Dulari Devi Mittal and Others vs Rent Appellate Tribunal and Others

M.N. Bhandari, J.�This writ petition is filed against the order dated 26th July, 2011 passed by the Rent Tribunal, Jaipur and order dated 11th September, 2013 passed by Appellate Rent Tribunal.

The respondent-landlord preferred an application for eviction on the ground of personal bonafide necessity. The application for eviction was allowed by the Rent Tribunal. It was then challenged by the petitioner by an appeal but was dismissed.

The petitioner, present in person, submit that an application for eviction from rented premises was preferred by the respondent - landlord on the ground of personal bonafide necessity. It was alleged that he has no residential house for himself, thus living in the rented premises. For the business also, same reason was given. He was asked about transfer of flat of Housing Board in his name. He had shown ignorance and when confronted to the order dated 25th March, 2009 for the flat, again shown his ignorance about transfer of flat. Thereafter PW - 1 admitted that flat has been transferred by the Housing Board and is in possession of the landlord. In view of above, not only the respondent landlord did not approach the Rent Tribunal with clean hands but he even tried to make incorrect and false statements and despite availability of alternative suitable residential accommodation, the application for eviction was filed. The flat No. 4/750 is in Jawahar Nagar, Jaipur and sufficient to meet the requirement of respondent No. 3 but ignoring the aforesaid and even the contradiction in the statements, the Appellant Rent Tribunal dismissed the appeal preferred by the petitioner.

It was admitted by the respondent - landlord that he is residing in the rented premises where no notice has been given to vacate the premises. The said house is consist of four rooms, one kitchen and two toilets, etc. When the respondent-landlord is residing peacefully in the rented premises, it cannot be said to be a case of personal bonafide necessity, however, realizing the anxiety of the landlord, the petitioner had even volunteered to allow construction on the first floor of the rented premises but it was also ignored by the Rent Tribunal as well as Rent Appellate Tribunal.

It is also urged that after filing of the application for eviction and order thereupon, an appeal was preferred by the petitioner. The Rent Appellate Tribunal remanded the case vide order dated 27th November, 2007 but the Rent Tribunal without considering the case in a proper manner, again decreed the application for eviction vide its order dated 26th July, 2011. On an appeal again, the Tribunal framed as many as five issues and in view of the aforesaid, case should have been remanded back to the trial Court for decision afresh but instead of doing it, those issues were decided by the Rent Appellate Tribunal itself. In view of the aforesaid, the impugned order passed by the Rent Tribunal as well as Rent Appellate Tribunal deserve to the set aside.

The respondent - landlord, on the other hand, supported the impugned order and submits that all the issues raised by the petitioners herein were considered and decided by the Tribunal. It is a case of concurrent finding by two Courts below, thus interference in those orders while exercising jurisdiction under Article 226 of the Constitution of India is quite limited. The High Court does not sit as a court of appeal against those orders and if the grounds of challenge to the orders is looked into, it is basically against the finding of facts. The petitioners have shown contradiction in the statements by reading affidavit and cross examination in part and not in totality. It is settled law that whenever evidence to be relied, it should be looked into in its totality and not in part because reference of part of evidence may give different interpretations, thus it has to be drawn after reading entire evidence. If the entire evidence is considered, no contradiction would be found. The petitioners have made a reference of the flat allotted by the Housing Board without narrating the fact that as to what is size of flat and how many rooms exist therein. The learned Rent Appellate Tribunal had taken into consideration the fact that flat is consist of one room only whereas the respondent - landlord is having two son and out of which, one has already married and other is at the marriageable age. One room cannot be sufficient for the family, rather they need sufficient accommodation to accommodate the family. The Tribunal has meticulously considered each aspect of the matter before recording its finding.

It is further stated that Rent Appellate Tribunal had taken into consideration each plea raised by the petitioners and therefore framed even new issues. It is not necessary that on framing of new issues, the matter has to be remanded back to the subordinate Court. As per the provisions of CPC, the Appellate Court can decide the new issues and in its discretion, can also remand it. Looking to the facts aforesaid, the writ petition deserves to be dismissed.

I have considered the rival submissions made by the parties and perused the record.

It is a case where concurrent finding of facts has been recorded by the Rent Tribunal as well as Rent Appellate Tribunal. In view of above, the scope of interference by this Court while exercising jurisdiction under Article 226 of Constitution of India is quite narrow. It has been held by the Hon''ble Apex Court in the case of Sadhana Lodh Vs. National Insurance Company Ltd. and Another, that High Court while exercising writ jurisdiction should not decide the matter as an appellate court. Para Nos. 7 and 8 of the aforesaid judgment is quoted hereunder for ready reference:

"7. The supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.

For the aforesaid reasons, we are of the view that since the insurer has a remedy by filing an appeal before the High Court, the High Court ought not to have entertained the petition under Article 226/227 of the Constitution and for that reason, the judgment and order under challenge deserves to be set aside. We, accordingly, set aside the judgment and order under appeal. The appeal is allowed. There shall be no order as to costs. However, it would be open to the insurer to file an appeal if it is permissible under the law."

In view of the judgment supra, this case is required to be considered by the Court. The finding of facts so recorded after marshaling the evidence can be interfered only in the circumstances referred in the judgment supra. The petitioners have come with the case of contradiction in the evidence but I find that not only on remand of case but subsequent framing of issues by the Rent Appellate Tribunal, entire matter was examined after thorough discussion of the issues. The respondent - landlord is having a flat in Jawahar Nagar but accommodation is not sufficient to meet requirement of the family.

It has come on record that respondent-landlord is having two son, out of which, one is married and other is at the marriageable age, thus one room flat was not found to be sufficient for family.

During the course of arguments, respondent offered flat at Jawahar Nagar on rent but petitioners did not agree for it.

In the background aforesaid, I do not find any reason to interfere in the finding of facts recorded by the Tribunals below. The plea raised by the petitioners for construction on the first story was also taken consideration by the Rent Appellate Tribunal. A tenant cannot ask or direct the landlord to manage his/her/their affairs in the manner, he/she directs. The respondent-landlord is residing in the rented premises despite his own property. Taking into consideration the requirement of the respondent-landlord, the case for personal bonafide necessity was found and accordingly, application for eviction was allowed.

In view of above, I do not find any error in the impugned orders.

So far as the other plea regarding new issues and as a consequence thereof to remand the matter to the lower Court is concerned, the provision of CPC does not mandate that as and when new issues are framed, it should be remanded for adjudication by the trial Court. The provisions gives discretion to the Court to remand the matter or to adjudicate it by the Appellate Court. The Rent Appellate Tribunal was having jurisdiction to adopt any of the procedure. In the instant case, the Rent Appellate Tribunal itself decided the issue/s and it is cannot be said to be illegal.

In view of above, I do not find any merit in the writ petition, hence, it is dismissed so as the stay application.