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Ram Chandra Das Vs. Hiralal Modi and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberOriginal Jurn. Case No. 951 of 1977
Judge
Reported inAIR1984Ori21
ActsConstitution of India - Article 226; Orissa House Rent Control Act - Sections 2(4); Registration Act, 1908 - Sections 49
AppellantRam Chandra Das
RespondentHiralal Modi and ors.
Appellant AdvocateR. Mohanty, ;S.N. Kar, ;G.V. Mohanty, ;S.K. Mohanty and ;B.H. Mohanty, Advs.
Respondent AdvocateAddl. Standing Counsel, ;A. Mukherjee, ;A.K. Misra, ;A.N. Jena and ;P.R. Barik, Advs.
DispositionApplication dismissed
Cases Referred(U. P.) v. Shahdara
Excerpt:
.....of repeated demands, the petitioner failed to pay and such default was wilful. 3) was admissible for collateral purposes and (e) the petitioner was a defaulter having failed to pay rent in spite of repeated demands. 3 being unregistered was inadmissible in evidence and (c) the house rent controller as well as the appellate authority failed to appreciate the facts and circumstances and erred in holding that opposite party no. shri ajaneya swamyvaru agraharam, air 1980 sc 105, and urged that the de facto trustee like opposite party no. 1 could not be held to be one who satisfied the requirement of either 'is receiving' or 'is entitled to receive'.mr. 1 satisfied the requirements of the definition, namely, that he was entitled to receive the rent. d series, paid municipal tax in respect of..........in appeal directing his eviction from the premises in question by issue of a writ of certionari.2. opposite party no 1 filed an application under section 7 of the orissa house rent control act (for short, 'the act') in oct. 1975 for eviction of the petitioner on the ground of wilful default in payment of rent since 1-9-1970. he alleged that the petitioner was inducted by him as a tenant on 21-8-1966 at a monthly rental of rs. 125/-. though the contractual period was three years the petitioner continued as a statutory tenant thereafter. in spite of repeated demands, the petitioner failed to pay and such default was wilful. it was further averred that a suit for realisation of arrears of rent had been decreed against the petitioner by the civil court. in reply, the petitioner challenged.....
Judgment:

R. C. Patnaik, J.

1. The petitioner in this writ application has sought for quashing cf the decision of the House Rent Controller confirmed in appeal directing his eviction from the premises in question by issue of a writ of certionari.

2. Opposite party No 1 filed an application under Section 7 of the Orissa House Rent Control Act (for short, 'the Act') in Oct. 1975 for eviction of the petitioner on the ground of wilful default in payment of rent since 1-9-1970. He alleged that the petitioner was inducted by him as a tenant on 21-8-1966 at a monthly rental of Rs. 125/-. Though the contractual period was three years the petitioner continued as a statutory tenant thereafter. In spite of repeated demands, the petitioner failed to pay and such default was wilful. It was further averred that a suit for realisation of arrears of rent had been decreed against the petitioner by the civil court. In reply, the petitioner challenged the locus standi of opposite party No. 1 as trustee of any trust called 'Parvati Bat Estate'. He asserted that there was no relationship of landlord and tenant between opposite party No. 1 and him, and the action for eviction was, therefore, not maintainable. The petitioner further asserted that he had not executed any agreement on 21-8-1966 in favour of opposite party No. 1. He controverted that be was not regular in the matter of payment of rent. His positive case was that the premises in question were occupied by one Radha-shyam Mohanty and him as tenants when they were carrying on business as partners. After dissolution of the partnership, he alone continued as a tenant and executed an unregistered lease deed in favour of his landlady Smt. Parvati Bai on 21-8-1966 stipulating to be in occupation as a tenant at a monthly rental of Rs, 125/-. In the said document, opposite party No. 1 featured as an agent for and on behalf of Smt. Parvati Bai. He used to collect rent on behalf of Parvati Bai and not on his own behalf. Towards the later part of 1970, Parvati Bai expired and the agency of opposite party No. 1 came to an end Since the death of Parvati Bai, none had approached him to collect rent. So, there was no question of his being in default. He asserted that the prefixal mark , ' , appearing before the name of Parvati Bai in the document was an interpolation.

3. The House Rent Controller recorded the following findings: (a) Opposite party No. 1 was a de facto trustee; (b) Otherwise also, he was the 'landlord' within the definition of Section 2 (4) of the Act; (c) An application at his instance was maintainable; (d) The agreement dated 21-8-1966 (Ext. 3) was admissible for collateral purposes and (e) The petitioner was a defaulter having failed to pay rent in spite of repeated demands. On the findings aforesaid the Controller directed eviction of the petitioner.

In appeal, the appellate court held that Ext. 3 was genuine and the prefixal mark placed before the name of Parvati Bai in the document had been put by the petitioner who had scribed the document himself and executed the same. The prefixal mark, in this part, was put where the person was dead. So by 21-8-1966 Parvati Bai was dead. It disbelieved the petitioner's case that Parvati Bai died in the later part of 1970. It further took the probabilities and circumstances into consideration and held 'Parvati Bai was dead long back and she was not alive at time of execution of Ext. 3.' The further finding of the appellate court is that the petitioner was inducted as a tenant by opposite party No. 1 on 21-8-1966 and opposite party No. 1 w,as entitled to realise rent. So, he was the landlord within the meaning of section 2 (4) of the Act and the petitioner, being a wilful defaulter, was liable to be evicted.

5. Mr. S. N. Kar, the learned counsel for the petitioner, with his usual vehemence urged that (a) opposite party No. 1 was neither the de jure trustee nor the landlord within the definition of Section 2 (4) of the Act to maintain the application for eviction (b) the facts and circumstances did not establish the relationship of landlord and tenant and Ext. 3 being unregistered was inadmissible in evidence and (c) the House Rent Controller as well as the appellate authority failed to appreciate the facts and circumstances and erred in holding that opposite party No. 1 w,as the landlord having inducted the petitioner as a tenant.

6. Mr. A. Mukherjee, the learned counsel for opposite party No. 1, submitted that the writ jurisdiction of this Court was not an appellate jurisdiction and this Court was not entitled to reappreciate the facts especially when the findings recorded are concurrent. He submitted that the findings recorded by the appellate court and the Controller not being perverse, there is no scope for interference in writ jurisdiction. On the facts found, according to him the conclusion was inescapable that opposite party No. 1 was a landlord within the definition of Section 2 (4) of the Act and was entitled to maintain the application.

7. At this stage, we may refer to a document which was relied upon by the learned counsel for the petitioner, namely, the decision of this Court inter partes in Second Appeal No. 227 of 1977 arising out of the money suit filed by opposite party No. 1 for realisation of rent. Though opposite party No, 1 had been successful in obtaining a decree from the trial court which was confirmed in appeal, this Court held that there was divergence between the pleadings and so dismissed the suit. It was brought to our notice that an appeal against the said decision of this Court was pending in the Supreme Court in Civil Appeal No. 848 of 1978, So, the suit not having been finally decided, the findings recorded in the said suit at any stage are of no assistance to either of the parties.

8. In Syed Yakoob v. K. S. Radha-krishnan, AIR 1964 SC 477 (Para 7), it was observed:--

'...... the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact records ed by the Tribunal, ,a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari.........'

Their Lordships further held: that adequacy or sufficiency of evidence could not be a ground for invoking the writ jurisdiction.

9. The petitioner admitted in his evidence that Radhashyam Mehanty and he were carrying on business as partners and were occupying the disputed premises in question as tenants. Upon dissolution of the partnership, he alone was inducted as a tenant on and from 21-3-1966. Opposite party No, 1 was collecting rent from him and used to grant receipts. The monthly rental was Rs. 100/- when he and Radhashyam Mohanty were occupying the premises but was enhanced to Rs. 125/- with effect from 21-8-1966 when he alone was inducted as a tenant. He further admitted that opposite party No. 1 collected rent from him till the end of August, 1970, of course, as an agent of Parvati Bai. He denied that he had put the prefixal mark , ' , before the name of Parvati Bai in Ext. 3 but admitted that he put the said prefixal mark before the name of his father in Ext. 3 as he was dead. He admitted that opposite party No. 1 granted rent receipts Ext. D series in token of receipt of rent from him.

10. On the question whether parvati Bai died in the later part of 1970; the appellate court record 'It is not disputed that Ext: 3 was scribed by the appellant himself. The respondent is a Marwari and there is no evidence on record to show that he knows Oriya language. In Ext. 3 Parvati Bai was described to be a dead person by giving the mark , ' , Similar mark has also been given to the name of Krushna Ghandra Das, the father of the appellant. It was alleged by the appellant that this mark put before the name of Parvati Bai was subsequently interpolated. But save and except the bald statement of the appellant himself there is not an iota of evidence to prove that the prefixture to the name of Parvati Bai was interpolated. The fact that such a prefixture was given to the name of the appellant's father in Ext. 3. it is reasonable to infer that it is the appellant who put this mark before the name of Parvati Bai as she was dead by the time the document was executed.'

11. The plea of interpolation urged by the petitioner was in the nature of a criminal charge. The appellate court negatived such a plea and found as stated above. No material was placed before us to hold that the said finding was perverse being one winch could not reasonably be reached on the evidence. Adequacy or sufficiency of evidence is not a ground available in the certiorari jurisdiction to impugn a decision. So, we hold that the finding of the appellate court that Parvati died long before 1970 is one to which MO exception can be taken. We may further observe that the appellate court took another aspect into consideration--circumstance disprobabilising the story put forward by the petitioner that Parvati died in the later part of 1970. Ac-cording to the petitioner, Parvati Bai was 65 years of age at the time of her death in 1970. Ext. A is a deed of trust executed by Parvati Bai in 1929. So, the appellate court found that Parvati Bai would have been about 24 years of age in 1929--hardly an age to execute a trust for the purpose stated in Ext. A.

12. Mr. Kar for the petitioner advanced an argument that Ext. 3 being unregistered was inadmissible in evidence for any purpose whatsoever and reliance placed thereon by the Controller and the appellate court was erroneous.

Ext. 3 the counter-part of a lease for term exceeding one year executed by the tenant, the petitioner. It was compulsorily registrable under Section 17 (1) (d) ofthe Registration Act read with the definition of 'lease' contained in Section 2 (7). The document can be used, in our opinion, for collateral purposes under S. 49 proviso, namely, to ascertain the nature and character of possession. (See Khema Padhan v. Guna Sahu, (1966) 32 Cut LT 478 and Mt- Ugni v. Chowa Mahto, AIR 1968 Pat 302) (FB). In Khema Padhan's case (supra), it was observed that an unregistered lease deed is admissible to show 'the nature and character of possession showing the existence of relationship of landlord and tenant'.

In Ext. 3, the counter-part of lease, the petitioner categorically stipulated that he would vacate possession on 21-8-1969 on the expiry of the term of three years However, if within, the term of three years, the petitioner or opposite party No. 1 so desired, the tenancy could be brought to an end and the premises would be vacated. The aforesaid statement gives a death blow to the plea of the petitioner that Parvati Bai died in the later part of 1970. This statement establishes that the petitioner was dealing with opposite party No. 1 as the person entitled to induct and having authority to induct the petitioner as a tenant.

12A. Learned counsel for the petitioner contended that opposite party No- 1 was neither the dejure trustee nor the landlord so as to be entitled to maintain the application for eviction. He relied upon the case of Dondeti Gopi Reddy v. Shri Ajaneya Swamyvaru Agraharam, AIR 1980 SC 105, and urged that the de facto trustee like opposite party No. 1 had no power to lease out. So, there could be no relationship of landlord and tenant between the petitioner and opposite party No. 1. This case is distinguishable, the facts and situation arising therein being different. The lands belonged to the two temples which brought the suit for eviction on the ground that the occupiers were trespassers. The occupiers contended that they were tenants, the lands having been leased out to them by the de facto trustee. Against the aforesaid background, it was held that no relationship of landlord and tenant had been created between the occupiers and the temples which were the owners of the lands. Mr. Kar also relied upon the case of Somanath Dani v. Gopal Jew Mahaprabhu, AIR 1961 Orissa 105. In our opinion, the ratio laid down in the aforesaid two cases has no application. An application under Section 7 of the Act for eviction of the tenant on certain grounds can be maintained by the landlord. 'Landlord' has been defined in Section 2 (4) of the Act as follows :--

'(4) 'Landlord' includes any person who is receiving or is entitled to receive the lent of a house whether on his own account or on behalf of another or on behalf of himself and others.'

The definition is an inclusive one. A person would be a landlord if he is entitled to receive the rent of a house whether on his own account or on behalf of another. It was contended by Mr. Kar that opposite party No. 1 could not be held to be one who satisfied the requirement of either 'is receiving' or 'is entitled to receive'. Mr. Kar relied upon certain decisions to show that the expression 'is receiving' in Section 2 (4) of the Act by use of the active participle should have the meaning that the person who was receiving rent at present was entitled to maintain the application and a person who was receiving in the past would not come within the expression 'is receiving'. He relied upon the case of Upper Doab Sugar Mills Ltd., Shamli '(U. P.) v. Shahdara (Delhi) Saharanpur Light Rly. Co. Ltd., Calcutta, AIR 1963 SC 217, and other authorities to support his argument. He further submitted that by use of the expression 'entitled' in the second part of the definition, the Legislature intended that a person having right and title to receive the rent was entitled to maintain the application. He contended that right should inhere in the person in present to entitle him to maintain the application. He submitted that opposite party No. 1 not being a de jure trustee had no such legal right and title. Hence, the application at his instance was misconceived. Mr. Mukherjee, the learned counsel for opposite party No. 1, however, contended that on the facts found, opposite party No. 1 satisfied the requirements of the definition, namely, that he was entitled to receive the rent.

13. The appellate court held that opposite party No. 1 having inducted the petitioner as a tenant in 1966, when Parvati Bai was dead long since and continued to realise rent as per Ext. D series, paid municipal tax in respect of the holding, satisfied the requirements of the definition of 'landlord' that he was entitled to receive the rent from the petitioner. The appellate court further found that the petitioner, having stipulated in Ext. 3 to vacate the premises as and when opposite party No. 1 would require, was estopped from challenging that opposite party No. 1 was the landlord. No exception can be taken to the conclusion reached from the facts found. Though it is open to the ten-ant to plead that the title of the original lessor has since come to an end, he is es--topped from denying the title of the lessor who inducted him as a tenant, at the inception of the tenancy so long as he does not quit possession.

14. The facts found are that Parvati was dead by 21-8-1966. Opposite party No. 1 inducted the petitioner and continued to realise rent till the end of August, 1970. In Ext. 3, opposite party No. 1 was recognised by the petitioner as the person authorised to induct the petitioner and stipulated to vacate the possession with one month's notice at the option of opposite party No. 1. In view of the vehemence of the learned counsel for the petitioner, we permitted him to take us through the entire evidence in the case. There were overwhelming facts and circumstances to clothe opposite party No. 1 with the character of landlord as defined in Section 2 (4) of the Act. We entirely agree with the findings recorded. In our opinion, there is no error of law apparent on the face of the record which can be said to vitiate the decision of the appellate Court confirming that of the House Rent Controller.

15. In the result, we see no merit in the writ application which is accordingly dismissed. But in the circumstances without any order as to costs.

B.K. Behera, J.

16. I agree. For the reasons recorded in this judgment, no interference is called for.

In its writ jurisdiction, the High Court may quash the order of an inferior tri-bunal or a statutory authority when the; impugned order has been passed without jurisdiction or against the principles of natural justice or involves non-exercise of jurisdiction or a grave dereliction of duty or flagrant violation of the law as distinguished from a merely erroneous decision or when there has been an error of law apparent on the face of the record or the finding is perverse being founded on no material whatsoever. A finding of fact is not open to challenge unless the finding is perverse or based on no evidence.


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