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PETITIONER: JAGDISIH PRASAD

       Vs.

RESPONDENT: SMT. ANGOORI DEVI

DATE OF JUDGMENT15/03/1984

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH DESAI, D.A.

CITATION:  1984 AIR 1447            1984 SCR  (3) 216  1984 SCC  (2) 590        1984 SCALE  (1)502

ACT:      Constitution  of   India  Arts.   226  &   227-Writ  of certiorari-Scope of-C  Whether High  Court  can  correct  an error of fact.      U.P. Act No. 13 of 1972-s. 12(1)(b) and 12(2) read with s.25-Interpretation of-Allegation  of sub-tenancy-How and by whom should be proved      Provincial Small Case Courts Act, 1887-s. 25-Revisional jurisdiction-Scope of.

HEADNOTE:      The respondent-landlord  filed a  suit for  eviction of the appellant-tenant  in a  town in  U.P. On the ground that the tenant  had created  a sub-tenancy  of the  premises  in favour of  a trading  company. The  landlord filed  a  photo graph showing  the son  of the  proprietor  of  the  trading company standing  in the shop. Adopting the approach that if any person  other than  a tenant  was found  sitting in  the shop, the tenant had to lead evidence to show that a sitting person was  not a  sub-tenant, the  small cause  court Judge assumed that  there was  a  sub-tenancy;  held  against  the tenant and  ordered  his  eviction.  Allowing  the  revision petition filed  by the  tenant the Additional 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  Judge  looped  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. 12(1)(b) and s. 12(2) of the aforesaid.- Act a tenant would be deemed to have sub- let the accommodation if he had allowed it to be occupied by any person  who was  not a  member of  his family.  The High Court  further  held  that  the  Additional  District  Judge exceeded his  jurisdiction under  s. 25  of  the  Provincial Small Cause  Courts Act,  1887 in setting aside the findings of the trial court on a mere re-appraisal of the evidence on record. Hence this appeal.      Allowing the appeal, ^      HELD: As  long as  control over the premises is kept by the tenant  and the  business run  in the premises is of the

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tenant, sub-letting  flowing from  the presence  of a-person other than  the tenant  in the  shop cannot  be assumed. The U.P. Act No. 13 of 1972 does not require the Court to assume a sub-tenancy  merely  from  the  fact  of  presence  of  an outsider. [220G] 217      In the  instant case  the allegation  that the premises had been  sublet to a  trading company had to be proved as a fact by  the’ landlord  and  merely  on  the  basis  of  the photograph showing the presence of the son of the proprietor of the  trading company  within the  room, sub-letting could not be presumed. The approach of the trial Judge was totally vitiated. [?20 D-E]      The  revisional   jurisdiction  under   s.  25  of  the Provincial Small  Cause Courts  Act is  not as  wide as  the appellate 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  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 was entitled  to point  out the  legal error and rectify the defect. [221B-D]      The jurisdiction  to issue  a writ  of certiorai  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 finding of fact arrived at by the inferior court or tribunal arc  binding. An  error of law apparent on the face of the record could be corrected by a writ of certiorari but not an  error or  fact, however,  grave it may appear to be. [221F-G]      Syed Yakoob  v. K.S.  Radhakrishnan &  Ors.,  [1964]  5 S.C.R. 64 referred to.      In  the  instant  case  the  High  Court  exceeded  its jurisdiction in interfering with the order of the Additional District Judge. [221G]

JUDGMENT:      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 218 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

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    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  sub- letting by  assuming from  the presence  of the  son of  the proprietor of  Pavan Trading  Company that  there was a sub- tenancy; 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 219      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

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    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- 220      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 221 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

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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 222 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. 223