IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.17117 of 2011 M/S A.B. Enterprises & A.V. T.V.S. Motor & Anr Versus Upendra Kumar ---------------------------------- O R D E R 04. 19.10.2011. Heard the parties. (2) This application under Article 227 of the Constitution of India has been filed by the tenant- defendant against the order dated 9th August, 2011 passed by Sub Judge VIth Gaya in Eviction Suit No.3 of 2010 whereby the Court below directed the defendant-petitioner to deposit monthly rent at the rate of Rs.90,000/- per month since June, 2010 as arrears and also directed to deposit the current rent as provided under Section 15 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982. (3) The plaintiff-respondent filed the aforesaid eviction suit No.3 of 2010 praying for eviction of the defendants-petitioners from the suit premises on two grounds, i.e., Section 11(1) (d) and 1 (e) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter shall be referred as BBC Act). According to the plaintiff, the defendant was inducted as tenant in the suit premises from 1st March, 2008 on monthly rent of Rs.90,000/- to be paid within first week of each succeeding month. The petitioner paid the rent upto March, 2009 at the rate of Rs.90,000/- and thereafter did not pay the rent - 2 - and, therefore, the defendant is liable to be evicted on the ground of defaulter. On the ground of expiry of lease, the plaintiff case is that the defendant was inducted as tenant for a fix period of 11 month with a renewal clause in the lease deed. (4) The defendants appeared and filed written statement contended inter alia that in fact the rate of rent is Rs.25,000/- per month. According to the defendant, the lease deed was executed on 27th of December, 2007 and thereafter the defendant was paying Rs.90,000/- through cheque and Rs.10,000/- in cash to the plaintiff per month regularly, i.e., Rs.25,000/- towards the rent and Rs.75,000/- towards the construction of the rest of the buildings of the landlord plaintiff. The agreement was that after construction, the plaintiff will be a partner of the firm of the defendant. The defendant has paid in excess of the amount and, therefore, the excess paid amount may be adjusted towards the arrears of rent. (5) The plaintiff then filed application under Section 15 of the BBC Act for a direction on the defendant to pay the arrears of rent and current rent at the rate of Rs.90,000/- per month. The rejoinder application was filed by the defendant and contended that the rate of rent is Rs.25,000/- only and, therefore, the Court cannot direct to pay Rs.90,000/- per month. (6) After hearing the parties and examining the - 3 - documents produced by the parties, the leaned Court below found that prima facie, the monthly rent is Rs.90,000/-. (7) From perusal of the impugned order, it appears that the learned Court below recorded the finding that “after going through the aforesaid documentary evidence adduced on behalf of both the parties, it can safely be determined prima facie that the suit premises was let out to the defendant on the monthly rental of Rs.90,000/-“ and accordingly, the learned Court below directed the defendant to pay the rent at the said rate. (8) The learned counsel for the petitioner submitted that the learned Court below should have determined the last paid rent after allowing the parties to adduce evidence as the rent was disputed. The learned counsel further submitted that the lease deed produced by the plaintiff dated 1st March, 2008 is forged and fabricated document. In fact the lease deed produced by the defendant which has been annexed as Annexure ‘1/A’ to this writ application which is dated 1st December, 2007 is the genuine lease deed wherein it has been specifically mentioned that the rate of rent is Rs.25,000/- per month and, therefore, the learned Court below should have directed the defendant to pay the rent at that rate. The learned counsel relied upon A.I.R. 1985 Supreme Court 964 Ganesh Prasad Sah Keshri Vs. Lakshmi Narayan - 4 - Gupta and also Full Bench decision of this Court reported in 1989 P.L.J.R. 1141 (Dr. Sachhidanand Sinha Vs. Collector, Patna. On the strength of these decisions, the learned counsel for the petitioner submitted that the Court has the duty to enquire and determine the rate of rent which was last paid as in the present case the said question is disputed between the parties. Prior to the said determination, the Court has no jurisdiction to direct the defendant-petitioner to deposit the rent at the rate of Rs.90,000/-. (9) On the other hand, the learned counsel appearing on behalf of the plaintiff-respondent submitted that the lease deed alleged by the defendant and annexed with in the writ application as contained in Annexure ‘1/A’ is forged and fabricated. In fact the plaintiff was given power of attorney on 26.02.2008 by the other brothers and sisters of the plaintiff who are also co-sharer with respect to the suit property. In such circumstances, prior to execution of the power of attorney by the plaintiff’s 4 brothers, he could not have entered into agreement and inducted defendant. The learned counsel further submitted that after the execution of the power of attorney, the plaintiff entered into agreement with the defendant on 1st March, 2008 and, therefore, the lease deed relied upon by the defendant is forged and fabricated. The learned counsel further submitted that in fact the defendant was - 5 - paying the rent of Rs.90,000/- per month by cheque through the bank and the allegation made by the defendant that he was paying Rs.10,000/- per month as case is false. The documents were produced before the Court below in support of the case of the parties and by the impugned order, the learned Court below recorded a finding regarding the rate of rent. In such circumstances, there is no illegality in the impugned order. Accordingly, the learned counsel prayed that the writ application be dismissed. (9) As stated above from perusal of the impugned order, it appears that the plaintiff Upendra Kumar filed statement of account of UCO Bank from 10.05.2008 to 03.07.2009. Photocopies of 4 papers have been filed on behalf of the defendant for the proof of receiving the cheque of Rs.90,000/- and cash of Rs.10,000/- as advance by Upendra Kumar. It further appears that the plaintiff filed 6 cheques for Rs.40,000/-, Rs.25,000/-, Rs.25,000/-, Rs.25,000/-, Rs.25,000/-, Rs.25,000/-. The learned counsel for the petitioner before this Court submitted that cheques were issued by the petitioner according to the sales proceeds and benefit of the T.V.S. motorcycle show room. He submitted that per month he was paying Rs.one lakh, i.e., Rs.90,000/- through cheque and Rs.10,000/- in cash. - 6 - (10) In the case of Ganesh Prasad Sah Kesari A.I.R. 1985 Supreme Court 964 (Supra), the Apex Court has held that where eviction is sought on the ground of non-payment of rent, it places a tenant at a comparative disadvantage if the landlord chooses to claim rent at the rate which is beyond the capacity of the tenant to pay. In such a situation, the tenant will be exposed to double jeopardy in that on a prima facie pleading he will be directed to deposit the rent at the rate claimed by the landlord, if the court has no power to determine rate of rent at an interim stage. Such power is conferred by Section 11-A on the Court. The Court can also determine as to from what date the tenant appears to be in arrears so that an appropriate direction can be given that the rent in arrears may be deposited within the time stipulated by the Court as also future rent may be deposited regularly in the court. It is a wholesome provision which would advance justice.” (11) The aforesaid decision of the Apex Court has been followed in Full Bench decision reported in 1989 P.L.J.R. 1141 (Dr. Sachhidanand Sinha Vs. Collector, Patna). It may be mentioned here that the Section 11-A of the B.B.C., Act, 1947 has been replaced by Section 15 of the B.B.C. Act, 1982. (12) From the above decision relied upon by the - 7 - petitioner, it appears that it is settled law that the Court should make an enquiry and determine the rate of rent at which the deposit shall be made by the defendant where there is a dispute as to the rate of rent. (13) From perusal of the impugned order, as stated above, it is clear that after perusal of the documentary evidences, the Court below has recorded the finding regarding rate of rent at Rs.90,000/- per month. Therefore, the Court below has followed the settled principles of law. (14) In a decision reported in 2003 (6) Supreme Court cases 675 Surya Dev Rai Vs. Ram Chander Rai and Ors, the Apex Court at paragraph 38 has given 9 propositions regarding the exercise of jurisdiction under Article 227 of the Constitution of India. It is better to quote clause 4 to 8 which are as follows : “(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of the jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self- evident i.e. which can be perceived or demonstrated - 8 - without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and / or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.” (15) So far the decision of the Apex Court in Surya Devi Rai case is concerned, the same has been again followed in subsequent decision of the Apex Court reported in 2009 (5) Supreme Court cases 616. In the latter decision, the Apex Court has confirmed the propositions laid down by the Apex Court in Surya Dev Rai case except regarding the jurisdiction under Article 226 of the Constitution of India. (16) In above 2009 (5) Supreme Court cases 616 Radhey Shyam Vs. Chabi Nath at paragraph 31, - 9 - the Apex Court has held that under Article 227 of the Constitution of India, the High Court does not issue a writ certiorari. Article 227 of the Constitution vests the High Court with a power of superintendence which is to be very sparingly exercise to keep tribunals and courts within the bounds of their authority. Under Article 227 of the Constitution orders of both civil and criminal Court can be examined only in very exceptional cases when manifest miscarge of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and a mistake of law. This decision has been again followed in 2010 (8) Supreme Court cases 329 Shalni Shyam Sheety Vs. Rajendra Shanker Patil wherein the Apex Court has held that “off late there is growing trend amongst several High Courts to entertain writ petitions in cases of pure property dispute like partition suit, execution of a decree, landlord-tenant dispute and also in a case of money decree. In some cases, High Courts in a routine manner entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions. As a result of frequent interferences by the High Court disposal of cases by the civil and criminal Courts gets impeded. The Apex Court also held that in certain cases where there is infringement of Fundamental Right, the relief under Article 226 of the Constitution of India can be claimed ex debito-justice or as a matter of right. But in - 10 - case where the High Court exercises its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claim it as a matter of right. The said decision of the Apex Court recently have been followed again by the Apex Court in the case of Kokkanda B. Poondacha Vs. K.D. Ganapathi 2011 (3) P.L.J.R. 46 Supreme Court and the Apex Court has held that the power under Article 227 of the Constititon of India should be exercised when subordinate Court acts in excess or without jurisdiction or on a clear ignorance or disregard of provisions of law leading to failure of justice. (17) We have seen above that in the impugned order, the learned Court below discussed the evidences produced by the parties and after appreciation of evidence has recorded a prima facie finding. The decisions relied upon by the petitioner also speak that the Court should enquire into the matter and determine the rate of rent. The Court below after appreciation of documentary evidences has determined the rate of rent at the rate of Rs.90,000/- per month. As has been held by the Apex Court, the High Court in exercise of supervisory jurisdiction will not convert itself into a Court of appeal and indulge in re-appreciation or evaluation of evidences or correct errors in drawing inferences or correct errors which are mere formal or technical character. (18) So far the argument of the parties is - 11 - concerned that the lease deed produced by the plaintiff is forged and vice versa and that there is no renewal agreement is concerned, all these are disputed question of fact which cannot be decided without their being evidence adduced by the parties. The learned Court below has after appreciation of the evidences available on record prima facie determined the rate of rent and has stated that all these facts which are being raised by the defendant will be decided during final decision of the suit. Here, it is admitted fact that defendant was paying Rs.90,000/- per month through cheque whether it was for rent or for the purpose of construction of building that can only be decided after parties adduce evidence. (19) In view of my above discussion, the impugned order cannot be interfered with in supervisory jurisdiction under Article 227 of the Constitution of India as this Court is unable to re-appreciate the evidences available on record and this Court cannot substitute its own finding of fact, particularly when the Court below has taken view which is also possible on the basis of the evidence available on record. (20) In view of the above discussion, I find no merit in this writ application and accordingly, this writ application is dismissed. Patna High Court, Patna The 19thday of October, 2011 Sanjeev/A.F.R. (Mungeshwar Sahoo,J.) - 12 -