Case: Hari Shankar Vs. Rao Girdhari Lal Chowdhury

1. The appellants (in this appeal by special leave) are the sons of one Gauri Shankar, who owned a bungalow known as 5. Halley Road, New Delhi. This bungalow was given to the respondent by Gauri Shankar on a monthly rent of Rs.excluding taxes. The suit, out of which this appeal arises, was brought by the appellants against the respondent, Rao Girdhari Lal Chowdhury, for his eviction on the ground (among others) that he hada portion of the bungalow after the commencement of the Delhi and Ajmer Rent Control Act, 1952 (38 of 1952)to one, Dr. Mohani Jain, without obtaining the consent in writing of the landlord as required by S. 13 (1) (b) (i) of the Act. The defence was that the original contract of tenancy was entered into sometime in 1940 and a term in the contract gave the tenant a right toIt was alleged that a letter written by the tenant which embodied the terms of the tenancy, was in the possession of the landlord and a demand was made for its production. The case of the tenant was that thecommenced in the year 1951, that is to say, before the passing of the Act of 1952, and the tenant was not required to obtain the written consent of the landlord to sublet. Admittedly, in this case. no written consent was proved. We need not mention the other allegations andwhich are usual in proceedings between landlords and tenants, the most important of them being about the arrears of rent, which the tenant under permission of the Court ultimately deposited in Court.2. The issue on which the decisions below have differed was framed by theFirst Class, Delhi, in the followingthe plaintiff consent to the subletting of parts of the demised premises by the defendant? If so, when and to whattrial Judge found that there was no evidence that the landlord was ever consulted before a portion of the bungalow wasto Dr. Mohani Jain, and further that thewas created after June, 9, 1952, the date on which the Act came into force. In reaching the latter conclusion, the trial Judge made a reference to a dispute between the tenant and Dr. Mohani Jain for fixation of standard rent before the Rent Control authorities. In those proceedings, Dr. Mohani Jain had alleged that she was living as afrom the end of 1951, but the tenant had denied this fact. The proceedings before the Rent Control authorities ended in a compromise, but the admission of the tenant was relied upon to support the conclusion that the subtenancy commenced after the Act. The trial Judge decreed the suit. The decision of the trial Judge was confirmed on appeal by the Additional District Judge Delhi. Though Dr. Mahani Jain gave oral evidence in this case that hercommenced in December 1951, the Additional District Judge found categorically that theAgainst the order of the Additional District Judge, a revision was filed under s. 35 (1) of the Act. That section reads as followsHigh Court may, at any time, call for the record of any case under this Act for the purpose of satisfying itself that a decision made therein is according to law and may pass such order in relation there to as it thinksin accordance with a decision of the Punjab High Court as to the ambit of this section, the learned single Judge, who heard the revision application, thought that it was competent for him to reconsider the concurrent finding about the time when thecommenced. He held that Dr. Mohani Jains statement showed that thecommenced prior to the passing of the act, and that the landlords consent in writing was not necessary. In reaching this conclusion, the learned Judge was of opinion that all the evidence was not considered by the two Courts below, and that he was entitled, in view of the interpretation placed upon the section above quoted, to go into the matter afresh, and decide the question of fact.

Reasoning: That letter does not disclose all the terms of the tenancy, and it would appear, therefore, that the terms of the original tenancy have not been proved in this case and there is no material on which it can be said either way as to whether a right towas conferred upon the tenant. The defendant did not insist in the Court of first instance that there was yet another letter, and the argument to that effect in this Court cannot beclearly shows that the learned Additional District Judge was weighing Ex.as against Ex.and was acting on Ex.which contained a material admission by the tenant before the present dispute had begun. The learned single Judge was, therefore, in error in departing from a concurrent finding of fact on a wrongquestion required an examination of the powers of revision conferred on the High Court by S. 35 of the Act. That section is one of common occurrence in acts dealing with some special kinds of rights and remedies to enforce them. Section 35 is undoubtedly worded in general terms, but it does not create a right to have the case reheard, as was supposed by the learned Judge. Section 35 follows S. 34, where a right of appeal is conferred; but the secondof that section says that no second appeal shall lie.The section we are dealing with, is almost the same as S. 25 of the Provincial Small Cause Courts Act. That section has been considered by the High Courts in numerous cases and diverse interpretations have been given. The powers that it is said to confer would make a broad spectrum commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending, at the other, with a power of interference a little better, than what an appeal gives. It is useless to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont, C. J. (as he then was) in Bell and Co. Ltd. v. Waman Hemraj, 40 Bom LR 125: (AIR 1938 Bom 223  ) where the learned Chief Justice, dealing with S. 25 of the Provincial Small Cause Courts Act, observedobject of S. 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does S. 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful part has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrivedobservation has our full concurrence.10. What the learned Chief Justice has said applies to S. 35 of the Act, with which we are concerned. Judged from this point of view, the learned single Judge was not justified in interfering with a plain finding of fact and more so, because he himself proceeded on a wrong assumption.