Dayaluram vs Rajendra Kumar Sharma

B.S. Verma, J.—Learned Counsel for both the parties are ready to argue the writ petition finally at the admission stage.

By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the order dated 22-9-2008 passed by the Civil Judge (Senior Division) Haridwar in S.C.C. Suit No. 2 of 1998 and the order dated 8-10-2009 passed by the District Judge Haridwar in Revision No. 28 of 2008 Dayalu Ram v. Rajendra Kumar Sharma (Annexure No. 5 and 7 to the petition respectively. By the order dated 22-9-2008, the suit of the plaintiff-respondent for recovery of arrears of rent and for ejectment was decreed against the petitioner on the ground of material alteration and subletting as mentioned in the order. By the order dated 8-10-2009, the revision filed by the petitioner was dismissed and the decree was modified only to the extent that the defendant shall pay rent @ Rs. 50/- per month from 5-9-198 till the till date of delivery of possession to the plaintiff-respondent.

Briefly stated the facts giving rise to the present writ petition are that the respondent-plaintiff filed S.C.C. Suit No. 2 of 1998 against the petitioner Dayalu Ram for recovery of arrears of rent as well as on the ground of material alteration and subletting. It has been alleged by the plaintiff-respondent that he is the owner of the disputed building and the defendant was the tenant in the disputed accommodation @ Rs. 50/- per month and he was liable to pay the water tax and house tax @ 17.5% in addition to the rent. According to the plaintiff, the defendant-petitioner defaulted in payment of rent and taxes from 1-10-1997. The petitioner had made material alterations in the disputed accommodation and also sublet the accommodation to a third person.

The suit was contested by the opposite party-petitioner by filing his written statement. He has only admitted tenancy of the applicant-landlord on monthly rent of Rs. 50/- but has denied his liability to pay the water tax and house tax. It has been alleged that the tenant was in arrears of rent only with effect from 1-10-1997. In additional pleas, the petitioner has asserted that the accommodation was not sublet by him. He has sent the demanded rent under the notice along with other charges through money order on 2-1-1998 within time, which was refused by the respondent-applicant. It has also been asserted that the tenant has deposited the entire outstanding dues along with other charges on the first date of hearing, therefore, the petitioner is entitled to get benefit of Section 20(4) of the U.P. Act No. 13 of 1972.

On the basis of pleadings, the learned Judge, S.C.C. (for short JSCC) framed as many as 12 points for determination in the case. Both the parties led documentary as well as oral evidence in support of their case. Learned J.S.C.C. heard them and ultimately after perusing the evidence, the J.S.C.C. came to the conclusion that the petitioner-defendant made material alterations in the accommodation, while permission was given only for plaster and flooring. Learned J.S.C.C. has categorically held on the basis of Amin''s report and evidence of the parties that the petitioner constructed new wall and enclosed whole Verandah, took out the windows from the walls and also reduced the width of the wall.

On the point of subletting, the learned J.S.C.C. on the basis of evidence on record has also held that the accommodation in question has been let out to some other person. According to the petitioner, he is living in the disputed accommodation himself. The plaintiff-respondent has specifically pleaded in paragraph No. 5 that the defendant-petitioner had taken on rent a house comprising two rooms at Nanak Bada, Vishnu Ghat Haridwar and the disputed accommodation has been sublet to one Raj Kumar alias Raju. The plaintiff-respondent filed copy of assessment of municipal board pertaining to the house at Nanak Bara before the J.S.C.C.

So far as sub-tenant Raju is concerned, no specific denial has been made in the written statement filed in reply of contents of paragraph No. 5 of the plaint that the defendant-petitioner has not let out the accommodation in question to Raju.

After discussing the evidence led by both the parties elaborately, the learned J.S.C.C. came to the conclusion that the defendant has not defaulted in payment of rent but has made material alteration in the accommodation and has sublet the same. Accordingly, the J.S.S.C. decreed the suit by his judgment dated 22-9-2008.

Aggrieved by the said decree, the petitioner-defendant preferred a revision bearing S.C.C. Revision No. 28 of 2008, Dayalu Ram v. Rajendra Kumar Sharma before the District Judge, Haridwar. The revisional court after perusal of the impugned judgment as well as after scrutinizing the evidence of the parties, dismissed the revision u/s 25 of the Small Cause Courts Act and affirmed the findings recorded by the J.S.C.C.

I have heard learned Counsel for the parties and perused the material placed before this Court.

At the outset it may be mentioned that the scope of writ jurisdiction under Articles 226 and 227 is limited. This Court in exercise of writ jurisdiction cannot sit like a court of appeal and cannot re-appreciate or reevaluate the evidence so as to arrive at a different conclusion. Only perversity in the impugned order can be seen to find out whether there is a case of mis-reading of evidence by the courts concerned. It has been observed by the Apex Court in the case of Surya Dev Rai Vs. Ram Chander Rai and Others, that "On the other hand, supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does not have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction." In the case Ranjeet Singh Vs. Ravi Prakash, page 682, the Apex Court has observed inter alia in paragraph 4 of the judgment that "An error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal."

Learned Counsel for the petitioner has contended that there is no mention of the name of the subtenant in the notice whereby the tenancy of the defendant-petitioner has been determined. He has submitted that the sub-tenancy or subletting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part. Learned Counsel for the petitioner has placed reliance upon the case of Bharat Sales Ltd. v. Life Insurance Corporation of India 1998(2) CCC 92 (SC), wherein the Apex Court has observed that sub-tenancy or subletting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof.

In reply to the contention raised by the learned Counsel for the petitioner, the learned Counsel appearing for the respondent Mr. Lok Pal Singh has drawn the attention of the Court to the copies of statements of witnesses examined before the learned J.S.C.C, filed along with supplementary. In his examination in chief, P.W.2 Daulat Ram Sharma has specifically stated that the tenement in question was sublet by the defendant-petitioner to one Raju. On behalf of the defendant-petitioner no cross-examination was made to this witness that there is no sub-tenant is living in the tenement in question.

Learned Counsel for the respondent further contended that the plaintiff in his statement as P.W.1 has stated that the defendant has sublet the accommodation to one Mohit Sharma. The defendant has not controverted that Mohit Sharma is not living as sub-tenant in the tenement in question.

The ratio of the case of Bharat Sales (supra) relied upon by the learned Counsel for the petitioner cannot be denied. But the facts of the case at hand are quite distinct. The case-law does not help the petitioner.

Learned J.S.C.C. in his judgment has held that it makes no difference either Raju is living in the tenement in question or Mohit Sharma is living as subtenant. Learned J.S.C.C. has categorically held that the tenement in question was let out by the defendant. On the basis of the evidence, it has also been held that the defendant is living in the house of Obrai at Hathikhana. It has also been held that the defendant is recorded as tenant at the rate of Rs. 60/- per month at Nanak Bada in the assessment of Nagar Palika.

So far as the question of material alteration in the accommodation is concerned, the learned J.S.C. as well as the revisional court has specifically held that material alteration was made by the defendant-petitioner by enclosing the Verandah by raising new walls and by taking out the windows from the walls for which no such permission was given to the defendant-petitioner to do such act.

Both these finding, regarding the subletting of tenement in question and that of material alteration therein are sufficient to pass order of eviction of the defendant-petitioner from the disputed premises and these findings being finding of fact cannot be examined by the writ court.

In the course of arguments, learned Counsel for the defendant-petitioner Sri Narendra Bali, Advocate, has lastly urged that the petitioner may be granted one year''s time to vacate the disputed premises and the petitioner is ready to vacate the disputed premises.

For the reasons and discussion above, I am of the considered view that the impugned judgment and decree passed by the learned J.S.C.C. and there is no illegality or perversity in the impugned orders passed by the two courts below, therefore, the writ petition preferred by the defendant-petitioner being devoid of merit is liable to be dismissed on merits. However, considering the submission of the learned Counsel for the petitioner for time to vacate the disputed premises, it would be in the interest of justice that eight months'' time is granted to the petitioner to vacate the disputed premises and deliver peaceful possession thereof to the plaintiff-respondent.

Accordingly, the writ petition is dismissed on merits. However, the defendant-petitioner is granted eight months'' time from today to vacate the disputed premises and to deliver its peaceful possession to the plaintiff-landlord, provided the petitioner furnishes a written undertaking before the learned J.S.C.C. to that effect within a period of four weeks from today. It further provided that the defendant shall deposit the entire outstanding amount of rent and damages, if any, as per order of the revisional court dated 8-10-2009 within the said period of four weeks and shall continue to deposit the monthly rent/damages regularly by the 7th of next month for previous month till the disputed premises is actually vacated by the petitioner. Payments, if any, made by the petitioner shall be adjustable. Costs easy.