JAGDISH PRASAD Vs. ANGOORI DEVI

JUDGEMENT

(1.) The tenant of one room which is a part of a premises located within the township of Aligarh in the State of Uttar Pradesh is in appeal before this Court after obtaining special leave under Art. 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 subletting. The main issue raised in the proceeding was whether the tenant had sublet the accommodation as alleged by the landlord. The SCC Judge started dealing with this issue by saying:

(2.) 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 premises had been sub-let to Pavan 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 Pavan Trading Company within the room, sub-letting could not be presumed. We must indicate that the approach of the trial Judge was totally 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 attended to; 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 (supra) (Delhi) (referred to by the trial court) proceed on the footing that the person was sitting in the shop in exercise of 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 not 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 Sec. 25 of the Provincial Small Cause Courts Act is not as wide as the appellate jurisdiction under S. 96 of the Civil P. C., 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 was entitled to point out the legal error and rectify the defect. This is all that had been done by the Additional District Judge.

(3.) In the case of Syed Yakoob v. K. S. Radha Krishnan (1964) 5 SCR 64, 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 commited 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 (supra) 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.