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CASE NO.: Appeal (civil) 1057-1058  of  2001

PETITIONER: LEKH RAJ

       Vs.

RESPONDENT: MUNI LAL & ORS.

DATE OF JUDGMENT:       06/02/2001

BENCH: A.P. Misra & D.P. Mohapatra.

JUDGMENT:

L...I...T.......T.......T.......T.......T.......T.......T..J

MISRA. J.

Leave granted.

   The  present  appeals  are by  the  defendant-tenant  as against  the order dated 24th March, 2000 passed by the High Court  in  its revisional jurisdiction by which it  reversed the finding of the appellate court that the disputed shop in question  is not unsafe for human habitation.  The questions raised in these appeals are:

   (1)   Whether  the  High   Court  under  its  Revisional Jurisdiction  which  limits  to examine  the  legality  and propriety  of  the appellate court order was  justified  in reversing its findings based on evidence on record.

   (2)  Whether the High Court could have appointed a local Commissioner  while  exercising its revisional  jurisdiction and  to reverse the finding of the appellate court based  on the report of such Commissioner.

   In order to appreciate the controversies we are herewith giving  some of the essential facts.  The appellant took the disputed  shop  on rent from one Aya Ram who sold  the  said shop  to one Prakash Rani.  The respondents nos.  1 to 8 are Lrs.   of this Prakash Rani, who filed petition for eviction against  the  appellant under Section 13 of the East  Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the  ’Act)  from the disputed shop.  The eviction  petition was  based on three grounds:  (a) The appellant has not paid the  rent  from 2nd July, 1968, (b) He has sub-let the  shop without  taking  the permission of the landlord and (c)  the building  is in dilapidated condition with cracks hence  not fit   for   human  habitation   requiring   demolition   and reconstruction.   The  appellant denied all these and  other allegations  made in the petition.  The trial court  decreed

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the  eviction petition.  It held that the appellant tendered the  rent on 24.10.1975 about which no grievance was made by the  respondent-landlord at the time of arguments, the  shop was sub-let by the appellant, and the disputed shop is unfit for  human  habitation.  The appellant filed appeal and  the Appellate Court set aside the trial court findings.  It held that  sub- letting has not been proved.  It further, on  the basis  of  evidence on record, held that it cannot  be  said that the cracks in the building have made it unfit or unsafe for  human  habitation.   Aggrieved by this  the  respondent filed  revision  in the High Court.  During the pendency  of the  said  revision an application was moved by  respondents for  appointment of a local Commissioner which was  objected

through  written objection by the appellant.  The said local Commissioner submitted his report to the court, the relevant portion of his report is quoted hereunder:

   there was a hole in the roof measuring 13 x 12 which had  been  temporarily shut from the interior side with  the help  of  wooden planks by giving the support of sticks  and from  the upper side this hole was found and 4 Ballies  near the  hole were in a decayed condition and wooden planks near the  hole  were in a bad condition due to seepage  of  water from  the hole of the roof..The outerside of the right side wall  of the shop, there was a big crack on the beginning of the wall extending from top to more than middle of the wall. This  crack  measuring 2x 7.5 (depth) from the upper  side and  1.5  x 6.5 from the lower side and in the end of  the same  wall, there was also a big crack measuring 2x 8 from the  upperside 2x7 from the lower side and the roof of the passage  was  in a totally damaged condition which  did  not cover the shop but covers the passage.

   The  appellant  filed objection to this report  pointing certain  anomalies  with a prayer to ignore this report  and appoint   another  local  Commissioner.    The  High   Court confirmed as against respondent-landlord, the finding of the Appellate Court on the question of sub-letting.  However, it reversed  its  finding based on the said local  Commissioner report  by holding that the disputed shop is unfit for human habitation.  The appellant being aggrieved by this order has filed the present appeal.

   The submission is, power of revision cannot be construed to  empower court to reappraise the evidence and disturb the findings  of  fact recorded by the Appellate Court.   Having limited  revisional  jurisdiction  the High  Court  was  not justified  in  interfering with the finding recorded by  the Appellate Court.

   To  appreciate  this submission the revisional power  of the  High  Court  under sub-section 5 of Section 15  of  the aforesaid Act is quoted hereunder:

   15(5):   The  High  Court  may, at  any  time,  on  the application  of  any aggrieved party or on its  own  motion, call and examine the records relating to any order passed or proceedings  taken  under  this  Act   for  the  purpose  of satisfying  itself  as to the legality or propriety of  such order/proceedings  and may pass an order in relation thereto

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as it may deem fit.

   The law on the subject is well settled.  The language of this   sub-   section  clearly   spells  out,   High   Court jurisdiction  is neither restricted to what is under Section 115  of the Civil Procedure Code nor it is as large as power of  the  Appellate  Authority.   The High  Court  under  its supervisory   revisional  jurisdiction   could  examine  the legality  or propriety of any order.  This legality or propriety  widens  the  scope of the High Court  which  is larger  than  the  power of revision under  Civil  Procedure Code.  But in no case it confers power to set aside findings of fact by reappraisal of evidence.  In doing so it would be trespassing  its  jurisdiction.   However, good  reason  for drawing  a different conclusion it cannot be construed to be within  jurisdiction.  Thus courts have to carve out a field for   the   exercise  of   revisional   jurisdiction   under sub-section  (5)  of  Section 15, emanating from  the  words legality  and propriety which should be between  limited revisional  jurisdictional  under Section 115 CPC and  wider appellate jurisdiction.

   Strong  reliance  has been placed for the  appellant  in Lachmand  Dass vs.  Santokh Singh, (1995) 4v SCC 202.   This Court  was  considering, the revisional jurisdiction of  the High  Court  under sub- section (6) of Section 15 under  the Haryana  Rent  Control  Act which is para materia  with  the revisional  power under the aforesaid Act under which we are considering.  This Court held:

   In  the  present case sub-section (6) of Section 15  of the  Act confers revisional power on the High Court for  the purpose  of satisfying itself with regard to the legality or propriety  of an order or proceeding taken under the Act and empowers  the  High  Court to pass such  order  in  relation thereto  as  it  may  deem  fit.  The  High  Court  will  be justified  in  interfering with the order in revision if  it finds that the order of the appellate authority suffers from a  material impropriety or illegality.  From the use of  the expression   Legality  or  propriety  of  such   order   or proceedings  occurring in sub-section (6) of Section 15  of the  Act,  it appears that no doubt the revisional power  of the  High Court under the Act is wider than the power  under Section 115 of the Code of Civil Procedure which is confined to  jurisdiction,  but  is also not so wide  as  to  embrace within its fold all the attributes and characteristics of an appeal  and  disturb a concurrent finding of  fact  properly arrived at without recording a finding that such conclusions are  perverse  or  based  on  no  evidence  or  based  on  a superficial and perfunctory approach.

   For  the appellant, reliance is also placed on Shiv  Lal vs.   Sat Parkash and Anr., 1993 Supp.  (2) SCC 345.  It was held:

   While  exercising  jurisdiction under Section 15(5)  of the  Act the Court does not act as a regular third appellate court  and  can  interfere  only within  the  scope  of  the sub-section.   In the present case, the High Court, on being misled  by  its  view  that  the cession  of  tenancy  is  a necessary  element  of  Section 13(2)(iv),  the  High  Court proceeded  to  re- examine the evidence on the records,  and reversed the finding of facts concurrently arrived at by the

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trial  Court and the first appellate court.  An  examination of  the facts and circumstances of this case indicates  that the  reconsideration  of the evidence by the High Court  was not justified.

   On  the other hand learned counsel for the appellant has relied  on  Mrs.  Mohini Suraj Bhan vs.  Vinod Kumar  Mital, (1986) 1 SCC 687.  This Court observed:

   It cannot be disputed that the powers of the High Court under  Section  15(5) of the Act are wide and  not  confined merely   to   examining  the   legality  of  the   appellate authoritys  order  nor  are  those   powers  akin  to   the revisional powers of the High Court under Section 115 of the CPC.

   The  pith  and substance of these authorities, to  which appellant   relies  is  that   Court  under  its  revisional jurisdiction  cannot  disturb finding of facts nor could  it reappraise  evidence  on  record, it can only  interfere  if there  is impropriety and illegality in the impugned  order. One  of  the submissions for the appellant is that the  High Court  in  its  revisional   jurisdiction  should  not  have permitted  the inspection of the disputed shop by the  local Commissioner  while exercising its revisional  jurisdiction. The submission is, the revisional court could only take into consideration the fact existing on the date of filing of the eviction  petition supported by evidence on record, thus  by bringing  on  record  the  aforesaid  report  of  the  local Commissioner which was called after 18 years of the pendency of  the  revision  in the High Court cannot be  said  to  be within the jurisdiction of the Revisional courts.

   The  law  on  the  subject is  also  settled.   In  case subsequent  event  or fact having bearing on the  issues  or relief  in a suit or proceeding, to which any party seek  to bring  on  record, the Court should not shut its door.   All laws  and procedures including functioning of courts are all in aid to confer justice to all who knocks its door.  Courts should interpret the law not in derogation of justice but in its aid.  Thus bringing on record subsequent event, which is relevant,  should  be permitted to be brought on  record  to render justice to a party.  But the court in doing so should be cautious not to permit it in a routine.  It should refuse where  a party is doing so to delay the proceedings,  harass other  party or doing so for any other ulterior motive.  The courts  even  before admitting should examine,  whether  the alleged  subsequent event has any material bearing on issues involved  and which would materially effect the result.   In Pasupuleti  Venkateswarlu vs.  The Motor & General  Traders, (1975)  1  SCC 770, this Court has very clearly held to  the same effect:

   It  is  basic to our processual jurisprudence that  the right  to  relief must be judged to exist as on the  date  a suitor  institutes  the legal proceeding.  Equally clear  is the  principle  that procedure is the handmaid and  not  the mistress  of the judicial process.  If a fact, after the lis has  come to court and has a fundamental impact on the right to  relief  or  the  manner  of  moulding  it,  is   brought diligently to the notice of the tribunal, it cannot blink as it  or be blind to events which stultify or render inept the decretal  remedy.   Equity  justifies bending the  rules  of procedure,  where  no  specific  provision  or  fairplay  is violated,  with  a  view to promote  substantial  justice

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subject,  of  course, to the absence of  other  disentitling factors  or just circumstances.  Nor can we contemplate  any limitation  on  this power to take note of updated facts  to confine it to the trial Court.  If the litigation pends, the power  exists, absent other special circumstances  repelling resort  to  that course in law or justice.  Rulings on  this point  are  legion, even as situations for  applications  of this  equitable rule are myriad.  We affirm the  proposition that  for  making the right or remedy claimed by  the  party just  and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must,  take  cautious cognisance of events and  developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.

   This  Court  in Ramesh Kumar vs.  Kesho Ram, 1992  Supp. (2) SCC 623 held:

   The  normal  rule is that in any litigation the  rights and  obligations of the parties are adjudicated upon as they obtain  at the commencement of the lis.  But this is subject to  an exception.  Wherever subsequent events of fact or law which  have  a  material bearing on the entitlement  of  the parties  to relief or on aspects which bear on the  moulding of  the relief occur, the court is not precluded from taking a  cautious  cognizance of the subsequent changes of  fact and  law to mould the relief.  In Lachmeshwar Prasad  Shukul v.   Keshwar  Lal Chaudhuri Chief Justice Sir Maurice  Gwyer observed:  (AIR p.6)

   But  with  regard to the question whether the court  is entitled  to take into account legislative changes since the decision  under appeal was give, I desire to point out  that the  rule adopted by the Supreme Court of the United  States is  the  same as that which I think commends itself  to  all three  members  of  this Court.  In Patterson v.   State  of Alabama, Hughes C.J.  said:

   We  have  frequently  held that in the exercise  of  our appellate  jurisdiction  we have power not only  to  correct error  in  the  judgment  under  review  but  to  make  such disposition  of  the  case  as  justice  requires.   And  in determining what justice does require, the court is bound to consider  any  change,  either  in fact or  law,  which  has supervened since the judgment was entered.

   This  decision  also  relied in the case  of  Pasupuleti Venkateswarlu vs.  The Motor & General Traders, (1975) 1 SCC 770 (supra).

   In  the  background of the aforesaid well settled  legal principle we perused the application of the respondent dated 31st March, 1999, before the High Court, for the appointment of a local Commissioner.  It is unfortunate, but the fact is that  civil revision remained pending in the High Court  for more  than 18 years when the said application was made.  The relevant  portion  of the application is quoted  hereunder:- That  during the pendency of the present revision petition, the roof of the shop in dispute has also fallen down and the condition of the shop in dispute has further deteriorated as would  be clear from a perusal of the photographers attached

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as  ANNEXURE P-1.  It is well settled that subsequent events which  have taken place during the pendency of the  revision petition  can and should be taken into consideration and the relief moulded accordingly.

   The  respondent through this application states that the roof  of  the  shop  has  since also  fallen  down  and  its condition  further deteriorated, during the pendency of this revision,  hence  sought  for  the appointment  of  a  local Commissioner  which was allowed.  On these facts, in view of the  issue, whether the accommodation in question is fit for human  habitation, with the long passage of eighteen  years, if fresh assessment was sought through a local Commissioner, it  cannot  be  said, in allowing such Commission  the  High Court exceeded in its revisional jurisdiction.

   Now,  we  proceed  to examine the  submissions  for  the appellant,  which  is  primarily  based  on  the  objections recorded   in  his  reply   affidavit  to  the  respondents application  for the appointment of a local Commissioner and the  objections  dated  10th  January,   2000  to  the  said Commissioner  report dated 7th July, 1999.  The objection as recorded   therein  are;   (a)   when  the  application  for ejactment  was filed, there was no crack in the wall of  the disputed  shop  (b)  the cracks are from the  Dehori  side which  are in possession of the landlord, (c) Similarly when the  application for ejactment was made the roof of the shop was  in  absolute  perfect condition, (d) the  landlord  has deliberately  damaged the roof for which the appellant filed a  complaint to the police.  Each of these objections has no force.  The objection with respect to the cracks on the wall and  the condition of the roof is, when the application  for eviction  was filed there were no cracks in the wall.   This objection  has  no  merit,  as   per  own  evidence  of  the appellant,  he testified existence of such cracks but  said, for  this reason it cannot be said it to be unfit for  human condition.   The submission that court could only take  into consideration on the facts existing on the date of suit only has also no merit.

   In  view  of the legal principle we have  stated  herein before,  a  Court could take into  consideration  subsequent facts,  event  or happening which are relevant, and  in  the present  case  after  expiry of about two decades  if  fresh local  Commissioner was appointed to find out the  condition of  shop,  and it found two big cracks on two walls  of  the disputed  shop,  it  cannot be said  consideration  of  such evidence  to be illegal.  On the merits it is submitted, one of the cracks is on the Dehori side which is in possession of  the  landlord.  Even if this to be, this would  make  no difference  for drawing any inference about the condition of the wall.  There are always two sides of any wall, cracks on any  side of the wall, if it weakens the wall, may not be on the  side of such an occupant, it would make no  difference. Even  if the cracks on the wall are on the other side  which is  a passage, still as it constitutes the same wall as that of  the shop would have the same result.  If the cracks have weakened  the wall, it would crumble not withstanding it  is not  on  the  side  of  the shop.   This  coupled  with  the condition  of  the roof which deteriorated as found  by  the local  Commissioner  would be a valid consideration to  find whether the shop is unfit for human consumption.  So far the submission  that the appellant has filed a complaint against the landlord for causing damage to the roof, we have perused

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the  FIR.   Though FIR records allegations directly  against the  landlord but records no allegation of landlord damaging the roof.

   Next  submission is based on the objection filed to  the local Commissioner report.  The objection is, the tenant was not  allowed  to  go on the roof to which  landlord  has  an access.   If  he was permitted he could have pointed out  to the  Commissioner  that  hole  has been  dug  purposely  and deliberately  by  the landlord.  Further,  the  Commissioner remained closet in the room with the landlord for about half an  hour.   He  sought  this local  Commissioner  report  be ignored  and another local Commissioner be appointed.  We do not find any error in the High Court judgment in not issuing another  local Commissioner.  The appellant merely sought to show  that  roof  of the disputed shop was  damaged  by  the landlord,  to  proof this how Commissioner would  have  been able to find this.

   The  question  whether  the  roof  was  damaged  by  the landlord  or  was damaged because of the building being  old and  dilapidated  is a question of fact, proof of  it  could only be, if at all, through leading evidence and not through a  local  Commissioner.   A local  Commissioner  could  only report  the  fact of existing condition of the building  and not  who  did  it.   It was open for him,  if  appellant  so desired  for  praying  to the Court to grant  time  to  lead evidence  in  this regard.  Since court permitted,  a  local Commissioner to report, so it would have granted the prayers for  leading  evidence.   Hence we do not find  any  of  the objections  raised  by the appellant, have any  merit.   The High  Court  considered the said report, and there exists  a hole on the roof which is not disputed.  It further records, even  if the same is ignored, there are big cracks found  by the Commissioner on the beginning of the wall extending from top  to  more than middle, and another big crack on  another wall.  The report records the depth of the crack, not merely the length of the crack showing the bad condition of the two walls  of the disputed shop.  Mere length of crack by itself may  not have foundation to hold its condition of  structure of  the  shop  to be bad but it would be,  where  the  crack measures  2 x 7.5 depth in one wall on the upper side  and 1.5  (illegible)  on  the  lower  side  and  another  crack measuring  2 x 8 from the upper side and 2 x 7 from  the lower  side.   This  along with condition of  roof,  if  was considered  by  the High Court to draw the inference of  the condition  of  the shop, it cannot be said such  finding  is perverse  or  illegal which calls for interference  by  this Court.   Once  the  said  local  Commissioners  report  was brought  on  the  record, as part of evidence  to  show  the subsequent  event or condition of building, it was incumbent on  the  High Court to have considered it, which it  rightly did  and  if  in doing so an inference is  drawn,  that  the disputed accommodation is not fit for human habitation it is not  such  which  calls   for  interference.   Normally,  as revisional  court, it could not have embarked upon recording finding  of facts but where any subsequent fact was  legally brought  on  record,  it  could enter into  and  decide  the question,  which could inevitably include recording find  of fact.

   Lastly, the submission was that the case may be remitted back  to  the  court for permitting the appellants  to  lead evidence   to  contradict,  what  is  brought  through   the Commissioner  report.   We have examined this  aspect  also.

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Normally  if parties so desire, in a case where fresh  facts are  brought  on the record as a relevant subsequent  event, the  court grants such prayer.  In the present case, we find that  before the High Court, at no stage, the appellant made any  such  request.   Even  in this appeal  before  us,  the appellant  could not point any such ground been raised.   It is  not  even  pleaded nor raised any ground that  the  High Court  refused such a request for leading any such evidence. In  view  of these facts in the present case we do not  find any  merit  even  of this last submission.  In view  of  the finding  recorded  by  us we record our conclusions  to  the aforesaid  two  questions  raised  in  the  appeals  to  the following effect:

   (1)  On the facts and circumstances of this case,  where fresh  evidence  was permitted to be brought on the  record, reversing  of  the finding of fact by the High Court,  while exercising  Revisional  jurisdiction, cannot be said  to  be such  that  it  acted beyond its jurisdiction vested  to  it under  the law.  (2) Once, court could bring on the  record, subsequent  fact,  event  or  happening,  which  has  direct bearing  on  the issues or relief claimed, on the facts  and circumstances of this case, then the High Court committed no error  of jurisdiction to permit the Commissioner report  to be  placed  on  the record and then on which to  rely  while exercising  its  revisional  power under sub- section  5  of Section 15 of the aforesaid Act.

   In  view of the aforesaid findings recorded by us we  do not  find any merit in these appeals, which are  accordingly dismissed with costs on the parties.

   Lastly,   learned   counsel  made   request   to   grant substantial  time to the appellant to vacate the premises in question  as  he has been in possession of this shop  for  a very  long  time,  otherwise it would  affect  his  business adversely.   Looking to the facts and circumstances of  this case  we grant time to the appellant to vacate the  premises in  question by or before 31st December, 2001 subject to the usual undertaking to be filed within four weeks from today.