.
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’ Scope of.
JAGDISH PRASAD coe FO, SMT. ANGOORI DEVI
. March 15, 1984 e . . °
_ {D.A. Desat AND RANGANATH Misra, 35.)
Constitution of India— Arts. 226 & 227—Writ of certiorari—Scope of ‘Whether High Court can correct an error of fact. .
U.P. Act No. 13 of 1972—s, 12(1)\(6) and I 42 read with s, 25—Interpretation © of—Allegation of sub-tenancy— How and by whom should be proved.
Provincial: Small Cause Courts Act, 1887s. 25—Revisional Jurisdiction—
_ The respondent—landlord filed a suit for eviction of the appellant—tenant in a town in U.P. on the-ground that the tenant had created a sub-tenancy of the _premises in favour of a trading company. The landlord filed a photo- . ' graph showing the son of the proprietor of the trading company standing in the shop. Adopting the approach that if any person other than a tenant was found sitting in the shop, the tenant had to lead evidence to show that a Sitting person was not 4 sub-tenant, the small cause court Judge assumed that there was a sub-tenancy; held against the tenant and ordered his eviction. Allowing the revision petition filed by the tenant the Additional District Judge held that’
it was for the landlord to lead good and positive evidence to prove that the business in fact at the shop was being carried -by the trading company and not by the tenant himself. The Additional District Judge looked into the evidence and held against the landlord. In an application under Art. 227 the High Court held that under s. 25 of the U.P. Act No. 13 of 1972 read with sec. 12(1)b) and s. 12(2) of the aforesaid Act a tenant would be deemed to have sub-let theaccommodation if he had allowed. it to be occupied by any person who was not amember of his family. The High Court further held that the Additional District Judge exceeded’ his jurisdiction under s. 25 of the Provincial Smali Cause Courts Act, 1887 in setting aside the findings of the trial court on “a mere re-appraisal of the evidence o on record. Hence this appeal.
Allowing the appeal,
_ HELD: As fong as cpntrol over the premises i is kept ;by the tenant and the business run in the premises is of the tenant, sub-letting flowing from the presence of a person other than the tenant in the shop cannot be assumed. The U.P. Act No. 13 of 1972 does not require the Court to assume a sub-tenancy merely from the fact of presence of an outsider. [220G]
‘4
%
JAGDISH PRASAD y, ANGOORI DEVI (Ranganath Misra, J.) 247
In the instant case the allegation that the premises haji been sub-let to a trading company had to be proved-as a fact by the landlord and metely on the basis of the photograph showing the presence of the son of the proprietor of the
_ trading company within. the room, sub-letting could not be presumed. The approach of the trial Judge was totally vitiated. [720 D-B]
The revisional jurisdiction under s. 25 of, the Provincial Small Cause Courts Act is not as wide as the appellate jurisdiction under s. 96 of the Code of Civil -
Procedure; yet ina case of thls type this Court does not think fault could be found with the revisional court for pointing out the legal error committed by the trial court in its approach to this material aspect. The legal position having been totally misconceived by the trial court and there being an assumption of the position which the landlord was required to prove by evidence, the revisional authority was entithd to point out the legal error and rectify the defect. ‘ (22\B-D]
The jurisdiction 10 issue a writ of certiorari is a supervisory one and in exercising it, the court is not entitled to act as a court of appeaJ. That necessarily -means that the findings of fact arrived at by the inferior court or tribunal. are binding. -An error of law apparent on the face of the record could be*corrected — by a writ of certiorari, but not an error of fact, however, grave it may appear to be. [221F-G]
Syed Yakoob v. K.S: Radhakrishnan & Ors,, [1964] 5S.C.R. 64, referred to. . .
In the instant case the High Court exceeded its jurisdiction in interfering * with the order of the Additional District Judge. [221G] .. .
of 1980.
Appeal by Special leave from the Judgment and ‘Order dated the 19th August, 1980, of the Allahabad High Court in C.M.W.P. No, 7578 of 1979.
Pramod Swarup for the Appellant. M.K. Garg and V.K. Jain for the Respondent. The Judgment of the Court was delivered by
RAANGANATH Misra, J. The tenant of one room which is a part of a premises Idcated within the township of Aligrah in the State of Uttar Pradesh is in appeal before this Court after obtaining special leave under Article 136 of the Constitution. The respondent
’ ™ *
CiviL ‘APPELLATE JURISDICTION : Civil Appeal No. 2147 ;
-D
318°” SUPREME COURT REPORTS — [1984] 3 s.c.R.
~Jandlord asked for his eviction on the ground of” the tenant having _ created a sub-tenancy. of the premises sometime in October, 1976, in
_ favour of M/s.:Pavan Trading Company, a soap manufacturing concern. The tenant denied the allegation of sub-letting. The main
_'t- issue raised in the proceeding was whether the tenant had sub-let ’ the accommodation as alleged by the landlord. The SCC Judge started dealing with this issue by saying :.
“Under Sections 12, 15 and 20 of the Act if ‘tenant has allowed a non-family member to occupy the accommodation, he should be deemed to have sub-let the. accommodation. If it is found that Pavan Tratling Co. or if any of his partner is carry- ing on business in the accommodation, the tenant in fact shall be deemed to have sub-let the accommodation. In Delhi Rent
Control Journal 1971 page 492 (Abdul Aziz v. Yaqub Khan) it was held by the Court that if ahy person other than a tenant .
- 4s found sitting in the shop, the tenant has to lead evidence to show that a sitting person is not the sub-tenant. Thus the burden is on the defendant to explain the circumstances under which partner of the Pavan Trading Co. is sitting in the accommodation. 21/C-I a photograph has been proved. ~ Even the defendant has admitted this photograpli during his cross-examination; the person standing in.the shop has been identified by the Parties to be the son of the proprietor. of. Pavan Trading Co... , . . He looked for evidence from the tenant against sub-letting by assuming from the presence of the son of the proprietor of Pavan
- Trading Company that there was .a sub-tenancy; held against the — teyant and directed his eviction from the’premises, The Additional District Judge before whom the tenant’s revision petition came for’
disposal took note of the erroneous approach of the trial court and came to hold :
eo * + «In the present case, it has not at all been admitted by . the defendant:-that Pavan Trading Company orany member ~ of the said company has been carrying on business io the shop alongwith him or by himself. The mere preserice of a member of Payan Trading Company in the shop at a certain time will. - not be sufficient to say all that the business is being carried on by Pavan Trading Company inthe shop. In these circumstances, it was for the plaintiff.to lead good and positive evidence to prove that the business in fact at that shop .
bl .
*J,GDISH PRASAD ¥. ANGOORI DEVI (Ranganath Misra, J.) 219 r . . .
was being carried on by the Pavan Trading Company and not by the defendant himself.”’
He looked into the evidence and came to hold :
b _ “The evidence of the plaintiff was not at all sufficient to shift the burden of proof to the defendent and on cdnsideration of the evidence of the plaintiff it is not at all possible 4k to say that the plaintiff has been able to prove the fact of Pavan Trading Company carrying on the business at the shop ~ _ which may amount to sub-letting of the shop by the defendant.” The appellate authority, therefore,- allowed the’ revision and - reversed the order of eviction and directed dismissal of the petition ‘. of the landlord. The landlord filed an application under Article of 227 of the Constitution. Referring to the contention of the landlord, the High Court observed :
“Learned counsel for the petitioner submitted that the learned Additional District Judge clearly misconceived his jurisdiction under Scction 25 of the Provincial Small Cause Court Act. It is urged that it was not permissible for the learned Judge to re-appraise the evidence on record on the. » . issue purely on fact. The learned counsel contended that whether it was defendant who was doing businsss in the shop in dispute of M/s. Pavan Trading Company is undoubtedly a , - pure issue of fact, the findings on wifich could not be disturbed in revision under Section 25 of the Provincial Small Cause Court Act”, and held : .
‘ . ae “The Simple question for determination before both. y the courts below was whether defendant had sub-let the shop — , . in dispute to M/s. Pavan Tradiig Company. This question . depended on the facts of the present case wholly on the answer to the. question whether itwas the defendant or the proprietor of the said company who was doing business in the disputed shop. This question was determined by the-trial. court on the basis of direct oral and documerttary evidence ; co adduced by the plaintiff to the effect that in point of fact it __ was the proprietor of M/s. Pavan Trading ‘Company who was ~ doing business in the shop in question instead’ of the defen-
’
230 SUPREME COURT REPORTS ~ [1984], 3 s.c.R. dant. ° This finding is s not: based on any notion of burdén of proof. It wasa pure and simple finding arrived at on the
- analysis of the evidence on. record without reference to the question of burden of proof. On the ariswer to this question depends entirely the fate of the casein as much as under Section 25 of the U.P. Act No. XII of 1972 read with Section. 12(1)(b}) and Section 12(2) of the aforesaid Act, a tenant would be deemed to have sub-let the accommodation, _ if he’has allowed it to be occupied by any persan who is not’
- amember of his family. Whether the tenant has allowed the shop to be occupied:by someone not a member of his family’
_ ds indisputably ; a pure question of fact. -
; That being so, the learned ‘District Judge exceeded his jurisdiction under Section 25 of the Provincial Small Cause
‘ Court Act in setting Aside the finding of the trial court on a mere re-appraisal of the evidence on record. The finding of the trial couit was not vitiated by any error of law. The impugned order is thus‘ex-facic illegal.’
*
Having’ heard counsel for, the parties we are of the view
‘that the High Court was clearly wrong in. reversing the decision of the Additional, District Judge. The “application for eviction was based onthe allegation of sub-tenancy. The allegation that the prentisses had been sub-let to Pavan Trading C ompany had to be proved as a fact by° the landlord and merely on the basis of photo- 7 graph showing. the presence of the son of the proprietor of Pavan
Trading Company within the room, sub-letting could not be presum-- ed. We must indicate that the approach of the trial Judge was toially vitiated. . Merely from: the presence of a person other-than _ the tenant in the shop sub-letting cannot be presumed. There may - be several situations in which a person other than the tenant may be found sitting in the shop; for instance, he may be a customer waiting to be attendant, a distributer who may have come to deliver his goods at the. shop for sale; a creditor coming for collection of the”
dues ; a friend visiting for some social purpose or the like. As long-as’ control over the premises ‘is kept by the tenant and the business run in the premises is of the tenant, sub-letting flowing from the
‘presence of a person other than the tqnant in the.shop cannot be assumed.” The Act does not. require the Court to assume a subtenancy merely from the fact of presence of an. outsider. Obviously
_ the law has intended and we must assume that the rule in the Abdul a
~ - ry
JAGDISH PRASAD ¥. ANGOORI DEVI (Ranganath Misra, J.) —-221
Aziz’s case {referred to by the. trial court) proceed on the footing
- that the person was sitting in the. shop in exercise of his own right and not in.a situation as indicated by us. The trial court unwartantedly drew the presumption and looked at the evidence of the tenant to find out whether the presumption had been rebutted. There is no warrant in law for sucha Situation. The Additional
District Judge rightly took exception to this approach to. the matter - - by the trial court and since the evidence of the plalntiff had not been scrutinised under tht erroneous impression of the legal position, the same was looked into to find out, whether the claim of the subtenancy had been established. This was not an attempt to re-assess evidence but to take into consideration the evidence which had not | been: looked into by the trial court.- The revisional jurisdiction under Section 25 of thé Provincial Small Cause Court Act is not as wide as the appellate jurisdiction under Section 96 of the Code of Civil Procedure ; yet in a case of this type we do not think fault could-be found with the revisiona! court for pointing out the legal error committed by the trial court in its approach to this material aspect. The legal position having been totally ‘misconceived by the
- trial court and there being an ‘assumption of the position which the landlord was required to prove by evidence, the revisional authority was entitled to point out the legal error and “rectify the defect. This is all that had been done by the Additional District Judge.
In the case of Syed Yakoob v. K.S, Radhakrishna & Orst., a Constitution Bench of this Court indicated the scope of. interference in a certiorari proceeding by saying.that a writ of certiorari is issued for correcting the errors of jurisdiction committed by the courts or tribunals in cases where they exceed their jurisdiction or fail to exercise it or exercise it illegally ot improperly. i.e. where an order ispassed without hearing the party sought to be affected by itor, where the procedure adopted is opposed to _ Principles of natural justice. -A caution was indicated by saying that the-jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it, the’ court is not entitled. to act as a court of appeal. Phat necessarily ‘means that the -findings of fact arrived at by the inferior court or _ tribunal are binding. An error of law apparent .on the face of the record could be corrected by awrit of certiorari, but not an error of fact, however, grave it May appear to be. The rule in Yakoob’s case when applied to the present facts would lead to the conclusion
(1) [1964] 5 S.C.R.64. a -: .
222 "SUPREME COURT REPORTS ~~ —_—- [1984] 3. s.c.R.
that the High Court exceeded its jurisdiction in interfering with the order of the Additidnal District Judge. We are, therefore, inclined to agree with the appellant’s contention that the High Court wrongly interfered with the decision of the Additional’ District’ : Judge that the landlord failed to establish sub-tenancy. The circum- stances in which the son of the proprietor of Pavan Trading
Company was in theshop have beey clearly explained and we are inolinéd to agree that there is no material on the record to doubt the © explanation placed by way of evidence in the proceeding.
The appeal is accordingly allowed and the order of the High ‘
Court is vacated and that of the Additional District Judge is restored. The net effect is. the application for eviction of the appellant-
‘tenant is dismissed with costs ‘throughout. Hearing fee in this
Court is assessed at Rs. 1,000.
.¢
- HSK, mc , a - Appeal allowed.
P ad