Mrs. Renu Dhir vs Smt. Gurcharanjit Kaur Walia

V.S. Aggarwal, J.—The present revision petition is directed against the order of the learned Rent Controller, Jalandhar, dated 24.1.1997 and that of the Appellate Authority, Jalandhar, dated 15.9.1998. The learned Rent Controller, had allowed the eviction application filed by respondent Smt. Gurcharanjit Kaur Walia and passed an order of eviction against the petitioner Smt. Renu Dhir. The appeal filed by the petitioner was dismissed. Hence, the present revision petition.

2 The relevant facts are that respondent filed an application for eviction alleging that the petitioner is a tenant in the suit premises at a monthly rent of Rs. 1400/-. An agreement was executed on 29.3.1989. It was agreed between the parties that the petitioner will deduct Rs. 500/- per month from the total rent of Rs. 1400/- to adjust the advance amount of Rs. 15,000/- paid by the petitioner. After three years, the petitioner was to hand over the vacant possession of the property to the respondent. If the petitioner does not do so, then she will pay Rs. 100/- per day for use and occupation of the property. Eviction was sought on the ground of non-payment of rent. It was contended that Rs. 27,500/- is due upto 31.3.1992 after deducting the amount of Rs. 10,500/- and from 1.4.1992 at the rate of Rs. 3000/- per mensum. The other ground of eviction taken up was that the respondent bona fide required the demised premises for her own use.

In the written statement filed, the petitioner contested the application. It was asserted that there was no relationship of landlady and tenant between the parties, therefore, the Rent Controller had no jurisdiction to proceed with the eviction application According to the petitioner, subsequently respondent, had asked for more advance of Rs. 35,000/- from her husband. Another document was executed. The husband of the petitioner was taken as a tenant. Tenancy was created in his favour from 1.5.1989. Thus, it was contended that the petition as such was not maintainable and in any case the arrears were not due as claimed.

The learned Rent Controller framed the issue and recorded the evidence. It was held that there is a relationship of landlady and tenant between the parties. It was further concluded that the respondent bona fide required the property and accordingly an order of eviction was passed. In appeal, the learned Appellate Authority approved the findings of the Rent Controller. There were certain circumstances noted by the learned Appellate Authority while approving the findings of the learned Rent Controller. It was held that first tenancy was created on 29.3.1989 vide agreement Exhibit A1. The tenancy had never been terminated. The petitioner had not vacated the property and thus her husband could not become the tenant. It was further concluded that the first tenancy was to be for a period of three years and was to last uptil 31.3.1992. It looks suspicious that on 1.5.1989 the respondent created a fresh tenancy in favour of the husband of the petitioner. It was also recorded that the subsequent agreement dated 1.5.1989, Exhibit RW2/A, was written on a stamp paper which had been purchased by the respondent for writing an affidavit. The stamp vendor did not know the respondent and, therefore, it was a suspicious document. It has further been recorded as an additional ground that it is not established that no sane person would execute a subsequent agreement negativing the earlier agreement. The Appellate Authority went on to record that agreement Exhibit RW2/A dated 1.5.1989 is coming from the custody of the petitioner and not from the respondent and, thus, could be forged. The handwriting expert of the petitioner was disbelieved and it was held that the agreement was not filed with the written statement which is stated to be creating right in favour of the husband of the petitioner.

At the time of arguments, on behalf of the respondent, preliminary objection was raised and vehemently urged that there are concurrent findings of fact and, therefore, under Sub-Section (5) to Section 15 of the East Punjab Urban Rent Restriction Act, 1949, the High Court will not interfere in the said concurrent findings of fact that had been arrived at. In support of his contention, reliance was placed on the decision of the Supreme Court in the case of Mrs. Mohini Suraj Bhan v. Vinod Kumar Mital, (1986)89 P.L.R. 275 (S.C.). While considering the scope of sub-section (5) to Section 15 of the East Punjab Urban Rent Restriction Act, 1949, the Supreme Court held as under:-

"It cannot be disputed that the powers of the High Court u/s 15(5) of the Act are wide and not confined merely to examining the legality of the appellate authority''s order nor are those powers akin to the revisional powers of the High Court u/s 115 of the C.P.C. Sub-Section (5) of Section 15 of the Act in so far as is material states: "The High Court may .... on the application of any aggrieved party or on its own motion call for and examine the records relating to any order . ... for the purpose of satisfying itself as to the legality or propriety of such order . .. . and may pass such order in relation thereto as it may deem fit." We find that at two places in its judgment the High Court has categorically observed that it was not open to it to reappraise the evidence unless the finding recorded by the Appellate Authority suffered from some legal infirmity and further that even if it were to come to a different conclusion - of course properly and reasonably - it would not be open to it to interfere with the finding of fact recorded by the Appellate Authority on reappraisal of the evidence.."

Few years later, in the case of Dev Kumar (died) through LRs v. Swaran Lata (Smt.) and Ors., 1995(2) Rent Law Reporter, 669, same view point prevailed with the Supreme Court and it was held as under-

"In our considered opinion having regard to the afore-mentioned decisions of this court laying down the parameters of the High Court''s jurisdiction u/s 15(5) of the Act it is neither possible to accept the narrow construction put by the learned Counsel appearing for the appellant nor the wide construction put by the learned Counsel appearing for the respondents. The jurisdiction of the High Court under Sub-Section (5) of Section 15 of the Act, therefore, would entitle the Court to examine the legality and propriety of a conclusion of the Appellate Authority and is thus much wider than the revisional jurisdiction u/s 115 of the Code of Civil Procedure. But it has to be exercised subject to the well known limitations inherent in all revisional jurisdictions and cannot be equated with an Appellate jurisdiction. This being the position, unless there is a perversity in the matter of appreciation of evidence by the Appellate Authority or unless the Appellate Authority has arrived at a conclusion which on the materials, no reasonable man can come, the High Court will not interfere with the same."

Keeping in view the dictum of the Supreme Court, it must follow that this Court would only interfere if the findings are absurd or there is misreading of evidence. If the findings are perverse, this Court certainly would see the legality or propriety of the same.

It is a common case of the parties that earlier the property in question was let to the petitioner. Rs. 15,000/- was given as advance to the respondent and, as per agreement, the respondent was to adjust Rs. 500/- per month towards the advance. The balance amount had to be paid as rent. The controversy, as already pointed above, is as to whether subsequently Rs. 35,000/- had been advanced to the respondent by the husband of the petitioner and a fresh agreement of tenancy in his favour Exhibit RW2/A was executed. The respondent denied the execution of this agreement. It is not in controversy that if the husband of the petitioner had been accepted as a tenant, necessarily, in the absence of there being a relationship of landlady and tenant between the parties, the petition for eviction will not be maintainable.

During the course of arguments, one by one the findings of the Courts below were assailed to be factually incorrect, particularly the systematic manner in which certain facts were arrived at. It has been urged that the Appellate Authority and the Rent Controller had recorded that the tenancy had never been terminated because the petitioner had never vacated the property in question to hand over the possession to the respondent so that the husband of the petitioner could be inducted as a tenant. But what is being ignored and rightly pointed out is that the petitioner herself is the witness to Exhibit RW2/A. By virtue of the said document, tenancy in favour of her husband is alleged to have been created. Once she is a witness to the agreement and her husband had taken over the tenancy, it would tantamount that she had impliedly surrendered her possession. Keeping in view that she is a witness to the agreement Exhibit RW2/A, the tenancy would be deemed to be created in favour of her husband.

Similarly, it had been recorded that when the earlier tenancy was existing, there was no occasion for the respondent to create a fresh tenancy. But once again a factual mistake occurred. The respondent is alleged to have taken advance of Rs. 35,000/- more from the husband of the petitioner. Therefore, it prompted her to create another tenancy in favour of the husband of the petitioner. The inference so drawn is merely a conjecture.

The stamp vendor had appeared as a witness and stated that he had sold the stamp paper on which Exhibit RW2/A had been written to the respondent- landlady. May be, it was for executing an affidavit. But every stamp vendor is not supposed to know each person who comes to purchase the stamp paper. The learned Rent Controller as well as the Appellate Authority were patently in error in magnifying that the stamp vendor did not know the respondent. The important fact is that the stamp paper was purchased by the respondent. Having purchased, it was for the respondent to explain as to how it travelled into the hands of the petitioner. It could only be when such a document is executed.

Furthermore, stress has been laid by both the Courts below that Sohan Singh is a witness to Exhibit RW2/A and his parentage has not been given. Once again material evidence has been ignored. Manjeet Singh son of Sohan Singh has been examined as RW1. He has stated that his father Sohan Singh has died and he was a witness to Exhibit RW2/A. Indeed, under the circumstances the best evidence available could only be produced and no inference can be drawn against the petitioner..

Furthermore, the Appellate Authority has wrongly recorded that the agreement Exhibit RW2/A was not filed along with the written statement. A factual mistake has again been committed. In the written statement, it was mentioned that copy of the subsequent agreement has been filed. The record shows that it was appended with the written statement. Once a photocopy of the original has been filed, both the Court below were in error in drawing inference against the petitioner.

It is true that the handwriting expert had been found to state that there were 16 variations, but they were natural in nature. No person can sign absolutely identical. Natural variations do occur.

In fact, the record reveals that stamp paper purchased on 19.12.1988 had been purchased by the respondent. The respondent, as has been mentioned earlier, required more money and, therefore, arose the need for creating another tenancy. The respondent was determined to deny the agreement. During the cross-examination, she even denied her signatures on the petition. Consequently, in the peculiar fact, it must follow that fresh tenancy was created in favour of the husband of the petitioner. The findings of the learned Rent Controller and the Appellate Authority are erroneous and not based on evidence. These are perverse.

As an off-shoot of these reasons, under sub-section (5) to Section 15 of the East Punjab Urban Rent Restriction Act, 1949, this Court could look into the legality and propriety of the findings recorded by the Courts below. The revision petition is accepted. The impugned order is set aside and instead the eviction petition is dismissed.