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Judgment
B.S. Verma, J.—By means of this petition, the petitioner has sought writ of certiorari for quashing the order dated 12.05.2009 passed by learned Additional District Judge/F.T.C. IV, Dehradun in Civil Appeal No. 137 of 2008 as well as order dated 13.08.2008 passed by Prescribed Authority/First Additional Civil Judge (Senior Division), Dehradun in P.A. Case No. 32 of 2005, by which the release application filed by the applicant (respondent No. 1 herein) was allowed and the Opp.party/petitioner was directed to vacate the disputed premises within a period of five months and further to pay Rs. 720/- as damages to the applicant within a period of one month.
The facts of the case, in brief, are that the respondent No. 1/landlord had filed an application u/s 21 (1) (a) of the Uttar Pradesh Urban Building (Regulation of Letting, Rent & Eviction) Act, 1972 for release of entire first floor of suit property bearing No. 86/1 Moti Bazar, Nahar Wali Gali, Dehradun which was initially a joint family property and by way of family partition between the family members in the year 1997 it came in the share of applicant. The father of the petitioner took it on rent and thereafter the petitioner continued on rent. The need that had been set up by the applicant in the release application is that he bonafidely requires the suit property under tenancy for his use and occupation and for his family members which consisted of respondent, his wife, his son (Anuj Jain) and his divorced daughter (Sarika) alongwith grand daughter (Baby Niharika).
The release application was contested by the petitioner alleging that respondent No. 1 was not his landlord or owner of the property and in fact it is respondent No. 2 who was his landlord and receiving rent from him. It was also pleaded by the petitioner in the written statement that there is no family partition between the family members of the respondents as they have not filed any document to prove the same. It was also pleaded that the need of the respondent No. 1 was not bonafide and the application was filed on frivolous grounds only to evict the petitioner.
The Prescribed Authority/Additional Civil Judge after hearing the arguments and considering the evidence on record, released the accommodation in favour of the applicant/landlord (respondent No. 1 herein) on 13.08.2008 on the ground that the need of the landlord is bonafide. Aggrieved by the said order, the petitioner filed appeal before the District Judge.
The learned Additional District Judge has come to the conclusion that the need of the respondent is bonafide and genuine and in comparison to tenant the comparative hardship is greater of the landlord/respondent No. 1 and dismissed the appeal. Feeling aggrieved, the tenant has come up with this writ petition.
Learned Counsel for the petitioner has placed reliance to a case law, Chittur Service Co-operative Bank Ltd. v. Kumaran reported in Current Civil Cases III 1992(1) KHC 512. In the said case the provisions of Hindu Succession Act were involved. The said case law does not help the petitioner in any manner. In the said case there was a lis between the brothers and the question whether property obtained in partition of joint family properties constitutes his separate and individual property or the properties of the joint family was involved. He further placed reliance to a case law Sk. Sattar Sk. Mohd. Choudhari Vs. Gundappa AMabadas Bukate, . In the said case law the Hon''ble Apex Court has laid down that the tenant cannot object to such partition although he can show that partition was not bonafide where there is partition between joint lessors or co-lessors and suit for eviction filed by co-lessor to whose portion leased property fell on partition. The facts of this case are entirely different to the facts of case in hand. Hence, it is not applicable in the case of petitioner. It is pertinent to mention here that no such plea was ever taken before the Prescribed Authority as well as the appellate court that no partition had ever taken place between the family members. The respondent No. 2 (father of respondent No. 1) and other brothers have not raised any objection against the said partition. The petitioner/tenant cannot raise such plea at this stage.
The scope of writ jurisdiction under Articles 226 and 227 of the Constitution of India is limited. This Court in exercise of writ jurisdiction cannot sit like a court of appeal and cannot re-appreciate or reevaluate the evidence so as to arrive at a different conclusion. Only perversity in the impugned orders can be seen to find out whether there is a case of mis-reading of evidence by the courts concerned. The Hon''ble Apex Court has observed in the case Surya Dev Rai Vs. Ram Chander Rai and Others, , as under:
On the other hand, supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does not have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
In the case Ranjeet Singh Vs. Ravi Prakash, the Apex Court has observed, inter alia, in paragraph-4 of the judgment, as under:
An error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulging in re- appreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal.
In view of the law laid down by the Apex Court in the aforesaid cases and in view of bonafide need of the respondent No. 1, the finding of fact cannot be interfered in the writ jurisdiction.
In the present case there is concurrent finding of fact on the point of bonafide need and comparative hardship recorded by the Prescribed Authority as well as learned Additional District Judge in appeal. From a bare perusal of the judgment and order passed by the learned appellate court, it is obvious that the evidence led by both the parties have been elaborately dealt with on the point of bonafide need and comparative hardship. The contentions made by the learned Counsel for the petitioner are rejected and the writ petition is dismissed.
Learned Counsel for the petitioner submits that two years'' time may be granted to the petitioner to vacate the premises. Considering the condition of the family of the petitioner, he is granted one year''s time from today to vacate the disputed premises. The petitioner shall file an undertaking before the Prescribed Authority within eight weeks from today to the effect that he will vacate the disputed premises and will hand over the peaceful possession of the same to the landlord/respondent No. 1 within one year from today. If the petitioner failed to file the undertaking before the Prescribed Authority within the aforesaid period, the respondent No. 1 would be at liberty to get the impugned order of Prescribed Authority executed.
(Stay application No. 4465/2009 stands disposed of accordingly.)