Rajbir Kaur & Anr. vs S. Chokesiri & Co.

CASE BRIEF

Petitioners- Smt. Rajbir Kaur & Anr.

Respondents- S. Chokesiri & Co.

Decided On: 09.08.1988

Equivalent Citations:

1. 1988 AIR 1845
2. 1988 SCR Supl. (2) 310
3. 1989 SCC (1) 19
4. JT 1988 (3) 593
5. 1988 SCALE (2) 461

Bench:

1. Venkatachalliah, M.N. (J)
2. Pathak, R.S. (CJ)

Statutes Referred:

1. East Punjab Urban Rent Restriction Act, 1949
2. Transfer Property Act, 1882
3. Indian Easements Act, 1982
4. The Delhi Rent Act, 1995

Cases Referred:

1. Wood v. Leadbitter, 153 E.R. 351
2. Glenwood Lumber Co. v. Phillips, [1904l] A.C. 405
3. Cobb v. Lane, [9521] 1 All E.R. 1198
4. Merchant v. Charters, [1977] 3 All E.R.918
5. Associated Hotels of India v. R.N.[1960] 1 SCR 368
6. B.M. Lall v. Dunlop Rubber Co.[1968] 1 SCR 23
7. Qudrat Ulah v. Municipal Board, Bareilly, [1974] 1 SCC 202
8. Board Revenuer v. A. M. Ansari,[1976] 3 SCR 661
9. Dipak Banerjer v. Smr. Lilabati Chakrobory, 4 JT 1987 3 454
10. KhuliI Ahmed Bashir Ahmed v. Tufelhussin Samasbhai Saranpurwala,JT 1987 4 S.C. 342
11. M. N. Clubwala v. Fida Hussain Saheb, [1964] 6 SCR 642
12. Watt v. Thomas, [1947] A.C. 484
13. Benmax v. Austin Motor Co. Ltd., [1955] 2 W.L.R. 418
14. Sarju Pershad v. Jwaleshwari Pratap Narain Singh and Others, [1950] SCR 781
15. Latchan Naidu and Anr. v. Rama Krishan Ranga Rao Bahadur Bobbili Samasthanam
16. Rum Sarup Gupta v. Bishun Narain Inter College. AIR 1987 SC 1242

Facts:

1. This Appeal is by Special Leave, by the Landlord and arises out of and challenges directly, the Judgment and Order on the date 23.08.1982 of the High Court of Punjab and Haryana in Civil Revision Application No. 2588 of 1980.
2. The aforementioned order allowed the Respondent tenant’s appeal and was in contradiction of the concurrent findings of the courts below claiming that there was an unauthorized sub-letting. It dismissed the Appellant’s application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (Act) for an order for grant of possession.
3. The two appellants are mother and son, owners of the commercial-premises S.C.O, No. 15, Sector 17 E, Chandigarh, which was granted on lease for 10 years from 01.01.1971, under a deed containing the relevant terms and conditions dated 25.11.1970, in favor of M/s. S.Chokesiri & Co., who is the respondent.
4. Seeking for eviction of the respondent, an application under section 13 of the East Punjab Urban Rent Restriction Act, 1949 was moved by the appellants. The principle ground inter-alia of such eviction being that the respondent two sub-tenants were unauthorized and without the consent of the appellant inducted by the respondent; a tailor (Carrying on business under the name and style of Royal Star Tailors) and an ice-cream vendor (Carrying on business under the name and style of M/s Kwality Ice Cream) in two portions of the premises.
5. The defense of the respondent was given in a written statement that mentioned that it was essential for all the big shops in the modern shopping centers to maintain such booths as it had become a necessary adjunct and that the respondent remained in exclusive possession of the demised premises. The agreement dated 13.9.1973 entered into between Respondent and the said Banwari Lal of, Royal Star Tailors” (Ex. Mark `B’) and dated 17.9.1973 between the Respondent and the said Agia Ram Lamba of “M/s. Kwality Restaurant” (Ex. Mark A’) the terms of which, according to the respondent, clearly excluded any possibility of sub-letting, was also heavily relied upon by the Respondent.
6. The appellants relied upon the evidence provided by numerous individuals and the report of Sri S.K. Chhabra, Advocate-Court-Commissioner who actively corroborated the appellant’s charge.
7. It was observed by the learned Rent Controller that while the establishment of the allegations on the part of the tailor was yet to be made, the case of sub-letting so far as the “M/s. Kwality Ice Cream” was concerned, had clearly been established, and an order dated 02.03.1979 was passed accordingly by the learned Rent, allowing the appellants’ application and making an order granting possession.
8. A preference for an appeal before the District Judge by the Respondent was unsuccessful and the order of eviction was further upheld. In addition to that, it was also found by the Appellate Authority that there was sub-letting even in the case of M/s.Royal Star Tailors.
9. The High Court, by its order dated 23.8.1982, in Civil Revision Application No. 2588 of 1980 however, in exercise of its Revision jurisdiction and upon a re-appreciation of the evidence set-aside the concurrent- findings of the Courts-below in regard to the element of exclusive possession and set-aside the orders of eviction passed by the Courts-below. Consequently, the appellants’ application for possession was dismissed. For such decision to take place, the High Court put reliance on certain observations that the petitioner (respondent) hadn’t been given the opportunity to object to any such report provided by the local Commissioner and that the report, so heavily relied upon by the appellants, was not factually correct.
10. Further reliance was put by the High Court on the plans said to have been submitted for the execution of certain alterations to be made to the building, which was stated to have contained the first appellant’s signature, to come to the conclusion that the structural dispensations as indicated in the plans only meant that it would not have been possible for the alleged sub-tenants to have exclusive possession.

Contentions of the Parties:

Appellants’ Arguments:

The contentions of G.L. Sanghi, learned Senior Advocate in support of the appeal are hereunder enumerated:

1. The High Court was in error in interfering, in the exercise of its revisional-jurisdiction, with the concurrent finding fact recorded by both the Courts-below as to the exclusivity of the possession of M/s. Kwality Ice Cream of the portions in which it was carrying on of its business. This was a pure question of fact the concurrent finding on which was not amendable to interference in exercise of revisional powers under the ‘Act’.
2. That reliance by the High Court on the evidence of R.W. 3 and Plans Exhibit R. 4 to show that the structural modifications indicated accessibility between the main premises and the portions in the occupation of sub-tenants was wholly misplaced as, indeed, Exhibit R. 4 was itself produced in a totally different context and for an altogether different purpose, viz., to meet the ground of eviction based on unauthorized construction and not for purposes of rebutting exclusive-possession of the sub-tenants.
3. That even if the Revisional jurisdiction of the High Court admitted a re-appreciation of evidence, a finding of a fact which was the result purely of appreciation of oral evidence by the trial court could not be interfered with even by an Appellate-Court and a-certiorari in Revision.
4. That the view of the High Court as to the alleged infirmity of the Court-Commissioner’s (A.W. 1) report on the ground that his appointment was not preceded by a notice to the Respondent was erroneous.

Respondent’s Arguments:

1. It was contended by Dr. Chitaley, learned Senior Advocate for the respondent, that where a finding of fact is shown to have been rendered infirm and vitiated by a misreading of evidence and a non-consideration of material evidence, and where the inference and conclusion drawn from the evidence is non-sequetor the Revisional jurisdiction under the ‘Act’ which is wider than that under Section 115 C.P.C. could be invoked to correct errors even in findings of facts.
2. The finding of a question of sub-tenancy being a mixed question of fact and law, this Court, even on an independent consideration of the whole matter, should not interfere as one of the essential ingredients in the concept of a sub-lease, viz., the existence of monetary-consideration, in the form ‘Rent’, as distinct from consideration by way of services was wholly lacking.
3. It was further contended that the appeal must fail based on the correctness of the High Court’s finding of the lack of exclusiveness of possession alone.
4. It was also contended that the two transactions did not contain the usual indicia of tenancy and they were no more than a mere personal license to occupy and that no interest in the property was transferred.

Issues:

1. Whether the decision of the High Court could be upheld and there was in fact no sub-letting on the part of the Respondent.
2. Whether the statements of the witnesses in regard to what was amenable to perception by sensual experience as to what they saw and heard is acceptable or not.

Ratio Decidendi:

1. When the findings of fact recorded by the Courts-below are supportable on the evidence on record, the revisional Court must, indeed, be reluctant to embark upon an independent reassessment of the evidence and to supplant a conclusion of its own, so long as the evidence on record admitted of and supported the one reached by the Courts- below.
2. A careful examination of the context in which M.L. Sharma (R.W. 7), the Senior Architect who produced Ext. R.4. was examined makes it clear that Ext. R. 4 was relied upon for the purpose of rebuttal of/in answer to a different ground altogether, that is, the ground of unauthorised structural alterations and the alleged damaged caused to the building thereby and to show that the structural alterations had been authorized by the first-appellant.
3. If the Appellate Court seeks to reverse those findings of fact, via appreciation of oral evidence by the Courts-below, it must provide cogent reasons for doing so and to demonstrate how the trial Court fell into an obvious error.

Judgement:

1. The appeal was allowed.
2. The order passed by the High Court was set aside.
3. The order, in regards to the evacuation, passed by the Courts below was restored.
4. The respondent was given time to vacate and yield up the vacant possession till 31^st December, 1988.
5. Both the parties were left to bear their own costs.

Conclusion:

After a thorough analysis of the contentions of the parties on both sides and the procedural history concerning the decision of the High Court, the Supreme Court came to a conclusion that the decision of the High Court was one that must be set aside and the order passed by the Courts-below regarding the eviction was to prevail.