Ram Prasad vs Sudhir Chandra and 2 Others

Suneet Kumar, J. - Heard learned counsel for the parties.

The applicant/tenant has approached this Court assailing the judgment and decree dated 4 November 2015 passed by the Revisional Court/Additional District Judge, Court No. 18, Agra arising from an order passed by the Small Causes Court at Agra decreeing SCC Suit No. 17 of 2012 (Sudhir Chandra v. Ram Prasad).

The respondent/landlord instituted a suit before the Small Causes Court at Agra for eviction, arrears of rent and damages. The tenancy of the premises which is a shop was determined by notice. The applicant/defendant contested by filing written statement; the trial Court framed six issues and issue no. 2 was to the effect as to whether the provisions of U.P. Act 13 of 1972 is applicable or not. The trail Court upon considering the material available on record decreed the suit and in particular holding that the U.P. Act No. 13 of 1972 is not applicable as the date of assessment of the building is of 1999, therefore, beyond the cut of date in 1985, therefore, the Act 13 of 1972, in view of Section 2(2), would not apply on the premises. In revision, the only point pressed was regarding the applicability of Act 13 of 1972. The revisional Court upon considering the material and evidence on record noted that the first assessment of the premises was done by the Municipal Authorities on 1 April 1999, therefore, a concurrent finding was returned that the provisions of the Act 13 of 1972 would not apply.

Before this Court, the learned counsel for the applicant apart from pressing the issue regarding the applicability of the Act 13 of 1972 would contend that the plea under Section 20(4) was also raised which has not been considered. It was sought to be urged that the applicant had deposited the entire rent, therefore, the provisions of Section 20(4) would apply and even in the event the provision is not applicable, the provisions of Section 114 of the Transfer of Property Act would apply.

It is relevant to point out that out of six issues determined by the trial court, in revision, only issue no. 2 pertaining to the applicability of the Act 13 of 1972 and the date of construction of the premises was raised, it has been noted in the impugned order that the plea of Section 20(4) was raised but it appears that it was not pressed. Even before this Court the plea of Section 114 of Transfer of Property Act or Section 20(4) has neither been pleaded nor raised in the petition. Therefore, this Court would not go into the questions that was not raised or pressed before the Revisional Court or Trial Court.

Regarding the completion of the building Explanation (1) to Sub-clause (2) of Section 2 provides that the provisions of the Act would not apply to buildings for a period of 10 years from the date of completion of the construction. The period is computed from the date of completion of the building. In terms of Explanation (1) the construction of a building is deemed to have been completed on the date on which completion thereof, is reported or otherwise recorded by the local authority having jurisdiction. In the case of a building subject to assessment, the date on which the first assessment thereof, comes into effect and where the said dates are different, the earlier of the said date would be relevant for deciding the question of date of construction of the premises.

However, in dealing with the findings of fact, the examination by the Revisional Court is limited to satisfy itself that the decision is "according to law". Whether or not a finding of fact recorded by the subordinate court is according to law, is required to be seen on the touchstone whether such finding of fact is based on some legal evidence or it suffers from any illegality like misreading of the evidence or overlooking and ignoring the material evidence altogether or suffers from perversity or any such illegality or such finding has resulted in gross miscarriage of justice. (Ram Dass v. Ishwar Chander, (1988) 3 SCC 131).

In Shiv Sarup Gupta v. Mahesh Chand Gupta, (1999) 6 SCC 222, the Apex Court with reference to revisional jurisdiction of the High Court under the Delhi Rent Control Act observed that the High Court, on the touchstone of "whether it is according to law" for that limited purpose, may enter into reappraisal of evidence but cannot enter into appreciation or re appreciation of evidence merely because it is inclined to take a different view on the facts. The evidence is examined by the High Court to find out whether the Court/authority below has ignored the evidence or proceeded on a wrong premise of law or derived such conclusion from the established facts which betray lack of reasons and/or objectivity which renders the finding not according to law.

The observations in Ram Narain Arora v. Asha Rani, (1999) 1 SCC 141 that in examining the "legality" or "propriety" of the proceedings before the Rent Controller, the High Court could examine the facts available must be understood for the purpose stated therein, namely, in order to find out that the finding of facts are based on firm legal basis and are not given on a wrong premise of law but pure findings of fact are not for interference in revisional jurisdiction.

In Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh (2014) 9 SCC 78 the Constitution Bench of Supreme Court held that the consideration or examination of the evidence by the High Court in revisional jurisdiction under the Rent Control 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 or 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. It 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. 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 reassess the evidence for coming to a different finding on facts.

In these circumstances, this Court in exercise of supervisory jurisdictional under Article 227 of the Constitution would not sit in appeal on the concurrent finding of facts recorded by the Court below in determining the date of construction of the building which being 1999, therefore, in view of Section 2(2) of Act 13 of 1972, the provisions of Act of 1972 would not apply.

Learned counsel for the applicant has failed to point out any illegality, perversity or jurisdictional error in the impugned order.

The petition is, accordingly, dismissed.

Upon dismissal of the petition, learned counsel for the applicant/tenant prays that some reasonable time may be given to the applicant to vacate the premises.

In such circumstances, it is provided that in case the applicant gives an undertaking on oath before the court concerned that he shall vacate the premises in question and hand over the possession of the same peacefully to the respondent-landlords on or before 3 August 2016. The aforesaid undertaking on oath shall be given by the applicant before the Court below within 15 days from today and the applicant shall deposit the damages @ Rs. 1000/- per month of the premises in question before the Court below and shall continue to deposit the same by 7th of the each calendar month till the vacation of the premises in question, which amount may be permitted to be withdrawn by the respondent-landlord after due verification by the Court concerned.

It is made clear that in the event of default committed by the applicant-tenant in any of the conditions, the order shall stand automatically vacated without reference to the Court.