SHRI V.S. MALIK Vs. SMT. SATYA DEVI

JUDGEMENT

(1.) This revision petition under Sec. 21(5) of the Himachal Pradesh Urban Rent Control Act, 1971 is preferred by one V.S. Malik who is stated to be a tenant in a house of which the Respondent Smt. Satya Devi is the landlady. The Petitioner stated that the Respondent Smt. Satya Devi filed an application for his eviction on the ground of subletting and the allegation was that the Petitioner had sublet the premises to one Ram Kumar Yadav. The Petitioner took up the plea that the sub -letting was done under a written consent of the then landlord who was one Parkash Chand, Advocate. While the petition was pending before the learned Rent Controller, an application was moved by the Respondent landlord that the defence of the Petitioner be struck off as he was negligent in producing necessary documents. This application was moved on 9th March, 1971, and the learned Rent Controller decided the said application on 5th of May, 1971 holding that the Petitioner was debarred from producing the necessary documents. Against that order made by the learned Rent Controller the Petitioner filed an appeal before the appellate authority and the appellate court vide its order dated 4th August, 1971, allowed the appeal and directed that the Appellant -tenant be permitted to produce documents "pertaining to alleged written consent by summoning the relevant witness/witnesses in this connection to which effect process shall be obtained by him". Thereafter, the case was sent back to the learned Rent Controller. An opportunity seems to have been given to the present Petitioner and he did summon the witnesses. Parkash Chand was accordingly examined by the Petitioner and his statement was recorded on commission. Thereafter, several adjournments were given in the case for one reason or the other. Finally on 25th August, 1972, the learned Rent Controller found that the Petitioner -tenant was prolonging the proceedings and did not in fact intend producing any evidence, and hence he refused permission to the Petitioner to lead secondary evidence to prove the said written consent for subletting. According to the learned Rent Controller, secondary evidence could not be led in the case and whatever proposal was made by the Petitioner -tenant was an afterthought and the real purpose was to prolong the proceedings. Against that order of the learned Rent Controller, the Petitioner -tenant has come up to this Court under revision.

(2.) Under Sec. 21(5) of the Himachal Pradesh Urban Rent Control Act, 1971, the High Court is no doubt enabled upon an application of any aggrieved party to call for and examine the record relating to any order passed or proceedings taken under the Act, for the purpose of satisfying itself as to legality or propriety of such order or proceeding. It goes without saying that this Court while exercising jurisdiction in revision will require a more strict proof for interference than what it can otherwise do had it been an appeal before the court. As evident from the Sec. itself the power to be exercised is discretionary and it can be exercised only in a case where legality or propriety of such order or proceeding is involved meaning thereby that the order is either manifestly incorrect or illegal so that it can be held to be devoid of any merit. In other words, interference will only be made in a case of miscarriage of justice. It will not be a proper exercise of revisional jurisdiction if merely an error of law or procedure is pointed out and it would not be a valid argument that upon the facts and circumstances made out any other court could have taken a different view than what has been taken by the court below. As pointed out by their Lordships in Sant Ram v/s. Mekhu Lal and Co., 1968 DLI 299, it is undoubtedly true that the power of the High Court under this provision are much larger than those exercised under Sec. 115 of the Code of Criminal Procedure but its wide scope not with standing a revision proceeding cannot be equated with a first appeal so as to leave open any disputed question of fact or law. Therefore, the facts and circumstances of the case are required to be adjudged with a view to find out, as to whether a manifest error has been committed by the learned Rent Controller when he refused to admit secondary evidence of the alleged written consent.

(3.) In order to arrive at a finding in this regard, certain facts need to be noticed. In his written statement it was no doubt pleaded by the Petitioner that a written consent was obtained of the landlord for sublet ling. In a proceeding before the Rent Controller on 30th October, 1970, the Petitioner -tenant specifically gave out that the said written consent was in his possession and he could produce that in the court. It is therefore evident from the allegation made in the written statement as well as from the statement made by the Petitioner -tenant on 30th October, 1970, that it was never his case that a particular clause existed in the lease deed itself which permitted him to sublet the premises. It has been stated by the learned Counsel for the Petitioner that the statement which existed in the pleadings as well as the statement recorded on 30th October, 1970, were very much in the notice of the appellate authority when the order dated 4th August, 1971, was made and an opportunity was granted to the Petitioner -tenant to produce documents pertaining to such written consent. Be that as it may, nevertheless these two circumstances would be very much material at this stage also in order to arrive at a finding as to whether a written clause did exist in the lease deed for enabling the tenant to sublet the premises. Unless this fact is established by the Petitioner -tenant, in my opinion, he would not be entitled to give secondary evidence of that written clause in the lease deed.