various reasons therefor. One of such reason may be that it amounts to change of user and ordinarily the laws of local bodies within whose jurisdiction the building is situated restrain change of user at the discretion of owner of such residential building. A residential building if is used for business or manufacturing activities, it amounts to change of user as held in Bharat Lal Baranwal v. Virendra Kumar Agarwal 2003 (50) ALR 622 (SC).
48. The legislature therefore knowing that term "building" applies to both "residential" and "non-residential" cannot be conceived of such unjust and absurd consequences. It has used both the words separately but in proviso to sub-section (4) of section 20 it has used only the word "residential building" and not the mere word "building". It has some reasons therefore which can be gathered from other provision of the Act. In case any literal interpretation is given, as suggested and argued on behalf of the landlord, it is bound to cause grave injustice to the tenants where they are occupying non residential building and are also not in default yet can be ousted therefrom on possessing a mere residential building. If the contention is accepted, it would amount to evict a tenant for something which has no connection with the building in question for which proceedings are initiated. It would amount to punishing a tenant depriving him his livelihood only on the ground that he has been able to provide shelter to himself and family by owing a residential building.
49. Having gone through the Act, 1972 I find some co-relation to the words "residential building" in proviso to section 20(4) when read it alongwith section 12(3). The Court finds that residential and non residential building at different places have been dealt with separately. Section 12 deals with "deemed vacancy" of "building". Sub-section (2) provides for a "deemed vacancy" in respect of non residential building" where a tenant carrying on business in a building admits a person who is not member of his family as partner or new partner. Sub-section (3) of section 12 talks of a "deemed vacancy" in a "residential building" if the tenant or any member of his family built or otherwise acquires a residential building in the same city. Thus where a "residential building" is under tenancy, section 12 declares a "deemed vacancy" if the tenant or any member of his family has acquired or otherwise got another residential building in the same city, area etc.
50. The language of section 12(3) and proviso to section 20(4) is almost similar except a few words, as would be evident from the following:
51. The above comparison shows that distinction in few words is only contextual but makes no difference in substance. Both the provisions connote to a same situation but in the former, i.e., section 12(3) it results in a deemed vacancy and in the later, i.e., section 20(4) proviso, it results in denial of benefit of sub-section (4) of section 20.
52. Though under section 20(4) there is no reference to section 12(3) but it is also a well established principle of interpretation that wherever there is any ambiguity or doubt, the entire statute must be read conjointly and no provision should be given an interpretation in isolation which may cause some violence or result in unwarranted consequences vis-a-vis other provisions. In case the contention advanced is accepted it is likely to result in strange consequences. In one case the tenant is likely to suffer in respect to a non-residential building despite having paid the entire dues as stated in sub-section (4) of section 20 and may face ejectment for reason of having built or acquired a residential building in the same city etc. which has nothing to do with the building under tenancy, used for non-residential purposes, and in a different case the landlord gets another ground for eviction of a tenant having built or acquired a residential accommodation in the same city though for a non residential building this fact otherwise is irrelevant.
53. In my view, the proviso to section 20(4) would be attracted only when the suit under section 20(1)(a) relates to ejectment of tenant from a residential building only and for taking the aforesaid view this Court could be justified in taking recourse and refer to section 12(3) also.
54. When a tenant of a "residential building" acquires a "residential building" or build in a vacant condition in a same-same city, it results in a "deemed vacancy" and for this reason, in a suit for eviction, no benefit has been allowed of sub-section 4 to such a tenant who is already deemed to have ceased to occupy a building under his tenancy, by virtue of sub-section 3 of section 12.
55. Even otherwise, a purposive interpretation must be given to a statute when its plain reading on the face is bound to create anomalous situation and unjust results, which cannot be conceived of the intention of social welfare of legislation.
56. The Apex Court has also held that Act, 1972 is a statute enacted basically to protect interest of tenants and the only provision which shows some sympathy to landlord is relating to release on the ground of bona fide need (See Siddalingama v. M. Shenoy 2002 (46) ALR 18.
57. Further I find support in taking the above view that proviso to section 20 to sub-section (4) would apply if building sought to be vacated is residential only from a Single Judge judgment of this Court rendered by Hon''ble N.D. Ojha J. (as His Lordship then was) in Sunil Kumar Mukherji v. Kabiraj Bindu Madho Bhattacharaya and others 1978 (4) ALR 17. The Court observed as under:
"I may here point out that the explanation to the proviso was inserted by section 13 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976: On a perusal of the proviso, I am of opinion that it applies only to a residential building for otherwise the use of the word ''residential'' before the word ''building'' in the proviso will have no meaning. If the intention was to make the proviso applicable to every building the word ''residential'' would not have been used before the word ''building''. It is an established rule of interpretation that no part of an enactment is to be held as surplusage. In the instant case since admittedly the premises in question were not held by the applicant for residential purposes, his having built a residential building within the meaning of the proviso would be of no consequence. The purpose of the proviso is clear and it is that in case the tenant has an alternative accommodation which he can use for the purpose for which he is occupying the building under his tenancy, he should not be given the benefit of sub-section (4). In the instant case, however, since the premises in question were occupied by the applicant admittedly not for residential purpose but for running a press, namely for commercial purpose, his having built a residential building in the year 1958 would not deprive him of the benefit which he was entitled to in view of his having made the deposit as contemplated by sub-section (4)."
58. The view, I have taken hereinabove, has also been taken by this Court recently in Writ Petition (Writ A) No. 17220 of 1999 (Subhash Chandra Purwar v. District Judge, Mahoba and another, decided on 16.8.2012.
59. Therefore, this reason given by Revisional Court in order to deny benefit of section 20(4) is clearly erroneous. To this extent, judgment of Revisional Court is liable to be set aside. Once this finding of Revisional Court is perverse, the question as to whether additional evidences were admissible or not becomes academic and, therefore, not necessary to be gone into further in this writ petition.
60. Questions No. (iv) and (v) in First Petition are answered accordingly, i.e., in favour of the petitioner-tenant.
61. Despite reversal of above finding of Revisional Court, the fact remains that basic reason for denying section 20(4) was non compliance thereof. This ground remains intact as a result whereof it cannot be said that petitioner was entitled for protection under section 20(4) of Act, 1972.
62. Now I come to deal with question No. (vi). It involves applicability of Order XV, Rule 5, C.P.C. This Court finds that during pendency of suit, monthly rent was not deposited regularly in the Trial Court. The argument advanced by learned Counsel for petitioner that deposit made under section 30 ought to have been taken into account for this purpose, cannot be accepted for the reason that such a deposit is liable to be credited till the first date of hearing inasmuch under section 20(4), the amount, if any, deposited under section 30(1) is liable to be given due credit but thereafter the tenant must deposit monthly rent, during continuance of suit, in the Court where suit for eviction and recovery of rent etc. is pending and not under section 30(1) of Act, 1972. Here the issue is covered by a Division Bench judgment of this Court in Haider Abbas v. Additional District Judge and others 2006 (62) ALR 552.
63. Learned Counsel for petitioner has referred to several authorities on the question that counter-affidavit, if evasive and does not deny the contents of writ petition, the contents of writ petition should be treated to be un-controverted and accepted as such. These authorities are Naseem Bano v. State of U.P. and others 1993 (22) ALR 307 (SC), S. Ravindra Singh and another v. 3rd Additional District Judge, Faizabad and others 1994 (12) LCD 820, Nem Chandra Agarwal v. State of U.P. and others 1994 (12) LCD 808, Suresh Chandra Jatav v. Chairman, District Board, Etowah and another 2000 (38) ALR 234 ,
64. In respect of the issue relating to striking off defence under Order XV, Rule 5 again reliance has been placed on Guru Charan Lal v. 3rd Additional District Judge, Farrukhabad and others 1984 (2) ARC 144, Ashma Bibi v. Ahsan Ali and another 1990 (1) ARC 438, Bharat Bhushan Misra v. District Judge, Gonda and others 1990 (1) ARC 537, Dr. Ram Prakash Mishra and another v. 4th Additional District Judge, Etah and another 1999 (35) ALR 346, Vishwanath Singh v. Special Judge (E.C. Act), Varanasi and others 1999 (36) ALR 491, and Mangat Singh v. Satpal 2003 (2) ARC 738 : 2003 (53) ALR 708 (SC), but I do not find that the same have any application to the present case at all.
65. In order to claim benefit under section 20(4) of Act, 1972 and to support the contention, if there is a minor difference of inconsequential amount, the same should not be a basis for denying protection of section 20(4), reliance has been placed on U.P. Co-operative Bank Ltd. v. Rameshwar Havelia 2001 (44) ALR 660, Mam Chand Pal v. Smt. Shanti Agarwal 2002 (47) ALR 1 (SC), Union of India and others v. Judge, Small Cause Court, Allahabad and others 2003 (51) ALR 606, Asghar Ali v. Razzak Hussain and others 2004 (1) ARC 411, Shamsher Khan v. District Judge, Saharanpur and others 2005 (59) ALR 212, and Kailash Wati v. A.D.J., Budaun and others 2005 (60) ALR 699. I find that these authorities also have no application to the facts of the present case. It has not been disclosed anywhere that difference in deposit made in purported compliance of section 20(4) had any inconsequential and minor difference and not substantial. Burden lay upon defendant/tenant to show that he has complied with the requirement of section 20(4) of Act, 1972 since he is claiming benefit thereof and in case he fails, such protection would not be attracted. In the present case, a categorical finding has been recorded by Revisional Court that while depositing amount under section 20(4), tenant has neglected to deposit house-tax and water-tax. It cannot be doubted that it was not the case of defendants that house-tax and water-tax was included in amount of monthly rent. On the contrary, it was admitted that house-tax and water-tax were payable separately, over and above monthly rent of Rs. 60/-. That being so, by virtue of section 7, failure to deposit water-tax for the purpose of claiming benefit under section 20(4) amounts to non-payment of entire amount of rent for the reason that section-7 declares liability of tenant to pay water-tax as part of rent unless a contract otherwise entered into between the two. Water-tax constitute part of rent and non deposit thereof would place the tenant in the category of defaulter as is the view taken by this Court in
66. Before parting one more aspect may be dealt with in the context of first petition. It has been vehemently argued that Trial Court has recorded findings of fact and the same could not have been reversed by Revisional Court as if it was sitting in appeal. The scope of revisional jurisdiction was confined to the question whether judgment of Small Cause Court is "in accordance with law" or not. It is also argued that Revisional Court ought not to have reversed findings of fact on inadmissible evidence. Reliance is placed on Ashok Kumar v. Second Additional District Judge 2005 (58) ALR 264 ,
67. The entire argument, in my view, lacks substance. I do not find re-appreciation of evidence in the light of discussions made above so as to vitiate the judgment and decree of Revisional Court
68. So far as the scope of revisional jurisdiction under section 25 of Small Causes Courts Act, 1887 (hereinafter referred to as the "Act, 1887") is concerned, the same has been considered time and again. It cannot be doubted that the scope of interference of a Revisional Court under section 25 Act, 1887 is whether the decree or order made by Small Cause Court was "according to law" or not. Undoubtedly it is a "supervisory power" and not "appellate power". The Revisional Court can call for record to see whether decree is according to law and, if not, it can pass such order with respect thereto as it may thinks fit.
69. The next question is, the ambit of the words "according to law" occurring in section 25 of Act, 1887.
70. The Apex Court considered the same in Hari Shanker v. Rao Girdhari Lal Choudhary AIR 1963 SC 696, and held that it refers to the decision as a whole and not to be equated to error of law of or of fact simpliciter. It contemplates that entire decision, i.e., the overall decision must be according to law. There should be no miscarriage of justice due to a mistake of law.
71. Some of the instances where the Court can interfere under section 25 are, (1) where the Court has no jurisdiction in the matter; (2) where a party had not been given a proper opportunity of being heard, or that the burden of proof had been misplaced on wrong shoulders; (3) where the Court had based its decision on evidence which should not have been admitted; (4) where there has not been a proper trial according to law; and (5) if on certain facts two views are possible, then a Court exercising jurisdiction under section 25 would not interfere.
72. The observations of
"the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at."
73. In
74. In Ram Narain v. Kanhaiya Lal Vishwakarma 1965 ALJ 989, a Division Bench said that Revisional Court is not empowered under section 25 to look into evidence of case and decide whether the finding of fact arrived at by Court below is justified by evidence on record or not.
75. The language of section 25 is different than the Revisional Court''s powers conferred on Civil Court under section 115, C.P.C.
76. Act, 1887 constitute Small Cause Courts not of exclusive but preferential and limited jurisdiction. The class of suits not cognizable by small causes is listed in the schedule appended to Act, 1887. The provisions of Civil Procedure Code inapplicable to Small Cause Court are provided in section 7 of C.P.C. By section 40 of Bengal, Agra and Assam Civil Courts Act, 1887 certain provisions thereof, i.e., sections 15, 32, 37, 38 and 39 have been applied to Small Cause Courts. Vide section 7, applicability of sections 96, 112 and 115, C.P.C. is made inapplicable to Small Causes Court, meaning thereby its judgment is made non-appealable. The Trial in Small Cause Court is summary and its decision is final subject to revision under section 25 only. It is in these circumstances, one has to make a distinction between power of Revisional Court under section 25 and other appellate and revisional powers under C.P.C. or other provisions of procedural statutes.
77. The circumstances where Revisional Court to find out whether decision of Small Cause Court is in accordance with law, may look into the facts without assessment have been explained in para 19 and 20 of judgment of Division Bench in Laxmi Kishore and another v. Har Prasad Shukla 1981 ARC 545, and it says:
"19. If it finds that there is no evidence to sustain a finding on a particular issue of fact, it can ignore that finding. Same will be the case where the finding is based only on admissible evidence. In such case, the Court will be justified in deciding the question of fact itself, because the evidence is all one way. No assessment is needed. The Court can also decide the revision if only a question of law or some preliminary point of law, viz. validity of notice, is sufficient for its decision.
20. But, if it finds that a particular finding of fact is vitiated by an error of law, it has power to pass such order, as the justice of the case requires; but it has no jurisdiction to reassess or reappraise the evidence in order to determine as issue of fact for itself. If it cannot dispose of the case adequately without a finding on a particular issue of fact, it should send the case back after laying down proper guidelines. It cannot enter into the evidence, asses it and determine an issue of fact."
78. The bar, in effect, is with respect to reassessment of evidence and substitute its conclusion of fact but not where relevant evidence has not been considered or finding is based on inadmissible evidence or finding is without any evidence etc. In Dr. D. Sankaranarayanan v. Punjab National Bank 1995 Supp. (4) SCC 675 , the Apex Court reiterate that reassessment of evidence is not permissible to substitute its own inference but not where the decision is not in accordance with law. If the Revisional Court does not agree with finding, that by itself cannot be a ground since it is within the realm of assessment of evidence. This is what has been observed by Apex Court in
79. Recently, scope of Revisional Court has been considered by Constitution Bench in
"43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on re-appreciation of the evidence, its view is different from the Court/Authority below." The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to re-appreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a Court of first appeal. Where the High Court is required to be satisfied that the decision is according law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity."
(Emphasis added)
80. Recently this Court has also taken a similar view in Writ Petition (Writ-A) No. 44810 of 2006, Gopal Kumar Singhal v. Sumat Prasad Jain, decided on 4.12.2014.
81. As I have already discussed that Trial Court on various aspects has not| recorded its finding in accordance with law. The view taken by it, on the contrary, not only is in the teeth of law, but, even otherwise, perverse and contrary to record. In these circumstances, Revisional Court having reversed such findings of Trial Court, which are not in accordance with law, in my view, cannot be said to have exceeded its jurisdiction.
82. Then a meek attempt was made to suggest that there was no default since rent was remitted by money order but acceptance was refused by landlord, hence it cannot be said that there was any default on the part of the tenant. In this regard, reliance was placed on Mst. Indrasani v. Din Ali 1968 AWR 167 (FB), and Gokaran Singh v. 1st Additional District and Sessions Judge, Hardoi and others 2000 (40) ALR 405.
83. In this case, a categorical finding has been recorded that remittance of money order and refusal by landlord was not proved and this finding had not been shown to be perverse, therefore, these authorities do not help the petitioner.
84. In view of the above discussion, the ultimate inference apparent is that First Petition has no merit and deserves to be dismissed.
85. Now, I come to Second Petition. Herein the release application of landlord has been allowed by Prescribed Authority and appeal there against has been rejected by Appellate Court. On the question of bona fide and genuineness of personal need, both the Courts below have recorded concurrent findings in favour of landlord. Though learned Counsel for petitioner initially sought to endeavour to workout error on the part of Courts below in recording the aforesaid findings but finding it difficult, he confined his submission to the question of comparative hardship.
86. It is contended that a lot of material has been placed on record by means of various affidavits to show that several accommodations were available to landlord being alternative accommodation wherein he could have settled and accommodated his sons for business purposes. In this regard, learned Counsel for petitioner drew my attention to the following:
(i) In the supplementary affidavit dated 16.12.2009, it is said that respondent No. 1 Radhey Shyam had taken shop No. 126/1, Sarrafa Bazar, Jhansi from Smt. Brij Kishori wife of Baikunth Nath on permanent lease and is in possession thereof. He has kept the shop locked. Area of shop is 75 Sq. ft., with dimension of 5'' ft. x 15'' ft.
(ii) Respondent No. 1, vide sale-deed dated 12.9.1986 executed by Smt. Brij Kishori, purchased shop No. 127/1, area 214.10 sq. ft., Sarrafa Bazar, Jhansi in the name of his wife Smt. Pista Devi. Respondent No. 1 is running business in the said shop. The name of firm is "Mannu Lal Sarraf". Mannu Lal is father of respondent No. 1. The shop is being run by respondent No. 1 alongwith one Pawan Kumar and situated at a distance of about 20 metres from the shop in dispute.
(iii) Shop No. 105/12 has been purchased in the name of Smt. Jyoti Agrawal, wife of Kaushal Kishore, (son of respondent) vide sale-deed dated 29.4.2008 executed by one Sunil Kumar. This shop is also in Sarrafa Bazar and its area is 14 Sq. Metres.
(iv) In Annexure-1 to the supplementary affidavit dated 11.7.2006, petitioner has stated that in House Nos. 170 and 171, Mohalla Chaudhariyana, Jhansi, some new shops have been constructed and this house belongs to respondent-landlord. Besides, there are new shops constructed in house No. 051, Jawahar Chowk, 88 and 89, Sarrafa Bazar, Jhansi also belong to respondent No. 1 - landlord. He had also purchased house No. 120, Mohalla Chandra Shekhar Azad, Jhansi, in which there are four shops. He sold the upper portion of the shops in Sarrafa Bazar, Jhansi and the house and shop in Mohalla Chandra Shekhar Azad, Jhansi in October, 2001.
87. It is thus contended that while considering question of comparative hardship, the Courts below have not looked into the matter with due application of mind. The aforesaid facts have been disputed by landlord except that House No. 86 (new No. 120), Mohalla Chandra Shekhar Azad, Jhansi, is a residential colony where there is no Sarrafa market. In the aforesaid house, four rooms are in the shape of shops in which two are already under tenancy and two are lying vacant. The tenant, if so desires, may have one of the two shops.
88. Controverting the submission of petitioner tenant, Sri Arvind Srivastava learned Counsel for respondent-landlord stated that a lot of accommodation is available with petitioner himself as under:
(i) Premises No. 105/13, Sarraffa Bazar, Jhansi was purchased in the name of Sudha Devi Agrawal, wife of Ramesh Chandra Agrawal, Vivek Kumar Agrawal and Vishal Kumar Agrawal, Sons of Ramesh Chandra Agrawal.
(ii) Shop at 101, Dixit Bagh, Sarrafa Bazar, Jhansi, where business in the name of "Mayank Jewellers" is being run by the tenants.
(iii) Shop No. 120, is jointly being run by petitioner Suresh Chandra and his brother Mahesh Chandra.
(iv) Shop No. 116/5, Dixit Bagh, Sarrafa Bazar, Jhansi, is in the name of sons of Ramesh Chandra and Mahesh Chandra.
(v) Shop No. 30, Sarrafa Bazar, was purchased in the name of Siddha Vinayak Infra Pvt. Ltd., a private limited company, wherein Ramesh Chandra Agrawal, brother of petitioner is Director.
(vi) 146, Sarrafa Bazar was also purchased in the name of Siddhi Vinayak and one of the Director of the said Company is Vineet Agrawal Son of Ramesh Chandra Agrawal.
89. It is said that petitioner is jointly and severally doing business at different places. He has inherited tenancy of the shop in question from his father. Once joint tenants have several business premises, it cannot be said that they have no accommodation whatsoever and therefore, Court below has rightly decided the question of comparative hardship in favour of the landlord.
90. With respect to various premises, alleged to be in possession and owned by respondent No. 1-landlord, Counsel for respondent-landlord drew my attention to his affidavit dated 24.11.1998 and 21.7.1998 (Annexure-5 and 11 to the writ petition). He pointed out that in respect of various premises, he has already submitted a detailed reply denying the same. He drew my attention, in particular to paragraphs No. 14, 21, 32, 25 and 22 of the affidavit dated 21.7.1997 (Annexure-5 to the writ petition), and paragraphs No. 4, 5, 14, 17, 19, 31, 20 and 16 of affidavit dated 24.11.1998 (Annexure-11 to writ petition). He also drew my attention to the findings recorded by Lower Appellate Court in this regard. In respect of various premises, the relevant extract of the order of Court below is as under:
"It was argued by learned Counsel for the landlord that landlord has no vacant shop, wherein his son Pawan may carry on business of Sarrafa independently. Therefore, his need for disputed shop is real and bona fide." (English translation by Court)
"House No. 170 situate in Mohalla Chaudharyana is a residential house and there is no shop therein. In House No. 171 situated in Mohalla Chaudharyana, Jhansi, 4 shops are constructed from east to west and all the aforesaid shops are let out on rent." (English translation by Court)
"As per Amin''s report, shopkeepers told that they pay rent of the shop to Narendra Kumar Agarwal, resident of house No. 171, Chaudharyana. According to learned Counsel for the appellants, house No. 171 and the aforesaid shops are in joint possession of landlord and his brother Narendra Kumar, whereas, according to learned Counsel for landlord, partition has taken place between the two brothers." (English translation by Court)
"According to report of Amin, property No. 99 situate in Sarrafa Bazar is in the state of ruins and on account of debris lying there, measurement could not take place." (English translation by Court)
(Emphasis added)
"As per Amirt''s report, passage to go in the house on the first floor above shops No. 88/1, 88/2 and 88/3, is through stairs constructed adjoining the western wall towards shops and south of the room constructed on ground floor, also passing through inside shop No. 88/3. Shop No. 88/1, is being run in the name of "Lucky Jewellers" and shop No. 88/3 in the name of "Vibha Jewellers" and in the upper floor two unusable rooms are constructed, wherein old goods are kept. According to learned Counsel for appellants, shops No. 88/1 and 88/3 are in possession of landlord and the landlord may settle his sons therein in Sarrafa business. It was argued by learned Counsel for the appellants that shop No. 88/1 is in possession of Narendra Kumar and shop No. 88/3 is in possession of Kamlesh Chand, who are running the shop in the name and style of Lucky Jewellers and Vibha Jewellers. None of the aforesaid shops is vacant, as is evident from the boundary of the disputed shop given in the plaint and that has not been denied by the appellants in their written statement. Therefore, on this point, the appellants are not entitled to argue that the aforesaid shops are vacant. Plaint and written statement have been perused by me. There is force in the argument advanced by learned Counsel for landlord. In his plaint, the landlord has attributed shop No. 88/1 to Narendra Kumar and 88/3 to Kamlesh Chand, and this fact has not been controverted by the defendant in their written statement. Therefore, it is clear that the aforesaid two shops are also not vacant." (English translation by Court)
(Emphasis added)
"Shops or shops like rooms situated in Mohalla Chandra Shekhar Azad, according to appellants, are not suitable for doing business of Saraffa by appellants." (English translation by Court)
(Emphasis added)
"With regard to this fact, there is no serious dispute between the parties and on the record also there is no evidence indicting that the appellants had ever endeavoured for alternative arrangement." (English translation by Court)
(Emphasis added)
"There is no dispute on the fact that shop No. 120 in Sarrafa Bazar itself has been given to Mahesh Chandra one of the appellants. As per Amin''s report shops map is map No. 7, which is available on record. It has been reported by Amin that this shop measures 18.9" x 6''3" and there are three entrance doors. In all the three entrance doors shutter is fitted and its owner of the said shop is Mahesh Chandra (appellants) and in this shop sarrafa business is run. In this case there is no serious dispute between the parties that the aforesaid shop No. 120, Mohalla Sarrafa Bazar has been obtained by appellants during pendency of the present matter. In my view, if another shop is available to one of joint tenants, in that case the shop shall be deemed to be available to all the joint tenants." (English translation by Court)
(Emphasis added)
91. Considering the aforesaid findings of the Court below in respect whereto except repetition, I do not find anything in the petition to show that these findings are perverse or there is any misreading etc. Therefore, in the entirety of facts and circumstances, I am clearly of the view that being concurrent findings of fact, the same do not warrant interference by this Court in writ jurisdiction under Article 226 of the Constitution, particularly when it is evident that the scope of judicial review in writ jurisdiction under Article 226 or supervisory jurisdiction under Article 227 of the Constitution of India is very narrow. It is not to correct the errors in the orders of the Court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority.
92. This power involves a duty on the High Court to keep the Inferior Courts and Tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes.
93. In D.N. Banerji v. P.R. Mukherjee 1953 SC 58, the Court said:
"Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under Articles 226 and 227 of the Constitution to interfere."
94. A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in
"This power of superintendence conferred by article 227 is, as pointed out by
95. In
96. For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. (See :
97. It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See :
98. Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See :
99. In
100. In
101. In
102. In
103. Similar view has been reiterated in
104. In the result the Second Petition also fails and deserves to be dismissed.
105. Consequent upon the discussion made above, the fate of both the writ petitions is clear. They lack merit and hence are accordingly dismissed. Costs made easy.
