2003 INSC 0521
Kailash Chander

v.

Om Prakash & Another

(Supreme Court Of India)

HON'BLE MR. JUSTICE SHIVARAJ V. PATIL HON'BLE MR. JUSTICE D.M.
DHARMADHIKARI

C.A.No. 6400 of 2000 | 17-07-2003

1. The unsuccessful landlord before the High Court is before us in this appeal. The appellant
filed a petition seeking eviction of Respondents 1 and 2 on the ground of subletting.
Respondent 1 is the father of Respondent 2. The Rent Controller, after considering the
evidence placed on record in the light of the pleadings of the parties, allowed the petition and
directed eviction of Respondents 1 and 2 from the premises in question. The respondents took
up the matter in appeal. The Appellate Authority by a detailed and well considered order,
dismissed the appeal concurring with the findings recorded by the Rent Controller. Aggrieved
by and not satisfied with the order of the Appellate Authority, the respondents filed revision
petition before the High Court. The High Court allowed the revision petition reversing the
concurrent findings recorded by the Rent Controller as well as by the Appellate Authority.
Hence this appeal by the landlord.

2. It was contended on behalf of the appellant that the High Court committed a serious error
in upsetting the concurrent findings of fact recorded by the Rent Controller and the first
appellate authority in exercise of its revisional jurisdiction under S.15(6) of the Haryana
Urban (Control of Rent and Eviction) Act, 1973 (for short "the Act"). It was further
contended that on the facts found and established in the case the High Court was not justified
in interfering with the order of eviction made. The learned counsel for the appellant also
submitted that the High Court having found that the findings of fact recorded by the Rent
Controller as affirmed by the Appellate Authority were correct, but still interfered on the
ground that the appellant did not establish exclusive possession of Respondent 2 on the part
of the premises and there was no proof of subletting by Respondent 1 in favour of
Respondent 2.

3. Per contra, learned counsel for the respondents made submissions supporting the impugned
order. The learned counsel submitted that it was incumbent upon the appellant to establish
that Respondent 2 was in the exclusive possession of the portion of the premises and that
Respondent 1 was receiving any consideration for parting with the part of the premises.
When the appellant failed to establish these essential requirements of subletting, the High
Court was right and justified in interfering with the order of eviction made against the
respondents.

1  SpotLaw
4. The facts found are: Respondent 2 is the son of Respondent 1. In the premises in question
there has been a partition by wooden frame/plank. Respondent 2 has been using the rear
portion to carry on his activities as UTI agent and Respondent 1 was carrying on cloth
business in the front portion of the premises. Respondent 2 has nothing to do with the cloth
business in any capacity whatsoever. The respondents did not explain the nature of the
possession of Respondent 2 in the premises in their written statement but denied his
possession. During the trial, the possession of Respondent 2 was sought to be justified stating
that Respondent 1 did not part with the possession of any portion of the premises so as to
place Respondent 2 in exclusive possession and that Respondent 2 was in permissive
possession of the premises in question having close relation with Respondent 1. The Rent
Controller, as already noticed above, on appreciation of the evidence held that Respondent 1
had sublet the portion of the premises to Respondent 2. The Appellate Authority affirmed the
same. These findings recorded are based on the evidence. It is not possible to say that these
findings recorded by the Rent Controller and affirmed by the Appellate Authority, are either
perverse or not based on evidence. The High Court was exercising its revisional jurisdiction
under S.15(6) of the Act. As to the scope of exercise of that power it is explained in the
judgment of this Court in Lachhman Dass v. Santokh Singh (1995 (4) SCC 201). In
paragraph 7 of the said judgment it is stated thus:

"7. The first question that arises for our consideration is whether the learned Single Judge of
the High Court was justified in reassessing the value of the evidence and substitute his own
conclusions in respect of the concurrent findings of fact recorded by the two courts below, in
exercise of his revisional powers vested in the High Court under S.15(6) of the Act. In the
present case as discussed earlier the Rent Controller passed the order of eviction against the
respondent on the ground mentioned under S.13 of the Act against which the respondent
preferred an appeal under sub-s.(2) of S.15 of the Act and the Appellate Authority affirmed
the order of eviction passed by the Rent Controller. Here it may be noted that the Act does
not provide a second appeal against the order passed in appeal by the Appellate Authority
under sub-s.(2) of S.15. The Act, however, under sub-s.(6) of S.15 makes a provision for
revision to the High Court against any order passed or proceedings taken under the Act. Thus,
the legislature has provided for a single appeal against the order passed by the Rent
Controlling Authority and no further appeal has been provided under the Act. The legislature
has, however, made a provision for discretionary remedy of revision which is indicative of
the fact that the legislature has created two jurisdictions different from each other in scope
and content in the form of an appeal and revision. That being so the two jurisdictions -- one
under an appeal and the other under revision cannot be said to be one and the same but
distinct and different in the ambit and scope. Precisely stated, an appeal is a continuation of a
suit or proceedings wherein the entire proceedings are again left open for consideration by the
Appellate Authority which has the power to review the entire evidence subject, of course, to
the prescribed statutory limitations. But in the case of revision whatever powers the revisional
authority may have, it has no power to reassess and reappreciate the mevidence unless the
statute expressly confers on it that power. That limitation is implicit in the concept of
revision. In this view of the matter we are supported by a decision of this Court in State of
Kerala v. K.M. Charia Abdulla and Co. (AIR 1965 SC 1585)"

2  SpotLaw
5. This Court proceeded to say further that unless the High Court comes to the conclusion
that the concurrent findings recorded by the two courts below are wholly perverse and
erroneous, which manifestly appear to be unjust, there should be no interference. In the case
on hand also the two courts below have appreciated evidence placed on record and on a
proper appreciation concluded that the case of subletting, as pleaded by the appellant, is
proved. In our view, the High Court was not justified in interfering with such concurrent
finding. It is not shown on behalf of the respondents herein that the findings recorded by the
two courts below were either perverse or not based on evidence. We must also keep in mind
that when the appellant established the fact that Respondent 2 was carrying on his activities
as UTI agent in the part of the premises exclusively by him, it was for the respondent to
establish that his possession on that premises was not as a sub tenant. Merely because
Respondent 1 is the father of Respondent 2 there cannot be any justification to say that it was
not a case of subletting.

6. Under these circumstances, we find justification to upset the impugned order. In this view,
the appeal is entitled to succeed. Accordingly the appeal is allowed, the impugned order of
the High Court is set aside and the order of the first appellate authority affirming the order of
the Rent Controller is restored. No costs.

7. At this stage, the learned counsel for the respondents prayed that some reasonable time
may be granted for vacating the premises in question. The learned counsel for the appellant
submitted that any reasonable time may be granted. Having regard to the facts and
circumstances of the case, we grant six months' time to the respondents to vacate and deliver
peaceful possession to the appellant landlord, subject to the respondents filing usual
undertaking within the period of four weeks from today.

3  SpotLaw