Sabitri Devi Sarma and Others vs Sant Kumar Bajoria and Others

T. Nandakumar Singh, J.—Heard Mr. K. Paul, learned counsel appearing for the petitioners and also Mr. H.S. Thangkhiew, learned Sr. counsel, assisted by Mr. N. Mozika, learned counsel appearing for the respondents.

This revision petition is directed against the judgment and decree dated 24-09-2008 passed in Title Appeal No. 7/1994 by the learned Additional District Judge (FTC) No. 4 Kamrup, Guwahati. The respective pleaded case of the plaintiffs (present respondents) and defendants (present petitioners) had been dealt more fully by the first Appellate Court in the impugned judgment and decree dated 24-09-2008. However, only the gist of the pleaded cases of the parties which would be sufficient for deciding the present revision petition are recapitulated. The plaintiffs/respondents filed a suit for eviction being Title Suit No. 2 (H)/1983 against the defendants (present petitioners) in the court of Assistant District Judge, Shillong for a decree of eviction of the defendants (present petitioners) and recovery of possession of the suit premises as described in the Schedule to the plaint by ejecting the defendants (present petitioners) and other members of the family, agent and every person claiming the title through the defendants (present petitioners).

The gist of the pleaded case of the plaintiffs (present respondents) in their plaint was that the defendants became monthly tenants since the date of settlement dated 10-08-1969 according to English calendar commencing from first day of every English calendar month in respect of the portion of the premises prescribed in the Schedule hereof within the Holding No. 55 of Police Bazar Ward of the Shillong Municipality situated at Police Bazar Ward, Shillong at a monthly rate of Rs. 200/- which was payable by the first week of every month on its becoming due. The plaintiff''s firm is a business firm engaged in sale of textile goods and the plaintiff intended to expand and start business in textiles in a new and separate place as the present accommodation was not sufficient for the purpose and with this object, in view of making other accommodation available for the textile business, the plaintiff required reconstruction by demolition of the premises occupied by the defendants which was very old. The plaintiff had taken the necessary steps in this regards for constructing a reinforced building after demolition of the premises occupied by the defendants (present petitioners).

It is also the further case of the plaintiff that the defendants had been carrying on hotel business by obtaining licence in the name of his son Shri Bhagirath Sharma in an unauthorized manner from the Shillong Municipality and using the premises in an imprudent and untenant like manner causing extensive damage to the suit premises in particular to the C.I. Sheet roof of the house by burning coal. The defendants (present petitioners) were paying monthly rent to the plaintiffs though not regularly but from the month of April 1982, the defendants started defaulting in payment of rent and fell into arrears and did not pay the rent till the month of December 1982 inclusive arrears amounting to Rs. 1800/- (one thousand eight hundred) only. The plaintiff had filed the said suit for eviction of the defendants (present petitioner) on two grounds i.e. (i) for default in payment of rent and (ii) for bona fide requirement.

The defendants (present petitioners) filed a written statement and in para 6 of the written statement the defendants (present petitioners) categorically pleaded that it is far from true to say that the defendant is a defaulter in payment of rent from the month of April, 1982. The plaintiffs realized the rent for the month of April, May and June, 1982 but did not issue any receipt. The plaintiffs were in the habit of issuing receipts sometimes after some days and sometimes after months together. When the defendants wanted to pay the rent for the month of July 1982, the plaintiffs refused to accept the rent and also refused to issue receipt for the month of April, May and June 1982. Surprisingly, the plaintiffs demanded rent for the suit premised @ Rs. 1200/- per mensem. On refusal to accept the rent for the month of July 1982, the defendant was left with no other alternative and as such deposited the rent for the month of July 1982 in the court and thereafter the defendant had been depositing the rent in the court legally and regularly. In the earlier suit i.e. Title Suit No. 15 (H)/1962 in the court of the Munsiff, it was one of the ground that the defendants had failed to pay the monthly rent of the suit premises but the said title suit i.e. Title Suit. No. 15 (H)/1962 ended in compromise. In the earlier title suit, the plaintiffs had come up with the same plea of reconstruction and bona fide requirement for ejectment of the defendants (present petitioners) from the suit premises. The defendants categorically stated in the written statement that the reconstruction of building and bona fide use and occupation thereof by the plaintiff is not genuine, bona fide and reasonable. The defendants have been carrying on with the hotel business under licence in the name of his son and also the further case of the defendants in the written statement was that the barred is filed by principle of res judicata.

The learned Trial Court after careful perusal of the pleadings of the parties had framed the following issues:

"1. Whether there is cause of action for the suit?

Whether the suit is barred by the principles of waiver, acquiescence and estoppels?

Whether the suit is bad for want of necessary and proper party?

Whether the plaintiff demanded enhanced rent at the rate of Rs. 1200/- p.m. for the premises?

Whether the defendant is a defaulter and in arrears of rent from April to December, 1982?

Whether the plaintiff requires the suit premises bona fide for their own business purpose?

Whether the defendant is causing damage to the suit premises?

To what relief are the parties entitled?"

The parties i.e. the plaintiffs and the defendants had not only produced witnesses but also documents in support of their pleaded case. The learned Trial Court vide judgment and decree dated 23-12-1988 had dismissed the Title Suit No. 2 (H)/1983 after careful appreciation of the oral and documentary evidences.

Being aggrieved by the judgment and decree of the learned Trial Court dated 23-12-1988 the plaintiffs (present respondents) had preferred an appeal being Title Civil Appeal No. 7(H)/1989 before the court of the learned District Judge, Shillong. The learned District Judge, Shillong partly had allowed the appeal vide judgment and decree dated 19-10-1990 by holding that the defendants (present petitioners) are defaulters in respect of the suit premises, but the issue of bona fide requirement as decided by the learned trial court had not been interfered. As such, as per the finding of the learned first Appellate Court by judgment and decree dated 19-10-1990 passed in Title Civil Appeal No. 7(H)/1989, the defendants (present petitioners) are the defaulters but the pleaded case of the plaintiffs (present respondents) regarding bona fide requirement of the suit premises had not been accepted. It is the admitted case of both of the parties that the plaintiffs (present respondents) did not file revision against the said finding of the First Appellate Court in the judgment and decree dated 19-10-1990 passed in Title Civil Appeal No. 7(H)/1989 that there was no bona fide requirement of the suit premises by the plaintiffs (present respondents). Therefore, the finding of the learned trial court in the judgment and decree dated 23-12-1988 passed in TS. No. 2(H)/1983 that there was no bona fide requirement of the suit premises by the plaintiffs (present respondents) which had been upheld by the first Appellate Court vide judgment and decree dated 19-10-1990 passed in Title Civil Appeal No. 7(H)/1989 had attained finality.

The defendants (present petitioners) being aggrieved by the judgment and decree of the first Appellate Court dated 19-10-1990 passed in Title Civil Appeal No. 7(H)/1989 had filed the revision petition being Civil Revision No. 8(SH)/1991 in the erstwhile Gauhati High Court, Shillong Bench. The High Court (Single Bench) vide judgment and order dated 09-12-1993 had disposed of the said civil revision petition No. 8(SH)/13/1991 by remanding the case to the first Appellate Court to write a fresh judgment of issue "whether the defendants (present petitioners) are the defaulters or not?. The relevant portion of the judgment and order of the Gauhati High Court dated 09-12-1993 passed in CRP No. 8(SH)/13/1991 read as follows:

"JUDGMENT

..........The trial court dismissed the suit holding that the plaintiff failed to prove that the defendant was a defaulter and that the plaintiff bona fide required the house for their own use and occupation. Being aggrieved the opposite party preferred an appeal before the District Judge, Shillong (Title Civil Appeal No. 7(H) of 1989). The District Judge allowed the appeal holding that the petitioner was a defaulter. However, on the point of bona fide requirement the appellate court upheld the finding of the trial court. Hence the present petition.

I have heard both sides

..........The learned appellate court disbelieved the entire evidence in view of the two sets of contradictory evidence. In my view this is not the proper approach. The first Appellate Court being the last court of fact it was the duty of the said court to shift the evidence and come to a just finding. Discarding the entire evidence on record only on the ground that there were two sets of evidence is not at all warranted in law. The court is to find out the truth by shifting the evidence just like shifting the grain from the chaff. Therefore, I find that the impugned judgment is not sustainable in law. Accordingly, I set aside the impugned judgment and remand the case to the appellate court to write a fresh judgment after shifting the evidence in proper perspective."

The Gauhati High Court vide its order dated 09-12-1993 passed in CRP No. 8 (SH)/13/1991 was pleased to transfer the aforesaid Title Civil Appeal No. 7(H)/1989 to the court of the District Judge, Kamrup, Guwahati and it was re-registered as No. Title Appeal No. 07/1994 and said appeal was finally disposed of by the Additional District Judge (FTC) No. 4 Kamrup, vide judgment and decree dated 24-09-2008 by rendering a fresh judgment as directed by the High Court vide judgment and order dated 09-12-1993 in respect of issue as to whether the defendants (present petitioners) defaulted in payment of rent from April to December 1982. Learned Additional District Judge (FTC) No. 4 Kamrup had come to the finding that the defendants (present petitioners) are the defaulters. The relevant portion of the judgment of the learned Additional District Judge (FTC) No. 4, Kamrup dated 24-09-2008 read as follows:

"16. After going through the case record and hearing the arguments of both sides, it is found that the only point is to be decided in this case is that whether the defendant defaulted in payment of rent from the month of April to December, 1982. In the impugned judgment the learned trial court has observed that though the evidence of the defendants may be on the weakest point, yet the onus of proof can not be shifted on the defendant but it is for the plaintiff to prove his case by his own evidence and as per requirement of law. The observation made by the learned trial court is totally mis-conceived of law. In a case of Urban Areas Land Control Act, if the defendant (tenant) has taken the plea that he is not a defaulter then the burden lies on him to prove that he has paid the rent to the landlord in accordance with law.

In this present case the defendant''s case is that the plaintiff realized the rent for the month of April, May and June, 1982 but he did not issue any receipt. The plaintiff was in the habit of issue receipt sometime after some days and sometimes after months together. When the defendant went to pay the rent for the month of July, 1982 the plaintiff refused to accept the same and also refused to issue receipt for the month of April, May and June 1982. Hence the defendant deposited the rent in the court from July 1982.

The defendant is examined as D.W. 1. He in his deposition has stated that he paid the rent for the month of April, May and June 1982. But no receipt was issued to him. He sent the rent through his nephew Mahabir Prasad Sharma. The plaintiff received the rent and said that the receipt will be given later on. He sent his son Babulal for collection of the receipt. The rent for the month of July was tendered to the plaintiff. On his refusal to accept the rent he deposited the same in the court. Contradicting his statement his son Bhagirat Sharma who is examined as D.W. 2 has stated that his father personally went to pay the rent for the month of April, May and June separately. His father went first to pay the rent for the month of April 1982. Babulal went to pay the rent for the month of May, 1982 and Mahabir Prasad went to pay the rent for the month of June, 1982. Plaintiff accepted the rent but did not issue the rent receipt. In the month of July, 1982 Mahabir went to pay the rent and to collect the receipt for the months, but the plaintiff did not give any receipt. Contradicting both D.W. 1 and D.W. 2 Mahabir Prasad who is examined as D.E. 4 has stated that he along with Babulal went to pay the rent for the month of April, May and June, 1982. After some time he and Babulal went to the plaintiff demanding rent receipts but the plaintiff refused to issue rent receipt unless house rent will pay at the rate of Rs. 1200.00 P.M. Babulal is not examined by the defendants as witness. From the deposition of D.W. 1, D.W. 2 and D.W. 4 it is found that according to D.W. 1 he paid the rent for the month of April, May and June 1982 through his nephew Mahabir Prasad Sharma and sent his son Babulal for collection of the rent receipt. D.W. 2 once stated that his father D.W. 2 personally went to pay the rent for the month of April, May and June 1982 and later on he stated that his father went to pay the rent for the month of April, 1982, Babulal went to pay the rent for the month of May 1982 and Mahabir went to pay the rent for the month of June, 1982. D.W. 4 stated that he along with Babulal went to pay the rent for the month of April, May and June, 1982. From these contradictory versions it can not be concluded that the defendant paid the rent for the month of April, May and June, 1982.

Regarding the deposit of house rent in the Court, according to the D.W. 1 the rent for the month of July, 1982 was tendered to the plaintiff. On refusal the same was deposited in the court. He has not mentioned the name of any person by which he tendered the rent to the plaintiff. According to D.W. 2 in the month of July, 1982 Mahabir went to pay the rent and collect receipt for the month. But the plaintiff did not give any receipt. He has not stated anything regarding the refusal to receipt the rent by the plaintiff. The defendant have exhibited Treasury Challan by which he allegedly deposited the rent in the court as Ext-F, G & H. Mahabir D.W. 4 has not stated anything regarding the tender of house rent for the month of July 1982 by him to the plaintiff.

As per provision of Section 5(4) of the Meghalaya Urban Areas Land Control Act 1972 it is mandatory on the part of the defendant to prove the fact that he offered the rent to the landlord and the landlord refused to accept the same and as such he has deposited the same at the court within 30 days on its becoming due together with process fee for service of notice upon the landlord. But in this present case the defendants simply stated that he had deposited the rent in the court since July 1982 as the plaintiff refused to accept the same. To get the benefit of Section 5(4) of the act the defendant has to first prove that he tendered the rent to the plaintiff landlord, then the LANDLORD refused to accept the same and then the defendant deposited the same in the court within 30 days of its becoming due together with process fee for service of notice on the landlord. In this present case according to the defendant D.W. 1 the rent for the month of July, 1982 was tendered to the plaintiff but he refused to accept the same. According to D.W. 2 Mahabir went to pay the rent for the month of July, 1982. But Mahabir Prasad never stated that he tendered the house rent for the month of July, 1982 to the plaintiff and the plaintiff refused to accept the same. Hence these two ingredients of Section 5(4) of the Act i.e. tender and refusal are remained unproved. Regarding the other two ingredients i.e. deposit of rent within 30 days of its becoming due and the submission process fee for service of notice to the plaintiff the defendant simply exhibited treasury challan. From the treasury challan it can not be ascertained whether the process fee were paid for service of notice to the landlord plaintiff. Further the treasury challan Ext-F, G and H shows that the defendant paid the rent for the month of July, August and September, 1982. The plaintiff has filed the suit on the grounds that the defendant did not pay rent since April, 1982 till December, 1982. But the defendant has failed to prove even the treasury challan for the month of October, November and December, 1982.

As the defendant has failed to prove the tender, refusal and process-fee for service of notice, the discussion on the point of ''due date'' is not necessary.

From the above discussion it is found that the defendant has allegedly deposited the rent in the court for the month of July, August and September, 1982, but the same was not deposited under the provision of section 5(4) of the act and hence it can not be said that the defendant deposited the rent in accordance with law. Further the defendant has failed to prove that he has deposited the rent for the month of October, November and December in the Court. Further though the defendant has stated that he has paid the rent for the month of April, May and June, 1982 to the plaintiff, but the plaintiff refused to issue the receipt. But the defendant failed to prove such payment of rent for the month of April, May and June, 1982 to the landlord plaintiff.

In the case law Nityananda Dutta Vs. Anisul Haque and Another, it is held that--

"Under Section 5 of the Act, as noticed above, the tenant is protected from ejectment only if lie pays to rent lawfully due from him to the landlord in respect of the house within a fortnight or where the landlord refuses to accept such rent, deposit the rent in court within a fortnight of its becoming due together with the process fees for service of notice upon the landlord. Therefore, the tenant before claiming protection from eviction on the ground of defaulter in payment of rent to the landlord, must prove that he has paid the rent lawfully due to the landlord in respect of the house within a fortnight on its failing due or on being refused by the landlord to accept when such rent was tendered to him, he has deposited such rent within a fortnight of its becoming due, in the court together with the process fee for service of notice upon the landlord. The said view has also been taken by this court in Rupchand Daftary (supra) and in Hazi Mahmed Jafar (supra). The Apex Court in Rameswarlal Chaudhury v. Ram Niranjan Mour (1995) (Supp.) 3 SCC 44 has also observed that where the tenant deposited rent into court without tendering the same to the landlord, the same would not be the valid deposit within the meaning of Section 5(4) of the Act."

In the case law Bipul Chandra Paul Vs. Sandhya Saha, relying the case law (1997) 2 GLR 590 Abdul Matin Choudhury and others Vs. Nilyananda Dutta Banik held that Section 5(4) of the Act is a mandatory one. A tenant gets jurisdiction to deposit rent in the court only on refusal of the landlord to accept the rent when tendered before him.

In another case law Sri Jogeshs Ch. Dey Vs. Sri Monoram Saikia and another reported in (1988) 2 GLR 225 it is held that deposit of rent in the court without prior tender of the same to the landlord is not in conformity with Section 5(4) of the act and as such no valid deposit.

Relying on the above case laws, and from the evidence on record, it is clear that though the defendant has claimed that they have deposited the rent from July, 1982 to December, 1982 in the court, but the defendant failed to produce the treasury challan for the month of October, November and December, 1982 and the deposit of July, August and September, 1982 are also not in conformity with the provision of Section 5(4) of the Act and hence they are not entitled for the benefit of Section 5(4) of the act. The evidence on record does not show that the defendant paid any rent from the month of April to December, 1982. Hence this issue i.e. issue No. "V" is decided in favour of the plaintiff-appellant. As the defendant is a defaulter he is liable to be evicted from the suit premises and also liable to pay the arrear rent for the month of April to December, 1982.

In result the appeal is allowed on contest with cost by setting aside the impugned judgment and decree dated 23.12.88 passed by the Assistant District Judge, Shillong in Title Suit No. 2 (H) of 1983.

Prepare the decree accordingly.

Send the LCR along with a copy of this judgment to the learned trial court immediately.

Given under my hand and seal this 24th day of September, 2008.

Sd/- (C.R. Goswami) Addl. District Judge (FTC) No. 4 Kamrup, Guwahati."

Being aggrieved by the judgment and decree of the Additional District Judge (FTC) No. 4, Kamrup dated 24-09-2008 defendants (present petitioners) had filed the present revision petition. On perusal of the grounds in the present revision petition against the impugned judgment and decree dated 24-09-2008 passed by the learned Additional District Judge (FTC) No. 4, Kamrup in Title Appeal No. 7/1994, it is clear that the grounds taken in the present revision petition are to the appreciation of the evidence by the Appellate Court in coming to the finding that the defendants (present petitioners) are the defaulters in payment of rent. The ground taken in the present revision petition are mentioned in para 9 of the memo revision petition which read as follows:

"9. That being highly aggrieved and dissatisfied with the judgment and decree dated 24.09.2008 passed by the learned Additional District Judge (FTC) No. 4, Kamrup, Guwahati in Title Appeal No. 07 of 1994 the petitioner prefers this instant revision petition on the following amongst other:-

GROUNDS

a. For that the learned Appellate Court below erred in law as well as in the facts and circumstances of the case in passing the impugned judgment and decree dated 24.09.2008 in Title Appeal No. 7 of 1994 and as such, the same is liable to set aside and quashed.

b. For that the learned Appellate Court below acted without jurisdiction in holding the petitioners to be defaulter and as such, the impugned judgment and decree dated 24.09.2008 passed in Title Appeal No. 7 of 1994 is liable to set aside and quashed.

c. For that the learned Appellate Court below being the last court of facts was bound to consider all the material evidence on record in deciding the issue pertaining to defaulter.

d. For that the learned Appellate Court below acted with material irregularity in holding that the evidence on record does not show that the petitioners paid any rent from the month of April to December, 1982.

e. For that the learned Appellate Court below acted with material irregularity and illegality in exercising the jurisdiction so vested upon it, inasmuch as, there is no evidence on record in proof of default of payment of rent by the petitioners.

f. For that in absence of any written contract between the parties the learned Appellate Court below without coming to a finding as to when the lawful rent would fall due ought not to have passed the decree on the ground of defaulter.

g. For that the learned Appellate Court below completely misread the evidence on record and arrived at a perverse finding as regards tender/payment of rent to the opposite party in respect of the suit premises.

h. For that the learned Appellate Court below completely overlooked the judgment dated 09.12.1993 of the Hon''ble High Court passed in Civil Revision No. 8(SH) 1981, inasmuch as, it was the bounded duty of the learned Court below to find out the truth by shifting evidence just like shifting the grain from the chaff, hence, if at all the evidence was not sufficient the Court ought to have called for further evidence from the party for doing substantial justice.

i. For that the learned Court below failed to appreciate that the opposite party never issued rent receipt month by month and moreover, the rent was never collected/received month by month.

j. For that the learned Court below failed to appreciate the evidence on record which shows that the opposite party was receiving rent for two three months without lodging any complaint and as such, in that view of the matter it is crystal clear that there was a prevalent system of payment of accumulated monthly rent.

k. For that the learned Court below committed grave error in holding that deposit of rent in the Court are not in conformity with the provisions of Section 5(4) of the Meghalaya Urban Area Rent Control Act, inasmuch as, the learned Court below had arrived at such a finding without going through the record of the rent deposit case.

l. For that the learned Appellate Court below erred in over looking the finding of the learned Trial Court wherein it was held that rent was not collected monthly but the same was collected on accumulation. Therefore, in absence of any fixed date for payment of rent what would have been the due date for payment of rent ought to have been decided by the learned Appellate Court below.

m. For that the learned Appellate Court below acted with material irregularities in arriving at a conclusion that the rent deposits made in the Court are not in accordance with law, inasmuch as, from the perusal of the statement of deposit of rent in the Court, it transpires that the petitioners had deposited the lawful rent due in the Court in accordance with law.

n. For that the learned Appellate Court below failed to appreciate the well settled proposition of law that the plaintiff in a suit is to prove his case on the basis of his pleadings and the pleadings are to be substantiated by evidence, but in this instant case the learned Appellate Court below has arrived at a perverse finding by giving a complete go by to the aforesaid proposition of law.

o. For that the learned Appellate Court below erred in law in allowing the appeal on the basis of uncorroborated evidence of the plaintiff.

p. For that the learned Appellate Court below failed to consider that even if the evidence is equally balanced, the court has to lean in the favour of the tenant keeping in view the beneficial provisions of the Rent Control Act.

q. For that the learned Appellate Court below erred in failing to consider that the description of the suit property is too vague and indefinite and no decree for eviction can be passed upon such vague and indefinite description of the suit property.

r. For that in any view of the matter the impugned judgment and decree dated 24.09.2008 passed in Title Appeal No. 7 of 1994 if allowed to stand would occasion failure of justice and as such, is liable to be set aside and quashed."

"Revisional jurisdiction of the High Court under Section 115 of the CPC and its limitation.

For considering the revisional jurisdiction of the High Court, it would be profitable to quote Section 115 of the CPC:-

"115. Revision.-(1) The High Court may call for the record of any case which has been decide by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears--

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit:--

[Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.]

[(2) The High Court shall not, under this section vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto.]

[(3) A revision shall not operate as a stay of suitor other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.]

[Explanation.-In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a Suit or other proceeding.]"

While exercising the jurisdiction under Section 115 of the CPC, the High Court is not competent to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. The words "illegality" and "with materials irregularity" as used in Clause (c) do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors whether of fact or of law, after the prescribed formalities have been complied with. (Ref:- D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, ). Para 8 of the M/s. D.L.F. Housing and Construction Co. (P) Ltd. case (Supra) reads as follows:-

"8. The position thus seems to. be firmly established that while exercising the jurisdiction under s. 115 , it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words "illegally" and "with material irregularity" as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under s. 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under s. 115 of the Code when there. was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal."

Revisional jurisdiction - Erroneous decision on a question of fact or of law having no relation to question of jurisdiction of Subordinate Officer cannot be corrected. It is well settled that the revisional jurisdiction of the High Court is confined to cases of illegal or irregular exercise or non-exercise or illegal assumption of the jurisdiction by the subordinate courts. If a subordinate court is found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with material irregularity even if it decides the matter wrongly. In other words, it is not open to the High Court while exercising its jurisdiction under Section 115 of the CPC to correct errors of fact howsoever gross or even errors of law unless the errors have relation to the jurisdiction of the court to try the dispute itself. (Ref:- Sher Singh (dead) through L.Rs. Vs. Joint Director of Consolidation and others, ). Para 6 of the Sher Singh case (Supra) reads as follows:-

"6. As the above section is pari materia with S. 115 of Civil P.C., it will be profitable to ascertain the scope of the revisional jurisdiction of the High Court. It is now well settled that the revisional jurisdiction of the High Court is confined to cases of illegal or irregular exercise or non-exercise or illegal assumption of the jurisdiction by the subordinate courts. If a subordinate court is found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with material irregularity even if it decides the matter wrongly. In other words, it is not open to the High Court while exercising its jurisdiction under section 115 of the Code of Civil Procedure to correct errors of fact howsoever gross or even errors of law unless the errors have relation to the jurisdiction of the court to try the dispute itself."

While exercising the revisional jurisdiction, the High Court should not, on reappraisal of the evidence, interfere with the order of the court below on the mere fact that different view is possible. A distinction between the appellate and the revisional jurisdictions of the Courts is a real one. The right to appeal carries with it the right of rehearing both on questions of law and fact, unless the statute conferring the right to appeal itself limits the rehearing in some way, while the power to hear a revision is generally given to a particular case is decided according to law. Under Section 115 of the CPC, yet its revisional jurisdiction could only be exercised for a limited purpose with a view to satisfying itself that the decision under challenge before it is according to law. The High Court cannot substitute its own findings on a question of fact for the findings recorded by the Courts below on reappraisal of evidence. (Ref:- Patel Valmik Himatlal and Others Vs. Patel Mohanlal Muljibhai (Dead) Through L.Rs., . Paras 5, 6, 7 & 8 of the Patel Valmik Himatlal case (Supra) reads as follows:--

"5. The ambit and scope of the said section came up for consideration before this Court in Helper Girdharbhai Vs. Saiyed Mohmad Mirasaheb Kadri and Others, and after referring to a catena of authorities, Sabyasachi Mukharji, J, drew a distinction between the appellate and the revisional jurisdictions of the Courts and opined that the distinction was a real one. It was held that the right to appeal carries with it the right of rehearing both on questions of law and fact, unless the statute conferring the right to appeal itself limits the rehearing in some way, while the power to hear a revision is generally given to a particular case is decided according to law. The Bench opined that although the High Court had wider powers than that which could be exercised under Section 115 of the Code of Civil Procedure, yet its revisional jurisdiction could only be exercised for a limited purpose with a view to satisfying itself that the decision under challenge before it is according to law. The High Court cannot substitute its own findings on a question of fact for the findings recorded by the Courts below on reappraisal of evidence. Did the High Court exceed its jurisdiction?

The powers under Section 29(2) are revisional powers with which the High Court is clothed. It empowers the High Court to correct errors which may make the decision contrary to law and which errors go to the root of the decision but it does not vest the High Court with the power to rehear the matter and re-appreciated the evidence. The mere fact that a different view is possible on reappreciation of evidence cannot be a ground for exercise of the revisional jurisdiction.

In the instant case we find that the High Court fell into an error in reappraising the entire evidence and recording a finding on the basis of that reappreciation without in any way pointing out any error of law or material irregularity as may have been committed by the trial court or the first appellate court. In our opinion even the appreciation of evidence by the High Court was not correct. Certain facts were assumed by the High Court which were not on record and generalization was made without any basis. In this connection a reference to paragraph 12 of the order of the High Court would be relevant. It reads:-

"12. This would clearly meant that starting of the said Branch Office was clearly recorded in form of a Commission Agency Agreement in Exh. 78, another copy of which is at Ext. 110, and that was done openly and publicly inviting particularly the business community to attend the function. If the idea was to sublet the premises, a tenant would hardly be expected to advertise the fact in this manner."

The question whether or not the premises had been sublet could not be decided on the basis whether a tenant generally is "expected to advertise the fact in this manner." The findings recorded by both the trial court and the first appellate court based on critical appreciation of the terms of the agreement Exh. 78 and the evidence led by the parties on the record suffered from no error or material irregularity. Both the Courts had rightly come to the conclusion that the tenant had in fact sublet the suit premises and parted with the possession of the premises without consent of the landlord. There was no error committed by the Courts below which required any correction at the hands of the High Court in exercise of its revisional jurisdiction. The judgment of the High Court, under the circumstances, cannot be sustained."

The Apex Court in Sri Kempaiah Vs. Smt. Chikkaboramma and Others, , held that "High Court in its order virtually re-appreciated the evidence placed before the authorities as if it was a first appeal not noticing that it was only a proceeding arising under Section 115 of the CPC. Therefore it was not open to the High Court at all to re-appreciate the matter unless it could find that the District Judge had committed any error of jurisdiction or acted with material irregularity affecting his jurisdiction." Para 5 of the Sri. Kempaiah case (Supra) reads as follows:-

"5. So far as the direction to re grant to respondents 2 to 4 the lands in question is concerned, we are constrained to state that the High Court in its order virtually re-appreciated the evidence placed before the authorities as if it was a first appeal not noticing that it was only a proceeding arising under section 115 of the Code of Civil Procedure. The learned District Judge had referred to every piece of material placed before the Court in the shape of oral or documentary evidence and came to the conclusion as we have noticed earlier in the course of this order. Therefore, it was not open to the High Court at all to re-appreciate the matter unless it could find that the District Judge had committed any error of jurisdiction or acted with material irregularity affecting his jurisdiction. No such contention has been recorded. On this ground alone the order made by the High Court on this aspect of the matter will have to be set aside."

The High Court cannot enter into appreciation or re-appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a court of facts. The High Court while exercising the jurisdiction can reappraise the evidence only for a limited purpose for ascertaining as to whether the conclusion arrived at by the fact-finding court is wholly unreasonable. (Ref:- Vaneet Jain Vs. Jagjit Singh, ). Para 4 of the Vaneet Jain case (Supra) reads as follows:-

"4. Sub-section (6) of Section 15 of the Act empowers the High Court to exercise its revisional jurisdiction for the purpose of satisfying itself if an order passed by the Rent Controller or the appellate authority is in accordance with law. The question that arises for consideration is whether the High Court in its revisional jurisdiction can reassess or re-evaluate the evidence only to come to a different finding than what has been recorded by the Court below. This Court in the case of Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, , held that the High Court cannot enter into appreciation or re-appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of whether such an order is in accordance with law. For that limited purpose the High Court would be justified in reappraising the evidence. In Sarla Ahuja Vs. United India Insurance Company Limited, , it was held that the High Court while exercising the jurisdiction can reappraise the evidence only for a limited purpose for ascertaining as to whether the conclusion arrived at by the fact-finding court is wholly unreasonable."

Order passed by subordinate court can be interfered in revision whenever a subordinate court goes wrong in law on the vital question either by breach of some provisions of law or by committing material defects in procedure which has resulted in manifest injustice, it goes outside the jurisdiction conferred on it, and its decision can be interfered with under Section 115 for lack of jurisdiction, irrespective of the question as to whether such an order was passed by the subordinate court in exercise of discretion under Section 151 . (Ref:- Oil and Natural Gas Commission, Nazira Vs. Ganesh Prasad Singh and Others, ). Para 14 of the Oil & Natural Gas Commission, Nazira case (Supra) reads as follows:-

"14. From the conspectus of the decisions of the Supreme Court and also of the House of Lords in the cases referred to above, in our opinion, whenever a subordinate court goes wrong in law on the vital question either by breach of some provisions of law or by committing material defects in procedure which has resulted in manifest injustice, it goes outside the jurisdiction conferred on it, and its decision can be interfered with U/s. 115 of the Code for lack of jurisdiction, irrespective of the question as to whether such an order was passed by the subordinate court in exercise of discretion u/s. 151 of the Code. It depends on the facts and circumstances of each case and no general principle can be laid down."

This Court is in complete agreement with the finding of the Additional District Judge (FTC) No. 4 Kamrup in his judgment and decree dated 24-09-2008 passed in Title Appeal No. 7/1994 that the tender of rent is precondition to deposit of the rent in the Court and also that the preconditions mentioned under Section 5(4) of the Act should be fulfilled before depositing the rent in the Court and after such fulfillment, the rent could be deposited in the Court. Mere deposition of the rent or money with the Nazir of the Court without complying with the conditions as provided under Section 5(4) of the Act is not a deposit in the eye of the law.

As stated above, the finding of the Trial Court as well as the first Appellate Court for not accepting one ground for ejectment of the defendants (present petitioners) i.e. "there was bona fide requirement of the suit premises by the plaintiffs (present respondents)" had attained finality inasmuch as the plaintiffs (present respondents) did not file any revision/SLP against the said concurrent finding of the Trial Court and the first Appellate Court. This Court in exercise of the revisional powers is not re-appreciating the evidence for coming to a finding different to the one made by the Trial Court and first Appellate Court that the defendants (present petitioners) are the defaulters in payment of rent.

The defendants (present petitioners) have been in occupation of the suit premises for the last several decades; and as they are going to be evicted only on the ground of default in payment of rent, they should, in the interest of justice, be given a chance to clear arrear rent within a reasonable time if they want to continue in possession of the suit premises. But the defendants (present petitioners) should pay the rent of the suit premises at the prevailing rate from this year i.e. January 2015. The prevailing rent of the suit premises should be the average of the rents paid by the tenants of the neighbouring shops or tenanted premises i.e. the average of the rents of ten of the shops/tenanted premises of the immediate surroundings of the present suit premises. Both the parties shall settle the prevailing rent of the suit premises to be paid by the defendants (present petitioners) within 3(three) months from the date of passing of this judgment and order. In view of the aforesaid observation made by this Court, the defendants (present petitioners) shall clear the arrear rent at the prevailing rate as calculated and settled by the parties in the manner indicated above from the month of January 2015 and also the arrear rent before January 2015 at the old rate within a period of 4(four) months from the date of settlement of the prevailing rent of the suit premises by the parties and shall continue to pay the rent at the prevailing rate as calculated by the parties if he continues to possess the suit premises, till the parties otherwise decide the matter amicably or according to law. It is also made clear that if the defendants (present petitioners) fail to pay arrear rent within the 4(four) months indicated above and also the current rent so calculated at first week of every month on its becoming due, the defendants (present petitioners) shall be evicted from the suit premises as per the of judgment and decree of the first Appellate Court i.e. impugned judgment and decree dated 24-09-2008 which is upheld by this Court vide this judgment and order with the certain conditions mentioned aforesaid.

Revision petition is disposed of with the above observations and directions.