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PETITIONER: SARLA AHUJA

       Vs.

RESPONDENT: UNITED INDIA INSURANCE COMPANY LTD.

DATE OF JUDGMENT:       27/10/1998

BENCH: S.SAGHIR AHMAD, K.T.THOMAS

ACT:

HEADNOTE:

JUDGMENT:  JUDGMENT THOMAS J. A widow wants to shift her residence  from  calcutta to  New  Delhi to occupy her own building which is presently in the possession of her tenant M/s United  India  Insurance Company  Limited.  Though  she got an order of eviction from the Rent Controller under Section 14(1)(e) of the Delhi rent Control Act 1958 (for short "the Act"), a  single  judge  of the  Delhi High Court non-suited her by reversing the roder. She has sought for special leave to appeal against the  said decision of the High Court. Leave granted. When she filed a case before the Rent Controller her husband was alive.  By the time her case reached  the  stage of  evidence she became a widow, but that did not affect her claim for eviction because it was not for  the  use  of  her husband that  the  building  is required.  At present she is staying at Calcutta in a flat with her son and  his  family. She  is  doing  business, along with her son, in Patents and Trade Marks.  In connection with the said business they have to be in Delhi quite often.  The  house  where  she  is  now living in Calcutta is on the third floor of a building which she  finds it very inconvenient particularly on account of a knee trouble which she has developed recently.  As the house in Delhi is on the ground floor of the building there  would be no  problem for climbing up the stairs.  Those apart, her daughter is now staying at NOIDA which in  on  outskirts  of Delhi.    The   Rent  Controller,  after  appraisal  of  the evidence, came to the conclusion that she bona fide requires the tenanted premises for her  occupation  and  she  has  no other suitable residential accommodation in Delhi. But learned single judge of the High  Court  made  a reappraisal   of   the  evidence  and  reached  a  different conclusion by observing that "it was only when  her  husband (who  was carrying on the business) was alive that she could urge the ground of wanting  to  live  with  her  husband  in Delhi."   Learned   single   judge   pointed  out  that  her relationship with her son and daughter-in-law is cordial and that her family  is  settled  down  in  Calcutta  for  long. According  to  her knee problem learned single judge noticed that she has recently moved into  a  new  flat  at  Calcutta

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wherein  a  lift  is  provided  and  hence she need not much bother about that problem. Learned  counsel  for  the  appellant   -   landlord contended  that  the High Court has committed jurisdictional transgression while exercising  revisional  jurisdiction  by interfering  with  the  finding  of  fact  made  by the Rent Controller.  We find much force in the said contention.  The power which the High Court was exercising  is  envisaged  in the proviso  to Section 25B(8) of the Act.  The said section is one of the three provisions subsumed in Chapter  IIIA  of the Act which was added to the parent Act as per Act 57/1988 for "summary trial of certain applications." Section  25B of the Act lays down "special procedure for the disposal of application for eviction on  the  ground of  bona  fide requirement." Sub-section (1) says that every application  for  recovery  of  possession  on  the   ground specified in Section 14(1)(e) of the Act shall be dealt with in  accordance  withthe  procedure specified in Section 25B. Sub-section (8) says that no appeal or second  appeal  shall lie  against  an order for the recovery of possession of any premises made by the Rent Controller in accordance with  the procedure  specified  in  this  section.  The  proviso  that sub-section reads thus:            "Provided  that  the  High  Court  may,  for  the            purpose  of  satisfying itself that an order made            by the Controller under this section is according            to law, call for the records of the case and pass            such order in respect thereto as it thinks fit.’ The  above  proviso indicates that power of the High Court is supervisory in nature and it is intended to  ensure that  the Rent Controller conforms to law when he passes the order.  The satisfaction of the High Court when perusing the records of the case must be confined to the  limited  sphere that  the  order of the Rent Controller is "according to the law." In other works, the High Court  shall  scrutinize  the records   to  ascertain  whether  any  illegality  has  been committed by the Rent Controller in passing the order  under Section 25B.    It  is not permissible for the High Court in that exercise to come to a different fact finding unless the finding arrived at by the Rent Controller on the facts is so unreasonable that no Rent  Controller  should  have  reached such a finding on the materials available. Although, the work "revision" is not employed in the proviso  to Section 25B(8) of the Act it is evident from the language used therein that the power conferred is revisional power.  In legal parlance distinction between appellate  and revisional jurisdiction  is  well  understood.   Ordinarily, appellate jurisdiction is wide enough to afford a re-hearing of the whole case for enabling the appellate forum to arrive at fresh conclusions untrammeled by the conclusions  reached in the  order  challenged before it.  Of course, the statute which provides appeal provision can  circumscribe  or  limit the width of such appellate powers.  Revisional power on the contrary,  is  ordinarily  a  power  of  supervision keeping subordinate tribunals within the bounds of law.    Expansion or  constriction  of such revisional power would depend upon how the statute has couched such power  therein.    In  some legislations revisional jurisdiction is meant for satisfying itself  as  to  the  regularity,  legality  or  propriety of proceedings or decisions of the subordinate court.   In  Sri Raj Lakshmi  Dyeing  Works  vs.  Rangaswamy [1980 4 SCC 259] this Court considered the scope  of  the  words  ("the  High Court may  call for and examine the records ....  to satisfy itself as to the  regularity  of  such  proceedings  or  the correctness,  illegality  or  propriety  of  any decision or

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order...") by which power of revision has been conferred  by a particular  statute.  Dealing with the contention that the above words indicated conferment of a very wide power on the revisional authority, this Court has observed  thus  in  the said decision:            "The  dominant idea conveyed by the incorporation            of  the  words  to  satisfy  ’itself’  under  the            Section appears to be that the power conferred on            the High Court under the Section is essentially a            power of superintendence.  Therefore, despite the            wide  language  employed  in the Section the High            Court quite obviously should not  interfere  with            findings of fact merely because it does not agree            with the finding of the subordinate authority." Dealing   with  Section  32  Delhi  and  Ajmer  Rent (Control) Act, 1952, which is almost identically  worded  as in  the  proviso  to Section 25B(8) of the Act a three judge bench of this Court has stated thus in Hari Shankar vs.  Rao Girdhari Lal Chowdhury [1962 Suppl (1) SCR 933]:            "The section is  thus  framed  to  confer  larger            powers   than  the  power  to  correct  error  of            jurisdiction to which S.115 is limited.   But  it            must  not  be  over-looked  that the section - in            spite of its apparent width of language where  it            confers  a  power  on the High Court to pass such            order as the High Court might  think  fit,  -  is            controlled  by  the  opening words, where it says            that the High Court may send for  the  record  of            the  case  to satisfy itself that the decision is            "according to law." It stands to reason  that  if            it  was considered necessary that there should be            a rehearing a right of appeal  would  be  a  more            appropriate  remedy,  but the Act says that there            is to be no further appeal." In Malini   Ayyappa   Naicker  vs.    Seth  Menghraj Udhavadas 1969 (1) SCC 688 another three judge bench of this court was considering a similarly worded proviso in  Section 75(1) of  The  Provincial  Insolvency  Act  1920.    Though, learned judges did not give an exhaustive definition of  the expression  "according  to  law", a catalogue of instance in which the High Court may interfere under  the  said  proviso was given in the decision as the following:            "They 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 party 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." The bench has, however cautioned that the High Court should not  interfere  merely  because  it  considered  that "possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at." Learned  Single  Judge  of  the  High  Court  in the present case has reassessed and  re-appraised  the  evidence afresh  to  reach  a  different  finding  as  though  it was exercising appellate jurisdiction.    No  doubt  even  while exercising   revisional   jurisdiction,   a  reappraisal  of evidence can be made, but that should  be  for  the  limited purpose  to  ascertain  whether the conclusion arrived at by the fact finding court is wholly unreasonable.  A reading of the  impugned  order  shows  that   the   High   Court   has

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over-stepped  the  limit of its power as a revisional Court. The order impugned, on that  score,  is  hence  vitiated  by jurisdictional deficiency.          Clause  (e)  of the proviso to Section 14(1) of the Act affords one of the  grounds  to  the  landlord  to  seek recovery  of  possession  of  the  building leased. The said clause reads thus:            "(e)  that  the  premises  let  for   residential            purposes  are  required bona fide by the landlord            for occupation as a  residence for himself or for            any member of his family dependent on him, if  he            is  the owner thereof or for any person for whose            benefit  the  premises  are  held  and  that  the            landlord  or  such person has no other reasonably            suitable residential accommodation;            Explanation:   For  the  purposes  of this clause            ’Premises let for residential  purposes’  include            any  premises  which having been let for use as a            residence  are,  without  the  consent   of   the            landlord,  used  incidentally  for  commercial or            other purposes." If   the   landlord    has    another    residential accommodation   which  is  reasonably  suitable  he  is  not permitted to avail himself of the benefit  afforded  in  the ground  set  out  in the clause. Learned Single Judge of the High Court has noted that the  landlord  in  this  case  has "admitted in her deposition that the house in Calcutta was a 3-bedroom  house  with  drawing/dining  room  and one of the bedrooms was used by her and other by her son with his wife, and another bedroom was kept for her  daughter  who  use  to come  and stay". This was one of the reasons which persuaded the learned Single Judge to  interfere  with  the  order  of eviction. To deprive a landlord of the benefit of the ground mentioned  in Section 14(1)(e) on account of availability of alternative residential accommodation, it is not enough that such alternative accommodation is in a far different  State. Such  accommodation  must  be  available in the same city or town, or at least within reasonable proximity thereof if  it is  outside  the limits of the city. The said limb of clause (e) cannot be interpreted as to mean that  if  landlord  has another  house anywhere in the world he cannot seek recovery of possession of his building under clause (e).  High  Court therefore  went  wrong  in observing that since the landlord has  possession  of  another  flat  at   calcutta   she   is disentitled  to seek recovery of possession of possession of the tenanted premises situated at Delhi. The crux of the ground envisaged in  clause  (e)  of Section  14(1)  of  the  Act  is that the requirement of the landlord for occupation of the  tenanted  premises  must  be bona fide.    When  a  landlord asserts that he requires his building for his own occupation the  Rent  Controller  shall not  proceed  on the presumption that the requirement is not bona fide.    When  other  conditions  of  the  clause   are satisfied  and when the landlord shows a prima facie case it is open to the Rent Controller to draw  a  presumption  that the requirement  of  the landlord in bona fide.  It is often said by courts that it is not  for  the  tenant  to  dictate terms  to  the landlord as to how else he can adjust himself without getting possession of the tenanted premises.   While deciding  the  question  of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself. Facts such as the  cordial  relationship  between  a landlord  and  her daughter-in-law or that he is comfortably residing in the present building are not relevant in judging

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the bona fides of the claim of the  landlord.  Otherwise  it would  appear  that landlord can think of residing in his or her own residential building only when cracks develop in the relationship between him and his other kith and kin. In this case the landlord put  forth  a  variety  of reasons which persuaded her to seek recovery of the tenanted premises:   (1) That the tenanted building is her own and it is a residential building.  (2) In the  building  where  she now resides at Calcutta her son and daughter-in-law are also living with  their children.  (3) She and her son have to go to Delhi quite often and stay there for days  in  connection with their  business.    (4) Her daughter is living in NOIDA which  is  on  the  outskirts  of  Delhi  and  it  would  be convenient  for  that  daughter  to  stay  with  the  mother frequently.  (5)  Landlord  is  getting  old  and  developed orthopedic  problems  and hence she feels that living in the ground floor is more advisable.  (6) The flat in  which  she lives  now  at  Calcutta  is  on the third floor whereas the tenanted premises are on the ground floor. Rent  Controller  approved the claim of the landlord as bona fide after taking into account the  aforesaid  broad aspects.   It  cannot  be  said that the Rent Controller had taken  into  account  irrelevant  factors  in  reaching  the conclusion.   Hence  the High Court has improperly exercised its revisional jurisdiction in upsetting the findings of the Rent Controller. In the result, we set aside the impugned  order  and restore the eviction order passed by the Rent Controller and direct  the respondent-tenant to vacate from the premises on or before the expiry of three months from today.