CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2147 of 1980.
Appeal by Special leave from the Judgment and order dated the 19th August, 198(), of the Allahabad High Court in C.M.W.P. No. 7578 of 1979.
Pramod Swarup for the Appellant.
M.K. Garg and V.K. Jain for the Respondent.
The Judgment of the Court was delivered by
RAANGANATH MISRA, J. The tenant of one room which is a part of a premises located within the township of Aligrah in the State of Uttar Pradesh is in appeal before this Court after obtaining special leave under Article 136 of the Constitution. The respondent landlord asked for his eviction on the ground of the tenant having created a sub-tenancy of the premises sometime in October, 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-let the accommodation as alleged by the landlord. The SCC Judge started dealing with this issue by saying:
"Under Sections 12, I S and 20 of the Act if
tenant has allotted a non-family member to occupy the
accommodation, he should be deemed to have sub-let the
accommodation. If it is found that Pavan Trading Co. Or
if any of his partner is carrying on business in the
accommodation, the tenant in fact shall be deemed to
leave sub-let. the accommodation. In Delhi Rent Control
Journal 1971 page 492 (Abdul Aziz v. Yakub Khan) it was
held by the Court t-hat if any person other than a
tenant is found sitting in the shop, the tenant has to
lead evidence to show that a sitting person is not the
sub-tenant. Thus the burden is on the defendant to
explain the circumstances under which partner of the
Pavan Trading Co. is sitting in the accommodation.
21/C-I a photograph has 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 subletting by assuming from the presence of the son of the proprietor of Pavan Trading Company that there was a subtenancy; held against the tenant and directed his eviction from the premises. The Additional District Judge before whom the 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 alongwith him or by himself. The
mere presence of a member of Pavan Trading Company in
the shop at a certain time will not be sufficient to
say all that the business is being carried on by Pavan
Trading Company in the shop. In these circumstances, it
was for the plaintiff to lead good and positive
evidence to prove that the business in fact at that
shop
was being carried on by the Pavan Trading Company and
not A 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
defendant and on consideration of the evidence of the
plaintiff it is not at all possible 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 appellate authority, therefore, allowed the revision and reversed the order of eviction and directed dismissal of the petition of the landlord. The landlord filed an application under Article 227 of the Constitution. Referring to the contention of the landlord, the High Court observed:
"Learned counsel for the petitioner submitted that
the learned Additional District Judge clearly
misconceived his jurisdiction 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 doing business 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
disturb ed 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
determined by the trial court on the basis of direct
oral and documentary 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-
dant. This finding is not based on any notion of burden
of proof. It was a pure and simple finding arrived at
on the analysis of the evidence on record without
reference to the 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 of 1972 read with Section 12(1)(b) and Section
12(2) of the aforesaid Act, a tenant would be deemed to
have sub-let the accommodation, if he has allowed it to
be occupied by any person who is not a member of his
family. Whether the tenant has allowed the shop to be
occupied by someone not a member of his family is
indisputably a pure question of fact.
That being so, the learned District Judge exceeded
his jurisdiction under Section 25 of the Provincial
Small Cause Court Act in setting aside the finding of
the trial court on a mere re-appraisal of the evidence
or record. The finding of the trial court was not
vitiated by any error of law. The impugned order is
thus ex-facie illegal."
Having heard counsel for the parties we are of the view that the High Court was clearly wrong in reversing the decision of the Additional District Judge. The application for eviction was based on the allegation of sub-tenancy. The allegation that the premisses had been sub-let to Pavan Trading Company had to be proved as a fact by the landlord and merely on the basis of photograph showing the presence of the son. Of the proprietor of Pavan Trading Company within the room, sub-letting could not be presumed. We must indicate that the approach of the trial Judge was to tally vitiated. Merely from the presence of 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 distributor who may have come to deliver his goods at the shop for sale; 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 tenant in the shop cannot be assumed. The Act does not require the Court to assume a sub-tenancy merely from the fact of presence of an outsider. Obviously the law has intended and we must assume that the rule in the Abdul Aziz’s case (referred to by the trial court) proceed on the footing A that the person was sitting in the shop in exercise or 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 the presumption had been rebutted. There is no warrant in law for such a situation. The Additional District Judge rightly took exception to this approach to the matter by the trial court and since the evidence of the plaintiff had not been scrutinised under the erroneous impression of the legal position, the same was looked into to find out whether the claim of the sub-tenancy had been established. This was nat an attempt to re-assess. evidence but to take into consideration the evidence which had not been looked into by the trial 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 case of this type we do not think fault could be 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 position 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 entitled to Point out the legal error and rectify the defect. This is all that had been done by the Additional District Judge.
In the case of Syed Yakoob v. K.S. Radhakrishna & 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 it illegally or improperly. i.e. where an order is passed without hearing the party sought to be affected by it or where the procedure adopted is opposed to principles of natural justice. A caution was indicated by saying that the jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it, the court is not entitled to act as a court of appeal. 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 be corrected by a writ of certiorari, but not an error of fact, however, grave it may appear to be. The rule in Yakoob’s case when applied to the present facts would lead to the conclusion that the High Court exceeded its jurisdiction in interfering with the order of the Additional District Judge. We are, therefore, inclined to agree with the appellant’s contention that the High Court .. wrongly interfered with the decision of the Additional District Judge that the landlord failed to establish sub-tenancy. The circumstances in which the son of the proprietor of Pavan Trading Company was in the shop have been clearly explained and we are inclined to agree that there is no material on the record to doubt the explanation placed by way of evidence in the proceeding.
The appeal is accordingly allowed and the order of the High Court is vacated and that of the Additional District judge is restored. 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. 1,000. H.S.K. Appeal allowed.