Milan Rani Devi (Bhattacharjee) vs Sushil Roy and Another

J.N. Sarma, J.—We have heard Mr. K.N. Bhattacharjee, learned senior counsel for the Appellant and Mr. A.M. Lodh, learned senior counsel for the Respondents.

Learned Advocate for the Appellant places reliance on the following two decisions, (i) Ubaiba Vs. Damodaran, Ubaiba, Appellant v. Damodaran, Respondent and (ii) Rukmini Amma Saradamma Vs. Kallyani Sulochana and others, RukminiAmma Saradamma, Appellant v. Kallyani Sulochana and others. Respondents, where the Supreme Court was considering Section 20 of the Kerala Rent Control Act, which is in parameteria with Section 22 of the Tripura Buildings (Lease and Rent Control) Act, 1975. The Supreme Court in that case in paragraph 21 pointed out as follows :-

"21. We are afraid this approach of the High Court is wrong. Even the wider language of S.20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner''s report (Exts. C1 and C2 Mahazar). In our considered view, the High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word "propriety" it cannot mean that there could be a reappreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a reappreciation of evidence ; on the contrary, be confining itself to legality, regularity and propriety of the order impugned before it. Therefore, we are unable to agree with the reasoning of the High Court with reference to the exercise of revisional jurisdiction."

To the same effect is the decision reported in Ubaiba Vs. Damodaran, the Supreme Court in paragraph 3 pointed out as follows :-

"3. Mr. K. Sukumaran, the learned senior counsel appearing for the appellant contended that however wide the jurisdiction of the revisional court under the Act in question may be, but it cannot have jurisdiction to reappreciate the evidence and substitute its own finding upsetting the finding arrived at by the appellate authority and therefore the impugned order of the High Court is unsustainable in law. In support of this contention reliance has been placed on decision of this Court in the case of Rukmini Amma Saradamma v. Kallyani Sulochana whereunder the salfsame provision of the Kerala Act was under consideration. This Court after noticing the word "Propriety" used in Section 20 came to the conclusion that the approach of the High Court was totally wrong and even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise the distinction between appellate and revisional jurisdiction will get obliterated. The Court also further observed "even by the presence of the word propriety'' it cannot mean that there could be any reappreciation of evidence." The learned counsel for the respondent on the other hand contended that the aforesaid decision will have no application to the case in hand where the dispute involved relates to a jurisdictional fact and according to the learned counsel where the dispute is in relation to a jurisdictional fact there should not be any fetter on the power of the revisional court even to reapreciate the evidence and comment to its own conclusion, On being asked to support the aforesaid proposition no authority could be placed though on first principle learned counsel for the respondent argued as aforesaid. Having examined the rival submission and having gone through the decision of this Court referred to earlier we are of the considered opinion that though the revisional power under the Rent Act may be wider that Section 115 of the CPC it cannot be equated even with the second appellate power conferred on the civil court under the Code of Civil Procedure. Notwithstanding the use of the expression "Propriety" in Section 20, the revisional court therefore will not be entitled to reapreciate the evidence and substitute its own conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of the High Court in the light of the aforesaid ratio of this Court it is crystal clear that the High Court exceeded its jurisdiction by reappreciating the evidence and in coming to the conclusion the the relationship of landlord-tenant did not exist. In the circumstances, the impugned revisional order of the High Court is wholly unsustainable and we set aside the same and the order of the appellate authority is affirmed. The Controller would now determine the quantum of rent, as directed by the appellate authority. The appeal is accordingly allowed. No costs."

On the basis of this authority, it is urged by Shri Bhattacharjee, learned counsel that the order dated 29.6.1994/30.6.1994 in Civil Revision No. 1 of 1994 is not correct and proper. A bare reading of the order shows that no doubt the learned District Judge took into account certain extraneous things and went tangetically in diciding the matter, the learned District Judge unnecessarily introduced certain things which are not in evidence, that is, an Advocate may have his Chamber at his residence or at a commercial place or near the Court, these are the things which are to be decided by the person concerned. Yet in exercise of our writ appellate jurisdiction, we are not inclined to set aside the basic finding of fact arrived at by the revisional court. The basic finding of fact is that the requirement of the landlord was not established, Particularly in view of the fact that after the institution of the suit one room fall vacant and this room was given on rent by the landlord. In a rent control proceeding the Court always can take into consideration the subsequent development and that was rightly taken into consideration and it has been brought to the notice of the court in a proper manner. The grievance of Shri Bhattacharjee is that there is no pleading with regard to this and as such this matter may not be taken into consideration as pointed out above. It is subsequent development and the Rent Control Act can take into consideration and it is the decision of the Apex Court.

On the other hand, the learned counsel for the appellant places reliance on Vinod Kumar Arora Vs. Surjit Kaur, That is absolutely a different cases. There was variance between the pleadings and the proof. The case which was set up that was not pursued at the time of evidence and it was it that context the Supreme Court pointed out, inter alia, as follows :-

"***** the pleadings of the parties form the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case.

*****

To the same effect, the learned counsel for the appellant also places reliance on S.S. Sharma and Others Vs. Union of India (UOI) and Others,

In that view of the matter, we feel that there is no merit in this appeal. But before we part with this record in order to strike a balance between the parties and relying on Apex Court Dicision, we feel that it would be just and proper to increase the rent. The present rent is Rs. 60 only per month for as area of roughly 140 Square foot situated at a commercial place at Agartala. The Supreme Court In that case in para 11 increased the rent. This Rs. 60 is being since 1982 and during this 18 years there must be a substantial increase and it would be fair and just to increases the rent reasonably. Accordingly. We fix the rent at Rs. 1,200 per month from September, 2000. That will be the rent between the parties. If the parties are aggrieved by it they may go on for fixation for fair rent and that is provided in Section 8 of the Tripura Buildings (Lease and Rent Control) Act, 1975. The arrear, if any, shall be paid at the earlier rate. If the rent has been deposited that may be withdrawn.

With this observations this appeal shall stand disposed of.