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216 •

JAGDISH PRASAD

SMT. ANGOORI DEVI

• March 15, 1984

[D.A. DESAI AND RANGANATH MISRA, JJ.]

Cons1itution of lndia-l{rts. 226 & 227-Wrlt of certiorari-Scope a/- Whether High Court can correct an error oi faCt.

U.P; Act No.13of1972-s.12(J)(b) and 12(2) read withs. 25-1nterpretation of-Allegation of sub-tenancy-How and by whofn shoUJd be pYored.

Pf0vincia.' Small Gause Courts Act, 1887_:_._s~ 25-Revisional furisdiction-

D Scope of

The respondent-landlord filed a suit for ev1ctlon of the appel!ant-:-tenant in a town in U.P. ob theground that the tenant had created a sub-tenancy of the . premises in favour _oT a trading company. The landlord filed a photo- . graph Showing tbe so'n of the proprietor of the trading company standing in the shop. Adopting the appro8.ch that if any person othef than a tenant was found sitting iri the shop, the tenant hd. to. lead evidence to Show that a 'sitting person was not a sub-tenant, the small cause court Judge assun1ed that there was a sub-tenancy; held against the tenant and ordered his eviction.. Allowing the revision petition filed by the tenant the Additiona 1 :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 JiJdge 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. J2(l)(b) and s. 12(2) of the aforesaid Act a tenant would be deemed to hav~ sublet the

accommodation if he had allowed. it to be occupied by any person wbo was not a member of his family. The High c:Ourt further held ttlat the Additional District .Judge exceeded his juridiction under s. 25 of the Provincial Small

Cause Courts Act, 1887 in setting aside the findings of the trial court on a mere

reap:t)raisal of the evidence on record. Hence this appeal. .

. Allowing the appeal, •

HELD : As long as C}>ntrol OVet the premises is kept ; by the tenant and

. the business run in the premises is of the tenant, subletting flowing fromthe

---"I. ."'" presenco of .a person othcf than the tenant in the shop cannot be as'3umed. The -· i.

HJJ!i!i Ii U.P. Act No. 13of1972 does not require the Court to assume a sub-tenancy merely from the fact of presence of an outsider. [2200]

In th~ instant case the. allegation that th~ premises ha-j been sub-let to a trading company had tO be proved-as a fact by the landford and mei."ely on the basis of the phcltograph showing the presence of the son of the proprietor of the trading copany withinthe room, sub-letting could Opt be ptesume; d. The approach of the trial Judge was totally vitiated. [120 D-E]

The revisional juriSdiction under s. 25 of. th~ Provincial Small Cause Courts B Act is not as wide as the appe1late jurisdiction under s. 96 of the Code of Civil Procedure; yet in a case of this type this Court does not think fault could he .

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 p<Jsition 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.

[221B-D]

The jurisdiction to.issue a writ o~ certiorari is a supervisory one and in exercising it, the court is not entitled to act as a court of appea]. 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 b.e'corrected

b)1" a writ of certiorari~ but not an error of fact, however, grave it may appear to be. [22lF-G]

Syed Yakaab v. K.S: Radhakrishnan & Ors., [l964] 5 S.C.R. 64, referred to.

In the in.Stant cas~ the High Court exceeded its jurisdiction in interfering"' with the order of the Additional District Judge. [22lG]

• C1VIL -APPELLATB JURISbICTION : Civil Appeal No. 2147 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 a.nd V.K. !ai11 for the Respondent.

The Judgment of the Conrt was delivered by

RMNGA.NATH MisRA, J. Ihe tenant of one room which. is a part of a premises located within the township of i\, ligrah in the State of Uttar Pradesh is in appeal before this Court after obtaining special leave under Article .136 of the Constitution. The respondent

. o

landlord asked for his e\>iction on the gronnd of' the tenant having created a sub-tenancy. of theprmis'es sometime in Octbber, 1976, in favour of M/s. Pavan Trading Company, a soap manufacturing concern. The tenant denied the allegation of sub-letting. The main issue raised in the proceeding was whether the tenant had sub-lef the accommodation as alleged by the landlord. The SCC Judge started dealing with this issue by saying : ' "Under Sectfons 12, 15 and 20 of the Act ir-tenant has i 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 prtner is carrying on business in the accommodation, the tenant in fact shall

be d.eemed to have sublet the accommodation. In Deihl 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 . is found sitting in the shop, the tenant has' to lead evidence to Show that a sitting pei;:; on is not the sub-tenant. Thus the burden is on the defendant to explain the circumstances. nnder which partner of the Pavan Trading Co. is sitting in the accommodation. 21/C-1 a photograph bas been proved.

Even .the defendant has admitted this photograph 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 sob-letting by assuming from the presence of the son offae proprietor of Pavan Trading !=ompany that there was a sub-tenancy; held against the

teant and directed his evictfon from the "premises. The Additional District Judge before whom th~ tenant's revision petition came for' disposal took note of the erroneous approach of the trial court and came to hold : •

• "In the present case, it has not at all. been admitted by the defendant-that Pavan Trading Company or any member of the said company has been carrying on business in the shop alongwfth him or by himself. The mere presence of a: member of Pavan Trading Company in the shop at a certain time will . not be suffici.ent to say all that the business is being carried. on by Pavan Trading Company in the shop. In these circumstances, it waSfor the plaintiff.to lead good and positive evidence to prove that the business in fact at tat $hop

.lo

• 4 .iAGDIS!lPRASAD v. ANGQORI DEVI (Ranganath Misra, i.) 2l9 ..

was being carried on by the Pavan Trading Company and not by the defendant himself."

He looked into the evidence and came to hold :

"The evidence of the plaintiff was not at all sufficient to shift the burden of proof to the defendent and on cbnsideration of the evidence of the p)aintiff it is not at all possi.ble 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 appellaie authority, therefore,· allowed the revision and reversed th~ order of eviction and directed dismissal of the petition of the landlord. The landlord filed an application under Article 227 of ihe Constitution. Referring to the .contention of the landlord, the High Court observed.:

"Learned counsel for the petitioner subm, itted that the learned Ad_ditional District Judge clearly misconceived his jurisqiction under Section 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 dojng businsss in the shop in dispute of M/s. Pavan Trading Company is undoubtedly a pure issue of fact, the findings on wHich could not be disturbed in revision under Section 25 of the Provincial Small Cause Court Act", and held :

"The Simple question for determination before both the courts below was whether defendant had sub-let the shop in dispute to M/s. Pavan Trading Company. This question depended on the facts of the present case .wholly on the answer to the. question whether it was the defendant or the proprietor of the said company who was doing business in the disputed shop. This . question was deterri:liued by the trial. court on the b_asis !Jf direct oral and documen'taty evidence 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-

'. ' Tl

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SUPREME COURT REPORTS [19.84J3 s.c.ti.. ·

dant. This finding is not based on any notion of brden of proof. .It was a pure and simple finding arrjved at on the analysis of the c\lience on. record without reference to th~ question of burden of proof.

On the answer to this question depends entirely the fate of the case in as much as under Section 25 of the U.P. Act No. XIII bf 1972 read with

Sction 12(\)(b) and Section 12(2} of the aforesaid Act, a tell3nt would be deemed to have sub-let the accommodation; if he.has allowed it to be occupied by any persan who is not' a member of his family.

Whethe'r the tenant has allowed the shop to be occupiedby someone not a member of his family' -is indisputably a pure question of fact.

. That being so, th.e learned District Judge exceeded his jurisdiction under Section 25 of the Provincial Small Cause Court Act ih setting !lside the finding of the trial court on a mere re-appraisal of the evidence on record. The finding of the trial court was not vitiated by any .error of law. The impugned order .is tlius ex-facic illegal."

Having' heard counsel for, the parties we are of the view t)lat the lligh Court was clearly wrong in reversing the decision of the AdditionaJ .District Judge. The application for eviction was based cin the allegation of sub-tenancy. The allegation that the premisses had been sub-Jet to Pavan Trading Co'mpany had to be proved as a fact by the landlord and merely on the basis of photograph showing the pr; sence of the son of the proprietor of Pavan Trading Company within.the room, snb-letting could nofbe presum- ed. We must indicate that the approach of the trial Judge was totally vitiated .. Merely from the presence 0f 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 forsale; 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 t<; nant in the shop cannot be ' assumed.· The Act .does not require ihe Court to assume a sub- H teancy merely from the fact of presence of an. outsider. Obviously the law has intended and we must assume that the rule in the 4bdul.

) ,

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 unwarrantedly drew the presumption and looked at the evidence of the tenant to find out whether th.e vcsumpti•.m had been rebutted.

There is no warrant in law for such a situation. The Additional District Judg~ rightly took exception to this approach to the matter by the trial court and since the evidence of the pllntiff had not been scrutinised under th~ errcineol:s impression of the legal position, the same was looked into to find out. whether the claim f the subtenancy had been established. This was not an attempr to re-assess evidence but to take into consideration the evidence which had not been looked into by the tril court. The revisional jurisdiction under Section 25 of the 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 ase of this type we do not think fault couldbe found with the revisional court for poirttin$ out fhe legal error committed by the trial court in its approach to this material aspect. The legel position having been tota\ly'misconceived by the trial court and there being an assumption of the position which the landlord was required to prove by evidecc, the r'evisional authority was entitled to point out the legal error and)ectify the defect. This ·

is all that had been done by the Additional District Judge.

In the case of Syed Yakoo!J v. K.S. Radliakrishna & Ors'., 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 i't. illegally ot improperly. i.e. wliere an order is passed without hearing the party sought to be affected by it. or . , where the procedure adopted is opposed to . p:inciples of natural justice. •A caution was indicated by saying that the-jurisdiction to

isse a writ o.f certiorari is a supervisory one and in exercising it, the court is not entitled. to act as a court of appeal. .1'hat necessarily means that the .findings of fact arrived at by the inferior court or' tribunal are binding. An erro; of law apparent .on the face of the record could be corrected by a 'writ of certiorari, bu! not an error of fact, however, grave it may appear to be.

The rule in Yakoob's case when applied to the pre.sent facts would lead to the conclusion

(I) [1964] 5 S.C.R. 64.

• D

that the High G:>urt exceeded its jurisdictioµ in interfering with the order of the Additit>nal District Judge.

We are, therefore, inclined to agree with the appellant's contention that the. High Court wrongly interfered with the decision of t]le Additional District Judge that the landlord failed to establish sub-tenancy. The circum stances in which the son of the pr9prietor of Pavan Trading Company was in the shop hav~ bee~ clearly explained and we are inclin'ed to agree that there is no tnaterial on the record to doubt the explanation plactd by way of evidence in the proceeding.

The apJ"al is accordingly , allowed and t!1e order of the High Court is vacated and that of the Additional District Jildge is restor ed. 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. l, OOQ .

H.S.K. ..

Appeal allowed .

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