Case: Celina Coelho Pereira  Vs. Ulhas Mahabaleshwar Kholkar

2. Abilio Coelho Pereira - since deceased and now represented by the present appellants, (for the sake of convenience hereinafter referred to as `landlord), made an application on April 6, 1979 before the Rent Controller, Goa North Division, Panaji for eviction of Mahabaleshwar Ramchandra Colcar - since deceased and now represented by the respondents - (hereinafter referred to as `tenant) on the grounds of subletting and change of user, as provided in Goa, Daman & Diu Buildings (Lease, Rent & Eviction) Control Act, 1968, (for short, `Act, 1968). The landlord in the application for eviction averred that a building situated at Stres Joao de Castro, Panaji is owned by him; that one of the rooms on the ground floor of the said building was let out to the tenant @ Rs.80/- per month on January 10, 1959 for grocery business; that initially the lease was for a period of two years but later on it was renewed from time to time and the last renewal was made upto October 10, 1969; that on coming into force of Act, 1968 the tenant became statutory tenant; that the tenant without permission or consent of the landlord has transferred/sublet tenancy interest in the premises to Mandovi Tours and Travels; that the transferee/sub-lessee is exclusively running the business in the said rented premises and that no grocery shop is being run by the tenant in the said premises.  3. The tenant traversed the application for eviction and denied that he has transferred/sublet the premises to Mandovi Tours and Travels or that the tenancy interest in the said premises has been let out to the said partnership concern. The tenants defence in the written statement was that having advanced in age, he was not doing good business in grocery and he thought of starting the business of tours and travels within the territory of Goa and, for this reason, he formed a partnership in the name and style of M/s. Mandovi Tours and Travels and took his son and daughter-in-law as his partners along with one Smt. Kunda Wagh. The tenant further averred that booking and reservation of passengers and tourists is being done from the said premises by the firm and that the possession of the premises continues to be with him exclusively. An additional written statement was filed by the tenant on September 25, 1979 but since nothing material turns on that, it is not necessary to refer to the said additional written statement.  4. During the pendency of the proceedings, an application came to be filed by M/s. Mandovi Tours and Travels through its partner Umesh Kolkar for its impleadment and intervention but the said application came to be rejected on September 15, 1984.  5. It may be noticed here that the original tenant died on May 18, 1986 and his legal heirs (present respondents) were impleaded as respondents.  6. The Additional Rent Controller, Panaji Sub-Division, Panaji-Goa recorded the evidence of the parties and, after hearing them vide his order dated January 16, 1995 held that ground of sub-letting was established and directed the present respondents to vacate the subject premises and put the landlord in possession within 30 days from the date of receipt of the order.  7. The present respondents challenged the order of eviction passed by the Additional Rent Controller in an eviction appeal before the Administrative Tribunal, Goa. The original landlord seems to have died during the pendency of appeal and the present appellants who are his legal representatives were brought on record.  8. The Administrative Tribunal, Goa, after hearing the parties, dismissed appeal on December 24, 1998. Thus, the eviction order passed by the Additional Rent Controller was upheld by the Administrative Tribunal, Goa.  9. The present respondents, not satisfied with the concurrent orders, preferred writ petition under Article 227 of the Constitution before the High Court of Bombay at Goa.  10. Vide judgment and order dated November 29, 2006, High Court allowed the writ petition and set aside the concurrent orders of eviction passed by the Additional Rent Controller and the Administrative Tribunal. It is from this order that the present appeal by special leave has been preferred by the present appellants.

Reasoning:
In our judgment, the answer have to be in negative. In the plaint, the landlord averred that the tenant has sub-let the premises to M/s. Mandovi Tours and Travels, a partnership concern, without his permission and that the sub-lessee has been exclusively running the business in the rented premises although he has not pleaded specifically that the premises have been sublet to Balaji LawandeandNetravalkarbut such lack of pleading cannot be held to be fatal. It has to be kept in mind that a transaction such as sub-letting by tenant which is not permissible under lease may be outwardly a deceptive arrangementandd may not come to know of true facts. The pleadings in such matters ought not to be construed too technically. The true test, as has been repeatedly said, is to see whether the other side has been taken by surprise or prejudiced30. If the purpose of constituting partnership by the tenant is ostensibleanda deed of partnership is drawn to conceal the real transaction of subletting in a given case, the court may be required to tear the veil of partnership to find out the real nature of transaction entered into by the tenantandin such circumstances the evidence let in by thed cannot be ignored on the ground that there is some variance between pleadingandproof. In a case such as the present one, the rule of secundum allegata et probata is not strictly applicable as the tenant cannot be said to have been put to any prejudice31. The High Court, as the discussion in impugned judgment shows, has been too technical in construing the pleadings of the case overlooking the fact that plea of sub-letting has been set up byd in the plaintandthere has been fullandcritical examination of the evidence by the Additional Rent Controller as well as the Administrative Tribunal. The Additional Rent Controllerandthe Administrative Tribunal cannot be said to have misdirected themselves either on law or on facts. Both Authorities found as a fact thati ToursandTravels was not a genuine partnershipandit was formed to cover up the subletting of the suit premises. They also found as a fact that the partnership having not been found to be genuine partnership, it was difficult to hold that the tenant continued to have a control over the suit premises. These findings recorded by the Administrative Tribunal as well as the Additional Rent Controller are based on the consideration of evidence on record. In any case, it cannot be said that the aforesaid view of the Rent Control Authorities is not a possible view32. In BathutmalOswal v. Laxmibai R. Tarta And Another ((1975) 1 SCC 858 ), this Court held :"The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the Legislature has not conferred a right of appealandmade the decision of the subordinate court or tribunal final on facts."33. In State through Special Cell, New Delhi v. Navjotu alias Afshan Guru And Others ((2003) 6 SCC 641 ) this Court explained the power of the High Court under Article 227 thus :"Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all courtsandtribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authorityandto seeing that they obey the law. The powers under Article 227 are wideandcan be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary powerandit is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparinglyandonly to keep subordinate courtsandtribunals within the bounds of their authorityandnot to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised "as the cloak of an appeal in disguise"."34. The aforesaid two decisionsandfew other decisions, namely,r Sita Ratna Rao v. Ashalata S. Guram ((1986) 4 SCC 447 ), State of Maharashtra v. Milind & Ors. ((2001) 1 SCC 4 ), Ranjeet Singh v. Ravi Prakash ((2004) 3 SCC 682 ), came to be considered by this Court in the case of Shamshad Ahmad & Ors. v. Tilak Raj Bajaj (Deceased) through LRs. And Others ((2008) 9 SCC 1 )andthis Court held :"Though powers of a High Court under Articles 226and227 are very wideandextensive over all courtsandtribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of lawandto substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparinglyandonly in appropriate cases in order to keep the subordinate courtsandinferior tribunals within the limits of law."35. In light of the aforesaid legal position concerning jurisdiction of the High Court under Article 227, which the High Court failed to keep in mind, it must be held that in the factsandcircumstances of the caseandthe findings recorded by the Additional Rent Controller as well as the Administrative Tribunal, High Court was not justified in interfering with the concurrent orders of eviction based on the ground of sub-letting in exercise of its power under Article 227 of the Constitution of India36. The submission of the learned senior counsel for the respondents that the powers of the Rent Controller under the Act, 1968 are exercisable like that of courts of Mamlatdars under the Goa, DamanandDiu the Mamlatdars Court Act, 1966andthat onus never shifted to the tenant is devoid of any substanceandis noted to be rejected